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U.S. District Judge David Hittner of Houston will wait until Lea Fastow, the wife of former Enron Corp. CFO Andrew Fastow, is sentenced before deciding if he will dismiss five other charges against her. Fastow, a former assistant treasurer at Enron, pleaded guilty on Jan. 14 to one count of filing a false tax return. On the same day, her husband pleaded guilty to two conspiracy charges. In a Tuesday ruling, Hittner wrote that it would be “prudent” to wait until Lea Fastow is sentenced in April before he addresses a prosecution motion to dismiss without prejudice the other charges against her. At a hearing on Jan. 14 where Fastow pleaded guilty to the single charge, Hittner declined a request from federal prosecutor Linda Lacewell to dismiss the other five charges. Hittner said at that hearing he wasn’t persuaded that he needed to dismiss the charges before Fastow is sentenced, and he was fearful that it would lead to delays in a trial for the mother of two if she chooses to withdraw her guilty plea and go to trial. Fastow could withdraw her plea if Hittner, after he reads her pre-sentence report, rejects the plea agreement Fastow’s lawyer negotiated with federal prosecutors and imposes a longer prison term. The plea calls for Fastow to serve five months in prison and another year of supervised release, with five of those months under house arrest. In his “Order on Unopposed Motion to Dismiss Counts Without Prejudice,” Hittner wrote Tuesday that it would be best to defer the motion until after he and the parties review the pre-sentencing report and the parties have an opportunity to make objections to it. “The Court further finds that no prejudice will occur to Defendant by deferral of this motion until the time of sentencing,” Hittner wrote in the order. At the hearing on Jan. 14, Hittner expressed surprise with the timing of the motion, and he invited prosecutors from the Enron Task Force and Fastow’s defense lawyer, Mike DeGeurin of Houston, to submit briefs on the issue. Fastow’s lawyer, DeGeurin, a partner in Foreman, DeGeurin & Nugent, was not immediately available for comment Tuesday. Leslie Caldwell, director of the Enron Task Force, declines comment. Hittner wrote in the Jan. 27 order that Federal Rule of Criminal Procedure 48(a) states that the government may dismiss an indictment, information or complaint with permission of the court. But he noted that the leave-of-court requirement allows judicial discretion. Hittner wrote that several opinions cited by prosecutors or DeGeurin in their briefs that support the dismissal motion are “factually distinguishable” from Lea Fastow’s situation. According to Hittner, the cases are distinguishable because they involve dismissal of an entire indictment against a defendant or personal cooperation with the government by the government, or were made at the time of sentencing or after it. The cases include United States v. Jacobo-Zavala, an 8th U.S. Circuit Court of Appeals decision from 2001; United States v. Gonzalez (1995), a 9th Circuit decision; United States v. Smith, a 4th Circuit opinion from 1995; United States v. Hamm (1981), a 5th Circuit decision; and United States v. Cowan, a 5th Circuit decision from 1975.

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