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Prosecutors have decided not to pursue the reinstatement of charges of enterprise corruption against former Tyco International Ltd. executives L. Dennis Kozlowski and Mark H. Swartz, abandoning a position taken two months ago. Both the prosecution and defense had assumed that Manhattan Supreme Court Justice Michael Obus tossed the count permanently in March, when he did not submit it to the jury. That trial ended in a mistrial in April. But the charges resurfaced in a July 16 conference call, when Obus’ law secretary told the parties that, given the mistrial, state criminal procedure law might permit the count to be revived when the new trial begins in January. In a July 21 letter, the Manhattan district attorney’s office stated its intent to prosecute anew the enterprise corruption charge. Modeled on the federal Racketeer Influenced and Corrupt Organization charge, enterprise corruption had been the top count in the original indictment against Kozlowski and Swartz, carrying a maximum prison term of 25 years. On Monday, however, prosecutors told the court they would not pursue the enterprise corruption charge after all. Only 10 days earlier, defense lawyers had filed a motion to dismiss the enterprise corruption charge on both procedural and constitutional grounds. In a letter addressed to Obus, Assistant District Attorney Owen Heimer said including the count in the new trial would create “an unnecessary appellate issue in a case where the other counts provide an adequate scope of imprisonment.” Kozlowski, Tyco’s former chief executive officer, and Swartz, the former chief financial officer, also face charges of grand larceny, conspiracy, securities fraud and falsifying business records for allegedly taking more than $170 million in unauthorized compensation and loans. Grand larceny also carries a sentence of up to 25 years in prison. “Accordingly, the People withdraw their opposition to the defendants’ request to dismiss that count,” Heimer wrote. Obus is expected to dismiss the count formally at the parties’ next meeting. In the prosecution’s earlier letter, Assistant District Attorney Marc Scholl cited �280.20 and �310.60(2) of the Criminal Procedure Law in arguing for the reinstatement of the enterprise corruption count. Both sections state that, in a new trial following a mistrial, the indictment is “deemed to contain all” of the original counts, though �310.60(2) excepts those counts “which were dismissed or were deemed to have resulted in an acquittal.” A problem for the defense was that Obus had not thrown out the enterprise corruption charge at trial based on the defense’s argument that there was insufficient evidence to support it. Rather, he had decided to exercise his discretion to simplify the jury’s deliberations by withholding the count. In August, the judge denied the defense’s motion to have a trial order of dismissal entered. In a Sept. 17 motion to dismiss, defense lawyers James R. DeVita of Bryan Cave and Stephen E. Kaufman, for Kozlowski, and Charles Stillman of Stillman & Friedman, for Swartz, pointed to �300.40 (7) of the Criminal Procedure Law. That section states in part: “Where the court, over the objection of the people, refuses to submit a count which is consecutive as to every other count actually submitted, such count is deemed to have been dismissed by a trial order of dismissal even though no such order was expressly made by the court.” RECENT DECISION They cited the July 8 decision by the Appellate Division, First Department, in People v. A.S. Goldmen, Inc., 9 A.D. 3d 283, which held that enterprise corruption is consecutive to other counts in an enterprise corruption indictment. Thus, the defense lawyers claimed, the enterprise corruption count would fall under the exception to �310.60(2), which they argued took precedence over �280.20. The defense also argued that reinstating the enterprise corruption count would deprive the defendants of their constitutional protection against double jeopardy. “To give the prosecution a second chance to present its case would effectively convert the first trial into a ‘dry run’ on the top count of the indictment,” the defense said in its motion. “Moreover, the prosecution witnesses, some of whom were openly hostile to the defense, will have the opportunity to shape their testimony the second time around in light of their experience at the first trial, maximizing what is harmful to the defense and minimizing what is helpful. That is precisely the type of prejudice the double jeopardy clause was designed to prevent.” DeVita said Tuesday that removing enterprise corruption count from the case could have some impact on case presentation in the retrial. He said it was possible some testimony or evidence might be unnecessary without the enterprise corruption count. The original trial spanned six months and the prosecution in particular was widely criticized for the excessive length of the ultimately inconclusive trial. James Kindler, the chief assistant district attorney, said Tuesday that prosecutors changed their mind after further study of the Goldmen case led them to conclude they were heading for an appellate battle they did not want to fight at this time. “On further reflection, we decided this was the best course,” he said. He also pointed to the prosecution’s desire to consolidate the present case with a separate one charging Kozlowski with sales tax fraud. In the July 21 letter, Assistant District Attorney Scholl noted that, if the court had reinstated the enterprise corruption count, the cases could not have been consolidated because only criminal acts falling within the pattern of enterprise corruption could be separately charged. In his letter Monday, Heimer again asked the court to consider the consolidation motion. Justice Obus declared the Tyco trial a mistrial after one of the jurors was identified in the press as a holdout for acquittal. That juror, Ruth Jordan, was later harassed by outside parties.

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