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A former Bank of America broker, acquitted last month on most counts related to after-hours mutual fund trades, will be retried on four charges on which the jury was unable to reach a verdict, prosecutors said Thursday. Theodore C. Sihpol, 37, was tried on 33 counts arising from what prosecutors said was his illegal mutual fund trading after securities markets had closed. The jury found Sihpol not guilty on 29 counts, and a mistrial was declared on the other four charges. Prosecutors from state Attorney General Eliot Spitzer’s office said they opted to present the remaining charges to another jury after last-ditch efforts to reach a plea deal failed. Negotiations went into the night on Wednesday without resolution, both sides said. “We went some ways to resolve this without a trial, and we didn’t do it,” said Assistant Attorney General Harold Wilson. Sihpol’s lawyer, Paul Shechtman, said his client had no interest in pleading guilty to anything in the case. Another Sihpol lawyer, Barry Felder, issued a statement saying the defense was “shocked by the New York attorney general’s decision to retry Ted Sihpol.” “The attorney general, after being handed an overwhelming loss, seems intent on spending even more taxpayer dollars to criminalize behavior that has never been considered criminal,” Felder said. “Ted Sihpol has been vindicated once, and we are confident that yet another jury will vindicate him again, despite Mr. Spitzer’s extraordinary efforts to prosecute him,” said Felder’s statement. While prosecutors said in court that Sihpol would be retried, Darren Dopp, spokesman for Spitzer, said his office was actually awaiting the outcome of the federal Securities and Exchange Commission’s civil fraud action against Sihpol before deciding whether to press ahead with the retrial. After the SEC action, “We might reconsider our options,” Dopp said. State Supreme Court Justice James Yates set a tentative trial date of Aug. 22 on the four remaining charges. The judge scheduled pretrial motions and oral arguments for Aug. 15. Shechtman said he will ask Yates to bar most of the evidence that was used in the charges on which Sihpol was acquitted on June 9. He cited a doctrine of law which bars the use of evidence that has already resulted in a defendant’s acquittal. Shechtman said he expected the attorney general’s case to “look like Swiss cheese” if his motion, called “collateral estoppel,” is granted. Although acquitted on most of the charges, including a top count of grand larceny, Sihpol remains charged with first-degree scheme to defraud, violation of the state’s general business law (the Martin Act), and two first-degree counts of falsifying business records. Each of those counts is punishable by up to four years in prison. Sihpol was the first defendant tried after a probe of the securities industry by Spitzer. Sihpol’s $750,000 bail was lifted after the verdict was returned and he was allowed to remain free on his own recognizance. Prosecutors alleged that Sihpol helped Canary Capital Partners make $100 million by illegally trading mutual funds shares after securities markets had officially closed. Canary is a hedge fund that handles the fortune belonging to the Stern family, former owners of the Hartz Mountain Industries pet products company. Canary’s top officer, Edward Stern, paid $40 million to settle the attorney general’s case against him for late trading. Stern’s father, Leonard, is the chairman of Hartz Mountain and has an estimated net worth of more than $2 billion. Sihpol was indicted in April 2004 for stealing more than $1 million from a half-dozen mutual funds in trades worth $2.3 billion. Another defense attorney, Evan Stewart, said the trial costs and the damage to Sihpol’s reputation have left his client broke. Sihpol was forced to sell his Connecticut home, and his wife was forced to go back to work instead of raising their 3-year-old son. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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