New York— U.S. prosecutors are moving forward with a second trial for Michael Rigas, but lawyers for the former Adelphia Communications Corp. executive argued last week that charges should be dropped.
Former Adelphia executive vice president of operations Michael Rigas was tried along with his brother, former Adelphia chief financial officer Timothy, and father, former Adelphia chairman John, earlier this year on 23 counts of fraud and conspiracy.
While Timothy and John Rigas were found guilty of 18 counts of securities fraud, bank fraud and conspiracy, the jury could not reach a decision as to Michael Rigas's guilt on the securities and bank-fraud counts.
The jury found Michael Rigas not guilty on one count of conspiracy and five counts of wire fraud.
At a pre-sentencing hearing in U.S. District Court for the Southern District of New York Oct. 26, Michael Rigas's attorney, Andrew Levander, argued that by finding his client not guilty of the conspiracy charge, the jury basically said that he could not have participated in the securities fraud.
Federal prosecutors agreed to dismiss the bank fraud charges against Michael Rigas last week, but said they are ready to move forward with retrying him for the remaining 15 counts of securities fraud.
The main issue in retrying Rigas is one of “collateral estoppel,” said Levander. The legal term means that once a court has decided an issue of fact or law, that decision may preclude relitigation of the issue in a different case involving the party of the first case.
Because Rigas was found not guilty of the conspiracy, and the conspiracy was an integral part of the securities fraud case, the government is not allowed to retry him, Levander contended.
Stephen Ryan, a former assistant U.S. attorney and a partner in the Washington, D.C., law firm of Manatt, Phelps & Phillips LLC said the government's desire to retry Rigas might be to get him to plea to a lesser count.
“Here is the standard way that the government uses the potential club of retrial, which is to get agreements that the guy takes a plea — you've got 15 counts, maybe they're trying to get him to take a plea to one,” Ryan said.
Ryan also said trying Mike Rigas alone could be to the advantage of both sides in a new trial.
“Everybody learns a tremendous amount,” Ryan said. “While your evidence doesn't get any better, understanding how that evidence plays to a jury does. Both sides have that advantage.
“Being tried alone has a different dynamic than being tried in a group. Focusing on him alone, he may appear more guilty when he was alone or less guilty when he's alone than he did when he was in a group.”
U.S. District Court Judge Leonard Sand set a Jan. 5 sentencing date for John and Timothy Rigas. But lawyers for those two men argued for acquittals or new trials last Tuesday based primarily on technicalities.
'NO FEDERAL CRIME'
John Rigas's attorney, Peter Fleming, objected to the prosecution's use of evidence that he said pointed to other acts outside the scope of the government's indictment, including spending $6,000 to fly Christmas trees to his daughter's New York apartment.
“That may be inappropriate conduct under state law, but it does not establish a federal crime,” Fleming said.
Fleming said that outside of evidence Rigas used Adelphia funds for his own personal benefit, the government did not prove that the former Adelphia chairman manipulated the MSO's subscriber numbers, falsified 10-K annual reports submitted to the Securities and Exchange Commission or manipulated balance sheet figures in loan agreements to obtain a more favorable interest rate.
“A judgment of acquittal should be entered,” Fleming said. “At the very least, John Rigas is entitled to a new trial.”
Sand said he would rule later on those motions, but gave no specific date.