Fastow statements could favor defendants

Former Enron Corp. finance chief Andrew Fastow apparently wasn't explicitly clear about a secret promise to buy back Nigerian barges that Enron booked as "sold" in late 1999, according to information he has provided to federal prosecutors.

The government revealed that information this week to attorneys who represent six defendants _ two former Enron executives and four former Merrill Lynch & Co. executives scheduled to go on trial Monday on charges of helping push through the sham sale so the energy company would appear to have met earnings targets.

For months, defense lawyers have been demanding that prosecutors turn over information that could potentially help their clients. Prosecutors are obligated to turn over such material so defense attorneys can adequately prepare their cases for trial.

According to the information defense attorneys received, Fastow told federal investigators he was less than clear about the certainty of a buyback, which is central to the conspiracy charges against the defendants. Defense attorneys said information provided by prosecutors shows Fastow didn't use the words "guarantee" or "promise" when talking about the deal.

Fastow also told investigators he didn't remember if one of the defendants, former Enron finance executive Dan Boyle, participated in the deal. Boyle was on Fastow's staff.

Boyle's attorney, Bill Rosch, said Thursday the government should have made this information available to the defense earlier, particularly when those attorneys have repeatedly requested it in and out of court.

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"The greatest currency a white collar criminal defendant has is time to prepare a complicated case. And with last-minute disclosures like this, they've taken that time away from them and it's fundamentally unfair," Rosch said.

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Bryan Sierra, a spokesman for the Department of Justice, said the information Fastow provided to the government isn't the type of material prosecutors are obligated to turn over to defense attorneys. He said the government handed it over anyway "out of an abundance of caution."

Prosecutors do not intend to call Fastow to testify during the trial, according to their witness list.