NEW YORK — Michael Milken prepared to appear in court and plead guilty today to six felony counts after prosecutors and lawyers for the former Drexel Burnham Lambert junk bond chief completed the last details of his plea agreement Monday.
Milken, 43, is due to formally admit the criminal violations of securities laws to U.S. District Judge Kimba Wood in Manhattan. He will then almost certainly remain free on bail until he is sentenced, probably in a couple of months.
As reported, the accord calls for Milken to pay an unprecedented $600 million in fines and civil penalties. Sources confirmed Monday that $200 million will actually go to criminal fines and Securities and Exchange Commission penalties. The remaining $400 million will go into a special fund to pay judgments in successful private lawsuits filed against Milken by individuals or companies that were harmed by his illegal activities. Any money left over after all claims are paid would eventually revert to the government.
Sources said all of the six counts related to "regulatory violations"--violations of SEC rules about disclosure and keeping accurate records--and tax law violations. None has to do with insider trading or more serious crimes. Lawyers involved in the case said this probably would have the effect of limiting the damage that the guilty plea will do to Milken in the many pending civil lawsuits. Milken would still be liable to pay any judgments that exceeded the $400 million in the fund.
Milken faces a maximum of 28 years in prison, although attorneys in the case believe that it is unlikely that he will be sentenced to more than five years.
Milken's agreement to give only limited cooperation to the government in continuing investigations is expected to draw criticism from some members of Congress and regulatory authorities, who had hoped that the former Drexel executive would be required to share everything he knows. In particular, the SEC believes that Milken has direct knowledge of fraudulent activities at several savings and loans that have failed or are in deep trouble. However, several congressmen said through spokesmen Monday that they wouldn't comment on the settlement until after details of the agreement are formally released today.
Sources confirmed that Milken wasn't required to sign a legal document called a "proffer," in which defendants who make a deal with the government legally commit themselves to testifying to a list of specific facts about specific individuals. Other defendants in the series of investigations that led to Milken's prosecution were required to sign proffers, including former stock speculators Ivan F. Boesky and Martin Siegel.
The cooperation issue was said to have been one of the most difficult in the long negotiations that led to the plea agreement, with Milken strongly opposing any specific commitment to testify about former colleagues and clients.
Sources pointed out Monday, however, that the government now will be free to seek wide-ranging information from Milken's brother, Lowell, 41, by compelling him to testify before a grand jury or make him testify under oath in SEC depositions. Lowell was also a senior executive in Drexel's Beverly Hills office.
Lowell is believed to have detailed knowledge of much of the wrongdoing the government is interested in, although his lawyer, Michael Armstrong, has consistently denied that. As part of the plea agreement, all charges against Lowell will be dropped once Michael Milken is sentenced. The Milken brothers and former Drexel trader Bruce L. Newberg had been named in a 98-count racketeering and securities fraud indictment returned in March, 1989.
While Lowell was under indictment, the government from a practical standpoint couldn't call him before a grand jury or depose him in civil lawsuits because he could simply invoke his Fifth Amendment rights against self-incrimination.
Armstrong refused to comment on Monday. One source confirmed, however, that there is nothing in Michael Milken's plea agreement that would prevent Lowell from having to testify fully before a grand jury. "He will have to do whatever any other citizen would have to do when called before a grand jury," the source said.
Michael Milken's plea agreement, however, is said to specify that Michael won't be required to give prosecutors information under oath. He may be interviewed extensively by investigators after he is sentenced, and if he doesn't tell the truth he might be found in violation of his plea agreement or a federal law that forbids making false statements to government officials. But he apparently will be under no obligation to share everything he knows about cases the government is interested in.
The agreement with prosecutors includes a settlement of separate civil charges filed in 1988 by the SEC. Under the settlement, both brothers will be banned for life from the securities industry.