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Jurors Focus on Stewart's Broker

The panel's requests suggest it is weighing whether co-defendant Bacanovic committed perjury in an interview.

March 05, 2004|From Associated Press

NEW YORK — The Martha Stewart jury indicated Thursday that it was focusing on whether her stockbroker committed perjury in an interview about a phone message he left for the lifestyles entrepreneur.

Jurors completed their second day of deliberations without reaching a verdict against Stewart or broker Peter E. Bacanovic. They were to resume deliberating this morning.

In a note to the judge, jurors asked about a charge that Bacanovic committed perjury when he told investigators that he left a message for Stewart on Dec. 27, 2001, that simply gave the price of ImClone Systems Inc. stock.

Stewart's personal assistant, Ann E. Armstrong, has testified that the message did not include a stock price. On a computer log, Armstrong took the message down as: "Peter Bacanovic thinks ImClone is going to start trading downward."

In the interview, Bacanovic recalled the message this way: "I would like to speak with her, if possible, today, and regarding ImClone and [what] the current price of the stock is."

Bacanovic was under oath during the interview with the Securities and Exchange Commission on Feb. 13, 2002.

Stewart sold the stock on Dec. 27, 2001, avoiding a heavy loss when the company announced the following day that the government had declined to review a key ImClone cancer drug.

To convict a defendant of perjury, jurors must rely on the testimony of at least two witnesses, or on one witness plus a document that supports what the witness said.

Their note to the judge asked whether it was enough to use Armstrong's testimony, plus the message log that Armstrong herself created. "I think the short answer is yes," U.S. District Judge Miriam Goldman Cedarbaum said.

But the question triggered a furious search of previous cases by lawyers in the case. Bacanovic's lawyers say the message log is not enough because it came from Armstrong, while prosecutors say it should be counted separately.

Cedarbaum indicated that she believed the evidence was enough, but she said that she would allow written arguments into the night and rule on the matter this morning.

Because jury deliberations are secret, it was impossible to know whether jurors were focusing exclusively on the perjury charge, or even exclusively on the charges against Bacanovic.

But almost all of the jury's requests to the judge since it began deliberations have been about Bacanovic, including a request for his phone records from Dec. 27, 2001.

Stewart and Bacanovic are each accused of lying about the circumstances of the sale. Stewart dumped all 3,928 of her ImClone shares that day, netting about $225,000.

The pair say they had agreed to sell the stock when its price fell below $60 a share.

The government contends that was a cover story and that Stewart actually sold because Bacanovic ordered his assistant to tell her that ImClone Chief Executive Samuel D. Waksal was trying to sell his shares.

Stewart's lawyer now admits she received the Waksal tip but claims Stewart was accurate when she told investigators in April 2002 that she had no memory of it.

Earlier Thursday, the jurors asked to review other testimony on what Bacanovic told the SEC in two interviews in 2002 -- on Jan. 7 and Feb. 13.

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