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Ex-Tyco Executives Convicted
In Retrial, Former CEO, CFO Found Guilty of Stealing Millions

By Ben White
Washington Post Staff Writer
Saturday, June 18, 2005

NEW YORK, June 17 -- A Manhattan jury on Friday convicted former Tyco International Ltd. chief executive L. Dennis Kozlowski and former chief financial officer Mark H. Swartz on multiple counts of looting the company, handing prosecutors a big win in their crackdown on corporate crime and concluding a legal drama that stretched across two trials and three years.

After 11 days of deliberations, the jury of six men and six women found Kozlowski and Swartz guilty of criminal counts of grand larceny, conspiracy, securities fraud, and eight of nine counts of falsifying business records. Kozlowski, 58, and Swartz, 44, displayed little emotion as the jury foreman announced their fate. Kozlowski's wife, Karen, wiped back tears.

Over three years, the Tyco case came to symbolize an era of corporate greed, with vivid details of the $6,000 shower curtain that hung in Kozlowski's $31 million Fifth Avenue apartment and the $2.2 million party for Kozlowski's wife on the island of Sardinia in 2001.

On Friday, Kozlowski slipped out of court through a rear door, declining to comment as he pushed through a crush of cameras.

Through their lawyers, both men said they would appeal. "This is a day of disappointment," Kozlowski's lead attorney, Stephen E. Kaufman, said outside the Lower Manhattan courthouse. "I can assure you we are going to appeal this verdict." Charles A. Stillman, an attorney for Swartz, said, "We are disappointed, and we will deal with this on appeal."

The two men face up to 25 years in prison on the most serious charge of grand larceny. The State Supreme Court justice overseeing the case, Michael J. Obus, set a sentencing hearing for Aug. 2. Obus said both men could remain free on bail, denying a request from prosecutors that they be taken into custody.

The convictions represent a major victory for Manhattan District Attorney Robert M. Morgenthau, who first brought charges against Kozlowski in 2002 and is facing his first significant reelection campaign in decades.

"This verdict is an endorsement of the principle of equal justice under the law," Morgenthau said in a written statement. "Crimes committed in corporate offices will be treated according to the same standards as other crimes."

The win vindicated a change in strategy by Morgenthau's office in the second trial. Prosecutors tightened their case and spent far less time on Kozlowski's extravagant lifestyle. "Prosecutors learned their lesson, put their case on a diet and got the convictions they were looking for," said Joseph A. Grundfest, a Stanford University law and business professor .

In interviews after the first trial, jurors said the racy details had little bearing on their deliberations. Jurors in the second case left the courthouse together on Friday and declined to speak to reporters. Several jurors did not respond to phone messages left at their homes on Friday evening.

The convictions come at a pivotal and difficult moment in the government's three-year-old effort to punish corporate wrongdoing. Among other recent setbacks, the U.S. Supreme Court last month overturned the criminal conviction of Arthur Andersen LLP, Enron Corp.'s accounting firm.

In Birmingham, a jury continues to struggle to reach a verdict in the criminal trial of former HealthSouth Corp. chief executive Richard M. Scrushy, the first major case to cite a violation of the 2002 Sarbanes-Oxley corporate reform law, which requires corporate leaders to vouch for the accuracy of financial statements. The jury ended its 16th day of deliberations Friday.

Despite the setbacks, Kozlowski and Swartz join a lengthening roster of corporate convicts. Former WorldCom Inc. chief executive Bernard J. Ebbers was convicted earlier this year and awaits sentencing. Martha Stewart has already served her prison term and is under house arrest.

Former Enron Corp. executives Kenneth L. Lay and Jeffrey K. Skilling await trial on criminal charges next year.

Former prosecutor David Gourevitch said the Tyco result indicates that juries are willing to convict in highly complex corporate cases and to hold executives accountable for behavior that may once have seemed acceptable.

"I think what you get out of this is the imposition of a very high standard of behavior on corporate executives," Gourevitch said. He said the case was not one in which most of the allegedly criminal behavior was deeply hidden from public view. Instead, he said, "it was a case in which everything was pretty much out in plain sight. . . . The message to executives from this ought to be that if it doesn't feel right, it isn't right." Gourevitch called the verdict "hair-raising" for defense lawyers.

It was the second criminal trial for Kozlowski and Swartz, who were accused of stealing $170 million from Tyco by abusing corporate loan programs and taking unauthorized bonuses and taking $430 million more by selling stock at prices artificially inflated by their misstatements about the company's finances.

The first case ended in a mistrial in April 2004 after several news organizations published a juror's name during deliberations and the juror told Obus that she had received a threatening letter and phone call.

After the first trial, jurors said in interviews that the juror, Ruth Jordan, was the lone holdout for acquitting both men on a number of charges. Jordan was in the courtroom through much of the second trial and was in attendance taking notes as the verdict was read on Friday.

In a telephone interview after the verdict, Jordan said she was surprised at the result and continues to believe Kozlowski and Swartz did not act with criminal intent. "My own opinion is that I still think they are not guilty," she said. "But I have to be sure to say that this is a new jury, and they are entitled to their own verdict. I still believe in the jury system."

The verdict marks the low point for Kozlowski, a once high-flying chief executive who built Tyco into one of the world's largest companies through an eclectic series of acquisitions across a variety of industries, including undersea telecommunications systems, financial services and electronic security.

In the same period, Kozlowski emerged as among the most imperial in an era of imperial chief executives, dominating his company, winning enormous pay and bonus packages, and freely spending company money on personal luxuries. Kozlowski also became known for a swashbuckling lifestyle that included driving a Harley-Davidson, flying helicopters and racing yachts.

Kozlowski's rapid fall began on June 3, 2002, when he abruptly resigned after telling members of Tyco's board that he was the subject of a tax evasion investigation by the New York City district attorney's office. He was indicted the next day on charges of dodging more than $1 million in sales taxes on valuable works of art, including paintings by Renoir and Monet. He faces a separate trial on the tax charges.

The tax evasion charges proved to just be a prelude to a much larger indictment of both Kozlowski and Swartz on Sept. 12, 2002, on fraud and larceny charges.

Tyco itself, meanwhile, has largely emerged from beneath Kozlowski's shadow, moving its domestic corporate headquarters from New Hampshire to West Windsor, N.J., and installing new directors and management. After dropping as low as $8.25 in July of 2002 in the height of the scandal, Tyco's stock has rebounded. Shares in the company closed at $31 on Friday, up 9 cents, or 0.3 percent, on the day.

In a prepared statement, Tyco spokesman David Polk said, "As the victim of the crimes that were prosecuted, Tyco looks forward to receiving back the money that was improperly taken from Tyco. We will continue to pursue our own civil actions against Mr. Kozlowski and other former company officials.

Staff writer Dean Starkman and staff researchers Richard Drezen, Meg Smith and Karl Evanzz contributed to this report.

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