Martha Stewart does not deserve a new trial since the testimony of a government witness who allegedly perjured himself did not affect the jury's decision to convict her, prosecutors told a federal judge Thursday.
Stewart and her former broker Peter E. Bacanovic are scheduled to be sentenced July 8 for conspiracy, obstruction and lying to federal agents about her December 2001 sale of ImClone Systems Inc. stock. Experts on the federal guidelines said the domestic entrepreneur likely faces a sentence of 10 to 16 months, though part of it could be served in home detention.
But in May, after their convictions, a witness in the case, U.S. Secret Service laboratory director Larry F. Stewart, was arrested and charged with two counts of perjury. Prosecutors say he overstated his role in testing ink on a worksheet provided by Bacanovic, though they contend the analysis about which he testified was correct.
The two defendants then asked U.S. District Judge Miriam Goldman Cedarbaum earlier this month to throw out their guilty verdicts. The defense teams argued that the ink analyst was a member of the prosecution team and that the jury might have reached a different verdict if it had known that Larry Stewart's testimony might not be true.
The U.S. Attorney's Office for the Southern District of New York, which is handling both cases, responded with a 45-page memorandum arguing that Larry Stewart's testimony was largely irrelevant to the guilty verdicts.
"There can be no question that there was independent evidence supporting the counts of conviction," the prosecutors wrote.
The ink testimony centered on a worksheet that Bacanovic said provided documentation of an agreement he and Martha Stewart made to sell ImClone if the stock price fell below $60. Larry Stewart testified that an "@60" notation on the worksheet next to the word "ImClone" was made in a different ink from other markings on the page.
Prosecutors used the analysis to argue that the $60 arrangement was a cover story. They said Stewart sold her shares after Bacanovic's assistant improperly told her that ImClone's founder, Samuel D. Waksal, was trying to unload his shares in the company. Waksal went to prison for insider trading.
Prosecutors said in their motion Thursday that the jury that convicted Bacanovic and Stewart specifically rejected the criminal charges most closely tied to the ink testimony. Bacanovic was acquitted of making a false document, and the jury did not find that any of Stewart's or Bacanovic's statements to authorities specifically about the $60 arrangement were false.
"Mr. Stewart's testimony had no bearing whatsoever on any of the false statement and perjury specifications that the defendants were convicted of," the prosecutors wrote, adding that Martha Stewart's lawyers declined to cross-examine the ink expert. They also said the defense's ink expert corroborated the substance of Larry Stewart's testimony about the ink in the "@60" notation.
The memorandum said prosecutors had no way of knowing that Larry Stewart had lied, because he misled them before trial about his role in the process. Outside legal experts said this could be a key point, because it is easier for a defendant to get a verdict thrown out based on perjured testimony if the prosecutors were complicit.
The U.S. Attorney's Office declined to comment on the motion. A spokesmen forMartha Stewart also declined to comment. Bacanovic's defense team said through a spokesman they were unable to respond to a request for comment until they had a chance to read the filing.
Cedarbaum has not said when she will rule on the request for a new trial. She has already delayed the sentencing date once to allow the defendants to file motions based on Larry Stewart's arrest. The judge earlier denied motions for a new trial based on allegations that one of the jurors failed to disclose his own brushes with the legal system.