To: Kenneth E. Phillipps who wrote (685236 ) 6/9/2005 6:10:27 PM From: Hope Praytochange Read Replies (1) | Respond to of 769667 Eliot Spitzer Tastes Defeat in Court With Broker's Acquittal By RIVA D. ATLAS and JENNIFER BAYOT A former broker with Bank of America was acquitted today of most charges that he aided in the improper trading of mutual funds, handing Eliot Spitzer, the New York attorney general, his first major legal defeat in his crackdown on Wall Street. The broker, Theodore C. Sihpol III, had been accused of enabling a hedge fund manager, Edward J. Stern of Canary Capital Partners, to trade in mutual funds after hours, pocketing tens of millions of dollars illegally. It was a tip about those trades that in 2003 initiated a broad investigation of the mutual fund industry by the New York attorney general and the Securities and Exchange Commission. That investigation has led to a dozen settlements with executives and fund companies, extracting nearly $3 billion in fines, restitution to investors and fee reductions. Mr. Sihpol, while a relatively low-level figure among those investigated, was the first executive to be brought to trial. His case was the first major test of Mr. Spitzer's office in a courtroom; the attorney general has made his name largely on big, groundbreaking settlements over abuses in financial services, positioning himself as a candidate for governor. His critics seized on the defeat today. "This jury of New Yorkers exposes Spitzer as a politician whose ambition has steamrolled too many hardworking men and women of our state," Stephen Minarik, New York State Republican chairman, said in a statement today. "Looks like the so called 'Sheriff of Wall Street' had a gun full of blanks." Darren Dopp, Mr. Spitzer's communications director, said the verdict needed to be put in perspective. "Yes, we lost this case, and it's disappointing," he said. "But you have to see it in the context of sweeping reforms, more than $3 billion in restitution and six guilty pleas." A New York Supreme Court jury in Manhattan found Mr. Sihpol not guilty on 29 of the 33 counts against him, including larceny and securities fraud. Jurors were deadlocked on the four remaining counts, including conspiracy to defraud, and Justice James Yates declared a mistrial on those charges. Mr. Sihpol and prosecutors will convene on June 23 to discuss whether to retry him on the remaining charges, to dismiss them or to reach a settlement. During Mr. Sihpol's six-week trial, the focus was not on whether he arranged for Mr. Stern to trade after hours, but whether he was in fact aware that those trades were wrong. "You must be satisfied beyond a reasonable doubt that Mr. Sihpol actually engaged in conduct which intentionally aided that other person, Stern, Canary, Lerner, to perform the acts which constitute the crime charged," Judge Yates said.Harold Wilson, the lead prosecutor, said in his closing argument on June 2 that "Most of the evidence is undisputed" and told jurors: "Your focus is on what the defendant intended." Mr. Sihpol, 37, began working at Bank of America in December 2000 as a broker in its New York private client services group. A month later, he cold-called Mr. Stern, and by May 2001 he was arranging for Mr. Stern to make after-hours trades in and out of mutual funds. Mr. Stern ended his trading with Bank of America in July 2003, and Canary Capital Partners has gone out of business. Throughout the trial, Mr. Sihpol's lawyers portrayed him as an inexperienced, junior employee of the bank, and argued that other executives at Bank of America were aware of Mr. Stern's trading arrangements. "There is no trickery by Mr. Sihpol," his lawyer, Paul Shechtman, said in his closing arguments.