- The Washington Times - Monday, March 8, 2004

NEW YORK (AP) — The defense attorney for the former chief financial officer of Tyco International Ltd. told a jury yesterday there was “not one thimble full of proof” that Mark H. Swartz had looted the conglomerate of hundreds of millions of dollars.

“They threw a lot of charges against the wall, hoping some would stick,” Charles Stillman said in closing arguments. “Well, it didn’t work. A 10-pound slab of clay is just that, a 10-pound slab of clay. Don’t confuse volume with substance.”

Mr. Swartz and former CEO L. Dennis Kozlowski are accused of stealing $170 million from Tyco by hiding unapproved pay and bonuses and by abusing loan programs. They also are accused of illegally making $430 million by pumping up the value of Tyco stock through lies about the company’s finances from 1995 to 2002.

Mr. Stillman maintained that after five months of testimony prosecutors had not come close to proving Mr. Swartz’s guilt.

Mr. Swartz and Mr. Kozlowski are charged with a total between them of 32 counts of grand larceny, falsifying business records and violating state business laws. The grand larceny charge — a “mega-larceny” under state law since it makes an accusation of theft of more than $1 million — is punishable by up to 25 years in prison.

Mr. Kozlowski’s attorney, Stephen Kaufman, was expected to begin his summations today. The prosecution was to present its final arguments tomorrow, and the judge said the jury could get the case Thursday.

Last Friday, State Supreme Court Justice Michael Obus threw out a count of enterprise corruption, one of the most serious against the two defendants. That charge, punishable by up to 25 years in prison, accused the two men of creating an organization specifically to commit crimes.

Mr. Kozlowski said outside court Friday that the judge’s dismissal of the charge was “a positive” thing, but that he remained uneasy.

“Of course I’m nervous,” he said.

The enterprise corruption statute was modeled after the federal RICO (Racketeer Influenced Corrupt Organizations) law, often used to prosecute organized crime gangs.

Before a jury yesterday, Mr. Stillman argued that the evidence shows that all of the bonuses Mr. Swartz received were entirely consistent with the way Tyco applied its bonus plan for executives throughout his tenure at the company.

“They are not larcenies,” he told the jury.

Mr. Stillman, stressing what he said was Mr. Swartz’s forthrightness, cooperation and candor, sought to make some of the prosecution’s witnesses his own by showing that some of their testimony was consistent with Mr. Swartz’s.

To counter his client’s lack of records to prove that the board of directors approved certain bonuses and loan forgiveness programs, Mr. Stillman recalled that board member Peter Slusser testified minutes were not always taken at meetings.

However, Mr. Stillman said, Mr. Slusser said he kept his own notes in at least 30 Tyco meetings. The lawyer displayed for the jury notes by Mr. Slusser that seemed to indicate the board had dealt with bonus issues, just as Mr. Swartz testified.

Mr. Stillman and lawyers for Mr. Kozlowski maintain that the defendants stole nothing and earned all the money he received. They also say all the appropriate people — members of the board of directors, internal and outside auditors — knew about all pay, bonuses or forgiven loans the two received.

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