Almost all of the jurors' requests sincethey began deliberations have been for evidence concerning Peter Bacanovic.
By Associated Press
Published March 5, 2004
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 homemaking maven.
But jurors completed their second day of deliberations without reaching a verdict against Stewart or broker Peter Bacanovic. They were to resume deliberations this morning.
In a note to the judge, jurors asked about a charge that Bacanovic committed perjury when he told investigators he left a message for Stewart on Dec. 27, 2001, that simply gave the price of ImClone Systems stock.
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, and prosecutors say it should be counted separately.
Cedarbaum indicated she believed the evidence was enough, but she said 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 they 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 more than $225,000.
Earlier Thursday, the jurors asked to review other testimony on what Bacanovic told the SEC in two interviews - Jan. 7 and Feb. 13, 2002.
An SEC attorney has testified that in the first interview, which was not taped, Bacanovic claimed he spoke to Stewart on the day she sold her stock. Bacanovic's assistant, Douglas Faneuil, actually handled the sale.
Bacanovic backed away from his claim in the follow-up interview Feb. 13, and his lawyers have questioned the accuracy of the SEC attorney's recollection about the initial interview.
Claiming he had spoken with Stewart is an element of the charge against Bacanovic of lying to investigators - separate from the perjury count.
The jurors also asked Thursday to see documents related to tax planning that Bacanovic did for the homemaking mogul in late 2001.
FIRST LOSING YEAR FOR OMNIMEDIA: Martha Stewart Living Omnimedia Inc. swung to a profit in the fourth quarter but reported its first annual loss Thursday as the legal problems of its founder continued to take their toll on the company.
Chief executive Sharon Patrick told investors on a conference call that the company was making contingency plans for a future without Stewart and could still thrive without her.
"We assure you that we have done the appropriate contingency planning," Patrick said. "We are well-positioned to weather the storm. ... We are, by now, Team Tough."
The multimedia company, which produces magazines, TV programs and merchandise, posted net income of $4.6-million, or 9 cents per share, for the fourth quarter of 2003. That compares with a loss of $2.0-million, or 4 cents per share, in the year-ago period. Revenues fell 9 percent to $70.9-million from $77.6-million in the year-ago period.
On a per-share basis, the fourth-quarter results were 2 cents per share better than analysts were expecting, according to Thomson First Call. However, the company's shares were off 43 cents to close at $14.03 on the New York Stock Exchange.
For the full year, the company reported a net loss of $2.8-million, or 6 cents per share, versus a profit of $7.3-million, or 15 cents per share, in 2002. Full-year revenues fell 17 percent to $245.8-million from $295-million.
THE HEART OF THE PERJURY CHARGE
There are two different accounts of a phone message broker Peter Bacanovic left for Martha Stewart on Dec. 27, 2001, the day she sold ImClone Systems stock. Jurors are considering a count of perjury against Bacanovic that accuses him of lying in sworn testimony to the Securities and Exchange Commission on Feb. 13, 2002, about the message.
Message as recorded by Stewart assistant Ann Armstrong:
"Peter Bacanovic thinks ImClone is going to start trading downward."
She later testified Bacanovic never mentioned the stock price in his message, and that she would have included it in her computer log if he had.
Excerpts from Bacanovic's SEC testimony:
Q: "And you specifically told (Armstrong) that ImClone stock was dropping?"
A: "No. We just gave her the price of the stock."
Q: "When you called (Armstrong), can you just try and think, to be as specific as possible, when you asked her to ask Ms. Stewart to please call you back, did you say, "It's urgent, call me back immediately'? Something like that?"
A: "No. I said, "I would like to speak with her, if possible, today and regarding ImClone and the current price of the stock is.' Understanding that she is in transit and that she sometimes is very, very hard to reach."
