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Tuesday, March 9, 2004

Tyco charges won't stick, ex-CFO's lawyer tells jury



By Samuel Maull
The Associated Press

NEW YORK - After five months of testimony, jurors began hearing closing arguments Monday in the trial of two former top executives at Tyco International Ltd. who are accused of looting the conglomerate of $600 million.

Charles Stillman, a lawyer for former Tyco finance chief Mark Swartz, began his summations by telling jurors that prosecutors have not come close to proving Swartz's guilt, "not one thimble full of proof that Mark Swartz committed a crime."

"They threw a lot of charges against the wall, hoping some would stick," Stillman added. "Well it didn't work. A 10-pound slab of clay is just that, a 10-pound slab of clay."

Swartz and former CEO L. Dennis Kozlowski are charged with grand larceny, falsifying business records and violating state business laws. The grand larceny charge - a "mega-larceny" under state law since it alleges theft of more than $1 million - is punishable by up to 25 years in prison.

The jury was expected to get the case later this week.

On 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, alleges the two men created an organization specifically to commit crimes.

Kozlowski said outside court Friday that the judge's dismissal of the charge was "a positive" thing, but said he remained uneasy. "Of course I'm nervous," he said.

Prosecutors say Kozlowski and Swartz stole $170 million from Tyco by hiding unapproved pay and bonuses and by abusing loan programs.

The defendants are also accused of illegally making another $430 million by pumping up the value of Tyco stock through lies about the company's finances from 1995 to 2002.

In his closing arguments, Stillman said Monday that the evidence shows Swartz's bonus plan was entirely consistent with the way it was applied throughout his tenure at Tyco.

"They are not larcenies," he told the jury.

Lawyers for both defendants maintain that Kozlowski and Swartz stole nothing and earned all the money. They say the appropriate people - members of the board of directors, internal and outside auditors - knew about all pay, bonuses or forgiven loans.

Prosecutors say millions of dollars went to finance baronial lifestyles, fund personal investments, and silence some employees who were in positions to expose the defendants. Some of the trial's 47 witnesses and 700-plus exhibits were presented to demonstrate these allegations.

Tyco, which has about 270,000 employees and $36 billion in annual revenue, makes electronics and medical supplies and owns the ADT home security business.

Nominally based in Bermuda, its operations headquarters are in West Windsor, N.J.




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