Update:

New charges have been added to the indictment, including alleged tips on March 12, 2007 (Goldman Sachs) and Jan 29 (Proctor & Gamble) that led to Galleon trading.

ORIGINAL POST:

You gotta hand it to the government. They know how to do theater.  Except it’s theater of the absurd.

While mafia outfits with…er…skeletons in their closet sail on unscathed; managers – especially brown ones –  who might have talked out of turn are facing the firing squad.

Walter Pavlo in Forbes:

“The government does have a case, but what they do not have is Gupta on tape, or anyone naming Gupta on tape, as being a source of insider information.  The way to sway a jury, beyond the evidence, is to portray the person sitting on trial as either a devil or saint; a devil guilty, a saint innocent.  According the NY Times, during one discussion outside of the presence of the jury on the first day of trial, Naftalis was warned by Judge Jed Rakoff to not get into too much detail about Gupta’s record of philanthropy (saint).  This, Naftalis argued, would go to discredit “greed” as being a factor in the alleged crime. I think it is a fair point.

Rajat Gupta is a good person who came from humble beginnings and rose to be someone who was well respected in the business community.  He should get a fair trial and I believe that will happen. However, the government’s mosaic of Gupta as a source of inside information is countered by a defense of a man of intelligence, character, and integrity. Those fine characteristics of a person should not go away with an indictment alone, they must be tried in court.  I think Gupta has a good chance, but if Raj shows up, all bets are off.”

I started out being unsympathetic to Rajat Gupta, when the government first brought charges against him last year. At the time, I thought he would be one of many top business leaders who would be charged, and that Lloyd Blankfein, Geithner, and others higher up the food chain and more culpable for the financial crisis, would follow.  Now that I’ve seen that Gupta is going to be served up as the main course for the public to devour, I’ve become a bit suspicious of the bona fides of the prosecution.

Insider-trading, whatever you think of it, is a very tangential part of the financial crisis, except in so far as it was partly the means by which some of the major firms were naked-shorted.

Goldman Sachs, as we’ve seen, is central to that story.

But the Gupta trial casts Goldman as a victim and GS chief Lloyd Blankfein is actually testifying against him. That’s the man whose confab with Timothy Geithner, NY Fed Reserve chairman, in the same month that Gupta is supposed to have tipped of Galleon’s Raj Rajaratnam (September 2008), constituted a scandal several orders of magnitude greater than the alleged shenanigans of Gupta.

Blankfein, surely more culpable, than Gupta or Rajaratnam, is getting good PR, from this trial, as he did from the Rajaratnam trial last year.

So what’s really going on here?

I don’t want to get into the larger picture in this post, except to say it’s all part of a strategy of rescuing Goldman from any serious damage and of redirecting energy away from the most dominant members of the financial world to the relatively new upstarts – the Indians.

In “Breaking India,” Rajiv Malhotra, a former tech entrepreneur turned author, has written eloquently about the dual strategy pursued by the US government in building up India (through the business schools and management networks), while simultaneously breaking it down (India-bashing from leftist journalists, activists, and academics, including the incitement of Dalit activism against India itself as a symbol of Brahmin supremacism).

In a sense, the dual strategy has ended with the Gupta trial and now the object seems to be solely to break the country. The media portrays it with increasing negativity, directing popular anger toward South Asian financial networks, to the exclusion of others,  and, specifically, away from the Anglo-Jewish elites who actually caused the financial crisis.

The new comers might have profited from it illicitly but in no way were they the prime movers of the global heist.

With that quick sketch of the general context, here are the particulars that I find striking for a criminal case pursued with so much fanfare and media attention:

1. There is no “smoking-gun,” whatsoever. That’s right. Zip. Nada. There is not one tape in the over 2000 (TWO THOUSAND) tapes held by the prosecution that either shows Gupta passing on a  tip to Rajaratnam or names Gupta as someone who tipped off RR.

Think about it. It’s pretty incredible. The government was secretly investigating Rajaratnam’s network as far back as 2007, with FBI wire taps over a period of at least 11 months between March and December 2008.

And not one of those conversations, intimate, unsuspecting conversations, actually contains a concrete tip or refers to Gupta as a tipster. There is actually only one Gupta conversation with Rajaratnam in the whole file – on July 29, 2008.

It’s based on this and other circumstantial evidence that the government rests its case that Gupta was passing on confidential board information to Galleon between March 2007 and January 2009, charging him with five counts of securities violations and one count of conspiracy, potentially opening him up to 105 years in prison and $25 million in fines.

I know if someone had taped me for over a year,  there would be a lot of things I’d find it hard to explain. Not because I’m up to anything wrong. Not at all. But simply because I blurt out my feelings in private. It’s the way I am. Sometimes, those are just passing feelings and quite meaningless to anyone who knows me.  I once told my family I wanted to raise a tiger cub in the garden; I’ve called friends names I’d rather forget; I’ve made forceful political statement that I wouldn’t think of venting on my blog. I say things that aren’t even accurate, just because it’s a casual conversation and I’m not thinking, or because I’m thinking of something else or…or…any of a dozen reasons.

And guess what, I’m not sorry I do. I have a right to.  Expressing your views, whether momentary feelings or long standing opinions, is what you do with your friends in your home.

It’s called privacy. If you can’t be free to vent feelings or express opinions, however unpleasant they might sound to a third party (third parties shouldn’t be listening, should they?), what the heck is privacy for?

But drawing conclusions from the haphazard, half-spoken chitchat of people’s private conversations is another things. Private chat is difficult to interpret, unless you get explicit repeated statements that are black and white. Everything else is open to interpretation.

2. There is no evidence that Gupta profited from the information he’s alleged to have passed on. This again is a big gaping hole in the government’s case. The essence of illegal insider-trading is that the wrong-doer materially benefited and that he passed on the tip with that benefit in his mind.

It’s a “mental state” crime, which also makes it hard to prove.

No profit, and bingo, half the case has crumbled.

Now, given that, why would Rajat Gupta turn down a civil trial, where the maximum he faced would have been fines and bans from sitting on corporate boards, and go in for a criminal trial, where he could go to jail? There’s only one reason. An administrative hearing has a lower standard of proof and a judge who can make up his mind as he wishes. A criminal trial gets a jury and demands “beyond a reasonable doubt” as the standard.  But it’s also riskier. Juries can go one way or other.

Here’s my point. The only defendant who would take that kind of risk would be a defendant who thought he was innocent.

So what’s the government doing without these two major elements of a successful insider trading case?

It’s trying to build a circumstantial case, putting together a kind of “mosaic” of the evidence, as someone has noted. It’s calling witnesses to show that while Gupta might not have literally profited from his tips, he indirectly profited, because he was invested with Galleon and he intended to do even more business with it in the future. The tips were credit toward that future return.

The prosecutions’ second line of argument is to suggest that Gupta and Rajaratnam were such close friends, that Gupta had to have passed on tips, because that’s what buddies do.

But, here’s another thing. The government (SEC) didn’t let Gupta see settlement documents with cooperating witnesses against him.

That means the defense doesn’t get to learn the terms on which the government struck deals with cooperating witnesses against Gupta.

That’s pretty significant.

Fortunately, the judge did force the FBI  to review documents (notes) from the SEC’s civil investigation, which overlapped the FBI criminal case (Brady material), and it did force them to show the defendant exculpatory evidence in them.

Thirdly, the government is trying to piece together the timing of the calls to show that it must have been Gupta who put through the call just before closing on Sept 23, 2008, to tell Rajaratnam that Warren Buffet was going to invest in Goldman Sachs. That tip is the piece de resistance of the trial, because Rajaratnam turned around and managed to squeeze a trade through before closing that netted around $800,000.

The Buffet investment information was, of course, confidential, as Lloyd Blankfein testified, as was the information about a Goldman Sachs audit committee meeting, whose results are alleged to have been passed onto Rajaratnam (March 2008).

What Blankfein didn’t testify and someone should have asked was if Blankfein and everyone else in the firm had actually kept the information confidential, as they expected Gupta to. Blankfein does remark that there was a lot of speculation going on about the audit committee findings.

Does that mean there were loose lips all over the place?

Because if there were, then the case against Gupta founders again.

Because then, how do we know who it was that tipped off Raj Rajaratnam?

The answer is, we don’t.

And, in fact, so far the defense has found at least two (and possibly three) other people at Goldman, lower down in the food chain, who were passing on tips to Galleon’s chief. One of those, David Loeb, head of Goldman Sachs’ Asia Equity Sales In New York, made two dozen calls to Galleon, some of them on the same day Gupta is alleged to have tipped the hedge fund off.  Besides Loeb, an analyst Henry King, as well as a Mr. X , have also been mentioned as tipsters. King, a high profile tech analyst known for his spot-on calls, is alleged to have been leaking information from Taiwanese manufacturers to US investors.

Then there’s Anil Kumar, a colleague at McKinsey, who turned informant for the government, in the Rajaratnam case. Kumar testified that Rajaratnam often played off his sources against each other so they would be work harder to get a pat on the head from “Big Raj.” One of the tipsters Rajaratnam played off against Anil Kumar was the “insanely hot” blonde tipster, Danielle Chiesi, whose antics eventually sank the good ship Galleon.

So now we know that Rajaratnam has a profile of manipulating  people and that he could ‘have been trying to get Anil Kumar to do more for him (remember, in the call with Gupta he complains that Anil Kumar isn’t earning the million dollars a year he was giving him). One way to do that would be to hint that he was getting information from someone else, even if that someone else was simply chatting with him and wasn’t actually tipping him.  There’s another angle.  If Anil Kumar could wear a wire and rat out Rajaratnam,  what are the chances he wouldn’t agree to anything else the Feds wanted from him? Maybe he cut a deal to point the finger at someone higher up.  Gary Naftalis, Gupta’s lawyer seems to be thinking along those lines, in demanding to see the SEC’s deals with cooperating witnesses.  Anyway, Kumar is no pillar of integrity and his accusations should be taken for what they’re worth.

What’s also strange….passing strange….is that David Loeb, whom the government caught on tape passing on tips about Intel, Apple, and Hewlett Packard to RR,  has not been charged at all.

Yet, Loeb called Galleon traders twice on September 23, 2008, including once  at  3:07 pm. That’s the same day prosecutors are trying to pin the Buffett tip on Gupta.

I wonder when the other call was; reports don’t specify.

Loeb also made four calls to Galleon’s Adam Smith on October 23, 2008, the same day that prosecutors say Gupta told Rajaratnam that Goldman Sachs would lose almost two dollars a share.

That’s pretty damning. And it’s on tape.  But Loeb hasn’t been fingered.

Instead, the government has gone straight for the jugular of Rajat Gupta.

You have to wonder why.