James A. Brown Speaks to WSJ

The link requires a subscription so here is the article in full. I love seeing James Brown vindicated!

Retrial Dropped, Enron Figure Talks

By JOHN R. EMSHWILLER

James A. Brown didn’t act like a guilty man eight years ago when federal authorities contacted the Merrill Lynch executive during the early days of their Enron Corp. investigation.

Unlike some colleagues at the securities firm who didn’t talk, Mr. Brown spent hours answering questions. “I figured that as long as I told the truth I couldn’t get into trouble,” he says.

Still, he was convicted in 2004 of perjury, obstruction of justice, fraud and conspiracy. Mr. Brown went from minor-hero status for objecting inside Merrill to a suspicious Enron deal involving barges off the coast of Nigeria, to facing three decades in prison. His career was destroyed, and he spent 12 months in prison before an appeals court reversed part of the conviction.

Former Merrill Lynch executive James A. Brown says a key email of his was misunderstood.
The 58-year-old Mr. Brown has always maintained his innocence. In September, the Justice Department dropped the fraud and conspiracy charges only days before a scheduled retrial. Mr. Brown, still fighting his perjury and obstruction convictions, recently gave The Wall Street Journal his first interview about the legal ordeal.

Mr. Brown’s retelling of his part in the corporate scandal comes as federal investigators sift through the rubble of the financial crisis for possible crimes. Much of the nitty-gritty of such investigative work involves little-known figures of the corporate world like Mr. Brown, who often are snared by prosecutors hoping to nab higher-ranking executives.

The U.S. government’s Enron Task Force criminally charged about 30 individuals, including Mr. Brown, but said there were more than 100 other unindicted co-conspirators. The task force got guilty pleas from more than a dozen people and won a 2006 fraud conviction against former Enron President Jeffrey Skilling.

Some of the group’s courtroom victories have been upended on appeal. Mr. Skilling’s conviction and 24-year sentence are under appeals-court review following a Supreme Court decision invalidating part of his case.

Critics contend the Enron Task Force abused its powers by threatening potential defense witnesses and bludgeoning individuals into admitting to crimes. Government officials deny those assertions, and courts haven’t upheld any defense claims of prosecutorial misconduct.

Mr. Brown’s odyssey began in December 1999 when Enron asked Merrill to acquire an interest in electricity-producing barges it owned off the Nigerian coast so that the Houston company could book a $12 million profit on the deal by year end.

A Chicago native, Mr. Brown joined Merrill in 1994, turning to finance after tromping through snake-infested swamps in Florida, looking for phosphate deposits as a geologist, helped convince him to change careers.

Investigative records show Mr. Brown, then heading the Merrill unit that handled the barge deal, argued against the transaction. One of his worries: Merrill might be viewed as helping Enron manipulate earnings.

In the interview, Mr. Brown said he didn’t think the barge transaction was illegal—just a bad business deal. Senior Merrill officials gave a go-ahead anyway.

Enron collapsed in December 2001, and investigators later found documents suggesting the company had illegally guaranteed Merrill a profit on the barge deal, which would make the supposed “sale” a sham. Enron Chief Financial Officer Andrew Fastow allegedly made the guarantee to Merrill executives during a conference call. Merrill later sold its barge interest—at the allegedly promised profit—to a partnership run by Mr. Fastow.

“I had no feeling of danger,” says Mr. Brown, who didn’t participate in the conference call. He wasn’t one of the four Merrill officials sued in 2003 by the Securities and Exchange Commission over the barge deal.

Still, the transaction became a focus of the Enron Task Force. As the only Enron-related criminal case brought against people working on Wall Street, it aimed to send a message of “deterrence,” according to a person familiar with the situation.

Mr. Brown’s lawyer soon told him that prosecutors considered him a target for indictment. “I said: ‘How can I be indicted?’” he recalls now. “I haven’t done anything wrong.”

A possible turning point came when investigators discovered a March 2001 email written by Mr. Brown. He wrote that Mr. Fastow had made a “promise to pay us back no matter what.”

Mr. Brown says he wrote the email hastily and never meant to suggest an illegal guarantee. Instead, Mr. Brown says he heard Mr. Fastow had merely promised to use his “best efforts” to get Merrill out of the barge deal.

The criminal charges filed in September 2003 against Mr. Brown and three other former Merrill executives turned his comfortable life in suburban Connecticut, including a wife and two children, upside down. Nancy Brown says her husband “could hardly move or speak” on the arraignment day in Houston.

While family and friends were supportive, Mr. and Mrs. Brown’s 17-year-old daughter felt “ostracized” by some schoolmates, they say. Mr. Brown took Merrill up on its suggestion that he accept an early retirement.

Merrill, now owned by Bank of America Corp., still is paying Mr. Brown’s legal bills. A Merrill spokesman declined to comment.

The U.S. government recommended Mr. Brown get a sentenced of more than 30 years. He prepared a will and gave signing authority over assets to his wife. When a federal judge handed down a sentence of 46 months, “I felt like the firing squad had missed,” he says now.

Mr. Brown’s 22-year-old son nearly died in an auto accident shortly before the former Merrill executive reported to a low-security federal prison in Fort Dix, N.J. Weeks passed before it was clear the son would survive.

“After that, I said whatever else happens I can handle,” he says. In prison, Mr. Brown taught inmates about basic personal finance and dined once a week with mobsters while schooling them in reading newspaper stock tables, he recalls.

In 2006, a federal appeals court overturned part of the barge case, ruling the government had misapplied a controversial crime theory, known as “honest services” fraud. The court upheld Mr. Brown’s perjury and obstruction convictions, but he was released from prison.

The Justice Department moved in 2007 to send Mr. Brown back to prison, arguing that the law required him to serve the rest of his 46 months.

Sidney Powell, Mr. Brown’s lawyer, says one prosecutor claimed “he had ‘tremendous leverage’ and could force Jim to testify” against co-defendants in planned retrials. A judge rejected the government’s motion.

By early this year, the Justice Department dropped plans to retry any of the former Merrill officials, except for Mr. Brown, who was pressing claims that prosecutors in his 2004 trial withheld favorable evidence.

Days before jury selection for Mr. Brown’s retrial was to begin in September, the government abandoned the fraud and conspiracy charges. A Justice Department spokeswoman declines to comment. In court filings, the government denied withholding evidence and the judge rejected the misconduct claims. Mr. Brown says he plans to continue pressing that issue.

Write to John R. Emshwiller at john.emshwiller@wsj.com

James A. Brown Dismissal Order

It is a thing of beauty.

Brown Dismissal Order

Government Dismisses Some Charges Against James A. Brown

In a revealing last-minute move, after being denied a postponement of this Monday’s trial start date, the government moved to dismiss the remaining “conspiracy and wire fraud charges” against James Brown today in the Enron-related Nigerian Barge case. All the other defendants in the case had already had their charges dismissed; however, trying desperately to force Brown to drop his appeal of two other counts based on the government’s egregious misconduct and Brady violations in Brown’s original trial, prosecutors refused to dismiss Brown’s counts.

Finally, facing an imminent retrial for which they had obviously failed to prepare their factually and legally empty case, the prosecutors did what they should have done long ago — they dismissed the remaining charges against Brown. So, after seven painful years of being hounded by the government on ridiculous charges, Brown is clear of the government’s irrational vindictiveness. I am happy for James Brown now and sorry that he had to endure this stupidity for so long.

If there is anyone out there who still believes that the government was not guilty of intentional abuse and misconduct in the Enron indictments, here is yet another compelling body of evidence of that fact. There was no rational reason for the Nigerian Barge indictments in the first place — yet it has taken seven years for the falsely accused defendants to claw their way out of the government’s clutches. The government’s behavior has been beneath shameful—including their latest game of dragging Brown through the last six months of intense litigation of a case they never intended to retry!

More on this soon!
Brown’s Opposition to Continuance
Government’s Motion to Dismiss

UPDATE
The original indictment was issued September 16, 2003—exactly 7 years ago. It feels like a circuit has closed with perfect, elegant symmetry.

What Does The Future Hold For Upcoming Enron Trials?

As James A. Brown prepares for his second trial on September 20 under an indictment which fails to state an offense, I have to wonder about the sanity of our government. For instance, I wonder how much taxpayer money has been spent prosecuting this man, and jailing him for a year on a perjury charge which stemmed from his testimony about a phone call he was not even a party to. How many millions? Is it more millions than seven? Because if it is, I think we can call this even.

Money doesn’t matter to the government because they have infinite resources. The defendants like Jim Brown and Rex Shelby, who have been litigating since 2004, are mere mortals; they can’t afford to spend money forever on their defenses. Of course the agents of our government know this; it is part of their strategy. It is a significant form of leverage in forcing defendants to accept plea bargains.

I also wonder at a system which ignores corruption, punishes honesty, and would cast innocent men aside in a mad stampede for the glories of history and a cushy private sector job. The fresh Brady documents that were kept from James Brown prove beyond any measure that the government KNEW that the Nigerian Barge transaction was legitimate, that all the people involved believed it was legitimate and acted ethically, and that the government deliberately and with great malice kept exculpatory evidence from James Brown. If the defense had access to this material this before trial it would have changed the entire defense—and the government certainly knew it. It is the only reason they could have possibly had to withhold it.

So why wasn’t Judge Werlein outraged? The prosecutors were lying to him! But he, like Judge Gilmore and Judge Lake, seemed to have a soft-focus lens when it came to the prosecutors. They could get away with more, their objections were more often sustained, they would allow the prosecution to immunize their own witnesses but not the witnesses of the defense, and their jury instructions were used more often than the defense’s.

If it wasn’t quite enough to have the prosecutors and judge in the tank for the prosecutors, all Enron defendants had to handle the onslaught of negative media attention. When was Daniel Bayly’s sterling reputation ever mentioned? When did anyone talk about the fact that James Brown had a reputation as a straight-shooter and nobody who knew him would believe that he had acted in bad faith? Sean Berkowitz and Bethany McLean’s romance was heating up in the Skilling / Lay trial, the media would later fawn over the new lovers’ amusing story of how they met. But who talked about the wives of the Merrill Lynch executives, or the Enron executives, who cried and struggled and tried to hold it together as their husbands desperately tried to save themselves? Who cared about the children of these men, the families and friends who loved them? They became fodder for a ruthless news cycle which cared more about sensationalizing the story than actually reportage.

In these circumstances, it is hard to believe any of the defendants came out okay. And yet they did. And some, like Kevin Howard, Rex Shelby and James Brown not only survived, they endured – or will endure – a second trial.

I hope it is different this time. We are all five years older now. A child born on the day the Broadband verdicts were rendered will enter Kindergarten this September: a lot can – and has – changed.

To most people, the word “Enron” is ancient history. It died ten bloody years ago. The passion for a witch hunt has somewhat abated – at least for these particular witches. I predict jury fatigue. I can imagine sitting as a juror on Brown’s case and wondering why in the world I should care about a $7 million deal that was done eleven years ago, and not really seeing where the big controversy is. Even if he was guilty (and he is NOT), I can’t imagine thinking that eleven years later, we should punish him.

And the Broadband Trial is going to be a snooze-a-thon. Rex Shelby was a technology guy. For most people, his testimony will be as interesting as listening to someone read aloud engineering specifications for a washing machine – except more boring because we can all visualize washing machines; it’s much harder to visualize a “concept” like the EIN. (I, however, am going to laugh and laugh and laugh as I watch the prosecutors try to monkey through the EBS technology.) So if I were a juror on that case, I’d constantly be wondering what time is lunch. Or pass the judge a note to ask the defendant to remove his shirt. Just to liven things up.

In addition to a bored jury listening to testimony that is completely irrelevant in 2010, I predict the media has been so shamed in its coverage that will be a little more benign. One former defendant tells me the story of meeting a Houston Chronicle journalist while he was out and about, and she greeted him with a hug. As if she’d never said those horrible things about him!

The Enron Task Force has failed to deliver in its lavish promises of “massive fraud” at Enron. There was no fraud. These men are innocent. They were years ago, and they are today. I worry that the prosecutors play dirty, but I pray that everyone is a little less tolerant of their shenanigans. Is it too much to hope for in America?

The Enduring Substance of James Brown and Rex Shelby

The James Brown fiasco continues unabated, and I have a mega-post about it coming up in the next forty-eight hours. In my research, I found an amazing document – a chart of exculpatory evidence that the ETF itself highlighted as Brady material but then withheld from the court-ordered “summary” in 2004. These materials were only disclosed to James Brown on March 30, 2010.

This one small item seems to me the only piece of evidence any of the Nigerian Barge defendants would ever need:

Enron had no obligation to do anything about that stupid boat. They could have laughed their heads off, yelled, “So long, suckers” from the rooftop of the Enron building, and then spent their $7 million of fast cars and flashy women, and there wasn’t a damn thing Merrill Lynch could do about it because they owned the barges and Enron didn’t have to ever take their calls again.

It is so obvious to anyone who is paying even the most scant, cursory attention, that our federal government is desperately prosecuting something that was never a crime. They remind me of elephants wearing pink tutus and ice skates, knowing they look ridiculous but trying to convince us, by the sheer fervor of their performance, that this is totally normal.

There are, of course, two stories happening here. The first is the history of what happened – how did Merrill Lynch come to own Nigerian barges and who said what and the nitty-gritty details of it – such as Schuyler Tilney’s statement above. The second story is how it’s being played out in the courts, what becomes the “official” story and how these men who are at once both so extraordinary and completely ordinary handle the grinder that is the system of justice in our country today.

That story is very sobering. Right now, there are three active Enron cases: Rex Shelby, Jeff Skilling and James A. Brown. With Skilling in prison, (hopefully getting out on bail in a matter of days), the two left are Rex Shelby and James A. Brown. Both are facing a second trial. Both appear to be stoic, if exhausted, individuals. And this is the story I care most about – the men themselves. Because if it could happen to them – these precious, good, ordinary men, innocent men, men of substance and character – it could happen to literally anyone.

Merrill Lynch Execs Can Be Retried

Unbelievable:
via AP:

A federal appeals court says the retrial of three former Merrill Lynch & Co. executives connected to an Enron Corp. deal would not violate their constitutional protections against double jeopardy.

The 5th U.S. Circuit Court of Appeals on Tuesday upheld a Houston federal judge’s 2008 ruling that Daniel Bayly, James A. Brown and Robert S. Furst can be retried.

All three are accused of helping push through Enron’s sham sale of three power barges moored off the coast of Nigeria to the brokerage in 1999. The deal inflated earnings in Enron’s energy division.

They were convicted in 2004 of conspiracy and wire fraud. But the 5th Circuit, based in New Orleans, threw out their convictions in 2006 after finding fault with the government’s legal theory in the case.

I’ll update soon.

The Nigerian Barge Case Primer

On December 6, 1999 the Lagos (Nigeria) government signed a deal with Enron to provide power to Lagos State. The deal was worth $500 million dollars, and would be developed in two phases.

The first phase would provide 90 megawatts of power by Enron through three diesel units mounted on barges and anchored off Lagos. The second phase would involve building a new 548 megawatt gas turbine to be serviced by a 290-km offshore natural gas pipeline from the Niger Delta.

The project was important to Nigeria because it was plagued with persistent power crises and blackouts. But soon after the phase one barges were in place, controversy erupted. Like all of Enron’s international projects, which Jeff Skilling despised, this one was immediately mired in political shenanigans. The World Bank declared the deal “unduly favorable” to Enron. The World Bank believed Enron was charging too high a price for fuel and didn’t accept full responsibility for the risks of building the plant.

Back in Houston, Enron had decided to sell its interest. This would not have been queer at all because Jeff Skilling did not like international assets and he was actively campaigning to sell them. His infamous rows with Rebecca Mark were not so much a power struggle but a fundamental disagreement about basic business principles: Skilling’s opinion of international projects remained dour while Mark pushed for an ever-widening Enron footprint across the globe.

A phone call between Andy Fastow and the Merrill Lynch bankers on December 1999 is uncontested. Also uncontested is that an agreement was reached between Enron and Merrill Lynch, in which Merrill would buy Enron’s interest in the barges for twelve million dollars. At trial, the prosecution alleged that one of the bankers, Daniel Bayly, received oral assurances from Enron CFO Andy Fastow that Merrill would get its money back with interest in six months, from either Enron or another buyer.

If such assurances were uttered, the transaction was not a true sale because Merrill never assumed the risk of ownership.

At trial, the prosecution was strangely incurious about the actual conversation. At the Nigerian Barge trial, they didn’t call anyone who was actually on the phone call to testify. They did, however, call several people to testify on the subject who were not party to the phone call, such as Michael Kopper and Ben Glisan. At Jeff Skilling and Dr. Lay’s trial, Fastow was asked to read their testimony. He did so, and then testified thusly:

Q. Now, after having read through those pages, does that refresh your recollection at all about the events that transpired in December of ’99 concerning LJM[2] having been approached and what it did in response to that approach about these barges?

A. No, sir. They’re largely contradictory to my recollection of events.

Astonishing. His two primary co-conspirators in other Enron transactions suddenly became unreliable?

Jeff Skilling was asked about the transaction during his direct testimony:

Q. One such transaction was the sale by Enron to Merrill Lynch. “When Enron was unable to find a true buyer for the3 barges by December, 1999, conspirators parked the barges with Merrill Lynch so that Enron could record $12 million,” et cetera. Now, focusing on that — well, let’s go to the next paragraph. I think it references you here. Okay. “As Skilling knew, Merrill entered into the Nigerian barge transaction based on a promise in a secret oral10 side deal that Merrill would receive a return of its investment11 plus profit within six months. As Skilling knew, the oral side deal was concealed from Enron’s auditors and the public.” Did you know any of that?

A No.

Q Did you — did you know of any secret oral side deal involving the Nigerian barge?

A I was — to be quite honest, I don’t know that I knew the Nigerian barge deal was even under — this is tiny. This is not something, typically, that would even make it to my level in the organization. So, I — no, I — I remember the Nigerian barge project. I don’t recall being involved in this transaction at year-end.

Q Mr. Fastow has identified one conversation with you on the subject.

A Uh-huh.

Q And what he said — and I’ll paraphrase it. We can look at the testimony if we need to. Basically, he said that he had a meeting with you in which you asked him to buy the Nigerian barges or an interest in it, and you promised and you gave him a bear hug like the bear hug, he said, you gave him on Cuiaba. Do you recall that testimony?

A Yes, I recall that testimony.

Q Mr. Fastow then went on to say that he rejected your bear hug at that time because he wanted — he did not want to do the deal.

This always seemed like a gotcha moment to me. Fastow, who would buy any old piece of crap because Skilling allegedly assured him that he’d never lose money, suddenly gets cold feet on this $12 million deal? Fastow’s sudden attack of conscience strains credulity.

The Nigerian Barge deal, particularly regarding the miniscule funds it earned, illuminates a greater point about Jeff Skilling and Ken Lay’s innocence regarding all the charges against them.

If Skilling was so desperate to book a $12 million deal, and he knew the shenanigans that Fastow was involved in, then why didn’t Skilling set up another entity with Fastow to buy the barges outright, a la Chewco? In other words, why involved sophisticated bankers in the deal, especially since there was a pool of friends and family who were in on these “schemes”? Why borrow trouble?

And furthermore, if Enron was a weak company, drowning in unserviceable debt, then why did Skilling – who by all accounts was a good guy – immediately resort to fraud? Why not start with cutting costs at the company? Enron was a rich company, and management had no problem splashing down the best of everything for its employees: private jets, new art for the buildings, a new building, the finest ergonomic chairs, designed by Hermann Miller, extremely generous benefits packages, the finest technology… There was a lot of fat to cut if they needed to save money.

Instead, some of the brightest minds in the oil and gas industry slaved in those glittery skyscrapers trying to figure out how to scam $12 million?

The Nigerian Barge deal was an ordinary Enron deal that was later repurposed to signal widespread fraud within the company. Prosecutors worked hard to make the transaction appear less than honest, but the facts laid bare show that it was completely honest and in line with corporate objectives.

Today In Enron History

On June 23, 2004, a federal grand jury in Houston returned a superseding indictment against four former Merrill Lynch executives and two former Enron executives. The six defendants charged in the eight-count superseding indictment were: Dan Boyle, a former VP in the Global Finance Group, Daniel Bayly, the former head of the Global Investment Banking division at Merrill Lynch; James A. Brown, the former head of Merrill Lynch’s Strategic Asset Lease and Finance group; William R. Fuhs, a former vice president in Merrill Lynch’s Strategic Asset Lease and Finance group; Robert S. Furst, the former Enron relationship manager for Merrill Lynch in the investment banking division, and Sheila K. Kahanek, 38, a former senior director in Enron’s Asia/Pacific/Africa/China (“APACHI”) transaction support group.

The superseding indictment was related to the Nigerian Barge transaction, in which Enron was alleged to have fraudulently sold a Nigerian barge to Merrill Lynch. The central issue at hand was whether Enron gave Merrill a guarantee that it would buy back the barge. If so, it was not a true sale.

At trial, Sheila Kahanek was found Not Guilty.

James A Brown, Dan Boyle, and Daniel Bayley were found guilty. Dan Boyle was the only one who did not appeal his sentence.

James A. Brown and Daniel Bayly’s convictions were overturned.  The government could retry them.

James A. Brown, Daniel Bayley and Robert Furst have filed a motion asking US District Judge Ewing Werlein to order the government to give them the Fastow Notes notes cited in the appeal of Jeffrey K. Skilling.

William R. Fuhs’s conviction was thrown out on appeal for lack of evidence.

Ex-Merrill Banker Asks U.S. to Probe Enron Prosecutor (Part Two)

A commenter on a previous post about former Merrill Lynch executive James A. Brown’s request of the U.S. Senate, Justice Department and state bar authorities to investigate his claims of misconduct by a federal prosecutor pointed out a Bloomberg article with much more detail. I am so glad this was brought to my attention because the Bloomberg article by Laurel Brubaker Calkins is much more detailed and to my mind, much more honest than Kristen Hays’ Chronicle article that I originally quoted. Kristen Hays of the Houston Chronicle has a storied past regarding Enron articles. In short, she doesn’t seem to believe anything that doesn’t come out of the mouths of prosecutors. I recall exactly one Enron article that was neutral to slightly in favor of Jeff Skilling and that was on the eve of his appeal, April 2, 2008. It was so remarkably neutral that I even titled my post about it Chronicle Publishes Fair Article About Jeff Skilling. It was that unusual.

Laurel’s coverage, in contrast, has struck me as ethical and balanced, with no particular agenda. This Bloomberg article is generally true to form (there was one line that made me roll my eyes but whatareyagonnado?) She’s not pro-Enron, but she does give the facts and leaves the editorializing out, which is really all I can ask of a reporter.

In any case, do yourself a favor and read the article for fuller coverage of Brown’s complaint. The juiciest part, to my mind, was Brown’s attorney saying more complaints are coming. I am crossing my fingers: Andrew Weissman, please let Andrew Weissman in the mix. And Berkowitz. Oh GOD IN HEAVEN how I would love to see Sean Berkowitz do a perp walk. If not for Jeff Skilling and Dr. Lay, then for James A. Brown, who is every bit as deserving.

Skilling Brief Ripple Effect Reaches Nigerian Barge Convictions

Just as the Task Force gleefully rubbed their hands together and licked their chops in anticipation of bringing down the Enron executives, I am similarly situated, as they say, now that the fallout from the Fastow Notes is being felt in other prosecutions.  Do yourself a favor and visit Kirkendall’s site, Houston Clear Thinkers for your very own copy of James Brown’s Motion To Dismiss Indictment For Egregious Prosecutorial Misconduct, Brady Violations and Double Jeopardy.   If you’re anything like me, reading this is better than eating a hot fudge sundae while having your feet rubbed, after just having half a dozen orgasms with your soulmate who just got a bonus check for a millon bucks.  Oh, it’s still not as good as Jeff Skilling’s supplemental brief, but it’s still pretty darn good.

The list of prosecutorial misconduct allegations is delightful.  Of course, it had to be utter hell to live through this, but now that its coming to light, let us enjoy the Enron Task Force’s exposure.  From the motion:

*Failed to dismiss indictment even after Fastow and others informed the Task Force that no illegal guarantee had been made.

*Task Force failed to turn over exculpatory evidence, even after repeated requests by the defense.

*Named virtually every business person who touched the Nigerian Barge deal an “unindicted co-conspirator”, thereby silencing and intimidating exculpatory witnesses.

The examples of prosecutorial misconduct  abuse  goes on for a page and a half.  It’s absolutely riveting, and terrifying.   

Something I’ve been thinking about is the endgame.   What will the final scorecard look like?  I strongly believe that Jeff Skilling’s convictions will be overturned and he will be released in early April.  The Nigerian Barge/Merrill Lynch cases can not stand.  The Broadband and NatWest Three convictions are tenuous as well.  I suspect history will show that in the aftermath of Enron, only those executives who took plea bargains were the ones to serve their full sentences (minus time off for good behavior and the rehab programs that many defendants use to shave time off).