In the case Galleon Spotlight Rajat Gupta

Throughout the trial Raj Rajaratnam, who could go to the jury on Monday, it was an elephant in the courtroom: Rajat K. Gupta.

Gupta, once one of the most respected business in the world, is not considered here, nor has it been charged criminally. Yet hardly a day has passed when the jury in the trial of Mr. Rajaratnam is - the largest government insider trading case in a generation - do not hear from Mr. Gupta, former head of consulting firm & McKinsey Company.

Jurors listened to a wiretap in which Mr. Gupta, a former head of Goldman Sachs, said Mr. Rajaratnam, who led the hedge fund Galleon Group, talks about the bank's secret council.

They heard a recording of Mr Rajaratnam with a colleague that the administrator Goldman warned the benefit of the bank before making a public announcement. On another roll call, Mr. Rajaratnam said its operator that he had heard that something good would happen at Goldman.

Prosecutors also presented telephone bills and records of transactions, noting that Mr Rajaratnam Goldman stock traded shortly after his telephone calls with Mr. Gupta.

However, Gupta is not mentioned in the accusations of the government of Mr Rajaratnam. The prosecutor's office of the United States in Manhattan, who has studied the role of Mr. Gupta, in the case of at least three years, was named co-conspirator of Mr. Rajaratnam, but has not accused criminal.

Instead, federal prosecutors have built their formal charges against Mr. Rajaratnam around five cooperating witnesses who pleaded guilty to conspiracy to engage in insider trading to the defendant.

Legal experts say there are a multitude of reasons for prosecutors conducting a criminal investigation for accusing some co-conspirators while not charging others.

"What motivates these decisions is the strength of the evidence against eachindividual co-conspirator and tactical considerations, Anthony Sabino, a law professor at St. John's, said.

There was no indication that Mr Gupta would play no role in the case of Mr Rajaratnam in the months preceding the trial. But in early March, a week before jury selection, the Securities and Exchange Commission has sent shock waves through corporate America when it filed a civil lawsuit against Mr. Gupta administration. The agency he accused of leaking boardroom discussions to Mr Rajaratnam both Goldman and Procter Gamble &, where he also served as a director before resigning last month.

"The SEC allegations are totally unfounded," Gary P. Naftalis, a lawyer for Mr. Gupta said at the time. "Mr. Gupta's record 40 years of ethical conduct, integrity and commitment to maintain the confidentiality of his clients is impeccable."

sudden fall from grace Gupta has stunned the business world. An Indian from Kolkata and graduated from Harvard Business School, Mr. Gupta is the most important part trapped by a comprehensive survey of government in insider trading to hedge funds.

As global head of McKinsey, Mr. Gupta, 62, has been a trusted adviser to chief executives, including Jeffrey R. Immelt from General Electric and Henry R. Kravis of the private equity firm Kohlberg Kravis Roberts & Company. A prominent philanthropist, he held a senior advisory position in the Bill Melinda Gates Foundation &.

Over the past ten years, he grew up near Mr. Rajaratnam, a major financial supporter of the Indian School of Business, ahighly regarded school graduates that Mr. Gupta has helped launch. Around his retirement from McKinsey in 2007, he went into business with Mr Rajaratnam, founding a private equity firm. Mr. Gupta has also invested with Mr. Rajaratnam.

It was during this period, a stretch of nine months in 2008 - the government wiretap phone of Mr Rajaratnam. These recordings have helped the government bring charges against 26 people,20 have pleadedguilty.

Federal prosecutors appear to have weaker evidence against Mr. Gupta against some of Mr Rajaratnam's other co-conspirators. For example, two cooperating witnesses - Anil Kumar Goel and Rajiv - are on wiretaps multiple exchange tips with Mr Rajaratnam.

In the case of Mr. Gupta, federal prosecutors played a single wiretap on which Mr Gupta disclosed discussions conference room at Goldman Mr. Rajaratnam. On July 1, 2008 Call Mr. Gupta said Mr. Rajaratnam that the board of the bank was contemplating a purchase of Wachovia or the American International Group.

Prosecutors did not present evidence,however, that Mr Rajaratnam traded on this tip.

Some provisions may also prevent prosecutors from using against Mr. Gupta two of the most incriminating wiretaps played during the trial, legal experts say.

In an appeal, Mr Rajaratnam said a colleague, "I heard yesterday from someone who is on the board of Goldman Sachs that they will lose $ 2 per share." In the other, Mr Rajaratnam said its operator, "I call saying something good will happen to Goldman."

Because these conversations were between Mr Rajaratnam and his employees, a judge may declare inadmissible hearsay evidence that is too remote or speculative to be used against Mr. Gupta.

But prosecutors could try to use conversations against Mr. Gupta under the so-called co-conspirator exception to the rule against hearsay. The theory is that the statements of Mr Rajaratnam about Goldman were conducted as part of the alleged conspiracy between Mr. Rajaratnam and M. Gupta.

Without these two statements by Mr Rajaratnam referring to advice on Goldman, prosecutors would be forced to rely on circumstantial evidence - such as telephone bills and records of negotiations - to establish the guilt of Mr. Gupta.

In civil cases the SEC, the agency has a lower burden of proof that federal prosecutors do in criminal proceedings. An SEC administrative law judge is not bound by the rules of hearsay.

In an unusual twist, Mr. Gupta continued the SEC last month, arguing that the administrative procedure hadnot unfair to a jury trial in federal court. Mr Gupta had more protection than it does him in an administrative proceeding, including the right to examine evidence of the SEC. A judge has not yet ruled on the issue.

If the SEC prevails, a judge could impose a financial penalty on Mr Gupta and prohibit him from serving as officer or director of a public company.