Jurors in DeCinces insider trading trial complain to judge

A private investigator's contacts with jurors who recently convicted two men of insider trading felonies prompted the trial judge to remind counsel of the federal evidence rule that governs what can be asked of jurors after a verdict.

U.S. District Judge Andrew J. Guilford said in a recent minute order that he "has concluded that at various times in this case, our very diligent jury has not been respected by the participants in the trial as they should be."

Guilford said many jurors called his courtroom deputy upset that they have been contacted by a private investigator since they convicted retired Major League Baseball third baseman Douglas DeCinces and his friend David L. Parker of 14 and three counts, respectively, of tender offer fraud.

The jury hung 8-4 in favor of convicting James V. Mazzo, the corporate executive accused of providing proprietary information to DeCinces about the sale of his company, Advanced Medical Optics.

The investigator suggested "very serious charges of juror misconduct" and also left messages with neighbors, which "without further explanation, leaves suspicious impressions," Guilford wrote.

"Please respect the needs and feelings of our former jurors," said Guilford's order, which was issued Thursday.

Mazzo's lawyer, Richard Marmaro, of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates in Los Angeles, said Monday in an email to the Daily Journal that Skadden did not hire the private investigator and "is not at all involved" in the probe. He declined to comment on Guilford's order.

U.S. attorney's office spokesman Thom Mzorek said in an email that the office "did not direct any investigators ? neither the FBI, nor any private investigators ? to have any contact with jurors who deliberated in this case."

Parker's lawyers, sole practitioners Jeffrey C. Tatch of Newport Beach and George B. Brunt of Idaho, did not respond to questions from the Daily Journal. DeCinces' lawyer, Kenneth B. Julian of Manatt, Phelps & Phillips LLP in Costa Mesa, declined comment.

In addition to the scolding, Guilford's order requested compliance with Federal Rule of Evidence 606(b), which prohibits jurors from discussing statements or incidents from deliberations, as well as their mental processes and what might have affected their votes.

However, the rule provides an exception for jury testimony about whether "extraneous prejudicial information was improperly brought to the jury's attention" or an "outside influence was brought to bear," which is what defense lawyers suspect happened. They told Guilford early in deliberations that a request from the jury to see DeCinces' civil judgment had to have been prompted by outside research.

Guilford allowed deliberations to continue after concluding jurors learned of the civil case from a redaction mistake in a defense exhibit that revealed DeCinces' name in a list of civil co-defendants.

Jurors delivered their verdict five days later, May 12. U.S. v. DeCinces et al., 12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

Julian and Marmaro haven't commented since, beyond Julian expressing disappointment and vowing to file a motion for a new trial.

Other attorneys say the redaction mistake that led to jurors learning that DeCinces also was charged by the Securities and Exchange Commission could be an appealable invited error because other cases against a defendant are rarely allowed as evidence under 404(B), which prohibits prior bad acts.

But Julian and Marmaro told Guilford May 8 that the jury's question shows something more than that: They asked to see a judgment when nothing in the evidence said one exists. Yet many online news articles reference one, and Julian and Marmaro said the jury's question indicates they knew of those reports.

"They didn't ask the question. I wonder how that came out. They asked for [a] copy of the SEC final judgment against Doug DeCinces," Marmaro said, according to a transcript of the proceedings.

Guilford was unswayed. In response to the jury's question, he wrote them asking where they found reference to the case. The jury forewoman listed five exhibits, all of which included the case number. One was an SEC judgment against a key prosecution witness, and DeCinces' name was included among the co-defendants.

Guilford declined Julian's and Marmaro's request for a "limited inquiry" of the forewoman, saying he felt their argument about outside research was a "reach" and that discussing the SEC case further with the forewoman could bring more attention to it in deliberations. He then denied a motion for mistrial.

"There's just no evidence that someone back there is saying, 'Oh, I heard on the news that there's a judgment.' They've looked at the five documents, and they asked the natural question," Guilford said, according to the transcript. "It's frustrating to me that now the defense is making arguments that ultimately I think are the result of their failure to do what I ordered them to do concerning redactions."

"I don't find it unusual for juries to ask for information outside the record," he added. "It happens, actually, I think most of the time."

In addition to the order, Guilford on Thursday scheduled a status conference for June 12, which is when motions for new trial are due. Sentencing for DeCinces and Parker has not been scheduled.

The case was prosecuted by Stephen A. Cazares, Ivy A. Wang, Jennifer L. Waier and Lawrence E. Kole.