Ex-baseball star seeks vacated verdict

SANTA ANA — Attorneys for a retired professional baseball player facing federal prison for insider trading believe misconduct and irregularities with the jurors who convicted him of 14 felonies should vacate their verdict.

Kenneth B. Julian, a partner at Manatt, Phelps & PhillipsLLP, who is representing Doug DeCinces, filed the motion under seal late Monday, along with a motion for new trialand motion for acquittal.

He told U.S. District Judge Andrew J. Guilfordof Santa Ana during a status conference earlier Monday that it was "maybe preferable" if the jury motion be public like the others, but he's concerned about the jury's privacy.

The misconduct allegations emerge three weeks after Guilford said in a minute order that jurors complained they'd been contacted by a private investigator who spoke of an FBI background and also left messages with neighbors. The judge "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."

Only Julian's team is alleging juror misconduct. They've filed four supporting declarations, also under seal, from Manatt associate Garrett M. Mott, who assisted Julian during trial; Irvine sole practitioner Sherri S. Shafizadeh; Sovisal Theam, who has a background as a paralegal; and Paul Bonin, a former FBI agent who's now a private investigator.

Richard Marmaro, head of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, said his team didn't hire the investigator. He's in a different strategic position because jurors hung 8-4 on all 26 counts against his client, corporate executive James V. Mazzo, while convicting DeCinces of 14 counts of tender offer fraud. The U.S. attorney's office is seeking a new trial that Guilford has not yet scheduled. U.S.v. DeCinces et al.,12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

The jury also convicted DeCinces' friend David L. Parkerof three counts of tender offer fraud, also related to trades made around the time of Abbott Laboratories' 2009 acquisition of Mazzo's company, Advanced Medical Optics. Sole practitioner Jeff Tatchof Newport Beach, who is representing Parker with George B. Brunt of Idaho Falls, Idaho, said Monday that he'll join Julian'smotions while pursuing his ownmotion. That motion for acquittal, filed June 9, focuses on the split in verdicts between the alleged tipster and the alleged tippees.

"It is completely irrational for the jury to find a remote tippee guilty of insider trading and not the government's alleged tipper, who was the only insider in the case," according to the motion. Julian'smotion for a new trial argues that the split verdict shows jurors convicted DeCinces of something not alleged in the indictment: misappropriation of insider information that Mazzo disclosed "innocently or accidentally," instead of intentionally as alleged in the indictment and during trial. Though both are illegal under insider trading Rule 14e-3, Julian said the verdicts show a "fatal variance" that warrants a new trial because the indictment alleged only intentional tipping and didn't allow him to prepare a proper defense.

He also calls for a new trial because of what he describes as improper arguments and mischaracterization of evidence duringAssistant U.S. Attorney Jennifer L. Waire'sclosing argument and Assistant U.S.Attorney Stephen A. Cazares' rebuttal.

Julian'smotion for acquittal details perceived deficiencies in the prosecution's case and concludes: "In short, all of the information attributed to DeCinces had already appeared in analyst reports and thus is "deemed public." Contorinis, 692 F.3d at 143. The government thus introduced insufficient evidence for a jury to conclude beyond a reasonable doubt that DeCinces possessed nonpublic information about Abbott's effort to acquire [Advanced Medical Optics] from Mazzo." Marmaro'smotion for acquittal, filed May 26, is a renewal of the motionthat Guilford rejected during trial. It incorporates the trial record as a whole to again argue that no rational jury could conclude Mazzo acted with fraudulent intent. It also argues that two prior stock trades by DeCinces that prosecutors presented to jurors were "too speculative to serve as a basis" for convicting Mazzo.

Julian's motion also alleges prosecutors "improperly used" the prior trades, which coincided with insider Advanced activity regarding IntraLase Corp. and then Bausch& Lomb. The trades were a major pretrial issue. Guilford granted a motion in limine that excluded them as evidence, but the9th U.S. Circuit Court of Appeals reversed.

Julian's motions are to be heard on July 24; Marmaro's and Tatch's are scheduled for Oct. 2.Guilford took issue with the length of the trial, which included 26trial days, 28witnesses and 650exhibits, and said Monday that his colleague U.S. District Judge David O. Carter "has some friendly disappointment with me what with the stays and appeals and all sorts of things."

Carter is awaiting the end of the criminal proceedings so he can proceed witha Securities and Exchange Commission civil case against Mazzo.The judge invited briefing within three weeks on the legalities of imposing limits on the length of a criminal trial and the number of exhibits. Julian's team is among the briefing invitees. While DeCinces was convicted of 14 tender offer counts, jurors hung on 16 counts of securities fraud and two other tender offer counts.

Cazares said Monday the U.S. attorney's office hasn't decided whether to retry him.

Guilford cautioned the attorneys to make the briefs "appropriately brief, because the subject will be making the trial shorter."

Marmaro said he's never seen limits in criminal trials since he began practicing in 1980. Guilford said he takes the issue seriously. "It's a powerful statement when Mr. Marmaro says he's never seen it before," Guilford said. Marmaro added that "some of the court's criticism is valid" and that his team has committed to doing a better job with documents. He said his team prepared for prosecution witnesses that were never called, but Waire said they called 17 of 25 witnesses and, "There is no way that that many witnesses justified 14,000 documents."

"I haven't tried as many cases since 1980 as Mr. Marmaro, but I have never seen defense exhibits come in the way they have in this case," Waire said.