Seeking new trial or acquittal, attorney says juror lied

SANTA ANA — A federal judge on Monday expressed skepticism about arguments seeking new trials or acquittals for two men convicted of insider stock trading, including a sealed motion that accuses a juror of lying to get out of deliberations.

“I’m fully willing to consider misconduct by the jury, but they don’t have anyone here representing them, and to say a man lied in federal district court is a strong statement,” U.S. District Judge Andrew J. Guilford told Kenneth B. Julian, a partner at Manatt, Phelps & Phillips LLP. “And I don’t know that your declaration establishes that.”

Guilford heard argument Monday from Julian, whose client, retired Major League Baseball player Douglas DeCinces, was convicted of 14 counts of tender offer fraud in May after a two-month trial. Julian filed a motion alleging jury irregularities and misconduct, as well as a new trial motion pursuant to Rule 33 and a motion for acquittal under Rule 29.

While the juror motion is sealed, Guilford said Monday that the allegation involves a juror who was dismissed from deliberations after stating a family member had fallen ill. Julian said that investigation initiated by Manatt concluded the family member was not ill; rather the man lied to get out of deliberations, which Julian said denied DeCinces’ Sixth Amendment right.

Guilford said there is irony behind Julian’s allegation.

“Why are you insisting that a juror who you believe was dishonest sit on this jury?” Guilford said. “To follow your argument would be to say that the dishonest juror gets to sit, instead of saying, ‘You’re dishonest. You’re now dismissed.’”

Guilford also heard arguments Monday from George B. Brunt, an Idaho sole practitioner whose client David L. Parker was convicted of two counts of tender offer fraud, and Clifford Sloan of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates.

Sloan is seeking a motion for acquittal under federal Rule 29 for James V. Mazzo, a corporate executive who is accused of disclosing proprietary information to DeCinces about Abbott Laboratories’ 2009 acquisition of Mazzo’s company, Advanced Medical Optics. Jurors split 8-4 in favor of convicting Mazzo on 26 counts; the U.S. attorney’s office is seeking a new trial that’s scheduled to begin in September. United States v. DeCinces et al., 8:12-cr-00269 (C.D. Cal., filed Nov. 28, 2012).

Guilford limited oral argument Monday because he said he’s thoroughly read the briefs. He mentioned an unredacted document that prompted a motion for mistrial early in deliberations. The document mentioned the Securities Exchange Commission case against DeCinces because defense attorneys did not redact it. While Guilford denied the mistrial motion in May, he said Monday that while other documents referenced the case, too, “Isn’t that invited error?”

Julian responded that “over a dozen lawyers did their very best” with the documents.

“I would ask the court, if there’s a consequence, to let it fall on me and not the client,” Julian said.

Brunt’s argument on behalf of Parker focused on the split in verdicts between the alleged tipster, Mazzo, and the alleged tippee, DeCinces. Brunt said the jury had to have substituted a new theory that was never presented in court in order to convict DeCinces and Parker but not Mazzo.

“One could hardly imagine a better poster child for the existence of Rules 29 and 33 than this case,” Brunt said.

Sloan focused on the statute of limitations for Mazzo’s alleged crimes. Guilford ruled pre-trial that a six-year limit applies, rather than a five-year limit, which would have stopped Mazzo’s prosecution because the alleged crimes occurred in January 2009. He was indicted in September 2014. Sloan cited United States v. Gentile, and a recent decision by prosecutors in that case to accede to the five-year limit.

“How does a lawyer explain to his client that under exactly the same set of facts, the District of New Jersey would say you can’t be prosecuted, but in the Central District of California, we will prosecute you, and we will do our best to deprive you of your liberty?” Sloan asked.

Guilford said that argument assumes that whichever circuit court rules “decides what happens in every other circuit.” He also noted that he already considered the issue, and that Sloan wants him to reconsider simply because the government didn’t pursue an appeal in Gentile. Guilford called it “a pretty thin reed.”

“You’re suggesting now I should change a ruling that we spent a lot of time on,” Guilford said.