Executive facing second trial will also defend against charges of perjury

A judge has ruled that a corporate executive facing his second trial for criminal insider trading will be tried for perjury at the same time, though prosecutors will be limited in how they can reference the context of his alleged lies.

Richard Marmaro and Clifford M. Sloan at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates lost all but three of their pretrial motions, clearing the way for a January trial that the U.S. attorney’s office predicts will be much shorter than the two-month marathon last spring that resulted in a hung jury for their client, James Mazzo, and convictions for his co-defendants.

The trial was rescheduled from October to January after prosecutors obtained a superseding indictment against Mazzo based on statements co-defendant Doug DeCinces, a retired Major League Baseball player, made after his conviction.

DeCinces, facing a prison term, is expected to be a key prosecution witness against his former friend.

In addition to the motion to sever, U.S. District Judge Andrew J. Guilford denied motions to dismiss Mazzo’s 17 charges and to compel grand jury transcripts, as well as a renewed Rule 29 judgment of acquittal from the first trial.

The judge granted a motion for a jury questionnaire and a motion in limine that requires prosecutors to reference the first trial generically, such as “in a previous proceeding under oath.”

Guilford also granted a motion to exclude testimony from someone who overheard a statement DeCinces made to his counsel that prosecutors agreed not to use.

The motion is sealed, but the response from the U.S. attorney’s office indicates DeCinces’ statement was heard by Jennifer A. Burtness, a paralegal with the U.S. attorney’s office in Santa Ana. Prosecutors said they didn’t plan to introduce her testimony.

While Assistant U.S. attorneys Stephen A. Cazares and Jennifer L. Waier say their case is much shorter this time, Guilford said in his order that he remains concerned about the length of the overall trial.

He included in his order several trial rules, the first and lengthiest of which reminds attorneys that “unnecessary papers filed about obvious matters must be avoided,” such as a five-page brief about leading questions not being allowed in direct examination.

“This is particularly so when the paper notes the court has already sustained such objections numerous times to leading questions on redirect,” Guilford wrote.

Issued Wednesday, the order reflects a tentative ruling the judge issued before oral arguments Monday. He took the matters under submission after approximately 40 minutes of argument from Sloan, much of which focused on the motion to compel grand jury transcripts and the motion to sever the perjury charge.

Guilford seemed somewhat interested in the motion to sever, asking how long a second trial would last, but the order issued Wednesday is concise in its denial, saying the rejected motions “are unconvincing, some repeating previously denied motions without any new argument.” U.S.A. v. DeCinces, 12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

Other motions are sealed in addition to the motion to exclude DeCinces’ overheard statements, including a reconsideration motion, the motion to dismiss counts for government misconduct, a motion to exclude certain evidence from trial, and two ex parte applications for pretrial return of Rule 17 subpoenas.

The Rule 29 reconsideration was sealed pursuant to a 2013 protective order that governs discovery produced by the government. The other motions were sealed because the Skadden attorneys said they reveal parts of their trial strategy.

Guilford indicated Monday he isn’t sure if everything should be sealed, telling Marmaro, “I’m not sure that’s your right when it comes to, for example ...” before stopping and noting he was limited in what he could say.

Marmaro said he was happy to talk ex parte.

“I’m happy to answer your questions, but I’m afraid in that by doing so I might inadvertently say something which in and of itself we wanted to keep under seal,” Marmaro said.