How much character testimony is too much?

SANTA ANA -- A string of courtroom appearances by Orange County luminaries testifying in defense of a corporate executive accused of insider trading has raised questions about how much character testimony a jury should hear.

Lead trial attorney Richard Marmaro's team from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates rested on Wednesday after an approximately two-week presentation that emphasized businessman James Mazzo's reputation as an ethical leader dedicated to philanthropic endeavors in Orange County.

The defense case included character testimony from prominent friends and colleagues, including David Pyott, founder of Botox-maker Allergan and formerly one of the highest paid CEOs in the world, as well as James Doti, president emeritus at Chapman University. Mazzo is the vice chairman of Chapman's board of trustees and was a longtime Allergan executive before becoming CEO of Advanced Medical Optics in 2003.

Doti testified Wednesday that Chapman's board of trustees knew of Mazzo's criminal indictment when they unanimously voted him vice chair in early 2016.

"In a sense, it's like the vice president of the United States," Doti said of Mazzo's responsibilities at Chapman, which include filling in for the chairman, famed trial attorney Wylie A. Aitken of Aitken Aitken Cohn.

U.S. District Judge Andrew J. Guilford knows a few of the defense witnesses personally, including Doti and Sheree Aronson, an investment expert who worked for Mazzo at Advanced Medical Optics before it was acquired by Abbott Laboratories in 2009, which is the deal at the center of the insider trading charges.

The judge told Marmaro that he wouldn't be "chummy" with the witnesses during trial.

"I might be kind to them outside the presence of the jury," Guilford said.

Guilford expressed skepticism about the relevancy of some of the testimony, which prompted a brief from Skadden attorneys that argued Mazzo "should be afforded wide latitude to testify about specific instances of his own character." The brief cites United States v. Giese, 597 F.2d 1170. 1190 (9th Cir. 1979), which established that "character testimony alone may be enough to raise a reasonable doubt."

Skadden partner Clifford M. Sloan prepared the brief following Jan. 25 testimony from Pyott that was punctuated by attorney arguments. Guilford sustained prosecution objections when Marmaro asked Pyott about Mazzo's reputation in Orange County's business and civic communities.

The judge then scolded Pyott when he continued mentioning examples of Mazzo's contributions to UC Irvine, and rejected Marmaro's request for a sidebar.

"I'm starting to get a little bit frustrated. Sir, I've repeatedly sustained objections about his activity at the university. Did you hear me sustain those objections?" Guilford said to Pyott. "Every time you answer the question, you seem to be trying to bring that in. And I've ruled against that, sir."

Marmaro later told Guilford that specific examples of Mazzo's contributions are relevant to show jurors the foundation for Pyott's recounting of community opinions.

"The issue is not, 'Does he know Jim Mazzo?' in this line of questioning," Marmaro said. "It's 'Does he know Jim Mazzo's reputation in the community?' It's a different question. ... The jury would be entitled to know if this witness never saw this person in the community and is then opining that the community thinks he's revered or his reputation's impeccable."

Guilford said that question is fine, but detailed examples are not. He also said he believes Marmaro got the testimony he needed.

"I do not think the additional material you wanted to pursue significantly added to what you already said," Guilford said. "We had over 30 minutes about how wonderful Mr. Mazzo is."

Assistant U.S. Attorneys Jennifer L. Waier and Stephen A. Cazares indicated last week that they might object to more character witnesses as cumulative under Federal Rules of Evidence 403, which allows judges to exclude otherwise relevant testimony.

They made no objections Wednesday but continued their pattern of emphasizing in cross-examination the witnesses' close ties to Mazzo and knowledge of the evidence presented to jurors. United States v. DeCinces et al., 12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

Doti told Waier he knew Mazzo was friends with former professional baseball player Doug DeCinces, who has become the main prosecution witness against Mazzo after being convicted of insider trading last year. But Doti acknowledged he didn't know much about their friendship.

Waier also emphasized that Chapman is not a public company and does not have shareholders, implying that Mazzo's position on its board differs from his responsibilities with a public company.

"If he's convicted of a felony in this case, would he still be able to serve on the board?" Waier asked.

"I'm not certain of that. There are no provisions in the trustee bylaws relating to such a conviction," Doti said.

"Do you have any other convicted felons sitting on your board right now?" Waier asked. Guilford overruled an argumentative objection from Marmaro.

"Not that I know of," Doti answered.

Doti also said in cross that he used to own stock in Advanced, and that the company gave $500,000 to Chapman. Mazzo has also donated $500,000, but Doti said the donations have not affected his opinion of Mazzo's character. "Money does not buy my support," he said.

Doti was one of the country's longest serving university presidents before he took emeritus status in 2016.