Prosecutor focuses closing on truth and baseball

SANTA ANA -- A federal prosecutor's closing argument in an insider trading trial focused in part on two themes that capture the essence of the case: truth and baseball.

In a three-hour presentation Tuesday, Assistant U.S. Attorney Jennifer L. Waier highlighted her co-counsel's cross examination of defendant James Mazzo when describing for jurors how he tried to play down his friendship with the prosecution's key witness, retired Major League Baseball player Douglas DeCinces.

While Mazzo denied in testimony that baseball is his first love, he told a trade publication in 2009 that it was, and that he'd played minor league baseball. He denied to Assistant U.S. Attorney Stephen A. Cazares that he'd misrepresented himself and said "minor league" referred to American Legion and Babe Ruth leagues.

But Waier said that's part of a false narrative he's pushing to distance himself from his former friend, who was convicted in their joint trial last year and is hoping to avoid a prison sentence by cooperating with the prosecution. Mazzo is being retried after the jury hung 8-4 in his favor.

With a photo of Mazzo and DeCinces together and smiling displayed overhead, Waier told jurors, "a picture is worth a thousand words."

"This relationship was close. And it began because Mr. Mazzo recognized Mr. DeCinces because of his love of the game, his love of baseball," Waier said. "Mr. Mazzo loved baseball."

Waier reminded jurors of Mazzo's minor league claim later in her argument when she displayed a slide titled, "Mazzo's lack of credibility -- just a few examples." The slide described Mazzo as evasive in testimony when he claimed to not understand common words such as "confidential," "close friends," "pry" and "minor league baseball," which Waier said is part of his coverup.

"Although Mr. DeCinces made the money, it's Mr. Mazzo who's to blame," Waier told the jury. "By divulging his company's secrets, Mr. Mazzo allowed Mr. DeCinces to profit at the expense of the average investor who didn't have that information."

"Mr. DeCinces had the play by play, and the only way he would know that was from the coach, the coach who was driving the team at Advanced Medical Optics," Waier said, referring to the company of which Mazzo, a longtime ophthalmology business executive, was CEO.

Convicted last May of 14 counts of felony tender offer fraud, DeCinces agreed to testify against Mazzo in exchange for a deal with the U.S. attorney's office that could bring him no time in prison, instead of the approximately five years his convictions carry under the standard sentencing range.

Mazzo is now charged with eight tender offer fraud counts and eight securities fraud charges, as well as four perjury counts. United States v. DeCinces, 12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

Mazzo's defense team at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates includes Richard Marmaro as lead trial attorney and Clifford M. Sloan of Washington, D.C., in charge of law, motion and appeals.

Their case hinged on emphasizing Mazzo's reputation as an ethical community leader and philanthropist. They also worked to show jurors that the 2009 acquisition of Mazzo's company by Abbott Laboratories was nowhere close to a done deal at the times DeCinces testified Mazzo told him about it.

DeCinces bought 71,700 shares of Advanced as it was trading at about $5 a share, then sold them after the Abbott deal at $22 a share. He and friends, including his former Baltimore Orioles teammate Eddie Murray, made more than $2 million.

Waier described Mazzo's defense witnesses as a "parade of executives" and displayed a slide titled "the executive suite" that included their photos.

"All these people are part of Jim's executive world, or Mr. Mazzo has given them a lot of money, like Mr. Doti," Waier said, referring to James Doti, president emeritus at Chapman University. Mazzo is a vice chairman of Chapman's Board of Trustees, and Doti testified last week that Mazzo and Advanced have donated $1 million to the university.

Waier likened Mazzo's "Look, I have these nine friends and didn't tell them" defense to an argument that a bank robber can't be guilty because he skipped five banks before robbing a sixth. She said his friendship with DeCinces differed from his friendships with his friends from Allergan and Advanced, which was an Allergan spin-off.

She recalled Mazzo's testimony that he was "feeling sorry" for himself around the time Abbott offered to buy his company. She then showed jurors an exerpt from Doti's testimony in which he was asked if he'd ever known Mazzo to feel sorry for himself.

"No. That's not the Jim I know," Doti said.

"So those people aren't even in the same league in terms of the relationship Mr. Mazzo had with Mr. DeCinces," Waier said. "They don't know anything about the case, either."

A slide Waier presented that previewed Marmaro's arguments angered the veteran trial lawyer. It included a sketch of a man in fedora who appeared to be selling watches from inside his trench coat.

"She got just about everything wrong of what she said I was going to say and how I was going to say it," Marmaro said. "But what I found most offensive about this was the depiction of the lawyer as some sort of used or stolen watch salesman."

He said the slide shows that Waier "obviously misunderstands the important role defense lawyers play."

"I've been a lawyer for 42 years ... and I've never ever been accused of a slide like this," Marmaro said.

He will finish his closing argument Wednesday morning. Then Cazares will rebut.