Prosecutors want to try executive for third time

SANTA ANA -- Federal prosecutors said Tuesday they're planning a third trial of an ophthalmology executive accused of insider trading, and acknowledged to the judge that it is unusual.

Assistant U.S. attorney Stephen A. Cazares said at a hearing Tuesday the evidence presented at the two previous hung trials of James Mazzo was not identical, and that four perjury charges related to Mazzo's testimony in the first trial have only been heard once.

"We do recognize we can't do this forever, and we have no intention of continuing to try a case where multiple juries just can't reach a unanimous verdict," said Cazares, who's prosecuting the case with Assistant U.S. attorney Jennifer L. Waier.

"We recognize that, your honor, but we do think this case presents some unique facts that warrant another retrial," Cazares told U.S. District Judge Andrew J. Guilford.

Mazzo's defense team at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates accused prosecutors of trying to jury shop and said they plan to file a motion seeking dismissal of all counts, which Guilford scheduled for a hearing on April 30.

"The government said, 'Well, we know we can't just keep going and keep going.' That's exactly what they're seeking to do here, your honor," said Skadden partner Clifford M. Sloan, calling a third trial "highly unusual."

Guilford emphasized at the beginning and end of the hearing that 10 of the 12 jurors wanted to acquit in the latest trial, and he cited several cases in which a judge has dismissed cases to prevent repetitive retrials. He also wondered aloud if he should hear from U.S. Attorney Nicola T. Hanna regarding the retrial decision when Cazares said the decision was made by his supervisors.

The first jury split 8-4 in favor of conviction.

"They had an abundant and full and fair opportunity in two lengthy and very extensive trials and, again, there's no reason to expect a different outcome," Sloan said.

Sloan is handling the law and motion portion of Mazzo's case while Skadden partner Richard Marmaro is the trial attorney. They were joined Tuesday by Skadden partners Kevin D. Lloyd and Matthew E. Sloan.

While Cazares said he wants the trial scheduled as early as June, Guilford scheduled only the briefings for Mazzo's dismissal motion, which are due March 23. The judge said he's undecided and asked prosecutors if they considered three trials unusual. Cazares said yes.

"The charges principally have been tried twice, but the evidence put on in those two trials ... was entirely different," Cazares said. "So I do think that also weighs in favor of providing the government with one more opportunity." Cazares also said only government misconduct or due process violations justify dismissing the indictment, and neither occurred.

The decision to retry means the sentencing of Mazzo's convicted co-defendants, retired Major League Baseball player Douglas DeCinces and his business partner, David Parker, remains unscheduled.

DeCinces, who Cazares said will again testify against Mazzo, has a deal with prosecutors that allows for them to recommend he serve no time in prison, instead of the 51 months he faces for 14 felony convictions of tender offer fraud under the standard sentencing range. United States v. DeCinces, 12-CR00269 (C.D. Cal., filed Nov. 28, 2012).

Meanwhile, Parker's attorneys are negotiating with prosecutors regarding the fact that DeCinces testified that Parker was wrongly convicted of two counts of tender offer fraud.

Sole practitioner George B. Brunt of Idaho, who represents Parker with Newport Beach sole practitioner Jeffrey C. Tatch, told Guilford on Tuesday that Parker has always maintained he never knew inside information from Mazzo when he bought stock in Mazzo's company, Advanced Medical Optics, before Abbott Laboratories acquired it in 2009.

Brunt called for prosecutors to dismiss Parker's charges and for Guilford to vacate the verdict.

"If the government truly believes that Doug DeCinces was telling the truth about Mr. Parker as they advocated, I don't think there's any reason for Mr. Parker and his family to endure another day with this," Brunt said.

Cazares said that while DeCinces' statements after Parker was convicted are not evidence, "we recognize the issue it raises."

"No ultimate decision has been made by my front office, but we recognize the issue," Cazares said. However, he said Mazzo's case must first be resolved because "the outcome of Mr. Mazzo's case is relevant both to the outcomes of Mr. DeCinces and Mr. Parker."

DeCinces' lawyer, Kenneth B. Julian at Manatt, Phelps & Phillips, LLP, didn't object but said DeCinces "would like the earliest possible date for a sentencing while honoring the terms of the agreement he made with the government."