A federal judge refused Tuesday to block prosecutors from going forward with a third trial for a Laguna Beach man accused in an insider-trading scheme that led to the conviction of former California Angels third baseman Doug DeCinces.
U.S. District Judge Andrew Guilford denied a defense motion for acquittal of James V. Mazzo, whose two previous trials ended with deadlocked juries.
Mazzo’s attorneys argued that there wasn’t enough evidence in the case against their client and that it would be unfair to put him through a third trial.
“Despite the appealing nature of Mr. Mazzo’s arguments, the oath taken by this judge requires that he apply the law as it exists,” Guilford wrote in his ruling. “And, unfortunately, the only time the Ninth Circuit (Court of Appeals) addressed this issue directly, it concluded `that the fact that a jury was hung by a six to six vote, or by one even more favorable to the defendant, is not an adequate basis for dismissal under the court’s supervisory powers.”’
Mazzo’s attorney, Richard Marmaro, said, “While we are disappointed with the court’s ruling, we think the court’s thoughtful comments highlight why this case should not be tried for a third time, particularly after a 10-2 not guilty vote in the most recent trial.”
Marmaro also argued in the motion that DeCinces’ testimony in the second trial was “so shoddy.”
Federal prosecutors, in their court papers, countered that the defense’s position was “absurd.”
“The Ninth Circuit has held that `the uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face.’ DeCinces’ testimony was not `incredible or unsubstantial on its face’ because it was believable, and… (was) corroborated by other evidence,” they wrote.
Guilford declared a mistrial on Feb. 21 in Mazzo’s second trial when jurors deadlocked 10-2 in favor of acquittal on all but one count. On the remaining count, which did not allege acts on any specific dates and was more broad, jurors deadlocked 9-3 for acquittal.
Mazzo’s first trial ended in a May 2017 mistrial after jurors deadlocked on all counts against him.
The 61-year-old former eye care company CEO is an ex-neighbor of DeCinces, who was convicted last May of 14 counts of insider trading stemming from stock tips that prosecutors said he received from Mazzo.
DeCinces testified for the prosecution in Mazzo’s trial in hopes of receiving leniency in his sentencing. He testified that he was facing five years in federal prison, but said prosecutors agreed to request only two years behind bars in exchange for his cooperation in Mazzo’s trial.
DeCinces is expected to testify against Mazzo in the third trial.
DeCinces said he had been advised by a stock broker in 2008 to buy more stock in Mazzo’s company, Advanced Medical Optics Inc., because of a planned debt-restructuring that Mazzo had discussed that would save the company about $90 million.
DeCinces testified that he bought 3,500 shares in the company based on the broker’s advice, then talked to Mazzo about the restructuring plans, prompting him to buy more than 11,000 additional shares in the ensuing days.
Prosecutors contend that Mazzo tipped off DeCinces in January 2009 about the planned sale of Advanced Medical Optics to Abbott Laboratories. DeCinces said his stockbroker advised him to sell his shares, and he collected more than $1 million in profits.
Mazzo’s attorneys have denied that he gave DeCinces any tips about the eye care company, noting during DeCinces’ testimony that the former baseball player had repeatedly denied receiving any inside information from his former neighbor.
A sentencing date for DeCinces has not been set.