498 F.3d 136 (2nd Cir. 2007), 06-4195, United States v. Razmilovic

Docket Nº:06-4195-cr (Lead), 06-4198-cr (CON).
Citation:498 F.3d 136
Party Name:UNITED STATES of America, Appellee, v. Tomo RAZMILOVIC, Kenneth Jaeggi, Brian Burke, Defendants, and Michael DeGennaro, Frank Borghese, Defendants-Appellants.
Case Date:August 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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498 F.3d 136 (2nd Cir. 2007)

UNITED STATES of America, Appellee,


Tomo RAZMILOVIC, Kenneth Jaeggi, Brian Burke, Defendants,


Michael DeGennaro, Frank Borghese, Defendants-Appellants.

Nos. 06-4195-cr (Lead), 06-4198-cr (CON).

United States Court of Appeals, Second Circuit.

August 27, 2007

Argued: May 16, 2007.

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[Copyrighted Material Omitted]

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David James, Assistant United States Attorney, of counsel, (Eric O. Corngold,

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Chief Assistant United States Attorney, of counsel, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Michael S. Sommer (Eugene I. Goldman on the brief), McDermott Will & Emery LLP, New York, NY, for Defendant-Appellant Michael DeGennaro.

Bradley D. Simon (Brian D. Waller, Jeremy Weintraub on the brief), Simon & Partners LLP, New York, NY, for Defendant-Appellant Frank Borghese.

Before: MINER, KATZMANN, Circuit Judges, and MURTHA, District Judge. [*]

KATZMANN, Circuit Judge:

The decision by a district court to declare a mistrial is of great consequence.

The case at hand calls on us to review such a ruling, to determine whether it was an abuse of discretion for a trial court to decide that a single jury note indicating deadlock created a "manifest necessity" to declare a mistrial. On the record before us, we conclude that it was. We therefore hold that retrial of defendants-appellants Michael DeGennaro ("DeGennaro") and Frank Borghese ("Borghese") would violate the Double Jeopardy Clause of the Fifth Amendment. We also must decide whether Borghese consented to the mistrial when he initially joined in his fellow defendant's motion for mistrial but then almost immediately changed his position. We find that Borghese did not deliberately forego his right to have his guilt determined by his original tribunal.


In May 2004, DeGennaro and Borghese were named in a twenty-five count indictment charging the senior officers of Symbol Technologies, Inc. ("Symbol"), a leading manufacturer of bar code scanners, with, inter alia, securities fraud, mail fraud, wire fraud, and conspiracies to commit the same. DeGennaro had been Symbol's Senior Vice President of Finance. Borghese had held various positions at Symbol including Senior Vice President and General Manager of Worldwide Sales and Services. DeGennaro and Borghese were named in two of the twenty-five counts in the indictment: Count One, conspiracy to commit securities fraud, and Count Two, securities fraud.

DeGennaro and Borghese stood trial in the Eastern District of New York before Judge Leonard Wexler, along with Kenneth Jaeggi ("Jaeggi"), Symbol's former Vice President of Finance and Chief Financial Officer, who was named in twenty-three of the twenty-five counts in the indictment. Their trial, which began on January 3, 2006, lasted for six weeks and involved testimony from forty witnesses. The jury began its deliberations on the afternoon of Wednesday, February 15, 2006. The jurors were allowed to leave at 4:30 p.m. each day so that a juror could catch a 5:00 p.m. train. The jury deliberated for two days before adjourning for the President's Day weekend. During those deliberations the jury asked for read-backs of a witness's testimony and a portion of the conspiracy charge.

Deliberations resumed on Tuesday, February 21, 2006. That afternoon, at 2:38 p.m., Judge Wexler announced that "[t]he jury said they need 15 more minutes. For what, I don't know." Less than ten minutes later the jury sent a note that asked "[D]oes each count require a unanimous

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decision?" Judge Wexler responded by sending back a note simply saying "yes." On informing the parties of the jury's note Judge Wexler commented, "I guess that's the big thing we waited for. I told you I had no idea what it was."

Court reconvened at 4:37 p.m.. Judge Wexler announced that he had a note from the jury. The noted stated in full: "Judge, We are at a dead lock. We have exhausted all our options. This has been going on since Thursday. P/S - We are ready to go home today. Thank you." [sic] After reading the note, Judge Wexler announced that he was going to "send them home and then I will get your opinions as to what we do." DeGennaro's counsel immediately interjected: "With instructions to have them come back tomorrow." The jurors then came into the courtroom and were sent home with instructions that they were not to discuss the case "until you are all back tomorrow."

After the jury left, Judge Wexler informed the parties that they would "continue tomorrow the same way, that's all. Unless someone wants me to declare a mistrial." Jaeggi's counsel moved for a mistrial. DeGennaro's counsel spoke next and said: "Before I make a similar application, Judge, I wonder if it makes sense to inquire of the jury if they have reached a verdict as to any defendant on any count. I would concede that the note indicates the answer is probably no."

Judge Wexler sought the views of the other parties. Borghese's counsel spoke first, and his response is a matter of some dispute. According to the trial transcript, he said only that he "would ask for a mistrial." Borghese's counsel claims that he said: "I request a mistrial, but I join in [DeGennaro's counsel's] application that your Honor poll the jury first to see if they have reached a verdict with respect to any of the individual defendants."1 The Government stated that it opposed the idea of polling the jury and that it opposed the motion for the mistrial. Jaeggi's counsel also indicated that he opposed polling the jury. Judge Wexler said that he would "think about it," and following a pause in the proceedings, declared a mistrial "[i]n view of the request made by two of the defendants, and the note of the jury."

DeGennaro's counsel immediately renewed his request that the Court "at least inquire whether [the jury had] reached a verdict as to any defendant on any count." Borghese's counsel stated that he agreed with DeGennaro's counsel's position. Judge Wexler did not respond but began to discuss the scheduling of a retrial. The Government requested that Judge Wexler "hold off [his] decision in granting a mistrial." Judge Wexler responded by simply saying "No. I made it." The Government made a second request for "some opportunity to submit some arguments," but that request was also denied.

DeGennaro's counsel then asked, "I take it, your honor, that you denied my request?" Judge Wexler responsed by reiterating that he had "declared a mistrial. What does that mean? You don't have to be a genius to figure that out." He also made clear that he was going to dismiss the jury: "I will not spend the money for another day. [The courtroom deputy] is going to call them and the alternates and tell them that their service is over." One of the Assistant United States Attorneys asked for five minutes to consult with his office. The request was denied. When he renewed his request, Judge Wexler reluctantly

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granted it, but emphasized that he was unwilling to continue to discuss his decision: "But there is a mistrial. I'm now talking about what date you want to try the case."

After the break, DeGennaro's counsel again raised the possibility of polling the jury, noting that the earlier jury note had asked if they needed to be unanimous on each count. Judge Wexler responded: "Counsel, it is over. You are still arguing the point. I thought the Government wanted me to come back, and not you. Argue with your co-defendants." DeGennaro's counsel pointed out that he represented one individual and that "for all I know this jury has reached a verdict with respect to my client." Judge Wexler retorted, "If you know it, I wish you would tell me."

Borghese's counsel then stated: "For the record, Mr. Borghese opposes a motion for a mistrial, and we ask that you inquire--." He was interrupted by Judge Wexler, who reminded him that he went on record asking for a mistrial and asked, "Now you oppose a mistrial?" The following exchange then took place:

Borghese's Counsel: Judge, we believe that the jury may have reached a verdict.

Judge Wexler: Counselor, it is too late. You already said you wanted a mistrial. You can't take your plea back.

Borghese's Counsel: I said we wanted a mistrial, but for you to inquire as to whether or not they reached a verdict.

Judge Wexler: You didn't say that. You said you joined in with [Jaeggi's counsel].

Borghese's Counsel: With [DeGennaro's counsel] I said.

Judge Wexler: [Jaeggi's counsel] what do you say to that? Did he join in with you?

Jaeggi's Counsel: I asked for a mistrial.

Judge Wexler: It is on the record.

Jaeggi's Counsel: I believe [Borghese's counsel] joined in with [DeGennaro's counsel] and I opposed them.

Judge Wexler: You are now saying he joined in with...

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