Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 United States of America, 10 11 12 Robert C. Hazlett, 13 Defendant. 14 15 16 Pending before the Court are (i) defendant Robert C. Hazlett's Memorandum Brief v. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) CR 04-0276-PHX-SMM IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ORDER

17 in Support of His Intent to Waive a Jury Trial in the present criminal case and (ii) the 18 Government's Memorandum on Judicial Disqualification. (Dkts. 227-28.) After 19 considering both Memorandums, the Court now issues the following Order. 20 A. 21 Background The operative indictment pending against Defendant alleges 37 counts consisting of

22 bank fraud (Counts 1 through 18), in violation of 18 U.S.C. § 1344, student loan fraud 23 (Counts 19 through 36), in violation of 18 U.S.C. § 1097(a), and conspiracy to commit 24 bank fraud and student loan fraud (Count 37), in violation of 18 U.S.C § 371. (Dkt. 92.) 25 This criminal case against Defendant was tried to a jury between May 10 and May18, 26 2005. (Dkts. 133-147.) On May 23, 2005, after three days of deliberations, the jury 27 28
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1 announced that it was deadlocked. (Dkt. 158.) The Court declared a mistrial, and ordered 2 Defendant to be retried on July 5, 2005. (Dkt. 159.)1 3 Following the mistrial, counsel for both parties and the Court had conversations

4 with jurors regarding the case and impediments to a unanimous verdict. (Dkt. 227 at 1.) 5 On September 23, 2005, the Government filed a notice of intent to waive its right to

6 proceed by jury trial in the retrial of Defendant, and consented to the matter being 7 submitted to the Court. (Dkt. 185.) The Government posited that the interests of justice 8 and judicial economy would best be served by submitting only "the conspiracy count to 9 the [C]ourt as the trier of fact in lieu of a jury trial." (Id. at 2.) On "information and 10 belief," the Government represented that Defendant agreed to waive his right to jury trial 11 in exchange for the Government's stipulation to cap any loss figure at $500,000. (Id.) 12 On September 26, 2005, the Court held a status conference with counsel for both

13 parties. (Dkt. 186.) Defense counsel confirmed the Government's representation that, in 14 exchange for the Government's stipulation that any loss provable will not exceed 15 $500,000, and the dismissal of certain bank fraud and student loan fraud counts currently 16 pending, Defendant agreed to waive his right to jury trial by submitting the conspiracy 17 count alone to the Court on the transcripts and exhibits from the first trial. (Id.) Counsel 18 for the Government noted that a bench trial would save the Court and both parties the cost 19 of repeating a lengthy trial, as both parties agreed that the evidence presented in the second 20 trial would be virtually identical to the evidence originally presented. (Id.) 21 At the status conference, the Court informed counsel that, after the jury had

22 deadlocked, a mistrial was declared, and the jury was dismissed, approximately nine 23 former jurors discussed their general views of the judicial process and the jury system with 24 the Court. Because the trial had ended in a hung jury, several of the jurors articulated the 25 26 27 28
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The retrial was subsequently continued to January 6, 2006. (Dkts. 167, 188.) -2Filed 12/08/2005 Page 2 of 4

1 basis of their differences in opinion. The Court listened to the jurors' views, but did not 2 comment on them. 3 Given the post-mistrial discussions with former jurors, the Court asked counsel

4 whether he was disqualified from serving as the trier of fact in the retrial. Although 5 neither counsel had researched the issue, each of them stated that they had no objection to 6 the Court serving as the trier of fact, notwithstanding the post-mistrial discussions with 7 former jurors. The Court ordered both parties to brief the issue. 8 The Government's Memorandum argues that "[t]he combination of the court's

9 disclosure of its post-trial discussion with dismissed jurors and the government's and 10 defendant's waiver of any disqualification issue based upon that contact would clearly 11 prevent this issue from being raised from either appellate posture or a subsequent Writ of 12 Habeas Corpus." (Dkt. 228 at 1-2.) Defendant's Memorandum agrees that the Court's 13 post-trial discussion with the former jurors is not an impediment to it serving as the trier of 14 fact, and refers to cases in which a Court served as the trier of fact after the defendant had 15 originally been tried by a jury. (Dkt. 227 at 2.) The Court agrees with both parties that, 16 where the potential ground for disqualification arises under 28 U.S.C. § 455(a) only, 17 waiver of the ground for disqualification may be accepted provided that it is preceded by a 18 full disclosure on the record of the basis for disqualification. See 28 U.S.C. § 455(a). 19 In the present case, the Court's discussion with the former jurors did not personally

20 bias or prejudice the Court against Defendant, nor did that discussion provide the Court 21 with "personal knowledge of disputed evidentiary facts." See 28 U.S.C. §455(b). Rather, 22 the risk presented here is that the Court's post-mistrial discussions with the former jurors 23 could cause an objective person to reasonably question the Court's impartiality, because 24 the goal of §455(a) is to avoid even the appearance of partiality. Id. § 455(a). However, 25 because the potential "ground for disqualification arises only under [section 455(a)], 26 waiver may be accepted provided it is preceded by a full disclosure on the record of the 27 basis for disqualification." Id. § 455(e). 28
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Accordingly, IT IS HEREBY ORDERED that Defendant Robert Hazlett shall appear in

3 Courtroom 605 at 10:00 a.m. on December 14, 2005, for a hearing at which he may, but is 4 not required to, waive his right to jury trial. 5 IT IS FURTHER ORDERED that counsel for the Government shall attend the

6 hearing and be prepared to either consent or object to any waiver of the right to jury trial 7 by the Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 8th day of December, 2005.

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