Free Trial Brief - District Court of Arizona - Arizona

l GREENBERG TRAURIG, LLP
Arronwrvs AT mw .
2 surrr vnu
ms. rartstr cm-1er.nAck nom)
3 vuoimx, kruzom ssurr,
(ru;) 445-:2000
4 Booker T. Evans, Jr., SBN #009970
5 Attorney for Defendant Robert C. Hazlett
6 IN THE UNITED STATES DISTRICT COURT
7 IN AND FOR THE DISTRICT OF ARIZONA
8
9 United States of America, CR-04-0276-0l—PHX-SMM
10 Plaintiff
1 1 DEFENDANT’S MEMORANDUM
v. BRIEF IN SUPPORT OF HIS
12 INTENT TO WAIVE A JURY
I3 Robert C. I-Iazlett,
(Assigned to the Honorable Stephen M.
14 Defendant. McNamee)
15
16 Defendant, by and through his undersigned counsel, submits this brief in support
17 of his request to waive his constitutional right to a trial by jury and submit this matter for
18 a bench trial before this Court.
19 Defendant’s case was tried to a jury before this Court from May 10, through May
20 19, 2005. On May 24, the Court declared a mistrial because the jury was not able to
21 reach a verdict. Subsequently, counsel for both parties and the Court had conversations
22 with jurors regarding the case and the impediments to a unanimous verdict.
23 ln the intervening period, the parties’ counsel discussed possible resolutions ofthe
24 pending case without repeating the eight~day jury trial which took place in May. Both
25 parties agree that the evidence presented at a second trial would be virtually identical to
26 that presented in the original trial.
27 After several discussions of alternatives to trial, the government and the defendant
28 agreed to waive their respective rights to a jury trial. Among the reasons supporting this
phx-fs|\|52|352v0l
Case 2:04—cr—00276—SI\/II\/I Document 227 Filed 11/28/2005 Page1 014

1 agreement is the cost of the second period trial to both parties; the fact that one of the
2 government’s witnesses is on assignment in Iraq; and the government’s agreement to cap
3 the loss figure at $500,000 in the event defendant is found guilty following a bench trial.
4 ln addition, if this Court decides it will sit as the trier of fact, the government agrees to
5 dismiss certain bank fraud and student loan fraud counts currently pending against this
6 defendant.
7 While it is not customary for a defendant to proceed by way of a bench trial after
8 having been originally tried by a jury, it is not without precedent. ln Boyde v. Brown,
9 404 F .3d 1159 (9th Cir. 2005), the defendant and the prosecutor agree to a bench trial
10 after the prosecutor provided the Court with assurance that the judge was not positioning
§ 11 himself to have to make a decision on the death penalty if the defendant was convicted.
U G 12 There are also instances where defendants have waived a jury trial and proceeded before
UE E 13 the Court without agreements from the prosecutor following jury trials where their
14 convictions were overturned on appeal. United States v. Jensen, 425 F.3d 698 (9th Cir.
15 2005). Further, there are cases where the parties agreed to a bench trial on stipulated
16 facts. See United States v. Camper, 384 F.3d 1073 (9th Cir. 2005).
17 Finally, in a matter similar to the case before this Court, the defendant’s waiver
N 18 was accompanied by an agreement with the prosecutor for a low-end sentence
19 recommendation in the event of a conviction. His bench trial was also based, at least in
20 part, on stipulated facts and included all the evidence presented at his co-defendant’s jury
21 trial which was presided over by the same judge. United States v. Coleman, 208 F. 3d
22 786 (9m Cir. 2000).
23 lt therefore appears that as long as the Court is satisfied that defendant’s waiver of
24 his constitutional right to a jury trial is a knowing and intelligent waiver, there is legal
25 support for this Court to sit as the trier of fact in the instant case.
26
27
28
¤*=x·**'*'”*”M* 2
Case 2:04—cr—00276—SI\/II\/I Document 227 Filed 11/28/2005 Page 2 of 4

1 fljsfn.
1 DATED this ’ day 0fN0vembe1·, 2005.
2 GREENBERG TRAURIG, LLP
3 ;_....»
5 Beekcr T. Evans.N.Ip.`
Attemcys for R5bcrt C. Hazlett
6
7
8
9
10
g 11
2 E 12
EE 21 2 13
:¢2;§
a § 14 .
Egéiz
Q, 3 1‘ 15
Q : 2 16
LD L
p 17
N 18
19
20
21
22
23
24
25
26
27
28
phx-f€I\IS2I352v0I 3
Case 2:04—cr—00276—SI\/II\/I Document 227 Filed 11/28/2005 Page 3 014

1 CERTIFICATE OF SERVICE
2 >< I hereby certify that on November 28, 2005, I electronically transmitted the
3 attached document to the Clerk’s Office using the CM/ECE System for tiling and
obtained a Notice of Electronic Filing and a copy was e-mailed and mailed to the
4 Honorable Stephen McNamee, Judge assigned to the case; and
>< Transmittal of a Notice of Electronic Filing was e-ma11ed to the following
6 CM/ECE registrant:
7 Richard Mesh
Assistant United States Attorney
8 Richard. Mas/1@usd0j. gov W
9 O I
W CZ I / Lamwéa»
Cathie Zamora
U , 12
at ,5 13
¤ z E? 2
EE 5 3 Ei 14
agaig
§$aa§ w
$€E‘
E2 Z E 16
LD ¤~
r`I 1 8
19
20
21
22
23
24
25
26
27
28
plix-f`sl\I52|3S2v(Jl 4
Case 2:04—cr—00276—SI\/II\/I Document 227 Filed 11/28/2005 Page 4 014

Case 2:04-cr-00276-SMM

Document 227

Filed 11/28/2005

Page 1 of 4

Case 2:04-cr-00276-SMM

Document 227

Filed 11/28/2005

Page 2 of 4

Case 2:04-cr-00276-SMM

Document 227

Filed 11/28/2005

Page 3 of 4

Case 2:04-cr-00276-SMM

Document 227

Filed 11/28/2005

Page 4 of 4