Free Order on Motion for Hearing - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

9 United States of America, 10 11 12 Robert C. Hazlett, 13 Defendant. 14 15 16 v. Plaintiff,

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CR 04-0276-PHX-SMM

ORDER

Pending before the Court is defendant Robert C. Hazlett's Motion for Hearing Re

17 Status Conference. (Dkt. 192.) Defendant requests that the Court set a status hearing to 18 conduct an in-person inquiry of him regarding waiving his right to a jury trial. (Id. at 1.) 19 After considering Defendant's Motion, 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 9 and May18, 2005. 26 (Dkts. 133-147.) On May 23, 2005, after three days of deliberations, the jury announced 27 that it was deadlocked. (Dkt. 158.) The Court declared a mistrial, and ordered Defendant 28
Case 2:04-cr-00276-SMM Document 197 Filed 10/28/2005 Page 1 of 3

1 to be retried on July 5, 2005. (Dkt. 159.) The retrial was subsequently continued to 2 January 6, 2006. (Dkts. 167, 188.) 3 On September 23, 2005, the Government filed a notice of intent to waive its right to

4 proceed by jury trial in the retrial of Defendant, and consented to the matter being 5 submitted to the Court. (Dkt. 185.) The Government posited that the interests of justice 6 and judicial economy would best be served by submitting only "the conspiracy count to 7 the [C]ourt as the trier of fact in lieu of a jury trial." (Id. at 2.) On "information and 8 belief," the Government represented that Defendant agreed to waive his right to jury trial 9 in exchange for the Government's stipulation that the loss provable in this matter does not 10 exceed $500,000. (Id.) 11 On September 26, 2005, the Court held a status conference with counsel for both

12 parties. (Dkt. 186.) Defense counsel confirmed the Government's representation that, in 13 exchange for the Government's stipulation that any loss provable will not exceed 14 $500,000, the Defendant agreed to waive his right to jury trial by submitting the 15 conspiracy count alone to the Court on the transcripts and exhibits from the first trial. (Id.) 16 The Court informed counsel that, after the jury had deadlocked, a mistrial was

17 declared, and the jury was dismissed, several of the former jurors discussed their views of 18 the evidence and the credibility of witnesses with the Court. Given such post-mistrial 19 discussions with the former jurors, the Court asked counsel whether he was permitted 20 under the law to serve as the trier of fact for the retrial. Although neither counsel had 21 researched the issue, each of them stated that they had no objection to the Court serving as 22 the trier of fact, notwithstanding the post-mistrial conversations with former jurors. The 23 Court ordered counsel to submit briefs regarding the propriety of him acting as the trier of 24 fact in the retrial, given his post-mistrial discussions with the former jurors. Following the 25 submission of briefs and a ruling thereon, the Court agreed to take the jury trial waiver 26 from Defendant or reassign the case, whichever action was required by the law. 27 28
Case 2:04-cr-00276-SMM Document 197

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To date, neither party has submitted briefing regarding the propriety of this Court

2 serving as the trier of fact in the retrial given the post-mistrial discussions with former 3 jurors. As a result, Defendant's request for a hearing to "make an in-person inquiry of 4 Defendant regarding Defendant waiving his right to a jury trial" (dkt. 192 at 1) is 5 premature. 6 7 Accordingly, IT IS HEREBY ORDERED DENYING Defendant Robert Hazlett's Motion for

8 Hearing Re Status Conference (Dkt. 192). 9 IT IS FURTHER ORDERED that, no later than November 15, 2005, the

10 Government and Defendant shall submit separate briefs on whether the law allows this 11 Court to serve as the trier of fact in the retrial given the Court's post-mistrial discussions 12 with the former jurors. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cr-00276-SMM Document 197

DATED this 28th day of October, 2005.

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