Risk Management

No Double Jeopardy for Ex-Symbol Execs

An appeals court says retrying the executives would violate their constitutional rights after jurors in an earlier mistrial said they had planned t...
Tim ReasonAugust 27, 2007

A federal appeals court ruled that a former Symbol Technologies finance executive and another former executive cannot be retried on charges stemming from the company’s accounting scandal.

A three-judge panel of the 2nd Circuit Court of Appeals said retrying former senior vice president of finance Michael DeGennaro and Frank Borghese, former senior vice president and general manager of worldwide sales and services, would amount to “double jeopardy” and thus be unconstitutional.

In early 2006, the trials of DeGennaro, Borghese, and former chief financial officer Kenneth Jaeggi ended in a mistrial. After a six-week trial and four days of jury deliberations, jurors sent a note saying: “We are at a deadlock. We have exhausted all options.” Upon a motion reportedly initiated by Jaeggi’s attorney, Steven Molo, U.S. District Judge Leonard Wexler declared a mistrial.

DeGennaro’s attorney, Michael Sommer, and Borghese’s attorney, Brad Simon, had wanted first to poll the jury to determine whether they had reached a verdict on any of the three defendants.

CFO.com reported at the time that after speaking with 7 of the 12 jurors outside the courtroom, Sommer and Simon moved that the jurors return to court so they can be asked whether they had acquitted two of the defendants. That would be the only way to prevent an “unimaginable injustice,” Sommer reportedly claimed in court papers at the time.

Sommer also reportedly asserted that jurors had found DeGennaro and Borghese not guilty on all counts, and that they had acquitted Jaeggi of all charges except conspiracy to commit securities fraud.

Borghese and DeGennaro both moved to bar retrial under the double jeopardy clause, according to the 2nd Circuit’s opinion. The motions were denied by Judge Wexler on August 31, 2006, who said he had “properly declared a mistrial following the jury’s
unambiguous note that it was genuinely deadlocked,” and therefore, that the double jeopardy clause did not bar retrial.

“The decision by a district court to declare a mistrial is of great consequence,” wrote U.S. Circuit Judge Robert A. Katzmann in a 19-page opinion reversing Wexler’s decision. “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.”

Katzmann also wrote that the panel did not find that Borghese deliberately waived his right to have his guilt determined by his original tribunal when he initially joined in DeGennaro’s motion for mistrial but then almost immediately changed his position.

In May 2004, DeGennaro and Borghese were named in a 25-count indictment charging them with securities fraud, mail fraud, wire fraud, and conspiracies to commit the frauds.

Symbol, a maker of bar code scanners, was acquired by Motorola Inc. for $3.9 billion earlier this year.

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