Today, the Second Circuit held that the double-jeopardy clause prohibited a second trial of Michael DeGennaro and Frank Borghese on charges that they committed securities, wire, and mail fraud as executives of Symbol Technologies, Inc.  United States v. DeGennaro, No. 06-4195 (2d Cir. Aug. 27, 2007).

The decision stemmed from a jury note that claimed "dead lock" in their deliberations.  Counsel for a third defendant asked for a mistrial.  The lawyers representing Messrs. DeGennaro and Borghese joined but also requested that the judge poll the jurors before dismissing them, explaining that their dead lock might relate only to the other defendant.  Judge Wexler denied the request and declared a mistrial.  Counsel withdrew their conditional request for a mistrial, but His Honor persisted.  He again refused to poll the jury and ordered court personnel to notify the jurors that he’d discharged them.

The Second Circuit held that the court should not have ordered a mistrial and that, having declared it after submission of the case to the jury, the Constitution barred retrial of Messrs. DeGennaro and Borghese.

Blawgletter notes that the jury apparently had decided to acquit them anyway.  They dead locked only on the third defendant.

Barry Barnett

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