Former Symbol executives win ruling
NEW YORK -- A U.S. appeals court Monday barred the retrial of two former executives of Symbol Technologies Inc, who were facing securities fraud and conspiracy charges.
The U.S. Court of Appeals for the Second Circuit reversed a lower court's order, which held that retrial of Michael DeGennaro and Frank Borghese would not violate the double jeopardy clause.
The clause of the Fifth Amendment prevents "the government from putting a defendant in jeopardy twice for the same offense," according to the appellate court's opinion.
Symbol, a maker of bar code and inventory scanning technology, was bought by Motorola Inc in January in a transaction with a total equity value of about $3.9 billion.
DeGennaro had been Symbol's senior vice president of finance. Borghese had held various positions, including senior vice president and general manager of worldwide sales and services.
DeGennaro and Borghese were among a group of former Symbol executives charged criminally in 2004 in connection with an alleged scheme to improperly inflate the company's revenue and earnings in order to create the false appearance it had met or exceeded its financial projections. At least seven former executives have pleaded guilty in the matter.
DeGennaro and Borghese stood trial in the Eastern District of New York before Judge Leonard Wexler. The trial, which began on Jan. 3, 2006, and lasted six weeks, ended with Wexler declaring a mistrial.
Borghese and DeGennaro moved to bar retrial under the double jeopardy clause, but their motions were denied in an order dated Aug. 31, 2006, prompting the appeal.
Wexler found that he had "properly declared a mistrial following the jury's unambiguous note that it was genuinely deadlocked" and therefore the double jeopardy clause did not bar retrial, according to the ruling.
"The decision by a district court to declare a mistrial is of great consequence," the appellate court said in its opinion. "We are not persuaded that the jury was genuinely deadlocked when the trial court declared a mistrial."