United States v. Ira Isaacs , 359 F. App'x 875 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50423
Plaintiff - Appellee, D.C. No. 2:07-cr-00732-GHK-1
v.
MEMORANDUM *
IRA ISAACS, DBA Stolen Car Films,
DBA LA Media,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted December 10, 2009
Pasadena, California
Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.
Ira Isaacs (“Isaacs”) appeals the district court’s denial of his motion to
dismiss on double jeopardy grounds. Under 28 U.S.C. § 1291, we have
jurisdiction to hear an interlocutory appeal from a denial of a motion to dismiss on
double jeopardy grounds. Abney v. United States, 431 U.S. 651, 659 (1977). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
review de novo a denial of a motion to dismiss on double jeopardy grounds. See
United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002). We recite the facts only
as needed to explain our decision.
I. Recusal
Judge King did not err in ruling that Judge Kozinski properly recused
himself from Isaacs’s case under 28 U.S.C. § 455(a). In analyzing § 455(a)
recusals, we ask “whether a reasonable person with knowledge of all the facts
would conclude that the judge’s impartiality might reasonably be questioned.”
Clemens v. U.S. Dist. Court, 428 F.3d 1175, 1178 (9th Cir. 2005) (per curiam)
(internal quotation marks omitted). We find that a well-informed observer may
reasonably have questioned Judge Kozinski’s ability to act as an impartial judge in
Isaacs’s trial. Thus, we affirm Judge King’s determination that the recusal was
proper under § 455(a).
II. Mistrial
We review the district court’s declaration of a mistrial with substantial
deference. See United States v. Bates, 917 F.2d 388, 394 (9th Cir. 1990). “[A]
determination of manifest necessity is an exercise of discretion, reviewed for
abuse, not a finding of fact.” United States v. Bonas, 344 F.3d 945, 948 n.3 (9th
Cir. 2003).
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This case is controlled by United States v. Jaramillo,1 where we found no
error in the district court’s finding of manifest necessity for a mistrial where a
judge recused himself after being criminally indicted in the midst of a trial. 745
F.2d 1245 (9th Cir. 1984). Isaacs’s attempt to distinguish Jaramillo is unsuccessful
because the crux of the case was that “the designation of another judge [in
Jaramillo] would not remove the appearance of partiality concerning all prior
rulings and all actions of the indicted judicial officer.” Id. at 1249. In this case,
the designation of another judge half way through the proceedings would not have
removed the appearance of partiality concerning Judge Kozinski’s previous actions
in the case. As the court in Jaramillo held, Federal Rule of Criminal Procedure
25(a) applies to the replacement of a judge disabled because of death or sickness,
not recusal for other reasons. Id. Because Jaramillo is controlling Ninth Circuit
precedent, Judge King correctly found that Judge Kozinski did not err in failing to
consider alternatives to mistrial. As in Jaramillo, the “extraordinary circumstances
of this case required that a mistrial be declared.” Id. at 1248.
1
Bates suggests indicators to examine in determining whether a judge has
exercised sound discretion in declaring a mistrial. 917 F.2d at 396. The Jaramillo
case, however, is controlling because both Isaacs’s case and Jaramillo involve a
mistrial declared following a judge’s recusal because of the judge’s own personal
situation.
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III. Judicial Notice of the Los Angeles Times articles
Judge King did not err when he took judicial notice of the Times articles
because the articles were not hearsay. Hearsay is an out of court statement offered
for the truth of the matter asserted. Fed. R. Evid. 801(c). The out of court
statements contained in the Times articles were not offered for the truth of the
matter asserted. Judge King’s determination of whether Judge Kozinski’s recusal
was proper under § 455(a) required Judge King to assess whether a reasonable
person with knowledge of all of the facts would question Judge Kozinski’s
impartiality. Because Judge King’s judicial notice accepted only the existence of
the Times articles, the articles were not hearsay.
IV. Conclusion
Judge King did not err in finding Judge Kozinski’s recusal was proper, in
finding that Judge Kozinski exercised sound discretion in declaring a mistrial, or in
considering the Times articles. For the foregoing reasons, the district judge’s order
denying Isaacs’s motion to dismiss on double jeopardy grounds is affirmed.
AFFIRMED
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