Metropolitan News-Enterprise


Friday, August 25, 2009


Page 3


Ninth Circuit Rejects Bid to Revive Samueli Plea Deal


By a MetNews Staff Writer


A district judge’s rejection of a plea agreement is not reviewable on appeal, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court dismissed an appeal by Henry Samueli, the billionaire co-founder of Broadcom Inc. and owner—with his wife—of the Anaheim Ducks professional hockey team.

Samueli, now 55, was charged with, and pled guilty to, one count of making a false statement to the Securities and Exchange Commission, a crime punishable by up to five years in prison. The charge grew out of a probe into backdating of stock options, during the course of which Samueli told investigators he was uninvolved in the company’s option-granting process, which he later admitted was untrue.

Under his pact with the government, Samueli agreed to serve five years’ probation and pay $12.25 million in fines and penalties; the government agreed not to charge him with criminal violations of the securities laws. After entering his plea, he resigned as Broadcom chairman and was suspended by the National Hockey League from involvement with the Ducks.

In September of last year, U.S. District Judge Cormac Carney of the Central District of California—who had deferred ruling on the plea bargain pending the presentence report—rejected the agreement. “The court cannot accept a plea agreement that gives the impression that justice is for sale,” the judge—as quoted by The Associated Press—said, citing among other things the lack of an agreement by the defendant to cooperate in the ongoing investigation and prosecution of other Broadcom executives.

That ruling is nonappealable, Judge Ronald Gould wrote for the Ninth Circuit, because of “the broad rule that orders in criminal cases are generally unreviewable before imposition of a judgment and sentence.”

Gould rejected the argument that the order is appealable under the collateral-order doctrine. He noted that in criminal cases, the doctrine—described by the Supreme Court as allowing an appeal of orders determining rights that are “too important...and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated”—is very strictly applied.

Rejection of Samueli’s plea bargain does not qualify, Gould said, because it is too closely related to the merits of the case and because it “is effectively reviewable on appeal from a final judgment.”

The appellate court, Gould explained, may determine on appeal from the final judgment whether a disparity between the ultimate sentence and that which was stipulated to in the plea agreement constitutes reversible error.

 Other impacts of the agreement’s rejection cited by Samueli—including “the stigma of continued association with the securities-fraud allegations, the loss of an immediate evidentiary hearing on his objections to the PSR, and the pressure that he feels to testify in his former colleagues’ upcoming trials”—do not support a departure from the general rule, Gould said.

Gould was joined by Senior Judge Ferdinand F. Fernandez and visiting District Judge Morrison C. England Jr. of the Eastern District of California.

The appeal was argued by Gordon A. Greenberg of McDermott Will & Emery’s Los Angeles office for the defendant and Assistant U.S. Attorney George S. Cardona for the government.

The case is United States v. Samueli, 08-50417.


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