                                                                              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                            NOT FOR PUBLICATION                                DEC 22 2009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.

                                           -3-
              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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