A Los Angeles billionaire accidentally prompted a mistrial in a terrorism case last week when he walked into a courtroom during testimony that was supposed to be closed to the public.
MGA Entertainment founder and CEO Isaac Larian—whose company developed Bratz dolls—stepped into U.S. District Judge David O. Carter’s courtroom on Friday during a break in his own trial in a civil trade dress infringement case involving rapper T.I. and MGA’s popular OMG Dolls. The businessman wasn’t merely curious about the proceedings: He knows Carter because the judge presided over a 2011 trial pitting the company’s Bratz dolls against Mattel’s Barbies, and he wanted to say hello.
Instead, Larian’s presence derailed the trial because it drew attention to protective measures that jurors weren’t supposed to know about. Carter declared a mistrial at the request of defense attorneys, and the jurors who’d been seated for what was expected to be a two-week trial were excused.
A second trial is now scheduled to begin with jury selection on March 28 for Jason Fong, a 26-year-old U.S. Marine reservist from Irvine arrested on accusations of fundraising for Hamas and Hay’at Tahrir al-Sham (HTS), a Sunni Islamist militant group active in Syria.
The first trial began last Wednesday with an agreement in place between between the U.S. Department of Justice and Fong’s attorneys that allowed three prosecution witnesses—two undercover FBI agents and a confidential informant—to testify wearing disguises, under pseudonyms and without members of the public in the courtroom beyond Fong’s family.
Their testimony was to be broadcast via audio in another courtroom where the public could listen. But Larian didn’t know that, and the door to Carter’s courtroom was unlocked when he arrived during a break in his trial, which was taking place on the same floor as Carter’s courtroom. Coincidentally, Larian’s case ended in a mistrial on Wednesday for unrelated reasons.
Larian’s lawyer Jennifer Keller told LAMag that Larian fondly remembers Carter from the 4 1/2 months he spent in his courtroom for the 2011 Barbie v. Bratz trial, which ended in an $88.4 million jury verdict for MGA after a previous $100 million jury award for Mattel was reversed on appeal. Carter tacked on another $85 million in punitive damages. The 9th Circuit eventually gutted both damage awards, but Carter’s $139 million attorney fee order for MGA’s attorneys—Keller was the star trial lawyer—stood.
Larian again turned to Keller in November as trial approached in a lawsuit brought against MGA by rapper T.I. and his wife, singer/songwriter Tameka “Tiny” Harris, over dolls the couple alleges steal trade dresses from Tiny’s daughter Zonnique’s music group, the OMG Girlz. Larian, an Iranian-born U.S. citizen who lives in L.A., had been in court each day for trial, when he stepped into Carter’s courtroom during a Friday morning break.
“Isaac greatly admires Judge Carter and was just hoping to say hello,” Keller told LAMag in a text message. She said there was no sign on the door warning of closed proceedings, and no one stopped Larian from entering.
“Anyone could have wandered in,” Keller said.
Carter declared a mistrial Friday morning at the request of Fong’s lawyers Karren Kenney, who is based in Costa Mesa, and Charles D. Swift of the Texas-based Constitutional Law Center for Muslims in America. Neither returned requests for comment.
Fong’s most recent indictment charges him with four counts of attempting to provide material support to a foreign terrorist organization. He is accused of using the online aliases asian_ghazi, Jason Asian Ghazi and Mustafa Ahmed Al_Hakim while trying to provide tactical, combat and weapons training materials to HTS as well as trying to raise cryptocurrency for Hamas despite being aware that both groups are considered to be foreign terrorist organizations by the U.S. government.
Investigators found weapons in Fong’s Irvine home, according to a prosecution exhibit list, including an AR-15-style assault rifle, two handguns, a bolt-action rifle with scope, several thousand rounds of ammunition, a gas mask and body armor.
Fong is out of custody on an ankle monitoring device after spending nearly 10 months in jail. His lawyers filed notice in December that they will be arguing he’s “on the Autism spectrum,” which affected his ability to understand that he was coordinating with terrorists.
If Carter had his way, Fong would be in jail awaiting trial, as the judge in April 2021 reversed a decision from U.S. Magistrate Judge Karen E. Scott to allow him out of custody on $300,000 bond and subject to electronic monitoring. A decorated U.S. Marine who was badly wounded in Vietnam, Carter, 79, cited Fong’s military background and said he made statements “indicating propensity for martyrdom” as well as a desire to kill others, use bombs, and affiliate with terrorists.
But Kenney appealed Carter’s order to the 9th Circuit, and Fong was eventually released after a three-judge panel said Carter failed to explain why the conditions imposed by Scott were inadequate after he’d been ordered to better to further detail his reasoning.
Kenney then tried to recuse Carter from the case, arguing the judge’s own service in the Marine Corps contributed to a “military-based bias” that he displayed in “hostile comments” against Fong.
Kenney quoted Carter telling Fong in court: “And you planned on leaving the military, which you’re entitled to do. Because the U.S. Army are terrorists, and so are the Marines”—referencing a comment Fong had made in an online group chat equating Marines to terrorists.
“These comments by Judge Carter were not due to reading from an exhibit presented before the court, but rather from the Judge looking at the defendant during the hearing, and mocking the defendant’s opinion as stated in chats contained in the Government’s discovery. Judge Carter’s attitude towards the defendant belies a hostility that a ‘fair-minded person could not entirely set aside,’” Kenney wrote, quoting a 1980 U.S. Supreme Court case.
Prosecutors argued that Carter’s comments were “completely supported by the record,” and the judge declined to leave the case in a three-page order issued Aug. 10, 2021, saying his determination that Fong is an unmitigated danger to the community “was based solely on the overwhelming evidence” and not a personal bias.
Fong’s lawyers appealed Carter’s denial of the recusal motion to the 9th Circuit, but the court rejected the appeal for lack of jurisdiction because the order is not a final judgment.
Fong is due back in Carter’s courtroom on March 14 for a status conference.
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