Stanford clinic student Samantha Bateman discusses Thursday’s decision in Yeager.
On Thursday, the Supreme Court issued its decision in Yeager v. United States, ruling in favor of petitioner F. Scott Yeager, a former Enron Corp. executive who had been acquitted of several securities and wire fraud counts by a jury that deadlocked on the remaining counts in the indictment. In a decision that did not fully foreclose the possibility of a retrial yet rendered one significantly more difficult, the Court held, by a vote of six to three, that an apparent inconsistency between acquittals on some counts and a jury’s failure to return a verdict on other factually related counts does not diminish the acquittals’ potential issue-preclusive force under the Double Jeopardy Clause.
Writing for the Court, Justice Stevens explained that the reasoning in Ashe v. Swenson controls in this situation. Ashe prevents the government from retrying a defendant on any charges that have as a necessary element any issue that was already decided by a jury’s acquittal in a prior trial. To identify which issues the prior jury had necessarily determined, courts should look only to the jury’s decisions, rather than its failures to decide; hung counts are unavoidably inscrutable, and “a jury speaks only through its verdict.â€
In Yeager’s case, therefore, the Court held that the jury’s inability to reach a verdict on the insider trading counts in the indictment was simply a “nonevent,†entitled to no weight in the collateral estoppel analysis. Accordingly, “if the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him†from re-prosecution.
The Court thus shut the door on the theory advanced by the government in support of a retrial, rejecting its arguments that either Richardson v. United States or United States v. Powell allowed a new prosecution. However, the Court left open a narrower window, remanding the case to the Fifth Circuit to revisit, “[i]f it chooses,†the fact-intensive analysis of whether the jury necessarily determined that Yeager did not have insider information. Justice Kennedy filed a separate concurrence breaking from that portion of the majority’s opinion; in his view, the court of appeals should be required, not merely permitted, to undertake that re-examination.
Three justices dissented. Justice Scalia, joined by Justices Thomas and Alito, viewed the majority’s decision as an illogical extension of Ashe: the Double Jeopardy Clause should have no internal preclusive effect within a single proceeding, and “there can be no second jeopardy where there has been no second prosecution.†Justice Alito also penned a dissent, to which Justices Scalia and Thomas signed on, emphasizing the need for rigorous application of the “demanding†issue preclusion standard, which allows an acquittal to have preclusive force only if “it would have been irrational for the jury to acquit without finding [the] fact.â€
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