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Supreme Court Argument Report: Justices Consider Enron Exec's Double Jeopardy
Law.com
March 24, 2009
The Supreme Court on Monday considered whether collateral estoppel under the double jeopardy clause of the Fifth Amendment bars government prosecutors from retrying a former Enron executive on financial fraud charges when the jury at his first trial acquitted him of some counts but could not reach a verdict on others.
Petitioner F. Scott Yeager, a former Enron Broadband Services executive, was acquitted at trial on counts of conspiracy, securities fraud and wire fraud, but the jury failed to reach a verdict on money laundering and insider trading counts. Yeager was later re-indicted on some of the counts on which the jury deadlocked, and argues that retrial on those counts is barred by collateral estoppel.
Attorney Samuel J. Buffone told the justices that the jury's acquittal of Yeager on some of the charges resolved the common elements in the undecided counts. "When a jury's acquittal resolves an issue in a defendant's favor, that determination is final and the government may not seek an inconsistent determination of that issue from a second jury," Buffone said.
Justice Antonin Scalia pressed Buffone on the fact that the jury had not reached agreement on the counts on which the government sought to retry Yeager. "The point is that they were deadlocked ... and would not have been deadlocked if indeed they made the ... the acquittal finding that you're relying upon for double jeopardy," Scalia said.
"How can you close your eyes to the circumstance that is alleged here, that the hung jury portion of the jury's verdict is simply inconsistent with the acquittal portion," Scalia said.
Deputy Solicitor General Michael R. Dreeben ran into some tough questioning regarding whether allowing retrial would unfairly give the government, as Justice Stephen Breyer said, "a second bite at this apple." And several of the justices made note of the large number of counts in Yeager's indictment -- which totaled 176.
Justice David Souter suggested that the government might be at an advantage in terms of seeking retrial "in this age in which there are ... lots of overlapping criminal statutes." Bringing an indictment with many counts, overlapping charges or charges with common elements, "gives the government a bigger chance of getting a hung jury or some irrational resolution on some of those issues," Souter said.
Dreeben repeated his central argument that "the government should have one full and fair opportunity to convict a defendant on charges that have been proferred by a grand jury on a showing of probable cause, and that does not occur when the hung counts deprive the government of that one opportunity.
"But does the government ask for something more than one fair chance when it comes in with 117 counts?" Souter asked. "Maybe the fair chance consists of a fair chance with a number of counts or a number of indictments that one can reasonably expect a jury to handle without either getting totally confused or totally exhausted."
The case is Yeager v. United States (pdf).
Laurel Newby is a senior editor with Law.com.
