Lead Opinion
delivered the opinion of the Court.
In Dunn v. United States,
I
In 1997, Enron Corporation (Enron) acquired a telecommunications business that it expanded and ultimately renamed Enron Broadband Services (EBS). Petitioner F. Scott Yeager served as Senior Vice President of Strategic Development for EBS from October 1, 1998, until his employment was terminated a few months before Enron filed for bankruptcy on December 2, 2001. During his tenure, petitioner
In the summer of 1999, Enron announced that EBS would become a “‘core’” Enron business and a major part of its overall strategy. App. 11. Thereafter, Enron issued press releases touting the advanced capabilities of EIN and claiming that the project was “‘lit,’” or operational. Id., at 10. On January 20, 2000, at the company’s annual equity analyst conference, petitioner and others allegedly made false and misleading statements about the value and performance of the EIN project. On January 21, 2000, the price of Enron stock rose from $54 to $67. The next day it reached $72. At that point petitioner sold more than 100,000 shares of Enron stock that he had received as part of his compensation. During the next several months petitioner sold an additional 600,000 shares. All told, petitioner’s stock sales generated more than $54 million in proceeds and $19 million in personal profit. As for the EIN project, its value turned out to be illusory. The “intelligent” network showcased to the public in the press releases and at the analyst conference was riddled with technological problems and never fully developed.
On November 5, 2004, a grand jury returned a “Fifth Superseding Indictment” charging petitioner with 126 counts of five federal offenses: (1) conspiracy to commit securities and wire fraud; (2) securities fraud; (3) wire fraud; (4) insider trading; and (5) money laundering.
Count 1 of the indictment described in some detail the alleged conspiracy to commit securities fraud and wire fraud and included as overt acts the substantive offenses charged in counts 2 through 6. Count 2, the securities fraud count, alleged that petitioner made false and misleading statements at the January 20, 2000, analyst conference or that he failed to state facts necessary to prevent statements made by others from being misleading. Counts 3 through 6 alleged that petitioner and others committed four acts of wire fraud when they issued four EBS-related press releases in 2000. Counts 27 through 46, the insider trading counts, alleged that petitioner made 20 separate sales of Enron stock “while in the possession of material non-public information regarding the technological capabilities, value, revenue and business performance of [EBS].” Id., at 31. And counts 67 through 165, the money laundering counts, described 99 financial transactions involving petitioner’s use of the proceeds of his sales of Enron stock, which the indictment characterized as “criminally derived property.” Id., at 37. To simplify our discussion, we shall refer to counts 1 through 6 as the “fraud counts” and the remaining counts as the “insider trading counts.”
The trial lasted 13 weeks. After four days of deliberations, the jury notified the court that it had reached agreement on some counts but had deadlocked on others. The judge then gave the jury an Allen charge, see Allen v. United States,
On November 9, 2005, the Government obtained a new indictment against petitioner. This “Eighth Superseding Indictment” recharged petitioner with some, but not all, of the insider trading counts on which the jury had previously hung. App. 188. The new indictment refined the Government’s ease: Whereas the earlier indictment had named multiple defendants, the new indictment dealt exclusively with petitioner. And instead of alleging facts implicating a broader fraudulent scheme, the new indictment focused on petitioner’s knowledge of the EIN project and his failure to disclose that information to the public before selling his Enron stock.
Petitioner moved to dismiss all counts in the new indictment on the ground that the acquittals on the fraud counts precluded the Government from retrying him on the insider trading counts.
The District Court denied the motion. After reviewing the trial record, the court disagreed with petitioner’s reading of what the jury necessarily decided. In the court’s telling,
The Court of Appeals disagreed with the District Court’s-analysis of the record, but nevertheless affirmed. It reasoned that petitioner “did not dispute” the Government’s theory that he “helped shape the message” of the allegedly fraudulent presentations made at the analyst conference, and therefore rejected the District Court’s conclusion that the jury had “acquitted [petitioner] on the groun[d] that he did not participate in the fraud.”
The court was nevertheless persuaded that a truly rational jury, having concluded that petitioner did not have any insider information, would have acquitted him on the insider trading counts. That the jury failed to acquit, and instead hung on those counts, was pivotal in the court’s issue-preclusion analysis. Considering “the hung counts along with the acquittals,” the court found it impossible “to decide with any certainty what the jury necessarily determined.” Ibid. Relying on Circuit precedent, United States v. Larkin,
II
The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
While we have decided an exceptionally large number of cases interpreting this provision, see, e. g., United States v. DiFrancesco,
Our cases have recognized that the Clause embodies two vitally important interests. The first is the “deeply in-, grained” principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subject
The first interest is implicated whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument’s textual appeal, we have held that the second trial does not place the defendant in jeopardy “twice.” Richardson v. United States,
While the case before us involves a mistrial on the insider trading counts, the question presented cannot be resolved by asking whether the Government should be given one complete opportunity to convict petitioner on those charges. Rather, the case turns on the second interest at the core of the Clause. We must determine whether the interest in preserving the finality of the jury’s judgment on the fraud counts, including the jury’s finding that petitioner did not
In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with — and acquitted of — robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing “substantially stronger” testimony from “witnesses [who] were for the most part the same,” id., at 439-440, Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury’s verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. Id., at 446. We explained that “when an issue of ultimate fact has once been determined by a valid and final judgment” of acquittal, it “cannot again be litigated” in a second trial for a separate offense. Id., at 443.
Unlike Ashe, the case before us today entails a trial that included multiple counts rather than a trial for a single offense. And, while Ashe involved an acquittal for that single offense, this case involves an acquittal on some counts and a mistrial declared on others. The reasoning in Ashe is nevertheless controlling because, for double jeopardy purposes, the jury’s inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe’s acquittal.
As noted above, see supra, at 116, the Court of Appeals reasoned that the hung counts must be considered to determine what issues the jury decided in the first trial. Viewed in isolation, the court explained, the acquittals on the fraud charges would preclude retrial because they appeared to support petitioner’s argument that the jury decided he lacked insider information.
The Court of Appeals’ issue-preclusion analysis was in error. A hung count is not a “relevant” part of the “record of [the] prior proceeding.” See Ashe,
A contrary conclusion would require speculation into what transpired in the jury room. Courts properly avoid such explorations into the jury’s sovereign space, see United States v. Powell,
Accordingly, we hold that the consideration of hung counts has no place in the issue-preclusion analysis. Indeed, if it were relevant, the fact that petitioner has already survived one trial should be a factor cutting in favor of, rather than against, applying a double jeopardy bar. To identify what a jury necessarily determined at trial, courts should scrutinize a jury’s decisions, not its failures tó decide. A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous
Ill
The Government relies heavily on two of our cases, Richardson v. United States,
In Richardson, the defendant was indicted on three counts of narcotics violations. The jury acquitted him on one count but hung on the others. Richardson moved to bar retrial on the hung counts, insisting that reprosecution would place him twice in jeopardy for the same offense. Unlike petitioner in this case, Richardson did not argue that retrial was barred because the jury’s verdict of acquittal meant that it necessarily decided an essential fact in his favor. He simply asserted that the hung counts, standing alone, shielded him from reprosecution. We disagreed and held that “the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.”
The Government next contends that an acquittal can never preclude retrial on a mistried count because it would impute irrationality to the jury in violation of the rule articulated in Powell,
Arguing that a jury that acquits on some counts while inexplicably hanging on others is not rational, the Government contends that issue preclusion is as inappropriate in this case as it was in Powell. There are two serious flaws in this line of reasoning. First, it takes Powell’s treatment of inconsistent verdicts and imports it into an entirely different context involving both verdicts and seemingly inconsistent hung counts. But the situations are quite dissimilar. In Powell, respect for the jury’s verdicts counseled giving each verdict full effect, however inconsistent. As we explained, the jury’s verdict “brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.” Id., at 67. By comparison, hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. By equating them, the Government’s argument fails. Second, the Government’s reliance on Powell assumes that a
At bottom, the Government misreads our cases that have rejected attempts to question the validity of a jury’s verdict. In Powell and, before that, in Dunn,
IV
One final matter requires discussion. The Government argues that even if we conclude (as we do) that acquittals can preclude retrial on counts on which the same jury hangs, we should nevertheless affirm the judgment of the Court of Appeals because petitioner failed to show that the jury necessarily resolved in his favor an issue of ultimate fact that the Government must prove in order to convict him of insider trading and money laundering. See Brief for United States 41-45. Given the length and complexity of the proceedings, this factual dispute is understandable. The District Court and Court of Appeals each read the record differently, disagreeing as to what the jury necessarily decided in its acquittals. Compare
V
The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
Notes
See 18 U. S. C. § 371 (conspiracy to commit fraud against the United States); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR §240.10b-5 (2004) (securities fraud); 18 U. S. C. §1343 (2000 ed.) (wire fraud); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR § 240.10b5-l (insider trading); 18 U. S. C. § 1957 (money laundering).
While petitioner was charged with 126 counts, the indictment included 176 counts in all, covering conduct by executives purportedly involved in the alleged fraud.
Petitioner had also moved to dismiss the relevant counts in the earlier indictment in response to the Government’s assertion that it could reprosecute petitioner for the previously hung counts under that indictment as well. See
Although the doctrine of collateral estoppel had developed in civil litigation, we had already extended it to criminal proceedings when Ashe was decided. The justification for this application was first offered by Justice Holmes, who observed that “[i]t cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are
Indeed, there were many indications that the jury in this case could have been exhausted after the 13-week trial. See Reply Brief for Petitioner 9-10 (cataloging numerous “statements on the record [that] reveal the very real possibility that the jurors cut their deliberations short out of exhaustion”).
It would also require too much of the defendant. To preclude retrial, he must show that the jury necessarily decided an issue in his favor. Yet, to borrow from the Court of Appeals, “[b]ecause it is impossible to determine why [a] jury hung,”
Concurrence Opinion
concurring in part and concurring in the judgment.
I join Parts I — III and V of the Court’s opinion but cannot join Part IV. In my view the concerns expressed by Justice Alito are well justified. Post, p. 133 (dissenting opinion). It is insufficient for the Court to say that, on remand, the Court of Appeals “may,” “[i]f it chooses,” “revisit its factual analysis.” Ante this page. The correct course would be to require the Court of Appeals to do so.
For the reasons given by Justice Alito, there are grounds here to question whether petitioner has met this demanding standard. Post, at 134-135. The District Court, which was the court most familiar with the record, found that petitioner could not make this showing because a rational jury could have acquitted him of securities fraud on a different basis — namely, that petitioner did not cause the misleading statements to be made. Post, at 135-136. The Court of Appeals’ contrary analysis is not convincing. Post, at 136.
The Court of Appeals held the Double Jeopardy Clause permits petitioner’s retrial because, in that court’s view, the acquitted counts were inconsistent with the jury’s inability to reach a verdict on other counts.
Dissenting Opinion
with whom Justice Thomas and Justice Alito join, dissenting.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The Court today holds that this proscription, as interpreted in Ashe v. Swenson,
I
Today’s opinion begins with the proclamation that this Court has “found more guidance in the common-law ancestry of the [Double Jeopardy] Clause than its brief text.” Ante, at 117. Would that it were so. This case would be easy indeed if our cases had adhered to the Clause’s original meaning. The English common-law pleas of auterfoits acquit and auterfoits convict, on which the Clause was based, barred only repeated “prosecution for the same identical act and crime.” 4 W. Blackstone, Commentaries on the Laws of England 330 (1769) (emphasis added). See also Grady v. Corbin,
But that is water over the dam. In Ashe, the Court departed from the original meaning of the Double Jeopardy Clause, holding that it precludes successive prosecutions on distinct crimes when facts essential to conviction of the second crime have necessarily been resolved in the defendant’s favor by a verdict of acquittal of the first crime.
As a historical matter, the common-law pleas could be invoked only once “there ha[d] been a conviction or an acquittal — after a complete trial.” Crist v. Bretz,
Richardson accentuates the point. Under our cases, if an appellate court reverses a conviction for lack of constitutionally sufficient evidence, that determination constitutes an acquittal which, under the Double Jeopardy Clause, precludes further prosecution. Burks v. United States,
The acquittals here did not, as the majority argues, “unquestionably terminat[e] [Yeager’s] jeopardy with respect to the issues finally decided” in those counts. Ante, at 119 (emphasis added). Jeopardy is commenced and terminated charge by charge, not issue by issue. And if the prosecution’s failure to present sufficient evidence at a first trial cannot prevent retrial on a hung count because the retrial is considered part of the same proceeding, then there is no basis for invoking Ashe to prevent retrial in the present case. If a conviction can stand with a contradictory acquittal when both are pronounced at the same trial, there is no reason why an acquittal should prevent the State from pressing for a contradictory conviction in the continuation of the prosecution on the hung counts.
II
The Court’s extension of Ashe to these circumstances cannot even be justified based on the rationales underlying that holding. Invoking issue preclusion to bar seriatim prosecutions has the salutary effect of preventing the Government from circumventing acquittals by forcing defendants “to ‘run the gantlet’ a second time” on effectively the same charges.
Moreover, barring retrial when a jury acquits on some counts and hangs on others bears only a tenuous relationship to preserving the finality of “an issue of ultimate fact [actu
The burdens created by the Court’s opinion today are likely to be substantial. The Ashe inquiry will require courts to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”
* * *
Until today, this Court has consistently held that retrial after a jury has been unable to reach a verdict is part of the original prosecution and that there can be no second jeopardy where there has been no second prosecution. Because I believe holding that line against this extension of Ashe is more consistent with the Court’s cases and with the original meaning of the Double Jeopardy Clause, I would affirm the judgment.
Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting.
I join Justice Scalia’s dissenting opinion. When a jury acquits on some counts but cannot reach agreement on others, I do not think that the Double Jeopardy Clause precludes retrial on the “hung” counts.
As a result of today’s decision, however, the law is now to the contrary, and I write separately to note that the Court’s holding makes it imperative that the doctrine of issue preclusion be applied with the rigor prescribed in Ashe v. Swenson,
Ashe made it clear that an acquittal on one charge precludes a subsequent trial on a different charge only if “a rational jury” could not have acquitted on the first charge without finding in the defendant’s favor on a factual issue that the prosecution would have to prove in order to convict in the later trial. Id., at 444. This is a demanding standard. The second trial is not precluded simply because it is unlikely — or even very unlikely — that the original jury ac
The situation presented in a case like the one now before us — where the jury acquits on some counts but cannot reach a verdict on others — calls for special care in the application of the Ashe standard. In such a situation, the conclusion that the not-guilty verdicts preclude retrial on the hung counts necessarily means that the jury did not act rationally. But courts should begin with the presumption that a jury’s actions can rationally be reconciled. In an analogous situation — where it is claimed that a verdict must be set aside on the ground that the findings set out in a jury’s answers to special interrogatories are inconsistent — “it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’” Gallick v. Baltimore & Ohio R. Co.,
In the present case, there is reason to question whether the Ashe standard was met. It is clear that the fraud counts required proof of an element not necessary for conviction on the insider trading charge, namely, that petitioner “caused” material misstatements or omissions to be made at the January 20, 2000, analyst conference and in the press releases that formed the basis for the wire fraud counts. See App. 107 (jury instruction on count two (securities fraud)), 118 (jury instruction on counts three through six (wire fraud)). And it is far from apparent that the jury’s not-guilty verdict
The District Court Judge, who was of course familiar with the trial evidence, analyzed this issue as follows:
“The theory of the defense, evident in closing argument and the direct testimony of Defendant Yeager, argued that Defendant Yeager did not participate in the crafting of the statements in the press releases; did not participate in the creation of slides or statements presented at the analysts conference; and did not reach an agreement with any other person to make false, misleading, or deceptive statements or material omissions of fact.” App. to Pet. for Cert. 55a.
The record provides support for the District Court’s analysis. In his summation, petitioner’s attorney argued that “Scott Yeager had nothing to do with Counts 3 to 6 [the securities and wire fraud counts].” 54 Tr. 13384 (July 13, 2005). With respect to the January 20, 2000, conference that provided the basis for the securities fraud count, petitioner’s attorney emphasized that his client “didn’t say anything.” Id., at 13365. Counsel reiterated that petitioner “didn’t make a presentation. He didn’t make a statement.” Ibid.; id., at 13394. Counsel’s summation on this point summarized portions of petitioner’s trial testimony in which he minimized his involvement in matters relating to the conference. See 39 id., at 9932-9933, 9938-9947, and 9953 (June 17,2005).
With respect to the press releases on which the wire fraud counts were based, petitioner’s attorney argued: “Scott Yeager had nothing to do with the press releases.” 54 id., at 13384. “We didn’t make any press releases.” Id., at 13394. “Show me the evidence. Show me where Scott participated in a press release.” Id., at 13406. Again, counsel’s comments in summation tracked petitioner’s testimony denying
The above portions of the record suggest that a rational jury might have found that petitioner did not “cause” the misstatements or omissions at the conference or in the press releases. In light of the length and complexity of the trial record, I am not in a position to say with certainty that the Ashe standard was not met in this case, but the brief discussion of this question in the opinion of the Court of Appeals does not satisfactorily show that the District Court’s analysis was incorrect. Concluding that the not-guilty verdict on the securities fraud count could not have been based on a finding that respondent did not cause the misstatements or omissions at the conference, the Court of Appeals stated that petitioner “did not dispute” that he “helped shape the message of the conference presentations.” App. to Pet. for Cert. 20a. But there is surely tension between that statement and the previously mentioned portions of petitioner’s trial testimony and the defense summation.
Because the Court of Appeals held that Ashe does not apply when a jury acquits on some counts and hangs on others, that court’s analysis of the possible grounds for the jury’s securities fraud verdict was not necessary to support the court’s decision. Now that this Court has held that Ashe does govern in this context, a reexamination of the possible grounds for the fraud count acquittals is warranted.
Because this case arises in federal court, the federal doctrine of issue preclusion might have prevented the Government from retrying Yeager even without Ashe’s innovation. See United States v. Oppenheimer,
That the Government issued a new indictment after the mistrial in this case does not alter the fact that, for double jeopardy purposes, retrial would have been part of the same, initial proceeding. As a matter of practice, it seems that prosecutors and courts treat retrials after mistrials as part of the same proceeding by filing superseding indictments under the original docket number. See, e. g., Superseding Information in United States v. Pena, Case No. 8:03-cr-476-T-23EAJ (MD Fla., Feb. 17, 2005). The Court implies that the new indictment in this case materially refined the charges, ante, at 115, but the only relevant changes were dropping of the other defendants and elimination of a few counts and related factual allegations. Compare App. 6-71 with App. 188-200.
The Court claims that a jury’s failure to reach a verdict is not relevant evidence, ante, at 121, but its justifications for that statement are utterly unpersuasive. It is obvious that a failure to reach a verdict on one count “makefs] the existence” of a factual finding on a necessary predicate for both counts substantially “less probable,” Fed. Rule Evid. 401; how the Court can believe otherwise is beyond me.