Criminal Procedure

U.S. v. Yeager and Consistency with Double Jeopardy

INTRODUCTION

Yeager, an Enron executive, was acquitted of securities fraud while the jury hung over insider trading charges and a money laundering count at his initial trial.1 The lower court denied a motion to preclude a second trial on the mistried counts. The Circuit Court found that a rational jury could acquit defendant of “securities fraud only by concluding that he did not have insider information. Because Yaeger was also charged with insider trading and money laundering and the jury hung on those counts . . . collateral estoppel . . .does not bar a retrial.”2 The Supreme Court reversed. “The question presented . . . is whether an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment.”3 The acquittal is decisive since “a jury speaks only through its verdict, its failure to reach a verdict cannot--by negative implication--yield a piece of information that helps put together the trial puzzle.”4

BACKGROUND

The Fifth Amendment reads,“[N]or shall any person be subject for the same offense twice put in jeopardy. . . .”5 A traditional rule is that “no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied.”6 One of the “primary purpose[s] served by such a rule is akin to that served by the doctrines of res judicata and collateral estoppel—the finality of judgements.”7 Collateral estoppel is “the principle that bars re-litigation between the same parties of issues actually determined at a previous trial. . . .”8 J. Holmes said, “It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect a liability in debt.”9 The doctrine is all the more important given “the tendency of modern criminal legislation to divide the phrases of a criminal transaction into numerous separate crimes, the opportunity for multiple prosecutions for an essentially unitary criminal episode are frightening.”10

An second doctrine bars “a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”11 Retrying the same issue raises “multiple prosecutions [which] also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charges.”12 Kepner v U.S. articulated a third doctrine, that “barred the Government from appealing an acquittal in a criminal prosecution.13”

ANALYSIS

The majority opinion noted that Double Jeopardy Clause “embodies two vitally important interests.”14 The first is “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 . . . enhancing the possibility that even though innocent he may be found guilty.”15 The second is the rule of finality, or collateral estoppel. “Where a previous judgement of acquittal was based on a general verdict . . . the court [has] to ‘examine the record of a prior proceedings . . . 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.”16 The Court then affirmed “the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy. . ..”17 It distinguished an acquittal accompanied by an inconsistent hung count, as in Yeager, from U.S. v. Powell and Dunn v U.S, in which a jury acquitted on one count and, rather than hung, inconsistently convicted on another count.18 “Respect for the jury’s verdicts counseled giving each verdict full effect, however inconsistent. . . 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.”19

J. Kennedy concurred for reasons that J. Alito explained in his dissent. “The judgements of acquittal preclude the Government from retrying petitioner on the issue of his possession of insider information if, and only if, ‘it would have been irrational for the jury to acquit without finding that fact.’”20 J Scalia dissented because the Double Jeopardy Clause, which was tied to the “English common-law pleas of auterfoits acquit and auterfoits convict, on which the Clause was based, barred only repeated ‘prosecutions for the same act and crime.”21 Trials after a jury has hung “is not a new trial, but part of the same proceeding.”22 He compared the inconsistent failure to reach a verdict in Yeager to the inconsistency in Dunn. “We have refused to set aside convictions that were inconsistent with acquittals.”23 Citing Richardson v. U.S., he said, “I do not see why the Double Jeopardy Clause effect of a jury acquittal on a different count should be any different from the Double Jeopardy Clause effect of the prosecution’s failure to present a case sufficient to go to the jury on the same count.”24

EVALUATION

Collateral estoppel reflects policy considerations, so important, that its preservation has called into question venerable Double Jeopardy Doctrines. The Yeager Court follows a long series of rulings that have answered many of these charges.

Mayers and Yarbrough have criticized the “rules defining what issues have actually been determined for collateral estoppel purposes, perhaps influenced by prevailing double jeopardy concepts unfavorable to the state, have tended largely to vitiate the protection which the doctrine affords to the defendant.”25 To prevent an erroneous ruling at a trial, which Kepner bars from appeal, criminal counts are broken into multiple prosecutions. Thus, Kepner leads to a “restrictive application of double jeopardy rules.”26 By overturning Kepner, the “definition of ‘offense’ may then be expanded or a practice instituted of compelling joinder of all offenses arising out of the same broad transaction.”27 This critism was answered by Corbin, which instituted this requirement, without abandoning Kepner.28 “Double jeopardy bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”29

Another criticism of Kepner was corrected by Burks v U.S.30. “If the State cannot have a new trial following an erroneous acquittal, it certainly should not have this advantage when the acquittal was erroneously denied.”31 The Court agreed with Mayers and Yarbrough in Burkes. “[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of of acquittal.”32

A third problem was corrected in Price v Georgia.33 Kepner barred retrial for error after acquittal. How can a reversal of a manslaughter conviction, which is an implicit acquittal of homicide, subject a defendant to homicide on retrial? Before Price the Court justified this with the waiver theory. This was criticized because it “consider[ed] the defendant as desiring to be retried even on his conviction is questionable. To picture him requesting a new trial on his acquittal is to wander into legalistic fairyland.”34 The Court previously denied the federal government waiver theory in Green. “Mr. Justice Holmes observed . . . [that] it cannot be imagined that the law would deny to a prisoner the correction of a fatal error unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.”35 In Price, “[p]etitioner sought and obtained the reversal of his initial conviction for voluntary manslaughter. . . . [This] required that the retrial be limited to that lesser offense.”36

Yeager corrected an error of the trial court contradicting Corbin, which barred “a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”37 The lower court admitted that Yeager was acquitted of the securities fraud charges because the government could not prove them, but still “the government need not prove that fact beyond a reasonable doubt in the retrial of the insider trading counts, because it is not an ultimate issue.”38The government tried Yeager for the insider trading and fraud counts at the same trial, consistent with Corbin, presenting the same evidence of fraud to prove both offenses, assuming had it conducted separate trials and won a conviction rather than acquittal on the fraud counts, it would have been precluded from subsequently trying Yeager for insider trading under the Corbin “essential element” test, even if he would have been convicted. When Yeager was acquitted on the evidence of fraud, how can a subsequent trial for insider trading not be precluded? How can “the government need not prove that fact beyond a reasonable doubt?”39

The decision in Yeager supports Sealfon, in which collateral estoppel precluded a defendant, acquityed for conspiracy, from being tried subsequently for the substantive offense. However, as a result of Sealfon and Ashe, “a greater hardship on a defendant who is tried on all possible counts at once than on one who is subject to separate trials. The latter will not even be tried a second time if he is acquitted the first time, while the former [can] suffer a conviction.”40 Although Corbin corrected this discrepancy, requiring a single trial in all cases, it comes at a cost, the entire lose of the collateral estoppel protection of Sealfon and Ashe. Furthermore, Corbin, protects the guilty to the detriment of the innocent. Without Corbin, the government can subsequently prosecute another offense, using the same essential evidence for which a defendant was previously convicted. By contrast, Ashe already precluded the government from prosecuting for a another offense using the same essential evidence for which a defendant was previously acquitted. By forcing all counts into a single procedure, Corbin exposes a defendant acquitted on a first count and otherwise precluded from subsequent procedures, to the single trial Dunn inconsistency, in which a jury irrationally convicts on one count and acquits on another using the same essential evidence. Yaeger was the right policy decision, as it reduces this burden, by rejecting the Dunn inconsistency when jury is hung. Precluding retrial, Yeager helps put the defendant tried at a single trial on par with one “subject to separate trials.”

In Corbin “an exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.”41 Yeager precluded a second trial when a jury acquits on one count and mistries on the second, since a hung jury is no decision. However, Yeager leaves open the following hypothetical. Say, a jury irrationally convicts on one count and acquits on another count, as in Dunn, and later, under the Corbin exception, facts are found, bringing a third count that would use the essential evidence presented in the previous trial. Which of the irrational verdicts will control?

Yeager affirmed Richardson v. U.S42and “the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy. . . .”43 Justice Brennan, in Richardson disagreed, holding that a mistrial is an event but “on ‘manifest necessity,’ retrial may be permitted despite a mistrial. . . . [S]trong policy reasons may justify subjecting a defendant to two trials in certain circumstances. . . .”44 Would J. Brennan agree with Yeager, or since a mistrial is an event, would he apply Dunn analysis? We can also ask how the majority in Richardson and in Yeager would hold if the jury hangs, but the defendant claims that the government failed to present sufficient evidence? Burks held that a convicted defendant is entitled to an acquittal on appeal of insufficient evidence, but Richardson held that if the jury hangs, a non-event, the government gets a second chance. What if the government presents sufficient evidence the second time around? We can answer. J. Stevens, who wrote the Yeager opinion, concurred in Richardson. “I agree with J. Brennan that the Court’s use of the concept of ‘continuing jeopardy’ is unhelpful, and that the underlying issue in this case is whether respondent is constitutionally entitled to a judgement of acquittal that could form the predicate for his double jeopardy claim.”45 A hung jury, albeit a non-event, viewed together with an acquittal, can serve as grounds to be “constitutionally entitled to a judgement of acquittal.” If the prosecution is given a second chance and presents sufficient evidence, “a federal court may then review the record of the first trial to determine whether he was constitutionally entitled to an acquittal. . . . even if the State adduced enough additional evidence at the second-tier trial to support a conviction.”46

J. Bulter, citing Chitty, said that “the indictment of several for an offense that could not be committed without the participation of two or more of them a verdict of guilty against one and of not guilty for the others, is deemed wholly repugnant and invalid.”47 “In Standefer v U.S. the court refused [yet]‘to apply the doctrine of non-mutual collateral estoppel to preclude prosecution of an aider and abettor where a jury had already acquitted the principal.’”48 This should be corrected.

CONCLUSION

The Court refined the Double Jeopardy Clause into a coherent and consistent group of doctrines over the last half century. Collateral estoppel led to a surge of new precedent,. correcting older rulings seemingly inconsistent with the spirit of the Double Jeopardy Clause. There is more that can be done.

Endnotes

1 U.S. v. Yeager, 446 F. Supp.2d 719, 737 (S.D. Tex. 2006).
2 In U.S. v. Howe, 538 F.3d 820 (8th Cir. 2008), presumably overruled by Yeager, the Eighth Circuit discussed its sister Circuit’s case, “where the jury had to find defendant committed securities fraud, wire fraud or insider trading as a prerequisite to convict him on money laundering counts, and the jury hung on securities fraud, wire fraud, and insider trading counts, but acquitted on money laundering counts.” It justified the Fifth Circuit’s ruling in Yeager. “[An]acquittal did not represent necessarily finding that defendant did not commit those underlying crimes, so as to bar retrial--rather, because jury could not determine whether defendant committed those underlying crimes, it had to acquit on money laundering counts.” Id. Besides that the Eighth Circuit got the facts wrong, if the jury “could not determine whether defendant committed” the fraud, how could it decisively “acquit on money laundering counts (sic)?” The Eighth Circuit used the same argument in its case in which the jury acquitted the defendant of felony murder but hung on the predicated felony counts. Since the jury still entertained the possibility but “could not agree on whether the government had met its burden as to kidnapping, it would then not convict Howe of felony murder . . . and would have been forced to acquit.” On the contrary, if the jury entertained the possibility that defendant was involved in kidnapping, then it had to still entertain the possibility for felony murder. How could it then acquit?
3 Yeager v. U.S. 129 S. Ct. 2360,2367(2009).
4 Id.
5 U.S. Const. amend. V.
6 Ex Parte Lange, 18 Wallace 173 (1873).
7 Crist v Brest, 437 U.S. 28, 33 (1978).
8 Ashe v. Swenson, 397 U.S. 436, 442 (1970).
9 U.S. v. Oppenheimer, 242 U.S. 85, 87 (1916).
10 Ashe, 397 U.S. at 454 (J. Brennan concurring).
11 Grady v. Corbin, 495 U.S. 508,510 (1990).
12 Id. at 518. Justice Scalia said in Corbin the “difference in our holding today cannot rationally be explained by the fact that in Dowling, unlike the present case, the two crimes were part of separate transactions.” Id. at 538 (J.Scalia dissenting). But the robbery for which Dowling was previously acquitted was completely unrelated to the charge in Dowling. “[T]he prior acquittal did not determine an ultimate issue in the present case.” Dowling v. U.S., 493 U.S. 342, 347-48 (1990). In Corbin, by contrast, drunk and reckless driving for which Corbin was convicted was the essential element for which the government previously sought to prosecute him for manslaughter. If not for being drunk and his reckless driving, the act of the defendant would have been legally an accident. The acquittal for manslaughter had to decide the drunk and reckless driving count.
13 Price v Georgia, 398 U.S. 323, 327 (1970). Kepner 195 U.S. 100,(1904).
14 Yeager v. U.S. 129 S. Ct. 2360 (2009).
15 Green v U.S., 355 U.S. 184, 187-88 (1957).
16 Ashe v. Swenson, 397 U.S. 436, 444 (1970).
17 Richardson v. U.S., 468 U.S. 317, 326 (1984).
18U.S. v. Powell, 469 U.S.57 (1984), Dunn v U.S 284 U.S. 390 (1932)
19 Yeager at 2369 (2009)
20 Rather than in Yeager, J. Kennedy’s inquiry is on point in U.S. v. Gil, 142 F.3d 1398 (11th Cir.1998), cited in U.S. v. Ohayon. “A jury acquitted Gil of possession with intent to distribute cocaine but was unable to reach a verdict on a charge of conspiracy to possess with intent to distribute cocaine. Trace amounts of Clue Spray . . . were found on Gil’s person and clothing.” U.S. v. Ohayon 483 F.3d 1281, 1288 (11th Cir. 2007). The Eleventh Circuit rejected estoppel “because the evidence could have led to a verdict based on other ground--for example that Gil touched but never possessed the cocaine . . . .” Id. By contrast, securities fraud for which Yaeger was acquitted is selling with insider information. Even though “Courts of Appeals have unanimously placed the burden on the defendant” Ohayon, 492 at 350, the Yeager trial court, engaged in speculation of other grounds, contrary to the evidence the government presented, that the fraud was part of the scheme of insider trading.
21 Yaeger at 2371
22 Id. at 2372
23 Id.
24 Id. at 2372. “[T]he 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. See Justices of Boston Municipal Court, supra.” Richardson, 468 at 325. Richardson had retrial because he never acquired a judgment of insufficiency as a procedural matter. Afterwards, “a federal court may then review the record of the first trial to determine whether he was constitutionally entitled to an acquittal . . ..” Id. at 327 (J. Stevens, concurring). Yeager reached an event of acquittal. Indeed if convicted at retrial, he would not be entitled to relief.
25 Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 18, 33 (1960).
26 Id at 35.
27 Id.
28 Corbin barred a “prosecution if to establish an essential element of an offense . . . constitutes an offense for which the defendant has already been prosecuted.” Corbin, 495 U.S. at 510. The acquittal of vehicular manslaughter precluded the element of “driving too fast in heavy rain to establish recklessness or negligence.” Id. at 523.
29 Id. at 510. If “a defendant is acquitted of one offense, the law of double jeopardy had not proved adequate in many cases to protect him against future conviction under another statutory provision.” Mayers & Yarbrough at 14. Thus Kempner should be abandoned. “On the other hand, if state appeal of error were allowed, it is safe to predict that increasing constitutional pressure could be brought on the government to present all its claims at one trial.” Id. Since Corbin requires all charges in a single prosecution, Kepner is vindicated.
30 437.U.S.1(1978).
31 Mayers & Yarbrough, 74 Harv. L. Rev. at 13.
32 Id.at 11.
33 398 U.S. 323 (1970).
34 Mayers & Yarbrough, 74 Harv. L. Rev. at 18.
35 Green v U.S., 355 U.S. 184, 192(1957).
36 Price v Georgia, 398 U.S. 323, 328 (1970).
37 Grady v. Corbin, 495 U.S. 498, 516(1990).
38 U.S. v. Yeager, 446 F. Supp.2d 719, 737 (S.D. Tex. 2006).
39 Id.
40 Ashe v Swenson: Collateral Estoppel Double Jeopardy and inconsistent Verdicts, 71 Colum. L. Rev. 321, 327 (1971).
41 Corbin, 495 U.S. at 515 n.7.
42 468 U.S. 317 (1984),
43 Id. at 326.
44 Id. at 329 (J. Brennan, dissenting).
45 Id. at 329 (J. Stevens, concurring).
46 Boston Municipal Court v Lydon, 466 U.S. 294, 327 (1984, J. Stevens, concurring).
47 Dunn v U.S, 284 U.S. 390, 402 (1932, J. Butler, dissenting).
48 U.S. v. Powell 469 U.S.57, 67 n.7 (1984,citing Standefer)