Posted on March 27, 2009 at 8:23 am by Eliza Presson
Stanford student Samantha Bateman discusses oral argument in Yeager v. US.
At Mondayâ€™s oral argument in Yeager v. United States, the Supreme Court wrestled with how to make sense of what went on behind closed doors in a jury deliberation that produced several acquittals but also deadlocked on other factually related counts.
Samuel Buffone, arguing for petitioner F. Scott Yeager, began by advocating for what he called a â€œstraightforward applicationâ€ of the Courtâ€™s collateral estoppel analysis in Ashe v. Swenson: namely, that when a jury acquittal necessarily decides an issue in a defendantâ€™s favor, that determination is final, and the government may not seek to retry that issue before a second jury. The fact that the jury deadlocked on other counts in the same case should not change the analysis, he emphasized, because unlike acquittals, hung counts are not final verdicts. Indeed, â€œ[t]hey decide nothing.â€
The question presented in the case was whether collateral estoppel bars retrial of defendants in mixed-verdict situations like Yeagerâ€™s generally, but Justice Souter pressed Mr. Buffone almost immediately on the factual question of whether the acquittal in Yeagerâ€™s case specifically should operate to preclude further prosecution. Justice Souter questioned whether the acquittals in this case â€œnecessarily establishedâ€ that Yeager did not have insider information. Was it possible instead, he wondered, that the jury simply acquitted on the securities fraud counts because it agreed that Yeager had not himself made misleading statements and had no duty to correct misleading statements made by others, while failing to agree on whether Yeager actually had insider information? Mr. Buffone responded that the totality of the record suggested that that was not the case because the prosecutionâ€™s integrated theory at trial was an omissions theory, predicated on the argument that Yeager had a duty to disclose what he knew.
Justice Ginsburg then asked whether Ashe should be regarded as controlling in this case given that it was concerned with seriatim prosecutions, while the government in this case submitted all of its counts to the jury in the first trial. In response, Mr. Buffone noted that the â€œcore valuesâ€ underlying Ashe are also implicated in Yeagerâ€™s case. Foremost among those values is the finality of acquittals, which would be â€œoffendedâ€ by any effort to retry an issue of fact already decided by the jury.
Picking up on Mr. Buffoneâ€™s earlier argument that the Court must consider the totality of the record in evaluating what the jury necessarily decided, Justice Scalia asked why the hung counts shouldnâ€™t themselves be considered as part of that record. â€œHow can you close your eyes to [a] circumstanceâ€ where â€œthe hung jury portion is simply inconsistent with the acquittal portion?â€ In reply, Mr. Buffone noted that the record consists only of what the Court can actually derive meaning from, and no court can derive meaning from a hung count. In hung counts, juries do not speak with unanimity and finality; indeed, â€œhung counts speak nothing.â€ Justice Scalia then remarked that at the very least these hung counts speak to juror confusion. After all, if the jurors agreed that Mr. Yeager had no insider information, â€œthey should have come out the same wayâ€ and acquitted instead of hanging on the insider trading charges. But Mr. Buffone responded that that was mere speculation; this jury may have failed to reach a verdict on the hung counts for any number of reasons. Yeagerâ€™s jury had a whopping 176 counts before it, and some of the jurors had already made known to the district court that they were suffering financial stress due to the lengthy trial. Under those circumstances, it was entirely possible that their failure to reach a verdict on some of the counts had more to do with exhaustion than confusion.
Justice Breyer, who had been silent until this point in the argument, then chimed in with an elaborate hypothetical. Take three cases, he said. In case 1, the government charges the defendant with selling drugs and using a telephone to sell drugs. The jury illogically acquits on the former count but convicts on the latter, yet under the Courtâ€™s precedent the jury verdict is allowed to stand. In case 2, the government only tries the defendant on the telephone count, and the jury hangs; the government is of course permitted to retry the defendant. Case 3 is Yeagerâ€™s case; the defendant is charged with both counts, and the jury acquits on the sale count and hangs on the telephone count. â€œWhy canâ€™t [the government] get a retrial of the telephone count now?â€ More to the point, â€œ[w]hat does the presence of this other substantive count [the acquitted sale count] have to do with it? Since it never would have blocked the conviction on count 2 [the telephone count], why does it stop you from retrying count 2?â€ Mr. Buffoneâ€™s answer centered on a point that he had been consistently making throughout the argument. For collateral estoppel to attach, he argued, there must be a necessary determination of a factual issue, and that can only occur through actual acquittals or convictions. In case 1, the jury reached final, albeit inconsistent, verdicts on both counts. But in case 3, there can be no meaning drawn from the hung count because â€œ[t]here is nothing that would necessarily be decidedâ€ under it. The acquittal is then all that remains.
Justice Souter acknowledged that Mr. Buffone was â€œgoing through a logical analysis,â€ but he pressed him to further articulate the underlying rationale for his argument. â€œ[T]he logical analysis is not going to win the case for you,â€ he told Mr. Buffone, because the Court is essentially confronting the collision of two different lines of authority. One is the issue preclusion model that Yeager advocates, and the second is the contrary line of authority holding that hung juries generally do not bar retrials. â€œHow do we choose between those two possibilities, each of which is open to us?â€ In response, Mr. Buffone first appealed to history, noting that â€œacquittals have long been recognized as being important for finality purposes to double jeopardy law.â€ Justice Souter countered that history alone cannot provide the answer; so too have â€œhung juries . . . long been recognized as raising no bar to a further trial.â€ Mr. Buffone responded by invoking the core concepts underlying the Double Jeopardy Clause: the finality of jury verdicts and the â€œconstitutional perils of successive trials.â€
Arguing for the government, Deputy Solicitor General Michael Dreeben began by emphasizing that two separate lines of double jeopardy analysis compel the conclusion that the government is entitled to retry a defendant on the hung counts in a mixed-verdict case. First, the doctrine of continuing jeopardy allows the government to retry defendants after hung verdicts because the government is â€œentitled to one full and fair opportunity to convict.â€ Second, the Courtâ€™s collateral estoppel under Powell is premised on the idea that the jury has acted rationally, which was not the case here.
Chief Justice Roberts voiced skepticism of this second argument, stating that Mr. Dreeben was asking for a â€œpretty dramatic extension of Powell,â€ which did not involve subsequent prosecutions. Mr. Dreeben argued that Powell still provides the appropriate analogue to this case because it was also a situation in which the Court â€œrejected the doctrine of collateral estoppel as a means of upsetting a mixed verdict.â€ Chief Justice Roberts, however, noted that the situations are still â€œvery different.â€ In Yeagerâ€™s case, the only jury determination is the acquittal, such that if the Court does not give effect to the findings in the acquittal, it may be undermining â€œthe only determination by the jury.â€ This is a far cry from the situation in Powell, where there were two inconsistent but final verdicts, and the Court could not give effect to one final determination without undermining the other.
Justice Stevens then offered another means of distinguishing this case from Powell. â€œIsnâ€™t there a difference,â€ he asked, between the Powell case of a conflicting simultaneous verdict, where the apparent irrationality of the acquittal can be explained on the grounds of leniency or compromise, and this case, where the acquittal is the only final verdict and therefore â€œthere is no reason to doubt [its] validity?â€ Mr. Dreeben disagreed with that premise, noting that there is every reason to doubt the validity of these acquittals, given that â€œon the theory that the Petitioner propounds, the verdict on the acquittals is inconsistent with the mistrial.â€ Justice Stevens responded, however, by circling back to Mr. Buffoneâ€™s argument about the length and complexity of this trial. When there are upwards of 150 counts in the indictment, he noted, â€œitâ€™s entirely possible that [the jury] just didnâ€™t reach a decisionâ€ on some counts because of time pressures. Mr. Dreeben counseled, however, that the Court should not get â€œtoo distracted by the number of counts,â€ because the insider trading counts all turned on a common core of facts.
The argument then returned to the broader themes and principles underlying the collateral estoppel doctrine. Justice Breyer suggested that â€œthe only way to answer this [case] is to look and see if the policies that underlie the collateral estoppel part of double jeopardy apply here.â€ As he pointedly noted, â€œI canâ€™t think of one single one that wouldnâ€™t apply.â€ In response, Mr. Dreeben advanced a hypothetical of his own, telling the Court that the rationale for allowing the government to retry the hung counts was â€œmade most vivid by imagining Ashe v. Swenson in a slightly different posture.â€ Suppose in that instead of bringing sequential robbery prosecutions, the government brought all of its robbery counts in a single trial, and the jury acquitted on one count but deadlocked on the others. Why then couldnâ€™t the prosecution retry those hung counts? Justice Breyer countered again with a version of the hypothetical he had pressed with Mr. Buffone. â€œ[W]hy,â€ he asked, â€œshould the government be one whit better offâ€ because they happened to bring the hung count together â€œalong with the other [acquitted count]â€ in the first trial? Mr. Dreeben responded that the reason is grounded in the rationale for the collateral estoppel component of double jeopardy, which is aimed not at preventing simultaneous charges but from preventing the â€œgovernment [from] going sequentially, carving its prosecution into pieces.â€
Justice Souter wondered, however, whether in complex modern cases with numerous counts under overlapping statutes, simultaneous prosecutions might not work the same evils as seriatim prosecutions. â€œIf the government can bring loads of counts,â€ confusing the jury and thereby increasing the likelihood of getting a hung jury on one issue or one indictment, is that really different than attempting to wear down a defendant through seriatim prosecutions? Mr. Dreeben had repeatedly argued that the government is entitled to one full and fair opportunity to convict a defendant on every charge, but Justice Souter questioned whether â€œthe government ask[s] for something more than one fair chance when it comes in with 117 counts?â€ Mr. Dreeben responded that on the facts of this record, there was no reason to believe that â€œthis was a case in which the government overcharged in some nefarious effort.â€
Instead, Mr. Dreeben argued, petitioner was the one who was overreaching, because â€œhe seeks to get through a legal doctrine, collateral estoppel . . . exactly what the jury would not give himâ€: an acquittal on the insider trading counts. Collateral estoppel, however, is not appropriate here because it â€œdepends on the idea that there is a rational jury.â€ When the jury has acted inconsistently, â€œthat basis of rationality that supports the policy justifications of collateral estoppelâ€ is lacking. Moreover, the doctrine of collateral estoppel involves a â€œbalance of policies,â€ one of them being that when the jury cannot reach a final verdict, the government has a right to retry. Chief Justice Roberts interjected, however, that governmentâ€™s one-bite-at-the-apple theory must be balanced against the interest in giving effect to the juryâ€™s acquittals. Mr. Dreeben repeated that only rational acquittals should be given effect, and further argued that in Yeagerâ€™s particular case, his acquittals might not bar further prosecution for insider trading because the jury may not have necessarily decided whether he possessed inside information. Chief Justice Roberts retorted, however, that Yeager had carried his burden on that point in the court of appeals, and â€œrevisiting . . . that issue was not included within the question presented.â€
The governmentâ€™s argument concluded with several exchanges between Mr. Dreeben and Justices Kennedy and Stevens designed to test how the governmentâ€™s theory would operate in practice. Justice Kennedy asked whether if the government prevailed there would then be any limitation on its ability to retry a defendant again and again if a jury continues to hang on certain charges; Mr. Dreeben responded that there would be no constitutional limitation but that at some point the prosecution should drop the charges as a â€œmatter of common sense.â€ Justice Stevens wondered what message could be gleaned from the tea leaves of the hung counts in this case, given that â€œwe just know they did not reach a conclusion on [that] issue, but they did reach a conclusion on the count on which they acquitted.â€ Mr. Dreeben replied that it would not be necessary to treat the hung counts as if they were full verdicts, but merely as data points undermining the presumption of jury rationality and counseling â€œhesitat[ion] before extrapolating out from th[e] acquittals and blocking the governmentâ€™s opportunity to retry the hung counts.â€
In a brief and uninterrupted rebuttal, Mr. Buffone argued that the Court should not take the governmentâ€™s â€œmetaphysicalâ€ or â€œhypertechnicalâ€ view of the Double Jeopardy Clause, but instead should straightforwardly apply the principle that Yeager should not be forced to relitigate before a second jury an issue which the first jury already decided in his favor. He noted that he personally sat through and argued this â€œ13-and-a-half week jury trial,â€ and that a rational explanation for the verdicts was that the jury simply could not reach agreement on all 176 counts. The jury did, however, reject the governmentâ€™s omissions theory of securities fraud and acquit on those charges. â€œ[T]he only conclusion that can be reached from those acquittals is that Mr. Yeager did not possess insider information, . . . [a]nd Mr. Yeager is entitled to the benefits of those acquittals.â€