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Untangling Double Jeopardy in Mixed-VerdictCasesLissa GriffinElisabeth Haub School of Law at Pace University, [email protected]

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UNTANGLING DOUBLE JEOPARDY IN

MIXED-VERDICT CASES

Lissa Griffin *

I. INTRODUCTIONTHE Double Jeopardy Clause of the Fifth Amendment commands

that "[n]o person shall . . . be subject for the same offence to betwice put in jeopardy of life or limb."' It is the oldest edict in the

Bill of Rights. 2 Double jeopardy rights date back to ancient Rome andGreece,3 and are even found in the Bible.4 In addition, the Double Jeop-ardy Clause is "one of the most frequently litigated [constitutional] provi-sions." 5 Despite this history, one justice of the Supreme Court has calledthe Clause "one of the least understood . . . provision[s] of the Bill ofRights."6 The Court has repeatedly acknowledged this confusion in itsdouble jeopardy jurisprudence,7 describing its cases as a tangled "Sar-gasso Sea."8 The Court is right.9 In no other area of criminal procedure

* Professor of Law, Pace University School of Law. The author wishes to thankProfessor Bennett L. Gershman and Professor Michael B. Mushlin for their provocativereviews of this article, Iris Mercado for her organizational and technical support, andMinelik Shimellis for his research assistance.

1. U.S. CONST. amend. V.2. Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy,

1978 Sup. CT. REV. 81, 81. Many commentators have chronicled the historical antecedentsof the double jeopardy clause. One excellent example is George C. Thomas III, An Ele-gant Theory of Double Jeopardy, 4 U. ILL. L. REV. 827, 836-37 (1988).

3. Thomas, supra note 2, at 836-37; Westen & Drubel, supra note 2, at 81; see alsoHERBERT BROOM, A SELECTION OF LEGAL MAXIMS CLASSIFIED AND ILLUSTRATED 326,346-50 (8th Am. ed. 1882).

4. Bartkus v. Illinois, 359 U.S. 121, 152 n.4 (1959) (Black, J., dissenting).5. Whalen v. United States, 445 U.S. 684, 699 (1980) (Rehnquist, J., dissenting).6. Id.7. See, e.g., Burks v. United States, 437 U.S. 1, 13 (1978) (noting "the conceptual

confusion" in cases addressing "the double jeopardy implications of an appellatereversal").

8. Albernaz v. United States, 450 U.S. 333, 343 (1981). "Sargasso" is defined as "amass of floating vegetation." WEBSTER'S NEW COLLEGIATE DicTIONARY 1043 (11th ed.2003); see generally Lissa Griffin, Two Sides of a "Sargasso Sea": Successive Prosecution forthe "Same Offence" in the United States and the United Kingdom, 37 U. RICH. L. REV. 471(2003).

9. For years, commentators have decried the Supreme Court's inability to articulate acoherent theory of double jeopardy. See, e.g., Monroe G. McKay, Double Jeopardy: Arethe Pieces the Puzzle?, 23 WASHBURN L.J. 1, 1, 16 (1983) (noting that double jeopardyjurisprudence "is in a state of disarray" and "a regular procession of Supreme Court pro-nouncements" has done little to solve the "perplexing puzzle" of a coherent double jeop-ardy rationale); Thomas, supra note 2, at 828 ("Unfortunately, the proliferation of case lawand commentary has not produced a coherent theory to date."); Westen & Drubel, supranote 2, at 82 (noting that the doctrine "is in an 'acknowledged state of 'confusion' and

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HeinOnline -- 63 S.M.U. L. Rev. 1033 2010

UNTANGLING DOUBLE JEOPARDY IN

MIXED-VERDICT CASES

Lissa Griffin *

I. INTRODUCTION

THE Double Jeopardy Clause of the Fifth Amendment commands that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."! It is the oldest edict in the

Bill of Rights.2 Double jeopardy rights date back to ancient Rome and Greece,3 and are even found in the Bible.4 In addition, the Double Jeopardy Clause is "one of the most frequently litigated [constitutional] provisions."s Despite this history, one justice of the Supreme Court has called the Clause "one of the least understood ... provision[s] of the Bill of Rights."6 The Court has repeatedly acknowledged this confusion in its double jeopardy jurisprudence,7 describing its cases as a tangled "Sargasso Sea."B The Court is right.9 In no other area of criminal procedure

* Professor of Law, Pace University School of Law. The author wishes to thank Professor Bennett L. Gershman and Professor Michael B. Mushlin for their provocative reviews of this article, Iris Mercado for her organizational and technical support, and Minelik Shimellis for his research assistance.

1. U.S. CONST. amend. V. 2. Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy,

1978 SUP. CT. REV. 81, 81. Many commentators have chronicled the historical antecedents of the double jeopardy clause. One excellent example is George C. Thomas III, An Elegant Theory of Double Jeopardy, 4 U. ILL. L. REV. 827, 836-37 (1988).

3. Thomas, supra note 2, at 836-37; Westen & Drubel, supra note 2, at 81; see also HERBERT BROOM, A SELEcnON OF LEGAL MAXIMS CLASSIFIED AND ILLUSTRATED 326, 346-50 (8th Am. ed. 1882).

4. Bartkus v. Illinois, 359 U.S. 121, 152 n.4 (1959) (Black, J., dissenting). 5. Whalen v. United States, 445 U.S. 684, 699 (1980) (Rehnquist, J., dissenting). 6. Id. 7. See, e.g., Burks v. United States, 437 U.S. 1, 13 (1978) (noting "the conceptual

confusion" in cases addressing "the double jeopardy implications of an appellate reversal") .

8. Albernaz v. United States, 450 U.S. 333, 343 (1981). "Sargasso" is defined as "a mass of floating vegetation." WEBSTER'S NEW COLLEGIATE DIcnoNARY 1043 (11th ed. 2003); see generally Lissa Griffin, Two Sides of a "Sargasso Sea": Successive Prosecution for the "Same Offence" in the United States and the United Kingdom, 37 U. RICH. L. REV. 471 (2003).

9. For years, commentators have decried the Supreme Court's inability to articulate a coherent theory of double jeopardy. See, e.g., Monroe G. McKay, Double Jeopardy: Are the Pieces the Puzzle?, 23 WASHBURN L.J. 1, 1, 16 (1983) (noting that double jeopardy jurisprudence "is in a state of disarray" and "a regular procession of Supreme Court pronouncements" has done little to solve the "perplexing puzzle" of a coherent double jeopardy rationale); Thomas, supra note 2, at 828 ("Unfortunately, the proliferation of case law and commentary has not produced a coherent theory to date."); Westen & Drubel, supra note 2, at 82 (noting that the doctrine "is in an 'acknowledged state of 'confusion'" and

1033

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has the Supreme Court so frequently overruled its own recently createdprecedent. 10

It is fair to ask why the Double Jeopardy Clause has produced suchunusual uncertainty and confusion. To be sure, its text is brief, and itslegislative history unilluminating.1" Moreover, historical developmentshave entirely altered the context of double jeopardy. Incorporation ofdouble jeopardy protection through the Fourteenth Amendment's DueProcess Clause has increased its impact. Furthermore, the proliferationof overlapping statutory crimes and the increased number of agenciesthat can prosecute them has drastically broadened the possibilities formultiple prosecutions and multiple punishments. 12 Equally, if not moreimportantly, double jeopardy protection represents an uneasy tensionamong several core criminal procedure interests: the government's inter-est in prosecuting crime, the defendant's right to be free of oppressiveprosecution, and the defendant's protection of the right to jury trialthrough the finality of the result. Viewed this way, the Supreme Court'sdouble jeopardy jurisprudence reflects an intense struggle to prevent gov-ernment oppression, preserve individual liberty, protect the finality of ajury's decision, and ensure, at the same time, that the state has one legiti-

that "the problem ... is that the individual Justices have yet to develop coherent positionsof their own"); Note, Criminal Law-Double Jeopardy, 24 MINN. L. REv. 522, 522 (1940)("[T]he riddle of double jeopardy stands out today as one of the most commonly recog-nized yet most commonly misunderstood maxims in the law, the passage of time havingserved in the main to burden it with confusion upon confusion."); Comment, Twice inDouble Jeopardy, 75 YALE L.J. 262, 264 (1965) (Double jeopardy jurisprudence is com-posed of "fictions and rationalizations [that] are the characteristic signs of doctrinalsenility.").

10. In three separate double jeopardy areas, the Supreme Court reversed its prior de-cisions within three terms. In each of them, the Court had originally interpreted thedouble jeopardy protection broadly and then abandoned that interpretation as mistaken,adopting a narrower one. Grady v. Corbin, 495 U.S. 508 (1990), overruled by United Statesv. Dixon, 509 U.S. 688 (1993); United States v. Halper, 490 U.S. 435 (1989), overruled byHudson v. United States, 522 U.S. 93 (1997); United States v. Jenkins, 420 U.S. 358 (1975),overruled by United States v. Scott, 437 U.S. 82 (1978). The clearest example is UnitedStates v. Dixon. In Dixon, the Court overruled its three-year-old decision Grady v. Corbin,in which it had adopted an arguably fairer and definitely broader same-conduct definitionof "same offense," 509 U.S. at 704, to return to the bright-line, statutory same-elementsdefinition of "same offence" it had set forth long ago in Blockburger v. United States, 284U.S. 299 (1932). In United States v. Jenkins, the Court held that once a trial terminates in adefendant's favor, regardless of whether there is an acquittal or a dismissal, retrial is barredif the retrial will require resolution of the facts. Jenkins, 420 U.S. at 369-70. Three termslater, it overruled this bright-line rule in United States v. Scott, in which it held that retrial isonly barred after a true acquittal. Scott, 437 U.S. at 86. In Scott, Chief Justice Rehnquist-the author of both decisions-described Jenkins as a failed attempt to draw a "bright-linerule." Id. at 86-87. A third example is United States v. Halper, overruled three years laterby Hudson v. United States. Hudson, 522 U.S. at 99. In Halper, the Court adopted a dis-proportionality analysis for determining whether a civil sanction constituted double pun-ishment. 490 U.S. at 452. In Hudson, the Court abandoned that balancing approach infavor of a narrower interpretation that deferred to the legislative intent behind the civilsanction. 522 U.S. at 99.

11. United States v. Jenkins, 490 F.2d 868, 870 (2d Cir. 1973).12. See Griffin, supra note 8, at 474; Anne Bowen Poulin, Double Jeopardy Protection

from Successive Prosecution: A Proposed Approach, 92 GEO. L.J. 1183, 1188-96 (2004).

[Vol. 631034


1034 SMU LAW REVIEW [Vol. 63

has the Supreme Court so frequently overruled its own recently created precedent.1°

It is fair to ask why the Double Jeopardy Clause has produced such unusual uncertainty and confusion. To be sure, its text is brief, and its legislative history unilluminating.ll Moreover, historical developments have entirely altered the context of double jeopardy. Incorporation of double jeopardy protection through the Fourteenth Amendment's Due Process Clause has increased its impact. Furthermore, the proliferation of overlapping statutory crimes and the increased number of agencies that can prosecute them has drastically broadened the possibilities for multiple prosecutions and multiple punishments.12 Equally, if not more importantly, double jeopardy protection represents an uneasy tension among several core criminal procedure interests: the government's interest in prosecuting crime, the defendant's right to be free of oppressive prosecution, and the defendant's protection of the right to jury trial through the finality of the result. Viewed this way, the Supreme Court's double jeopardy jurisprudence reflects an intense struggle to prevent government oppression, preserve individual liberty, protect the finality of a jury's decision, and ensure, at the same time, that the state has one legiti-

that "the problem ... is that the individual Justices have yet to develop coherent positions of their own"); Note, Criminal Law-Double Jeopardy, 24 MINN. L. REv. 522, 522 (1940) ("[T]he riddle of double jeopardy stands out today as one of the most commonly recognized yet most commonly misunderstood maxims in the law, the passage of time having served in the main to burden it with confusion upon confusion."); Comment, Twice in Double Jeopardy, 75 YALE L.J. 262, 264 (1965) (Double jeopardy jurisprudence is composed of "fictions and rationalizations [that] are the characteristic signs of doctrinal senility.").

10. In three separate double jeopardy areas, the Supreme Court reversed its prior decisions within three terms. In each of them, the Court had originally interpreted the double jeopardy protection broadly and then abandoned that interpretation as mistaken, adopting a narrower one. Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993); United States v. Halper, 490 U.S. 435 (1989), overruled by Hudson v. United States, 522 U.S. 93 (1997); United States v. Jenkins, 420 U.S. 358 (1975), overruled by United States v. Scott, 437 U.S. 82 (1978). The clearest example is United States v. Dixon. In Dixon, the Court overruled its three-year-old decision Grady v. Corbin, in which it had adopted an arguably fairer and definitely broader same-conduct definition of "same offense," 509 U.S. at 704, to return to the bright-line, statutory same-elements definition of "same offence" it had set forth long ago in Blockburger v. United States, 284 U.S. 299 (1932). In United States v. Jenkins, the Court held that once a trial terminates in a defendant's favor, regardless of whether there is an acquittal or a dismissal, retrial is barred if the retrial will require resolution of the facts. Jenkins, 420 U.S. at 369-70. Three terms later, it overruled this bright-line rule in United States v. Scott, in which it held that retrial is only barred after a true acquittal. Scott, 437 U.S. at 86. In Scott, Chief Justice Rehnquistthe author of both decisions-described Jenkins as a failed attempt to draw a "bright-line rule." [d. at 86-87. A third example is United States v. Halper, overruled three years later by Hudson v. United States. Hudson, 522 U.S. at 99. In Halper, the Court adopted a disproportionality analysis for determining whether a civil sanction constituted double punishment. 490 U.S. at 452. In Hudson, the Court abandoned that balancing approach in favor of a narrower interpretation that deferred to the legislative intent behind the civil sanction. 522 U.S. at 99.

11. United States v. Jenkins, 490 F.2d 868, 870 (2d Cir. 1973). 12. See Griffin, supra note 8, at 474; Anne Bowen Poulin, Double Jeopardy Protection

from Successive Prosecution: A Proposed Approach, 92 GEO. L.J. 1183, 1188-96 (2004).

Untangling Double Jeopardy

mate, full, and fair opportunity to convict.13

Not surprisingly, the Court has searched widely for help in interpretingthe Double Jeopardy Clause. The Court has relied on the text of theClause at times14 but it has also clearly rejected it.'1 At times the Courthas looked to the Clause's narrow "common-law ancestry,"16 but it hasalso focused on the Clause's broader underlying interests.17 In its mostrecent foray into the subject, the Court even went so far as to seek defini-tive meaning in the Clause's "spirit." 8

The most recent example of the Court's turbulent double jeopardy ju-risprudence is United States v. Yeager.19 In Yeager, the Court held (1) thatwhen a jury returns a mixed verdict acquitting a defendant of somecharges and failing to agree on other charges, the fact of the hung juryand the resulting mistrial does not interfere with the acquittal's collateralestoppel effect and (2) that retrial on mistried counts, therefore, is pro-hibited.20 According to the majority's decision, the hung jury is a"nonevent" and has no bearing on the collateral estoppel effect of theaccompanying acquittal. 21 Justice Kennedy concurred in part and con-

13. For an example of that struggle, compare Green v. United States, 355 U.S. 184(1957), with United States v. Dixon, 509 U.S. 688 (1993).

14. Yeager v. United States, 129 S. Ct. 2360, 2369 (2009) (citing United States v.DiFrancesco, 449 U.S. 117 (1980)).

15. Ex parte Lange, 85 U.S. (18 Wall.) 163, 170 (1873).16. Yeager, 129 S. Ct. at 2365.17. Richardson v. United States, 468 U.S. 317, 330 (1984).18. Yeager, 129 S. Ct. at 2365 (quoting Ex Parte Lange, 85 U.S. (18 Wall.) at 170).19. Id.20. Id. at 2368. In Yeager, the defendant was charged in a 126-count indictment with

securities fraud, wire fraud, and conspiracy (Counts 1-6) in addition to insider trading andmoney laundering (Counts 7-126). Id. at 2363-64. The indictment alleged that he partici-pated in making misleading statements at an annual analysts' meeting about the value of atelecommunications system offered by his employer Enron and that he also violated in-sider trading and money laundering prohibitions by selling his own stock for a profit. Id. at2363. The jury acquitted Yeager on the fraud and conspiracy counts but were deadlockedand failed to reach a verdict on the insider-trading and money-laundering counts. Id. at2364. When the government sought to retry Yeager on the mistried counts, he moved tobar the retrial, claiming that the government was collaterally estopped. Id. Yeagerclaimed the jury's acquittal on the fraud and conspiracy counts showed that the jury hadconcluded that he did not possess material, non-public information. Id. And, since theinsider trading counts required proof that Yeager possessed such information, the jury'sfinding barred relitigation of that issue. Id.

The district court disagreed and denied the motion. Id. It held that the acquittal couldhave and "likely" resulted from the jury's conclusion that Yeager "'did not knowingly andwillfully participate in the scheme to defraud . . . .' Id. (quoting Yeager v. United States,446 F. Supp. 2d 719, 735 (S.D. Tex. 2006)). The Fifth Circuit agreed with Yeager and dis-agreed with the district court. Id. at 2365. But the appellate court held that the retrial wasnot collaterally estopped by the acquittals because if the jury had indeed found that Yeagerhad not possessed insider information, then they would have acquitted him on the insidertrading counts rather than failing to agree on those counts. Id. Given the court's inabilityto find that the jury had conclusively determined that Yeager did not possess insider infor-mation, the doctrine of collateral estoppel could not be invoked. Id.

The Supreme Court reversed. Id. at 2370. It held that the Fifth Circuit had erred inconsidering the significance of a hung jury when evaluating a collateral estoppel claim. Id.Because it is impossible to know the basis for a jury's failure to agree, the Court held, ahung jury has no legal significance at all. Id.

21. Id. at 2367.

2010] 1035


2010] Untangling Double Jeopardy 1035

mate, full, and fair opportunity to convict.13 Not surprisingly, the Court has searched widely for help in interpreting the Double Jeopardy Clause. The Court has relied on the text of the Clause at times14 but it has also clearly rejected it,15 At times the Court has looked to the Clause's narrow "common-law ancestry,"16 but it has also focused on the Clause's broader underlying interests,l7 In its most recent foray into the subject, the Court even went so far as to seek definitive meaning in the Clause's "spirit."ls

The most recent example of the Court's turbulent double jeopardy jurisprudence is United States v. Yeager,19 In Yeager, the Court held (1) that when a jury returns a mixed verdict acquitting a defendant of some charges and failing to agree on other charges, the fact of the hung jury and the resulting mistrial does not interfere with the acquittal's collateral estoppel effect and (2) that retrial on mistried counts, therefore, is prohibited.20 According to the majority's decision, the hung jury is a "nonevent" and has no bearing on the collateral estoppel effect of the accompanying acquittal,21 Justice Kennedy concurred in part and con-

13. For an example of that struggle, compare Green v. United States, 355 U.S. 184 (1957), with United States v. Dixon, 509 U.S. 688 (1993).

14. Yeager v. United States, 129 S. Ct. 2360, 2369 (2009) (citing United States v. DiFrancesco, 449 U.S. 117 (1980».

15. Ex parte Lange, 85 U.S. (18 Wall.) 163,170 (1873). 16. Yeager, 129 S. Ct. at 2365. 17. Richardson v. United States, 468 U.S. 317, 330 (1984). 18. Yeager, 129 S. Ct. at 2365 (quoting Ex Parte Lange, 85 U.S. (18 Wall.) at 170). 19. ld. 20. ld. at 2368. In Yeager, the defendant was charged in a 126-count indictment with

securities fraud, wire fraud, and conspiracy (Counts 1-6) in addition to insider trading and money laundering (Counts 7-126). ld. at 2363-64. The indictment alleged that he participated in making misleading statements at an annual analysts' meeting about the value of a telecommunications system offered by his employer Enron and that he also violated insider trading and money laundering prohibitions by selling his own stock for a profit. Id. at 2363. The jury acquitted Yeager on the fraud and conspiracy counts but were deadlocked and failed to reach a verdict on the insider-trading and money-laundering counts. Id. at 2364. When the government sought to retry Yeager on the mistried counts, he moved to bar the retrial, claiming that the government was collaterally estopped. ld. Yeager claimed the jury's acquittal on the fraud and conspiracy counts showed that the jury had concluded that he did not possess material, non-public information. Id. And, since the insider trading counts required proof that Yeager possessed such information, the jury's finding barred relitigation of that issue. ld.

The district court disagreed and denied the motion. ld. It held that the acquittal could have and "likely" resulted from the jury's conclusion that Yeager '''did not knowingly and willfully participate in the scheme to defraud .... '" /d. (quoting Yeager v. United States, 446 F. Supp. 2d 719, 735 (S.D. Tex. 2006». The Fifth Circuit agreed with Yeager and disagreed with the district court. ld. at 2365. But the appellate court held that the retrial was not collaterally estopped by the acquittals because if the jury had indeed found that Yeager had not possessed insider information, then they would have acquitted him on the insider trading counts rather than failing to agree on those counts. /d. Given the court's inability to find that the jury had conclusively determined that Yeager did not possess insider information, the doctrine of collateral estoppel could not be invoked. ld.

The Supreme Court reversed. ld. at 2370. It held that the Fifth Circuit had erred in considering the significance of a hung jury when evaluating a collateral estoppel claim. Id. Because it is impossible to know the basis for a jury's failure to agree, the Court held, a hung jury has no legal significance at all. Id.

21. ld. at 2367.

SMU LAW REVIEW

curred in the judgment.22 Justice Scalia, joined by Justices Alito andThomas, dissented.23 Justice Alito also separately dissented.24

The Yeager case is unique for two reasons. First, Yeager presented theCourt with the need to address four major areas of its existing doublejeopardy jurisprudence: collateral estoppel, 25 finality of acquittals, 26 non-finality of mistrials,27 and inconsistent verdicts. 28 In fact, Yeager presentsa direct conflict between two strands of the Supreme Court's double jeop-ardy jurisprudence. Represented by Ashe v. Swenson, the first strand es-tablished constitutional collateral estoppel.29 The second, represented byRichardson v. United States,30 unqualifiedly established that a mistrial bya hung jury does not preclude retrial.31 In Yeager, the Court resolved thisconflicting precedent not by balancing the interests underlying the twolines of authority but rather by extending Ashe well beyond its idiosyn-cratic facts, which involved successive robbery trials against the same de-fendant but different victims of the same robbery. The Court alsodisregarded the well-established non-finality rule of Richardson, the rulethat a hung jury does not terminate jeopardy and therefore does not barretrial.32 The Court accomplished both of these feats without adequateanalysis or explanation.33

This Article attempts to describe and untangle the confusion leading upto and resulting from the Yeager decision. Part II examines the four dis-tinct double jeopardy areas presented in Yeager, with particular emphasison the two conflicting precedents of collateral estoppel and the non-final-ity of a hung jury. Part III closely examines the Yeager decision itself.Part IV analyzes Yeager in light of its tangled doctrinal history and placesit in the context of the Court's several other short-lived and rapidly re-versed precedents. The Article concludes that the Court's holding in Ye-ager is neither justified by its precedent nor adequately explained. Byfailing to justify the extensive departures from its double jeopardy prece-dent-greatly extending Ashe and severely narrowing Richardson-theYeager Court further tangled its doctrinal Sargasso Sea.

22. Id. at 2371.23. Id. at 2371.24. Id. at 2374.25. See generally Ashe v. Swenson, 397 U.S. 436 (1970).26. See generally Fong Foo v. United States, 369 U.S. 141 (1962).27. See generally Richardson v. United States, 468 U.S. 317 (1984); Arizona v. Wash-

ington, 434 U.S. 497 (1978).28. See generally United States v. Powell, 469 U.S. 57 (1984); Dunn v. United States,

284 U.S. 390 (1932). Dunn and Powell held that courts must respect, and therefore uphold,a jury's verdict of seemingly inconsistent acquittals and convictions.

29. 397 U.S. 436.30. 468 U.S. 317.31. Yeager v. United States, 129 S. Ct. 2360, 2366 (2009); see George C. Thomas III,

Solving the Double Jeopardy Mistrial Riddle, 69 S. CAL. L. REV. 1551, 1551, 1558 (1996)(noting that "[a] hung jury mistrial never bars a second trial.... If the jury cannot agree,for whatever reason, the way is clear for another trial" and that Justice Rehnquist's major-ity opinion in Richardson held that "a hung jury mistrial is always permissible").

32. See Yeager, 129 S. Ct. at 2360.33. See infra notes 166-251 and accompanying text.

[Vol. 631036



curred in the jUdgment.22 Justice Scalia, joined by Justices Alito and Thomas, dissented.23 Justice Alito also separately dissented.24

The Yeager case is unique for two reasons. First, Yeager presented the Court with the need to address four major areas of its existing double jeopardy jurisprudence: collateral estoppel,25 finality of acquittals,26 nonfinality of mistrials?7 and inconsistent verdicts.28 In fact, Yeager presents a direct conflict between two strands of the Supreme Court's double jeopardy jurisprudence. Represented by Ashe v. Swenson, the first strand established constitutional collateral estoppel.29 The second, represented by Richardson v. United States,3o unqualifiedly established that a mistrial by a hung jury does not preclude retrial.31 In Yeager, the Court resolved this conflicting precedent not by balancing the interests underlying the two lines of authority but rather by extending Ashe well beyond its idiosyncratic facts, which involved successive robbery trials against the same defendant but different victims of the same robbery. The Court also disregarded the well-established non-finality rule of Richardson, the rule that a hung jury does not terminate jeopardy and therefore does not bar retrial.32 The Court accomplished both of these feats without adequate analysis or explanation.33

This Article attempts to describe and untangle the confusion leading up to and resulting from the Yeager decision. Part II examines the four distinct double jeopardy areas presented in Yeager, with particular emphasis on the two conflicting precedents of collateral estoppel and the non-finality of a hung jury. Part III closely examines the Yeager decision itself. Part IV analyzes Yeager in light of its tangled doctrinal history and places it in the context of the Court's several other short-lived and rapidly reversed precedents. The Article concludes that the Court's holding in Yeager is neither justified by its precedent nor adequately explained. By failing to justify the extensive departures from its double jeopardy precedent-greatly extending Ashe and severely narrowing Richardson-the Yeager Court further tangled its doctrinal Sargasso Sea.

22. [d. at 2371. 23. [d. at 2371. 24. [d. at 2374. 25. See generally Ashe v. Swenson, 397 U.S. 436 (1970). 26. See generally Fong Foo v. United States, 369 U.S. 141 (1962). 27. See generally Richardson v. United States, 468 U.S. 317 (1984); Arizona v. Wash

ington, 434 U.S. 497 (1978). 28. See generally United States v. Powell, 469 U.S. 57 (1984); Dunn v. United States,

284 U.S. 390 (1932). Dunn and Powell held that courts must respect, and therefore uphold, a jury's verdict of seemingly inconsistent acquittals and convictions.

29. 397 U.S. 436. 30. 468 U.S. 317. 31. Yeager v. United States, 129 S. Ct. 2360, 2366 (2009); see George C. Thomas III,

Solving the Double Jeopardy Mistrial Riddle, 69 S. CAL. L. REV. 1551, 1551, 1558 (1996) (noting that "[a] hung jury mistrial never bars a second trial. ... If the jury cannot agree, for whatever reason, the way is clear for another trial" and that Justice Rehnquist's majority opinion in Richardson held that "a hung jury mistrial is always permissible").

32. See Yeager, 129 S. Ct. at 2360. 33. See infra notes 166-251 and accompanying text.


II. THE SUPREME COURT'S DOUBLEJEOPARDY JURISPRUDENCE

As noted above, Yeager is a unique and absolutely fascinating case be-cause it presents issues involving four distinct areas of constitutionaldouble jeopardy jurisprudence-collateral estoppel, the finality of an ac-quittal, the non-finality of a mistrial, and inconsistent verdicts. Each ofthese topics will be addressed below.

A. COLLATERAL ESTOPPEL

The Yeager decision relied on the collateral estoppel doctrine that wasconstitutionalized in Ashe v. Swenson.34 That doctrine provides that"[w]here a question of fact essential to the judgment is actually litigatedand determined by a valid and final judgment, the determination is con-clusive between the parties . . . . "35 As applied to criminal cases, thedoctrine means that where an ultimate issue of fact is finally decided byan acquittal, relitigation of that issue is barred by the Double JeopardyClause. 36

The facts in Ashe are notably, and notoriously, sui generis.37 Ashe wascharged with robbing six poker players and was initially brought to trialon the charge of robbing one of them.38 At trial, "[t]he proof that anarmed robbery had occurred and that personal property had been taken"was clear, but the State's case was weak on the issue of whether Ashe hadbeen one of the robbers. Two of the witnesses thought that there hadbeen only three robbers"-not four-and could not identify Ashe as oneof the three.39 Two other witnesses gave equivocal identification testi-mony-one based on the similarity of Ashe's voice to the voice of one of

34. Yeager, 129 S. Ct. at 2367 (relying on Ashe v. Swenson, 397 U.S. 436 (1970)) (not-ing that constitutionalization follows the well-worn incorporation road). After the Courtdecided in 1969, in Benton v. Maryland, 395 U.S. 784 (1969), that the Fifth Amendmentdouble jeopardy protection was applicable to the states through the due process clause, theCourt held in Ashe that the federal collateral estoppel protection was applicable to thestates as part of the now-incorporated double jeopardy clause. Ashe, 397 U.S. at 440.

35. RESTATEMENT (FIRST) OF JUDGMENTS § 68(1) (1942).36. The Supreme Court first applied the doctrine of collateral estoppel to bar a crimi-

nal prosecution in 1916 in United States v. Oppenheimer, although not on constitutionalgrounds. 242 U.S. 85 (1916). In Oppenheimer, the Court affirmed the dismissal of an in-dictment because an earlier, identical indictment had been dismissed on statute of limita-tions grounds. Id. at 87-88. Since jeopardy had not attached before that earlier dismissal,the constitutional double jeopardy protection was not implicated, but retrial was barred onthe ground of collateral estoppel. Id. Later, in Hoag v. New Jersey, the Court refused todismiss an indictment where the defendant had been tried and acquitted for robbing threeof four victims and was then brought to trial for robbing the fourth victim. 356 U.S. 464,465 (1958). The Court upheld the State's right to try the Defendant separately for eachcase. It refused to find that the Due Process Clause binds the states through double jeop-ardy protection. Id. at 467-68. Chief Justice Warren, in dissent, would have held that sucha protection was a fundamental right included in the Fourteenth Amendment Due Processand, thus, binding on the states. Id. at 473-74 (Warren, J., dissenting).

37. See, e.g., Note, The Due Process Roots of Criminal Collateral Estoppel, 109 HARV.L. REV. 1729, 1734 n.37 (1996) [hereinafter Due Process Roots].

38. Ashe, 397 U.S. at 437-38.39. Id. at 438.

2010] 1037


2010] Untangling Double Jeopardy

II. THE SUPREME COURT'S DOUBLE JEOPARDY JURISPRUDENCE

1037

As noted above, Yeager is a unique and absolutely fascinating case because it presents issues involving four distinct areas of constitutional double jeopardy jurisprudence-collateral estoppel, the finality of an acquittal, the non-finality of a mistrial, and inconsistent verdicts. Each of these topics will be addressed below.

A. COLLATERAL ESTOPPEL

The Yeager decision relied on the collateral estoppel doctrine that was constitutionalized in Ashe v. Swenson.34 That doctrine provides that "[w]here a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties .... "35 As applied to criminal cases, the doctrine means that where an ultimate issue of fact is finally decided by an acquittal, relitigation of that issue is barred by the Double Jeopardy Clause.36

The facts in Ashe are notably, and notoriously, sui generis.37 Ashe was charged with robbing six poker players and was initially brought to trial on the charge of robbing one of them.38 At trial, "[t]he proof that an armed robbery had occurred and that personal property had been taken" was clear, but the State's case was weak on the issue of whether Ashe had been one of the robbers. Two of the witnesses thought that there had been only three robbers"-not four-and could not identify Ashe as one of the three.39 Two other witnesses gave equivocal identification testimony-one based on the similarity of Ashe's voice to the voice of one of

34. Yeager, 129 S. Ct. at 2367 (relying on Ashe v. Swenson, 397 U.S. 436 (1970)) (noting that constitutionalization follows the well-worn incorporation road). After the Court decided in 1969, in Benton v. Maryland, 395 U.S. 784 (1969), that the Fifth Amendment double jeopardy protection was applicable to the states through the due process clause, the Court held in Ashe that the federal collateral estoppel protection was applicable to the states as part of the now-incorporated double jeopardy clause. Ashe, 397 U.S. at 440.

35. RESTATEMENT (FIRST) OF JUDGMENTS § 68(1) (1942). 36. The Supreme Court first applied the doctrine of collateral estoppel to bar a crimi

nal prosecution in 1916 in United States v. Oppenheimer, although not on constitutional grounds. 242 U.S. 85 (1916). In Oppenheimer, the Court affirmed the dismissal of an indictment because an earlier, identical indictment had been dismissed on statute of limitations grounds. Id. at 87-88. Since jeopardy had not attached before that earlier dismissal, the constitutional double jeopardy protection was not implicated, but retrial was barred on the ground of collateral estoppel. Id. Later, in Hoag v. New Jersey, the Court refused to dismiss an indictment where the defendant had been tried and acquitted for robbing three of four victims and was then brought to trial for robbing the fourth victim. 356 U.S. 464, 465 (1958). The Court upheld the State's right to try the Defendant separately for each case. It refused to find that the Due Process Clause binds the states through double jeopardy protection. [d. at 467-68. Chief Justice Warren, in dissent, would have held that such a protection was a fundamental right included in the Fourteenth Amendment Due Process and, thus, binding on the states. Id. at 473-74 (Warren, J., dissenting).

37. See, e.g., Note, The Due Process Roots of Criminal Collateral Estoppel, 109 HARV. L. REV. 1729, 1734 n.37 (1996) [hereinafter Due Process Roots].

38. Ashe, 397 U.S. at 437-38. 39. /d. at 438.

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the robbers and the other only based on Ashe's "size and height[ ] and ...actions." 4 0 Cross-examination was brief and primarily aimed by theweakness of the identification testimony.41 The trial judge instructed thejury that if it found Ashe "was one of the participants in the armed rob-bery, the theft of 'any money' [or property] . .. would sustain a convic-tion," even if he had not personally taken it.4 2 The jury found Ashe "notguilty due to insufficient evidence." 43

Following the acquittal, the State sought to try Ashe for robbing one ofthe other players. 44 Although traditional double jeopardy principleswould not have barred a second prosecution that involved a different vic-tim, 4 5 Ashe moved to dismiss based on collateral estoppel, arguing thatthe acquittal finally determined that he was not one of the robbers.46 Thetrial court denied the motion, allowing the second trial to occur.47

The witnesses were essentially the same at the second trial, but theirtestimony on identity was "substantially stronger." 48 Indeed, the Stateconceded that after the acquittal it treated the first trial "as no more thana dry run for the second prosecution." 4 9 In fact, the Supreme Court rec-ognized that the State substantially improved its case.50 The judgecharged the jury as he had at the first trial, and the jury found Asheguilty. 1 He was sentenced to thirty-five years imprisonment.52

The state appellate courts affirmed the conviction, as did the districtand circuit courts, on federal habeas corpus.53 The federal courts heldthat they were bound by the Supreme Court's decision in Hoag v. NewJersey.54 The Supreme Court reversed, holding that the second trial vio-lated the Fifth Amendment's prohibition against double jeopardy, whichhad recently been made applicable to the states in Benton v. Maryland.55

The Court held that the jury's acquittal collaterally estopped the Statefrom trying Ashe for the robbery of a different victim. 5 6 Its analysis is, tosay the least, skeletal. First, the Court noted that "collateral estoppel hasbeen an established rule of federal criminal law" since it was first recog-

40. Id.41. Id.42. Id. at 439.43. Id.44. Id.45. Hoag v. New Jersey, 356 U.S. 464, 467-68 (1958).46. Ashe, 397 U.S. at 439.47. Id.48. Id. at 439-40.49. Id. at 447.50. Id. at 440.51. Id.52. Id.53. See Ashe v. Swenson, 399 F.2d 40 (8th Cir. 1968); Ashe v. Swenson, 289 F. Supp.

871 (W.D. Mo. 1967); State v. Ashe, 403 S.W.2d 589 (Mo. 1966); State v. Ashe, 350 S.W.2d768 (Mo. 1961).

54. 366 U.S. 464, 467-68 (1958); see Ashe, 397 U.S. at 440-41.55. 395 U.S. 784 (1969); see Ashe, 397 U.S. at 442-43.56. Ashe, 397 U.S. at 446-47.

1038 [Vol. 63



the robbers and the other only based on Ashe's "size and height[ ] and ... actions. "40 Cross-examination was brief and primarily aimed by the weakness of the identification testimony.41 The trial judge instructed the jury that if it found Ashe "was one of the participants in the armed robbery, the theft of 'any money' [or property] ... would sustain a conviction," even if he had not personally taken it.42 The jury found Ashe "not guilty due to insufficient evidence."43

Following the acquittal, the State sought to try Ashe for robbing one of the other players.44 Although traditional double jeopardy principles would not have barred a second prosecution that involved a different victim,45 Ashe moved to dismiss based on collateral estoppel, arguing that the acquittal finally determined that he was not one of the robbers.46 The trial court denied the motion, allowing the second trial to OCCUr.47

The witnesses were essentially the same at the second trial, but their testimony on identity was "substantially stronger."48 Indeed, the State conceded that after the acquittal it treated the first trial "as no more than a dry run for the second prosecution."49 In fact, the Supreme Court recognized that the State substantially improved its case.50 The judge charged the jury as he had at the first trial, and the jury found Ashe gUilty. 51 He was sentenced to thirty-five years imprisonment.52

The state appellate courts affirmed the conviction, as did the district and circuit courts, on federal habeas corpus. 53 The federal courts held that they were bound by the Supreme Court's decision in Haag v. New Jersey.54 The Supreme Court reversed, holding that the second trial violated the Fifth Amendment's prohibition against double jeopardy, which had recently been made applicable to the states in Benton v. Maryland.55

The Court held that the jury's acquittal collaterally estopped the State from trying Ashe for the robbery of a different victim. 56 Its analysis is, to say the least, skeletal. First, the Court noted that "collateral estoppel has been an established rule of federal criminal law" since it was first recog-

40. Id. 41. Id. 42. Id. at 439. 43. Id. 44. Id. 45. Hoag v. New Jersey, 356 U.S. 464, 467-68 (1958). 46. Ashe, 397 U.S. at 439. 47. !d. 48. Id. at 439-40. 49. Id. at 447. 50. Id. at 440. 51. Id. 52. Id. 53. See Ashe v. Swenson, 399 F.2d 40 (8th Cir. 1968); Ashe v. Swenson, 289 F. Supp.

871 (W.D. Mo. 1967); State v. Ashe, 403 S.W.2d 589 (Mo. 1966); State v. Ashe, 350 S.W.2d 768 (Mo. 1961).

54. 366 U.S. 464, 467-68 (1958); see Ashe, 397 U.S. at 440-4l. 55. 395 U.S. 784 (1969); see Ashe, 397 U.S. at 442-43. 56. Ashe, 397 U.S. at 446-47.


nized in United States v. Oppenheimer.57 Second, the Court held that thefederal protection is embodied in the Double Jeopardy Clause; "[f]orwhatever else that constitutional guarantee may embrace . . . it surelyprotects a man who has been acquitted from having to 'run the gantlet' asecond time."58 Thus, under this brief analysis, once Ashe had been ac-quitted of robbing the first victim, the State could not have tried himagain for that charge. Further, the State could not have tried Ashe forrobbing a second victim; "[flor the name of the victim, in the circum-stances of this case, had no bearing whatever upon the issue of whetherthe petitioner was one of the robbers." 59 In addition, the Court explicitlyrelied on the State's concession that "it treated the first trial as no morethan a dry run for the second prosecution." 6 0 As the Court observed,quoting the State's brief:

'No doubt the prosecutor felt the state had a provable case on thefirst charge and, when he lost, he did what every good attorneywould do-he refined his presentation in light of the turn of eventsat the first trial.' But this is precisely what the constitutional guaran-tee forbids.61

Having found collateral estoppel in the Double Jeopardy Clause, theCourt explained that to ensure protection of the right, collateral estoppelanalysis "is not to be applied with the hypertechnical and archaic ap-proach of a 19th century pleading book, but with realism and rational-ity." 6 2 The Court thus directed the lower courts to "'examine the recordof a prior proceeding, taking into account the pleadings, evidence, charge,and other relevant matter, and conclude whether a rational jury couldhave grounded its verdict upon an issue other than that which the defen-dant seeks to foreclose from consideration.' 6 3 "The inquiry 'must be setin a practical frame and viewed with an eye to all the circumstances of theproceedings.' Any test more technically restrictive would . . . amount to arejection of the rule" where, as in criminal cases, a general verdict ofacquittal is returned.64

Applying its analysis, the Court held that the record was "utterly de-void of any indication that the first jury could rationally have found thatan armed robbery had not occurred, or that the complaining witness hadnot been a victim of that robbery." 65 Accordingly, the Court held thatthe only rationally conceivable issue in dispute before the jury was

57. Id. at 443.58. Id. at 445-46 (quoting Green v. United States, 355 U.S. 184, 190 (1957)) (citation

omitted).59. Id. at 446.60. Id. at 447.61. Id.62. Id. at 444.63. Id. (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials

and Successive Prosecutions, 74 HARv. L. REv. 1, 38-39 (1960)).64. Id. (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).65. Id. at 445.

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nized in United States v. Oppenheimer. 57 Second, the Court held that the federal protection is embodied in the Double Jeopardy Clause; "[f]or whatever else that constitutional guarantee may embrace ... it surely protects a man who has been acquitted from having to 'run the gantlet' a second time."58 Thus, under this brief analysis, once Ashe had been acquitted of robbing the first victim, the State could not have tried him again for that charge. Further, the State could not have tried Ashe for robbing a second victim; "[f]or the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers."59 In addition, the Court explicitly relied on the State's concession that "it treated the first trial as no more than a dry run for the second prosecution."60 As the Court observed, quoting the State's brief:

'No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do-he refined his presentation in light of the turn of events at the first trial.' But this is precisely what the constitutional guaran: tee forbids. 61

Having found collateral estoppel in the Double Jeopardy Clause, the Court explained that to ensure protection of the right, collateral estoppel analysis "is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. "62 The Court thus directed the lower 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.' "63 "The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' Any test more technically restrictive would ... amount to a rejection of the rule" where, as in criminal cases, a general verdict of acquittal is returned.64

Applying its analysis, the Court held that the record was "utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that the complaining witness had not been a victim of that robbery."65 Accordingly, the Court held that the only rationally conceivable issue in dispute before the jury was

57. /d. at 443. 58. [d. at 445-46 (quoting Green v. United States, 355 U.S. 184, 190 (1957» (citation

omitted). 59. [d. at 446. 60. [d. at 447. 61. Id. 62. [d. at 444. 63. /d. (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials

and Successive Prosecutions, 74 HARV. L. REv. 1, 38-39 (1960». 64. [d. (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948». 65. [d. at 445.

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whether the petitioner had been one of the robbers.66

Chief Justice Burger dissented.67 He believed that

[n]othing in the language or gloss previously placed on this provisionof the Fifth Amendment remotely justifies the treatment that theCourt today accords to the collateral-estoppel doctrine. . . . this istruly a case of expanding a sound basic principle beyond thebounds-or needs-of its rational and legitimate objectives to pre-clude harassment of an accused.68

First, Chief Justice Burger explained that, under the recognized Block-burger test, the two robberies were not the "same offence" because eachrequired proof of a fact the other did not-a different victim. 6 9 Second,he did not agree that double jeopardy protection included collateral es-toppel, a dubious conclusion that he noted had "eluded judges and jus-tices for nearly two centuries." 70 Third, in what would turn out to beprescient language, Chief Justice Burger described collateral estoppel as a"strange mutant" when transferred from civil to criminal cases. 7' In civilcases, collateral estoppel applies to the same parties, saves resources, andprovides finality.72 In criminal cases, issues of finality and conservationof resources are less important, and the parties-or complainants-arenot the same.73

According to Chief Justice Burger, the majority had misinterpretedGreen's protection against twice "run[ning] the gantlet."74 In fact, hecharacterized the majority's reliance on that language as "decision by slo-gan." 75 Green was found guilty of second-degree murder when chargedwith first-degree murder and secured a new trial. 76 The Court held thathaving once "run the gantlet" on the first-degree murder charge he couldnot be forced to do so again.77 In Ashe, of course, the defendant had

66. Id. Justice Black concurred on the ground that the Court's inclusion of collateralestoppel in the Double Jeopardy Clause was correct as well as consistent with his view thatthe Fourteenth Amendment totally incorporated the Bill of Rights and made it applicableto the states. Id. at 447-48 (Black, J., concurring). Justice Brennan, joined by JusticesDouglas and Marshall also concurred. Id. at 448 (Brennan, J., concurring). Justice Bren-nan agreed that the Double Jeopardy Clause incorporates the doctrine of collateral estop-pel. Id. But even if collateral estoppel had not been applicable in Ashe, Justice Brennanwould have barred a second prosecution because the "same offence" language of thedouble jeopardy protection requires the government to try all charges that arise out of thesame transaction at one time. Id. at 449-54. Justice Harlan also concurred but wanted tomake clear that the Court's opinion did not embrace "to any degree the 'same transac-tion"' test for same offence set forth in Justice Brennan's concurring opinion. Id. at 448(Harlan, J., concurring).

67. Id. at 460 (Burger, J., dissenting).68. Id. at 460-61.69. Id. at 463.70. Id. at 464.71. Id.72. Id.73. Id.74. Id. at 465.75. Id.76. Id. (citing Green v. United States, 355 U.S. 184, 190 (1957)).77. Id. (citing Green, 355 U.S. at 190).

[Vol. 631040


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whether the petitioner had been one of the robbers.66 Chief Justice Burger dissented.67 He believed that

[Vol. 63

[n]othing in the language or gloss previously placed on this provision of the Fifth Amendment remotely justifies the treatment that the Court today accords to the collateral-estoppel doctrine .... this is truly a case of expanding a sound basic principle beyond the bounds-or needs-of its rational and legitimate objectives to preclude harassment of an accused.68

First, Chief Justice Burger explained that, under the recognized Blockburger test, the two robberies were not the "same offence" because each required proof of a fact the other did not-a different victim.69 Second, he did not agree that double jeopardy protection included collateral estoppel, a dubious conclusion that he noted had "eluded judges and justices for nearly two centuries."70 Third, in what would turn out to be prescient language, Chief Justice Burger described collateral estoppel as a "strange mutant" when transferred from civil to criminal cases.71 In civil cases, collateral estoppel applies to the same parties, saves resources, and provides finality.72 In criminal cases, issues of finality and conservation of resources are less important, and the parties-or complainants-are not the same.73

According to Chief Justice Burger, the majority had misinterpreted Grl{en's protection against twice "run[ning] the gantlet."74 In fact, he characterized the majority's reliance on that language as "decision by slogan."75 Green was found guilty of second-degree murder when charged with first-degree murder and secured a new triaJ.76 The Court held that having once "run the gantlet" on the first-degree murder charge he could not be forced to do so again.?7 In Ashe, of course, the defendant had

66. [d. Justice Black concurred on the ground that the Court's inclusion of collateral estoppel in the Double Jeopardy Clause was correct as well as consistent with his view that the Fourteenth Amendment totally incorporated the Bill of Rights and made it applicable to the states. [d. at 447-48 (Black, J., concurring). Justice Brennan, joined by Justices Douglas and Marshall also concurred. !d. at 448 (Brennan, J., concurring). Justice Brennan agreed that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel. [d. But even if collateral estoppel had not been applicable in Ashe, Justice Brennan would have barred a second prosecution because the "same offence" language of the double jeopardy protection requires the government to try all charges that arise out of the same transaction at one time. [d. at 449-54. Justice Harlan also concurred but wanted to make clear that the Court's opinion did not embrace "to any degree the 'same transaction'" test for same offence set forth in Justice Brennan's concurring opinion. Id. at 448 (Harlan, J., concurring).

67. [d. at 460 (Burger, J., dissenting). 68. [d. at 460-6l. 69. [d. at 463. 70. [d. at 464. 71. [d. 72. [d. 73. [d. 74. [d. at 465. 75. Id. 76. Id. (citing Green v. United States, 355 U.S. 184, 190 (1957». 77. Id. (citing Green, 355 U.S. at 190).


never "run the gantlet" on the untried robbery charges.78

Finally, Chief Justice Burger disagreed with the majority's reading ofthe record. 79 He found that the jury's acquittal could have been basednot on a failure of proof of identity but from confusion arising out of thefact that there were two robberies in different areas of the home.80 Thus,the majority's attempt to find a single, rational issue supporting the ac-quittal was "sheer 'guesswork."' 8 1

As precedent, Ashe has always invited skepticism and uncertainty.82

First, its superficial analysis makes its holding uncertain.83 Indeed, theCourt's analysis resembles its analyses in other decisions of the Incorpo-ration Era, in which the Court identified existing federal constitutionalstandards and then adopted them, in toto, as applicable to the statesthrough the Fourteenth Amendment. 84 Like other decisions of its era,Ashe relies almost exclusively on the broad notion of fundamental fair-ness but fails to identify any text, history, or underlying interests that jus-tify its holding.85 Second, Ashe's unusual facts limit its precedentialvalue. It is not an overstatement to say that Ashe is factually unique. InAshe, of course, the charges and underlying conduct were absolutelyidentical except for the name of the victim. 8 6 They all arose out of onesimple event-a robbery.87 Moreover, the record uniformly pointed to asingle contested issue-identity.88 Finally, the prosecutor candidly andexplicitly conceded that he treated the first trial as a "dry run."89 All ofthese factors are unusual in a criminal case, to say the least. Certainly,they have never appeared in any of the Court's subsequent collateral es-

78. Id.79. Id. at 462-63, 466-67.80. Id. at 467.81. Id. at 468.82. See, e.g., Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After

Rodney King, 95 COLUM. L. REV. 1, 30-31 (1995).83. Interestingly, several commentators have noted that due process is the more ap-

propriate constitutional basis for protecting the interests underlying the double jeopardyprovision. See, e.g., id. at 4-27 (applying this theory to the dual sovereignty doctrine);Griffin, supra note 8, at 503-05 (applying this theory to the interpretation of the sameoffense requirement); Charles William Hendricks, Note, 100 Years of Double JeopardyErosion: Criminal Collateral Estoppel Made Extinct, 48 DRAKE L. REV. 379, 392-93 (2000)(tracing collateral estoppel's due process roots); Due Process Roots, supra note 37, at 1741(stating that the collateral estoppel protection is more properly located in the Due ProcessClause than in the Fifth Amendment). These commentators believe that the misplacing ofthe protection against successive prosecution under the Double Jeopardy Clause has led todoctrinal confusion. See Amar & Marcus, supra note 82, at 31; Griffin, supra note 8, at503-05. Moreover, before incorporation, traditional double jeopardy jurisprudence didnot address collateral estoppel questions; thus, there is no historical or analytical frame-work to evaluate collateral estoppel claims that are different from the unique factual con-text of Ashe. See generally Amar & Marcus, supra note 82; Griffin, supra note 8.

84. See, e.g., Griffin v. California, 380 U.S. 609, 610-11 (1965); Mapp v. Ohio, 367 U.S.643, 655 (1961).

85. Griffin, 380 U.S. at 610-11.86. Ashe, 397 U.S. at 437-40.87. Id.88. Id.89. Id. at 447.

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never "run the gantlet" on the untried robbery charges.78

Finally, Chief Justice Burger disagreed with the majority's reading of the record.79 He found that the jury's acquittal could have been based not on a failure of proof of identity but from confusion arising out of the fact that there were two robberies in different areas of the home.80 Thus, the majority's attempt to find a single, rational issue supporting the acquittal was "sheer 'guesswork.' "81

As precedent, Ashe has always invited skepticism and uncertainty.82 First, its superficial analysis makes its holding uncertain.83 Indeed, the Court's analysis resembles its analyses in other decisions of the Incorporation Era, in which the Court identified existing federal constitutional standards and then adopted them, in toto, as applicable to the states through the Fourteenth Amendment.84 Like other decisions of its era, Ashe relies almost exclusively on the broad notion of fundamental fairness but fails to identify any text, history, or underlying interests that justify its holding.85 Second, Ashe's unusual facts limit its precedential value. It is not an overstatement to say that Ashe is factually unique. In Ashe, of course, the charges and underlying conduct were absolutely identical except for the name of the victim.86 They all arose out of one simple event-a robbery.87 Moreover, the record uniformly pointed to a single contested issue-identity.88 Finally, the prosecutor candidly and explicitly conceded that he treated the first trial as a "dry run."89 All of these factors are unusual in a criminal case, to say the least. Certainly, they have never appeared in any of the Court's subsequent collateral es-

78. /d. 79. [d. at 462-63, 466-67. 80. [d. at 467. 81. [d. at 468. 82. See, e.g., Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After

Rodney King, 95 COLUM. L. REV. 1, 30-31 (1995). 83. Interestingly, several commentators have noted that due process is the more ap

propriate constitutional basis for protecting the interests underlying the double jeopardy provision. See, e.g., id. at 4-27 (applying this theory to the dual sovereignty doctrine); Griffin, supra note 8, at 503-05 (applying this theory to the interpretation of the same offense requirement); Charles William Hendricks, Note, 100 Years of Double Jeopardy Erosion: Criminal Collateral Estoppel Made Extinct, 48 DRAKE L. REV. 379, 392-93 (2000) (tracing collateral estoppel's due process roots); Due Process Roots, supra note 37, at 1741 (stating that the collateral estoppel protection is more properly located in the Due Process Clause than in the Fifth Amendment). These commentators believe that the misplacing of the protection against successive prosecution under the Double Jeopardy Clause has led to doctrinal confusion. See Amar & Marcus, supra note 82, at 31; Griffin, supra note 8, at 503-05. Moreover, before incorporation, traditional double jeopardy jurisprudence did not address collateral estoppel questions; thus, there is no historical or analytical framework to evaluate collateral estoppel claims that are different from the unique factual context of Ashe. See generally Amar & Marcus, supra note 82; Griffin, supra note 8.

84. See, e.g., Griffin v. California, 380 U.S. 609, 610-11 (1965); Mapp v. Ohio, 367 U.S. 643, 655 (1961).

85. Griffin, 380 U.S. at 610--11. 86. Ashe, 397 U.S. at 437-40. 87. [d. 88. [d. 89. [d. at 447.

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toppel decisions.90

Since Ashe, the Supreme Court has rarely addressed collateral estoppelin criminal cases, but when it has done so, it has uniformly narrowed thedecision, essentially isolating it.91 In fact, after Ashe and until Yeager, theCourt had never applied collateral estoppel to bar litigation in a criminalcase.' Thus, for example, in United States v. Dowling,92 the Court refusedto extend the effect of a prior acquittal beyond the acquittal itself, suchthat the government could use testimony indicating that the defendantcommitted the crime for which he had been acquitted as other crimesevidence in a separate trial for a distinct offense. 93

More recently, in Bobby v. Bies,94 the Court narrowly construed sev-eral different independent aspects of collateral estoppel precedent.95

First, the Court held that a state court's finding that the defendant wasborderline mentally retarded, which it had considered (and rejected) as amitigating factor in imposing the death penalty, did not bar subsequentlitigation of whether the same retardation was sufficient to bar the deathpenalty. 96 The Court held that collateral estoppel did not apply becausethe two mental retardation issues were not the same issues.97 Second, itheld that the defendant had not been "twice put in jeopardy" because he,not the State, sought review of his sentence after the change in law thatoccurred with Atkins.98 The Court also held that collateral estoppel wasunavailable because the defendant had not been the prevailing party; thesentencing court had rejected the claim of mental retardation as a miti-gating factor. 99 Similarly, because collateral estoppel is only available onan issue that is "necessary to the ultimate outcome of a prior proceed-

90. See also id. at 460 (Burger, J., dissenting).91. Indeed, some commentators have used stronger language in describing the Court's

interpretation of Ashe. See, e.g., Hendricks, supra note 83, at 388-90 (arguing that criminalcollateral estoppel has been so eroded that it provides virtually no protection to defend-ants); Due Process Roots, supra note 37, at 1729 (noting that since Ashe, "criminal collat-eral estoppel has been significantly weakened" and that the doctrine has been subjected to"steady erosion").

92. 493 U.S. 342 (1990). For an in-depth analysis of the evidentiary use of collateralestoppel in criminal cases, see Anne Bowen Poulin, Collateral Estoppel in Criminal Cases:Reuse of Evidence After Acquittal, 58 U. CIN. L. REV. 1 (1989).

93. Dowling, 493 U.S. at 348.94. 129 S. Ct. 2145 (2009).95. At Bies's capital sentencing proceeding, the jury had been instructed to consider

his borderline mental retardation in considering the death penalty. Id. at 2149-50. Thejury recommended a sentence of death, and the court imposed it. Id. The Ohio SupremeCourt affirmed, observing that Bies's "mild to borderline mental retardation merit[ed]some weight in mitigation," but it concluded that the mitigating factors were outweighedby the aggravating circumstances. Id. (alteration in original).

Thereafter, the Supreme Court held in Atkins that the Eighth Amendment prohibitedimposition of the death penalty on the mentally retarded. Atkins v. Virginia, 536 U.S. 304,321 (2002). This subsequently led the federal district court in Bies to grant a writ of habeascorpus vacating the defendant's death sentence based on the court's earlier finding that hewas retarded. Bies, 129 S. Ct. at 2151. The Sixth Circuit affirmed. Id.

96. Id. at 2149.97. Id.98. Id.99. Id.

[Vol. 631042



toppel decisions.90

Since Ashe, the Supreme Court has rarely addressed collateral estoppel in criminal cases, but when it has done so, it has uniformly narrowed the decision, essentially isolating it.91 In fact, after Ashe and until Yeager, the Court had never applied collateral estoppel to bar litigation in a criminal case.' Thus, for example, in United States v. Dowling,92 the Court refused to extend the effect of a prior acquittal beyond the acquittal itself, such that the government could use testimony indicating that the defendant committed the crime for which he had been acquitted as other crimes evidence in a separate trial for a distinct offense.93

More recently, in Bobby v. Bies,94 the Court narrowly construed several different independent aspects of collateral estoppel precedent.95 First, the Court held that a state court's finding that the defendant was borderline mentally retarded, which it had considered (and rejected) as a mitigating factor in imposing the death penalty, did not bar subsequent litigation of whether the same retardation was sufficient to bar the death penalty.96 The Court held that collateral estoppel did not apply because the two mental retardation issues were not the same issues.97 Second, it held that the defendant had not been "twice put in jeopardy" because he, not the State, sought review of his sentence after the change in law that occurred with Atkins.98 The Court also held that collateral estoppel was unavailable because the defendant had not been the prevailing party; the sentencing court had rejected the claim of mental retardation as a mitigating factor. 99 Similarly, because collateral estoppel is only available on an issue that is "necessary to the ultimate outcome of a prior proceed-

90. See also id. at 460 (Burger, J., dissenting). 91. Indeed, some commentators have used stronger language in describing the Court's

interpretation of Ashe. See, e.g., Hendricks, supra note 83, at 388-90 (arguing that criminal collateral estoppel has been so eroded that it provides virtually no protection to defendants); Due Process Roots, supra note 37, at 1729 (noting that since Ashe, "criminal collateral estoppel has been significantly weakened" and that the doctrine has been subjected to "steady erosion").

92. 493 U.S. 342 (1990). For an in-depth analysis of the evidentiary use of collateral estoppel in criminal cases, see Anne Bowen Poulin, Collateral Estoppel in Criminal Cases: Reuse of Evidence After Acquittal, 58 U. CIN. L. REV. 1 (1989).

93. Dowling, 493 U.S. at 348. 94. 129 S. Ct. 2145 (2009). 95. At Bies's capital sentencing proceeding, the jury had been instructed to consider

his borderline mental retardation in considering the death penalty. [d. at 2149-50. The jury recommended a sentence of death, and the court imposed it. [d. The Ohio Supreme Court affirmed, observing that Bies's "mild to borderline mental retardation merit[ed] some weight in mitigation," but it concluded that the mitigating factors were outweighed by the aggravating circumstances. [d. (alteration in original).

Thereafter, the Supreme Court held in Atkins that the Eighth Amendment prohibited imposition of the death penalty on the mentally retarded. Atkins v. Virginia, 536 U.S. 304, 321 (2002). This subsequently led the federal district court in Bies to grant a writ of habeas corpus vacating the defendant's death sentence based on the court's earlier finding that he was retarded. Bies, 129 S. Ct. at 2151. The Sixth Circuit affirmed. [d.

96. ld. at 2149. 97. ld. 98. ld. 99. ld.


ing," 00 the sentencing court's rejection of that factor meant the defen-dant's mental state was "not outcome determinative." 01 Finally, even ifcollateral estoppel applied, the Court invoked the exception for changesin the law, noting that "[b]ecause the change in law substantially alteredthe State's incentive to contest Bies' [sic] mental capacity, applying pre-clusion would not advance the equitable administration of the law." 102

B. THE FINALITY OF AN AcoUITTAL

Collateral estoppel is a subspecies of double jeopardy protection forthe finality of an acquittal. The Supreme Court has repeatedly and con-sistently held that an acquittal is absolutely final. 103 As long ago asBlackstone the rule has been the same: "[W]hen a man is once fairlyfound not guilty upon an indictment, or other prosecution . . . he [can]plead such acquittal in bar of any subsequent accusation for the samecrime."1 04

Indeed, as the Court established in Fong Foo v. United States, an ac-quittal is an absolute bar to additional proceedings even where the ac-quittal is "based upon an egregiously erroneous foundation."1 0 5 Casesfollowing Fong Foo protected the finality of an acquittal as terminatingthe prosecution's right to prosecute regardless of whether the acquittalwas granted by a jury or a judge,106 at trial or on appeal, 07 or correctly orerroneously. 08 Indeed, where a defendant has previously been acquit-ted, no balancing of interests is required to bar subsequent proceedings

100. Id.101. Id. at 2153.102. Id. The Court explained that the state frequently does not contest the evidence of

mental retardation as a mitigator because, based on that evidence, the jury might find forthe state on the aggravating factor of future dangerousness. Id. (citing Atkins, 536 U.S. at321).

103. See, e.g., Bullington v. Missouri, 451 U.S. 430, 442-43 (1981).104. Green v. United States, 355 U.S. 184, 200 (1957) (Frankfurter, J., dissenting)

(quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *335). In Blackstone's England, theCrown prosecutors developed the practice of discharging a jury when the evidence was soweak that acquittal appeared likely. Id. The Crown would then re-indict and retry thedefendant with better evidence. To prevent this, the rule was established that "whenever,and by whatever means, there is an acquittal in a criminal prosecution, the scene is closedand the curtain drops." Kyden Creekpaum, Note, What's Wrong with a Little More DoubleJeopardy? A 21st Century Recalibration of an Ancient Individual Right, 44 AM. CRIM. L.REv. 1179, 1195 (2007). That rule was embodied in the double jeopardy clause and hasbeen consistently upheld ever since. This is without doubt the brightest of the bright-linerules in double jeopardy.

105. 369 U.S. 141, 143 (1962). In Fong Foo, during the course of a trial, the districtcourt improperly directed the jury to return a verdict of acquittal based on alleged miscon-duct by the trial prosecutor and on the alleged incredibility of the prosecution's evidence.Id. at 142. The judgment of acquittal was entered, and the prosecution brought a writ ofmandamus to vacate it; the writ was granted on the ground that the judge was withoutpower to order the acquittal. Id. When the prosecution sought a retrial, the SupremeCourt held that, although the judge's decision was erroneous, the judgment of acquittalwas final and double jeopardy prohibited further proceedings. Id. at 143.

106. United States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977).107. Burks v. United States, 437 U.S. 1, 18 (1978).108. Sanabria v. United States, 437 U.S. 54, 69 (1978).

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ing,"lOO the sentencing court's rejection of that factor meant the defendant's mental state was "not outcome determinative."lol Finally, even if collateral estoppel applied, the Court invoked the exception for changes in the law, noting that "[b]ecause the change in law substantially altered the State's incentive to contest Bies' [sic] mental capacity, applying preclusion would not advance the equitable administration of the law."102

B. THE FINALITY OF AN ACQUrrTAL

Collateral estoppel is a subspecies of double jeopardy protection for the finality of an acquittal. The Supreme Court has repeatedly and consistently held that an acquittal is absolutely final.1 03 As long ago as Blackstone the rule has been the same: "[W]hen a man is once fairly found not guilty upon an indictment, or other prosecution ... he [can] plead such acquittal in bar of any subsequent accusation for the same crime."104

Indeed, as the Court established in Fong Foo v. United States, an acquittal is an absolute bar to additional proceedings even where the acquittal is "based upon an egregiously erroneous foundation."105 Cases following Fong Foo protected the finality of an acquittal as terminating the prosecution's right to prosecute regardless of whether the acquittal was granted by a jury or a judge,106 at trial or on appeal,107 or correctly or erroneously. lOS Indeed, where a defendant has previously been acquitted, no balancing of interests is required to bar subsequent proceedings

100. Id. 101. Id. at 2153. 102. /d. The Court explained that the state frequently does not contest the evidence of

mental retardation as a mitigator because, based on that evidence, the jury might find for the state on the aggravating factor of future dangerousness. Id. (citing Atkins, 536 U.S. at 321).

103. See, e.g., Bullington v. Missouri, 451 U.S. 430, 442-43 (1981). 104. Green v. United States, 355 U.S. 184, 200 (1957) (Frankfurter, J., dissenting)

(quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *335). In Blackstone's England, the Crown prosecutors developed the practice of discharging a jury when the evidence was so weak that acquittal appeared likely. Id. The Crown would then re-indict and retry the defendant with better evidence. To prevent this, the rule was established that "whenever, and by whatever means, there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops." Kyden Creekpaum, Note, What's Wrong with a Little More Double Jeopardy? A 21st Century Recalibration of an Ancient Individual Right, 44 AM. CRIM. L. REV. 1179, 1195 (2007). That rule was embodied in the double jeopardy clause and has been consistently upheld ever since. This is without doubt the brightest of the bright-line rules in double jeopardy.

105. 369 U.S. 141, 143 (1962). In Fong Foo, during the course of a trial, the district court improperly directed the jury to return a verdict of acquittal based on alleged misconduct by the trial prosecutor and on the alleged incredibility of the prosecution's evidence. Id. at 142. The judgment of acquittal was entered, and the prosecution brought a writ of mandamus to vacate it; the writ was granted on the ground that the judge was without power to order the acquittal. Id. When the prosecution sought a retrial, the Supreme Court held that, although the judge'S decision was erroneous, the judgment of acquittal was final and double jeopardy prohibited further proceedings. Id. at 143.

106. United States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977). 107. Burks v. United States, 437 U.S. 1, 18 (1978). 108. Sanabria v. United States, 437 U.S. 54, 69 (1978).

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on the same offense. 109

The absolute finality of acquittals protects the innocent, of course, whomay be worn down or convicted by successive proceedings. More impor-tantly, however, it also protects the jury's right to acquit for any reason orno reason. The finality of an acquittal rests on the notion that there canbe no such thing as an erroneous acquittal. A jury always has the powerto acquit, for any reason, even for a bad reason or no reason at all."i0

That power is, in turn, reinforced by the well-established prohibitionagainst scrutinizing the jury's deliberations.111 Indeed, in criminal proce-dure the only time that a jury's deliberations are ever examined to deter-mine the basis for an acquittal is in the double jeopardy context, when acourt considers whether to apply collateral estoppel to bar successive pro-ceedings on other charges.

C. THE NON-FINALITY OF A HUNG JURY

In Yeager, the unique collateral estoppel inquiry came into a head-onconflict with the Supreme Court's centuries-old rule that the failure of ajury to agree on a verdict is not a bar to retrial.112 Two separate reasonssupport this rule of non-finality. First, the failure of a jury to agree on averdict does not terminate the original jeopardy, which is said to continueuntil a final verdict or a guilty plea.' 13 Second, the failure of a jury to

109. Harris v. Washington, 404 U.S. 55, 56-57 (1971) (stating that where Ashe applies,reversal is required "irrespective of whether the jury considered all relevant evidence [atthe first trial] and irrespective of the good faith of the State in bringing successive prosecu-tions"). Moreover, U.S. courts simply refuse to allow retrial after an acquittal. See Ari-zona v. Washington, 434 U.S. 497, 503 (1978) ("The constitutional protection againstdouble jeopardy unequivocally prohibits a second trial following an acquittal."). Moreo-ver, there has been no decision in which the Court has held, or even stated in dicta, thatthere is an exception for a fraudulently obtained acquittal. David S. Rudstein, DoubleJeopardy and the Fraudulently-Obtained Acquittal, 60 Mo. L. REV. 607, 620-25 (1995).And unlike the recently enacted statutory rule in the United Kingdom, in the UnitedStates, no legislature or court has ever sanctioned retrial of an acquitted defendant basedon the discovery of new and compelling evidence of guilt. Compare Criminal Justice Act,2003, c. 44, §H 76-80 (Eng.), with David Hamer, The Expectation of Incorrect Acquittalsand the "New and Compelling Evidence" Exception to Double Jeopardy, 2 CRiM L. REV. 63(2009).

110. Amar & Marcus, supra note 82, at 49.111. See generally United States v. Powell, 469 U.S. 57 (1984); Dunn v. United States,

284 U.S. 390 (1932). It is one of the most basic tenets of our criminal justice system thatcourts will not inquire how the jury reached a decision absent evidence that third-partyinfluence invaded the jury room. Powell, 469 U.S. at 67. This absolute, the so-called Mans-field's Rule, against impeaching a jury's verdict has been widely accepted for over twohundred years; as long ago as 1785, the Court refused to consider juror affidavits thatrevealed that the jury had arrived at its verdict by tossing a coin in an attempt to impeachthe jury's verdict. See Vaise v. Delaval, (1785) 99 Eng. Rep. 944, 945 (K.B.). As othercommentators have noted, the "only legitimate justification" for this refusal to inquire intojury deliberations "is the historic prerogative of the jury to acquit against the evidence-that is, to nullify the law." Amar & Marcus, supra note 82, at 49.

112. United States v. Perez, 22 U.S. 579, 580 (1824). See generally Richardson v. UnitedStates, 468 U.S. 317 (1984); Arizona v. Washington, 434 U.S. 497 (1978); Keerl v. Montana,213 U.S. 135 (1909); Dreyer v. Illinois, 187 U.S. 71 (1902); Logan v. United States, 144 U.S.263 (1892).

113. Perez, 22 U.S. at 580.

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on the same offense.109

The absolute finality of acquittals protects the innocent, of course, who may be worn down or convicted by successive proceedings. More importantly, however, it also protects the jury's right to acquit for any reason or no reason. The finality of an acquittal rests on the notion that there can be no such thing as an erroneous acquittal. A jury always has the power to acquit, for any reason, even for a bad reason or no reason at all.110

That power is, in turn, reinforced by the well-established prohibition against scrutinizing the jury's deliberations.111 Indeed, in criminal procedure the only time that a jury's deliberations are ever examined to determine the basis for an acquittal is in the double jeopardy context, when a court considers whether to apply collateral estoppel to bar successive proceedings on other charges.

C. THE NON-FINALITY OF A HUNG JURY

In Yeager, the unique collateral estoppel inquiry came into a head-on conflict with the Supreme Court's centuries-old rule that the failure of a jury to agree on a verdict is not a bar to retrial.112 Two separate reasons support this rule of non-finality. First, the failure of a jury to agree on a verdict does not terminate the original jeopardy, which is said to continue until a final verdict or a guilty plea.113 Second, the failure of a jury to

109. Harris v. Washington, 404 U.S. 55,56-57 (1971) (stating that where Ashe applies, reversal is required "irrespective of whether the jury considered all relevant evidence [at the first trial] and irrespective of the good faith of the State in bringing successive prosecutions"). Moreover, U.S. courts simply refuse to allow retrial after an acquittal. See Arizona v. Washington, 434 U.S. 497, 503 (1978) ("The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal."). Moreover, there has been no decision in which the Court has held, or even stated in dicta, that there is an exception for a fraudulently obtained acquittal. David S. Rudstein, Double Jeopardy and the Fraudulently-Obtained Acquittal, 60 Mo. L. REV. 607, 620-25 (1995). And unlike the recently enacted statutory rule in the United Kingdom, in the United States, no legislature or court has ever sanctioned retrial of an acquitted defendant based on the discovery of new and compelling evidence of guilt. Compare Criminal Justice Act, 2003, c. 44, §§ 76-80 (Eng.), with David Hamer, The Expectation of Incorrect Acquittals and the "New and Compelling Evidence" Exception to Double Jeopardy, 2 CRIM L. REV. 63 (2009).

110. Amar & Marcus, supra note 82, at 49. 111. See generally United States v. Powell, 469 U.S. 57 (1984); Dunn v. United States,

284 U.S. 390 (1932). It is one of the most basic tenets of our criminal justice system that courts will not inquire how the jury reached a decision absent evidence that third-party influence invaded the jury room. Powell, 469 U.S. at 67. This absolute, the so-called Mansfield's Rule, against impeaching a jury's verdict has been widely accepted for over two hundred years; as long ago as 1785, the Court refused to consider juror affidavits that revealed that the jury had arrived at its verdict by tossing a coin in an attempt to impeach the jury's verdict. See Vaise v. Delaval, (1785) 99 Eng. Rep. 944, 945 (K.B.). As other commentators have noted, the "only legitimate justification" for this refusal to inquire into jury deliberations "is the historic prerogative of the jury to acquit against the evidencethat is, to nullify the law." Amar & Marcus, supra note 82, at 49.

112. United States v. Perez, 22 U.S. 579, 580 (1824). See generally Richardson v. United States, 468 U.S. 317 (1984); Arizona v. Washington, 434 U.S. 497 (1978); Keerl v. Montana, 213 U.S. 135 (1909); Dreyer v. Illinois, 187 U.S. 71 (1902); Logan v. United States, 144 U.S. 263 (1892).

113. Perez, 22 U.S. at 580.


agree on a verdict constitutes a "manifest necessity," permitting a judgeto grant a mistrial and permitting retrial of the defendant because "theends of public justice would otherwise be defeated." 114

The Court's first decision allowing retrial after a hung jury was UnitedStates v. Perez.115 That decision was not based on the Constitution butrather on the then-existing common-law doctrine that jeopardy did notattach until a verdict was rendered. 116 Thus, according to the Court, adefendant was not placed in jeopardy if a jury failed to agree." 7

Many years after Perez, the Court held that jeopardy attaches at apoint much earlier than a verdict, i.e., when the jury is sworn in a jury-trial case." 8 Thus, the double jeopardy implications of a hung jury had tobe reconsidered because jeopardy already would have attached even if ajury disagreed. That issue was addressed by the Court in Richardson v.United States, where the Court held that a jury's failure to agree on adefendant's guilt does not terminate the original jeopardy; thus, rep-rosecution following a hung jury is allowed.119 The Court explained that"'a defendant's valued right to have his trial completed by a particulartribunal must in some instances be subordinated to the public's interest infair trials designed to end in just judgments.' 11 2 0

In Richardson, the defendant was charged with various narcotics of-fenses and moved unsuccessfully during trial for a judgment of acquittalbased on insufficient evidence.121 Ultimately, the jury acquitted him ofone charge but was hung as to the others.122 After the district court de-clared a mistrial as to the hung counts and scheduled a retrial, the defen-dant again moved to dismiss, arguing that retrial would violate doublejeopardy because the evidence had been insufficient at the first trial.123

The motion was denied, and the court of appeals dismissed the appeal forlack of jurisdiction.124

The Supreme Court found the issue to be appealable but affirmed thedismissal.125 It held that whether or not the evidence had been insuffi-cient at the first trial, the fact that the first trial had ended in a hung jury

114. Id. (quoting Richardson, 468 U.S. at 324).115. 22 U.S. 579 (1824).116. For a complete analysis of the basis for and history leading up to the Court's Perez

decision, see Janet E. Findlater, Retrial After a Hung Jury: The Double Jeopardy Problem,129 U. PA. L. REV. 701, 702-11 (1981).

117. Perez, 22 U.S. at 580.118. See generally Downum v. United States, 372 U.S. 734 (1963) (making the rule ap-

plicable to federal cases); Crist v. Bretz, 437 U.S. 28 (1978) (binding the states to the rule).119. Richardson, 468 U.S. at 323-24.120. Id. at 325 (quoting Wade v. Hunter, 336 U.S. 684, 688-89 (1949)).121. Id. at 318.122. Id. at 318-19.123. Id. at 319.124. Id. The court of appeals dismissed the appeal on the ground that the case

presented an interlocutory appeal that was not reviewable under the collateral order doc-trine. Id. The Supreme Court disagreed and held that the order was appealable. Id. at321-22. Justice Stevens dissented from this holding. Id. at 332-38 (Stevens, J., dissenting).

125. Id. at 322 (majority opinion).

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agree on a verdict constitutes a "manifest necessity," permitting a judge to grant a mistrial and permitting retrial of the defendant because "the ends of public justice would otherwise be defeated."114

The Court's first decision allowing retrial after a hung jury was United States v. Perez,115 That decision was not based on the Constitution but rather on the then-existing common-law doctrine that jeopardy did not attach until a verdict was rendered,116 Thus, according to the Court, a defendant was not placed in jeopardy if a jury failed to agree,117

Many years after Perez, the Court held that jeopardy attaches at a point much earlier than a verdict, i.e., when the jury is sworn in a jurytrial case. us Thus, the double jeopardy implications of a hung jury had to be reconsidered because jeopardy already would have attached even if a jury disagreed. That issue was addressed by the Court in Richardson v. United States, where the Court held that a jury's failure to agree on a defendant's guilt does not terminate the original jeopardy; thus, reprosecution following a hung jury is allowed.119 The Court explained that "'a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.' "120

In Richardson, the defendant was charged with various narcotics offenses and moved unsuccessfully during trial for a judgment of acquittal based on insufficient evidence.121 Ultimately, the jury acquitted him of one charge but was hung as to the others.122 After the district court declared a mistrial as to the hung counts and scheduled a retrial, the defendant again moved to dismiss, arguing that retrial would violate double jeopardy because the evidence had been insufficient at the first triaP23 The motion was denied, and the court of appeals dismissed the appeal for lack of jurisdiction.124

The Supreme Court found the issue to be appealable but affirmed the dismissal.125 It held that whether or not the evidence had been insufficientat the first trial, the fact that the first trial had ended in a hung jury

114. [d. (quoting Richardson, 468 U.S. at 324). 115. 22 U.S. 579 (1824). 116. For a complete analysis of the basis for and history leading up to the Court's Perez

decision, see Janet E. Findlater, Retrial After a Hung Jury: The Double Jeopardy Problem, 129 U. PA. L. REV. 701, 702-11 (1981).

117. Perez, 22 U.S. at 580. 118. See generally Downum v. United States, 372 U.S. 734 (1963) (making the rule ap-

plicable to federal cases); Crist v. Bretz, 437 U.S. 28 (1978) (binding the states to the rule). 119. Richardson, 468 U.S. at 323-24. 120. [d. at 325 (quoting Wade v. Hunter, 336 U.S. 684, 688-89 (1949». 121. [d. at 318. 122. [d. at 318-19. 123. [d. at 319. 124. [d. The court of appeals dismissed the appeal on the ground that the case

presented an interlocutory appeal that was not reviewable under the collateral order doctrine. [d. The Supreme Court disagreed and held that the order was appealable. [d. at 321-22. Justice Stevens dissented from this holding. [d. at 332-38 (Stevens, J., dissenting).

125. [d. at 322 (majority opinion).

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meant there had been "no termination of [the] original jeopardy."1 26

Since the original jeopardy continued, retrial was not barred.127

The Richardson Court rejected the defendant's analogy to Burks v.United States, where the Court prohibited retrial following an appellatereversal based on insufficient evidence. 128 The Court distinguished Burksby recognizing that "the protection of the Double Jeopardy Clause by itsterms applies only if there has been some event, such as an acquittal,which terminates the original jeopardy."1 29 Otherwise, there is no finalityto protect.o30 While the appellate reversal based on insufficient evidencein Burks was not an acquittal, it was, according to the Court, theequivalent of an acquittal and, therefore, barred retrial.131 But, the Rich-ardson Court established that a mistrial is not the equivalent of an acquit-tal.132 Moreover, observing that "'a page of history is worth a volume oflogic,'"13 3 the Court supported this non-finality rule by pointing out thata hung jury is not the result of any "oppressive practices" that the DoubleJeopardy Clause was designed to prevent.134

The Court's next attempt to address the double jeopardy consequencesof a hung jury, United States v. Martin Linen Supply Co., is consistentwith Richardson.135 In Martin Linen Supply, after the defendant's trialended in a hung jury, the trial court granted a motion for judgment ofacquittal.136 The Supreme Court held that, notwithstanding the non-fi-nality of the hung jury, retrial was barred because the subsequent judicialorder of dismissal, like the appellate reversal order in Burks, was theequivalent of an acquittal that terminated jeopardy.'37

126. Id. at 318.127. Id. at 326.128. Burks v. United States, 437 U.S. 1, 18-19 (1978).129. Richardson, 468 U.S. at 325.130. Id.131. Id. at 323.132. Id. at 325-26.133. Id. (citation omitted).134. Id. at 324 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). In Richardson,

Justice Brennan, joined by Justice Marshall, dissented. Id. at 326 (Brennan, J., dissenting).According to Justice Brennan, the Court's conclusion that a hung jury does not terminatejeopardy "improperly ignores the realities of the defendant's situation and relies instead ona formalistic concept of 'continuing jeopardy."' Id. at 327 (quoting Justices of BostonMun. Court v. Lydon, 466 U.S. 294, 314-15 (1984) (Brennan, J., concurring)). The dissent-ers accused the majority of "pretending that [the second trial] was not really a new trial atall but was instead simply a 'continuation' of the original proceeding." Id. at 329 (quotingArizona v. Washington, 434 U.S. 497, 503-04 (1978)). In doing so, they pointed to Arizonav. Washington where the Court allowed retrial after a mistrial based on manifest necessity,noting that in that case the Court "did not . . . seek to evade the common-sense fact thatsuch an order 'terminates' the first trial." Id. at 330 (quoting Arizona, 434 U.S. at 505).Second, Justice Brennan believed that Burks required reversal. Id. at 330-32. As he ex-plained, while in Richardson, unlike Burks, there had been no court order explicitly declar-ing the trial evidence insufficient, the fact that the trial ended in a hung jury should notallow the prosecution a second chance to convict where, in fact, the defendant establishesafter a hung jury that the trial evidence was insufficient. Id. at 330.

135. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).136. Id. at 566.137. Id. at 575-76.

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meant there had been "no termination of [the] original jeopardy."126 Since the original jeopardy continued, retrial was not barred.127

The Richardson Court rejected the defendant's analogy to Burks v. United States, where the Court prohibited retrial following an appellate reversal based on insufficient evidence.128 The Court distinguished Burks by recognizing 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."129 Otherwise, there is no finality to protect.130 While the appellate reversal based on insufficient evidence in Burks was not an acquittal, it was, according to the Court, the equivalent of an acquittal and, therefore, barred retrial.131 But, the Richardson Court established that a mistrial is not the equivalent of an acquittal.132 Moreover, observing that '''a page of history is worth a volume of logic,"'133 the Court supported this non-finality rule by pointing out that a hung jury is not the result of any "oppressive practices" that the Double Jeopardy Clause was designed to prevent.134

The Court's next attempt to address the double jeopardy consequences of a hung jury, United States v. Martin Linen Supply Co., is consistent with Richardson.135 In Martin Linen Supply, after the defendant's trial ended in a hung jury, the trial court granted a motion for judgment of acquittal.136 The Supreme Court held that, notwithstanding the non-finality of the hung jury, retrial was barred because the subsequent judicial order of dismissal, like the appellate reversal order in Burks, was the equivalent of an acquittal that terminated jeopardy.137

126. ld. at 318. 127. ld. at 326. 128. Burks v. United States, 437 U.S. 1,18-19 (1978). 129. Richardson, 468 U.S. at 325. 130. ld. 131. ld. at 323. 132. ld. at 325-26. 133. ld. (citation omitted). 134. ld. at 324 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949». In Richardson,

Justice Brennan, joined by Justice Marshall, dissented. ld. at 326 (Brennan, J., dissenting). According to Justice Brennan, the Court's conclusion that a hung jury does not terminate jeopardy "improperly ignores the realities of the defendant's situation and relies instead on a formalistic concept of 'continuing jeopardy.'" ld. at 327 (quoting Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 314-15 (1984) (Brennan, J., concurring». The dissenters accused the majority of "pretending that [the second trial] was not really a new trial at all but was instead simply a 'continuation' of the original proceeding." ld. at 329 (quoting Arizona v. Washington, 434 U.S. 497, 503-04 (1978». In doing so, they pointed to Arizona v. Washington where the Court allowed retrial after a mistrial based on manifest necessity, noting that in that case the Court "did not ... seek to evade the common-sense fact that such an order 'terminates' the first trial." /d. at 330 (quoting Arizona, 434 U.S. at 505). Second, Justice Brennan believed that Burks required reversal. /d. at 330-32. As he explained, while in Richardson, unlike Burks, there had been no court order explicitly declaring the trial evidence insufficient, the fact that the trial ended in a hung jury should not allow the prosecution a second chance to convict where, in fact, the defendant establishes after a hung jury that the trial evidence was insufficient. ld. at 330.

135. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). 136. ld. at 566. 137. ld. at 575-76.


The Court upheld the non-finality of a mistrial based on a hung jury inthe more recent decision in Sattazahn v. Pennsylvania. 1 3 8 Sattazahn in-volved a capital sentencing proceeding in which the jury deadlocked onthe question of sentence. 139 According to a Pennsylvania statute, thatdeadlock required the trial court to impose a life sentence, and the courtdid so.14 0 Thereafter, when the case was remanded following an appeal,the State sought to impose the death penalty again. 141 The SupremeCourt held that the existence of the hung jury did not prevent the Statefrom so proceeding or the jury from imposing a death sentence.142 As inRichardson, the Court held that the jury's deadlock was a "non-result"that could not be called an acquittal-equivalent or jeopardy-terminatingevent.143 As Justice O'Connor stated in her concurrence, when a juryhangs, it "makes no decision at all."14 4 Similarly, the judge's impositionof the life sentence pursuant to statute, while final, was required by oper-ation of law rather than resulting from a resolution of the facts. 145 Forthat reason, it, also could not be characterized as an acquittal-equivalent,i.e., an "'entitlement to a life sentence'" that would prohibit a seconddeath penalty proceeding.146

In a dissenting opinion joined by Justices Stevens, Souter, and Breyer,Justice Ginsburg agreed that the defendant in Sattazahn had not beenacquitted.147 Yet, she would have held that the final judgment "qualifiesas a jeopardy-terminating event" that would preclude a subsequent capi-tal sentencing proceeding because the judgment was statutorily man-dated, was imposed after a jury deadlock, and was not prompted by aprocedure sought by the defendant. 148 In other words, it was an acquit-tal-equivalent. Like dissenting Justice Brennan in Richardson,149 JusticeGinsburg rejected a bright-line approach and looked more to the realitiesof the situation, to the same underlying interests articulated in Richard-son, and to the same indicia of government oppression.o50 Justice Gins-burg pointed out that the defendant did not seek the statutory

138. 537 U.S. 101 (2003).139. Id. at 104.140. 42 PA. CONS. STAT. ANN. § 9711(c)(1)(v) (West 2007) ("[T]he court may, in its

discretion, discharge the jury if it is of the opinion that further deliberation will not resultin a unanimous agreement as to the sentence, in which case the court shall sentence thedefendant to life imprisonment.").

141. Sattazahn, 537 U.S. at 105.142. Id. at 114.143. Id. at 109.144. Id. at 117 (O'Connor, J., concurring).145. Id. at 110 (majority opinion).146. Id. (quoting Pennsylvania v. Martorano, 634 A.2d 1063, 1070 (1993)). While the

Court did recognize that the legislature might have intended to have the judge's life sen-tence survive reversal of the underlying conviction, even where the case must in any eventbe retried, it found no evidence of any legislative intent to do so. Id.

147. Id. at 119 (Ginsburg, J., dissenting).148. Id. at 118.149. Richardson v. United States, 468 U.S. 317, 326 (1984) (Brennan, J., dissenting).150. Sattazahn, 537 U.S. at 124 (Ginsburg, J., dissenting).

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The Court upheld the non-finality of a mistrial based on a hung jury in the more recent decision in Sattazahn v. Pennsylvania.138 Sattazahn involved a capital sentencing proceeding in which the jury deadlocked on the question of sentence.139 According to a Pennsylvania statute, that deadlock required the trial court to impose a life sentence, and the court did so.140 Thereafter, when the case was remanded following an appeal, the State sought to impose the death penalty again.14I The Supreme Court held that the existence of the hung jury did not prevent the State from so proceeding or the jury from imposing a death sentence.142 As in Richardson, the Court held that the jury's deadlock was a "non-result" that could not be called an acquittal-equivalent or jeopardy-terminating event.143 As Justice O'Connor stated in her concurrence, when a jury hangs, it "makes no decision at all."144 Similarly, the judge's imposition of the life sentence pursuant to statute, while final, was required by operation of law rather than resulting from a resolution of the facts.145 For that reason, it, also could not be characterized as an acquittal-equivalent, i.e., an "'entitlement to a life sentence'" that would prohibit a second death penalty proceeding.146

In a dissenting opinion joined by Justices Stevens, Souter, and Breyer, Justice Ginsburg agreed that the defendant in Sattazahn had not been acquitted.147 Yet, she would have held that the final judgment "qualifies as a jeopardy-terminating event" that would preclude a subsequent capital sentencing proceeding because the judgment was statutorily mandated, was imposed after a jury deadlock, and was not prompted by a procedure sought by the defendant.148 In other words, it was an acquittal-equivalent. Like dissenting Justice Brennan in Richardson,149 Justice Ginsburg rejected a bright-line approach and looked more to the realities of the situation, to the same underlying interests articulated in Richardson, and to the same indicia of government oppression.150 Justice Ginsburg pointed out that the defendant did not seek the statutory

138. 537 U.S. 101 (2003). 139. Id. at 104. 140. 42 PA. CONS. STAT. ANN. § 9711(c)(1)(v) (West 2007) ("[T]he court may, in its

discretion, discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment.").

141. Sattazahn, 537 U.S. at 105. 142. Id. at 114. 143. Id. at 109. 144. Id. at 117 (O'Connor, J., concurring). 145. Id. at 110 (majority opinion). 146. Id. (quoting Pennsylvania v. Martorano, 634 A.2d 1063, 1070 (1993». While the

Court did recognize that the legislature might have intended to have the judge's life sentence survive reversal of the underlying conviction, even where the case must in any event be retried, it found no evidence of any legislative intent to do so. Id.

147. Id. at 119 (Ginsburg, J., dissenting). 148. Id. at 118. 149. Richardson v. United States, 468 U.S. 317, 326 (1984) (Brennan, J., dissenting). 150. Sattazahn, 537 U.S. at 124 (Ginsburg, J., dissenting).

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termination of the case by court order. 151 At the same time, all of thedefendant's double jeopardy interests against multiple proceedings iden-tified in Green were present. 152

The Court has, of course, recognized exceptions to the non-finality of amistrial. For example, a mistrial declared in the absence of manifest ne-cessity1 5 3 or as a result of intentional government manipulationl 54 Willbar retrial. That is because, in such circumstances, all of the defendant'sinterests in avoiding a second proceeding are present, but the govern-ment's interest in one full and fair chance to convict is limited.'55 In theabsence of manifest necessity, the defendant has unnecessarily been de-nied his right to go to the first jury and perhaps secure an acquittal.Under the second exception, where there is intentional government ma-nipulation, there is no legitimate government interest remaining that isentitled to protection. In these two circumstances, the defendant's inter-est prevails, and retrial is barred. In the mixed-verdict, hung jury situa-tion presented in Yeager, however, there is manifest necessity for retrial,while the government's interest is not diminished in any way.156 Despiteall this, the Yeager Court did not even address the weight of the govern-ment's interest in obtaining one full chance to proceed to verdict in thecase of a mixed-verdict. 157

D. UPHOLDING INCONSISTENT VERDICTS

One final set of double jeopardy precedents discussed in Yeager is theSupreme Court's jurisprudence upholding clearly inconsistent verdicts. 58

The seminal case in this area is Dunn v. United States, 159 where the Courtheld that an alleged inconsistency between a guilty verdict on some

151. Id. at 125.152. Id. at 124-25. The dissenters believed the result was also compelled by the fact

that a defendant sentenced to life after a jury deadlock who chooses to appeal "faces thepossibility of death if she is successful on appeal;" if she "chooses to forgo an appeal, thefinal judgment for life stands." Id. at 126. "We have previously declined to interpret theDouble Jeopardy Clause in a manner that puts defendants in this bind." Id. at 127.

153. See, e.g., United States v. Razmilovic, 507 F.3d 130, 133 (2d Cir. 2007) (holdingthat retrial was barred because it was an abuse of discretion for a trial court to declare amistrial based on only one jury note indicating deadlock). See generally Arizona v. Wash-ington, 434 U.S. 497 (1978).

154. Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982).155. See, e.g., Yeager v. United States, 129 S. Ct. 2360, 2366 (2009) (quoting Arizona v.

Washington, 434 U.S. at 509).156. See infra notes 312-46 and accompanying text.157. The Supreme Court simply did not weigh the government's interest in retrial

against the defendant's interest. See generally Yeager, 129 S. Ct. 2360. Although it did notexplain this approach, the Supreme Court has consistently held that a prior acquittal willbar subsequent proceedings on the same offense without a balancing of interests. See FongFoo v. United States, 369 U.S. 141, 143 (1962). On the other hand, all of the Court's casesinvolving retrial after mistrials have been held to require and have utilized a balancing ofinterests analysis. See, e.g., Arizona v. Washington, 434 U.S. 497, 508-10 (1984); Richard-son v. United States, 468 U.S. 317, 326 (1984). As will be argued later, the Court createdconfusion and instability by ruling that these interests, as represented by the hung jury,should not be considered in determining whether collateral estoppel applies.

158. Yeager, 129 S. Ct. at 2370.159. 284 U.S. 390 (1932).

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termination of the case by court order.151 At the same time, all of the defendant's double jeopardy interests against mUltiple proceedings identified in Green were present.152

The Court has, of course, recognized exceptions to the non-finality of a mistrial. For example, a mistrial declared in the absence of manifest necessity153 or as a result of intentional government manipuiationI54 will bar retrial. That is because, in such circumstances, all of the defendant's interests in avoiding a second proceeding are present, but the government's interest in one full and fair chance to convict is limited.155 In the absence of manifest necessity, the defendant has unnecessarily been denied his right to go to the first jury and perhaps secure an acquittal. Under the second exception, where there is intentional government manipulation, there is no legitimate government interest remaining that is entitled to protection. In these two circumstances, the defendant's interest prevails, and retrial is barred. In the mixed-verdict, hung jury situation presented in Yeager, however, there is manifest necessity for retrial, while the government's interest is not diminished in any way.156 Despite all this, the Yeager Court did not even address the weight of the government's interest in obtaining one full chance to proceed to verdict in the case of a mixed-verdict.157

D. UPHOLDING INCONSISTENT VERDICTS

One final set of double jeopardy precedents discussed in Yeager is the Supreme Court's jurisprudence upholding clearly inconsistent verdicts.15s

The seminal case in this area is Dunn v. United States,159 where the Court held that an alleged inconsistency between a guilty verdict on some

151. Id. at 125. 152. Id. at 124-25. The dissenters believed the result was also compelled by the fact

that a defendant sentenced to life after a jury deadlock who chooses to appeal "faces the possibility of death if she is successful on appeal;" if she "chooses to forgo an appeal, the final judgment for life stands." Id. at 126. "We have previously declined to interpret the Double Jeopardy Clause in a manner that puts defendants in this bind." Id. at 127.

153. See, e.g., United States v. Razmilovic, 507 F.3d 130, 133 (2d Cir. 2007) (holding that retrial was barred because it was an abuse of discretion for a trial court to declare a mistrial based on only one jury note indicating deadlock). See generally Arizona v. Washington, 434 U.S. 497 (1978).

154. Oregon v. Kennedy, 456 U.S. 667,675-76 (1982). 155. See, e.g., Yeager v. United States, 129 S. Ct. 2360, 2366 (2009) (quoting Arizona v.

Washington, 434 U.S. at 509). 156. See infra notes 312-46 and accompanying text. 157. The Supreme Court simply did not weigh the government's interest in retrial

against the defendant's interest. See generally Yeager, 129 S. Ct. 2360. Although it did not explain this approach, the Supreme Court has consistently held that a prior acquittal will bar subsequent proceedings on the same offense without a balancing of interests. See Fong Foo v. United States, 369 U.S. 141, 143 (1962). On the other hand, all of the Court's cases involving retrial after mistrials have been held to require and have utilized a balancing of interests analysis. See, e.g., Arizona v. Washington, 434 U.S. 497, 508-10 (1984); Richardson v. United States, 468 U.S. 317, 326 (1984). As will be argued later, the Court created confusion and instability by ruling that these interests, as represented by the hung jury, should not be considered in determining whether collateral estoppel applies.

158. Yeager, 129 S. Ct. at 2370. 159. 284 U.S. 390 (1932).


counts and an acquittal on others did not require that the conviction bereversed. 160 As noted above, the Yeager opinion opened with a referenceto Dunn.161

Dunn was tried on a three-count indictment alleging that he (1) "main-tain[ed] a common nuisance by keeping for sale ... intoxicating liquor,"(2) unlawfully possessed that liquor, and (3) unlawfully sold that li-quor. 162 After he was convicted on the first count but acquitted on thesecond and third counts, he argued that the conviction could not standbecause the verdicts were inconsistent.16 3 The Court rejected hisclaim.164 Quoting the Second Circuit, it held:

'The most that can be said . . . is that the verdict shows that either inthe acquittal or the conviction the jury did not speak their real con-clusions, but that does not show that they were not convinced of thedefendant's guilt. We interpret the acquittal as no more than theirassumption of a power . . . to which they were disposed throughlenity.165

Dunn, then, represents recognition of the jury's power as the voice ofthe community, to balance justice and law, to protect against arbitrary oroppressive exercises of executive power, and judicial deference to "theunreviewable power of a jury to return a verdict of not guilty for imper-missible reasons."1 66

The Court revisited Dunn in United States v. Powell.167 There, the de-fendant was indicted, inter alia, for (1) possession of cocaine with intentto distribute, (2) conspiracy to do so, and (3) use of the telephone tofacilitate those violations.168 He was convicted of the telephone chargebut acquitted of the others.169 As in Dunn, the defendant claimed that

160. Id. at 393; Yeager, 129 S. Ct. at 2362 ("[A] logical inconsistency between a guiltyverdict and a verdict of acquittal does not impugn the validity of either verdict."); see alsoHarris v. Rivera, 454 U.S. 339, 347 (1981) (holding that there would not be a reversal basedon inconsistent verdicts in state bench trial). As one commentator has noted, the DoubleJeopardy Clause has "piggybacked onto the right of jury trial in criminal cases," by limitingthe courts' power to overturn jury verdicts. Amar & Marcus, supra note 82, at 57.

161. Yeager, 129 S. Ct. at 2362-63. The opening paragraph of the opinion reads asfollows:

In Dunn v. United States, the Court, speaking through Justice Holmes, heldthat a logical inconsistency between a guilty verdict and a verdict of acquittaldoes not impugn the validity of either verdict. The question presented in thiscase is whether an apparent inconsistency between a jury's verdict of acquit-tal on some counts and its failure to return a verdict on other counts affectsthe preclusive force of the acquittals under the Double Jeopardy Clause ofthe Fifth Amendment. We hold that it does not.

Id. (citation omitted).162. Dunn, 284 U.S. at 391.163. Id. at 392.164. Id. at 393.165. Id. (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)).166. Harris v. Rivera, 454 U.S 339, 346 (1981); see also Standefer v. United States, 447

U.S. 10, 22-23 (1980).167. 469 U.S. 57 (1984).168. Id. at 59-60.169. Id. at 60.

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counts and an acquittal on others did not require that the conviction be reversed.160 As noted above, the Yeager opinion opened with a reference to Dunn.161

Dunn was tried on a three-count indictment alleging that he (1) "maintain[ed] a common nuisance by keeping for sale ... intoxicating liquor," (2) unlawfully possessed that liquor, and (3) unlawfully sold that liquOr.162 After he was convicted on the first count but acquitted on the second and third counts, he argued that the conviction could not stand because the verdicts were inconsistent.163 The Court rej ected his claim.l64 Quoting the Second Circuit, it held:

'The most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power . . . to which they were disposed through lenity.'165

Dunn, then, represents recognition of the jury's power as the voice of the community, to balance justice and law, to protect against arbitrary or oppressive exercises of executive power, and judicial deference to "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons. "166

The Court revisited Dunn in United States v. Powell. 167 There, the defendant was indicted, inter alia, for (1) possession of cocaine with intent to distribute, (2) conspiracy to do so, and (3) use of the telephone to facilitate those violations.168 He was convicted of the telephone charge but acquitted of the others.169 As in Dunn, the defendant claimed that

160. ld. at 393; Yeager, 129 S. Ct. at 2362 ("[A] logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn the validity of either verdict."); see also Harris v. Rivera, 454 U.S. 339, 347 (1981) (holding that there would not be a reversal based on inconsistent verdicts in state bench trial). As one commentator has noted, the Double Jeopardy Clause has "piggybacked onto the right of jury trial in criminal cases," by limiting the courts' power to overturn jury verdicts. Amar & Marcus, supra note 82, at 57.

161. Yeager, 129 S. Ct. at 2362-63. The opening paragraph of the opinion reads as follows:

In Dunn v. United States, the Court, speaking through Justice Holmes, held that a logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn the validity of either verdict. The question presented in this case is whether an apparent inconsistency between a jury's verdict of acquittalon 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. We hold that it does not.

ld. (citation omitted). 162. Dunn, 284 U.S. at 391. 163. ld. at 392. 164. [d. at 393. 165. [d. (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925». 166. Harris v. Rivera, 454 U.S 339, 346 (1981); see also Standefer v. United States, 447

U.S. 10, 22-23 (1980). 167. 469 U.S. 57 (1984). 168. [d. at 59-60. 169. [d. at 60.

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the verdicts were inconsistent, but this time he added a collateral estoppelclaim.170 The Ninth Circuit reversed the conviction on the telephonecharge.171 Relying on Dunn, the Supreme Court reversed the Ninth Cir-cuit and reinstated the defendant's telephone facilitation conviction.172

The Court characterized the Dunn doctrine as having four parts: (1)courts are prohibited from attempting to interpret the reasons for a jury'sacquittal; (2) the jury's power of leniency is fundamentally important andentitled to protection; (3) courts cannot speculate about what went onduring jury deliberations; and (4) existing insufficiency review is an ade-quate safeguard against factually erroneous verdicts. 173 Accordingly, theCourt held that collateral estoppel did not preclude acceptance of theinconsistent verdict. 174 The Court explained that because the jury mayhave acquitted as an exercise in leniency, its power to have done so mustbe protected.175 Any other analysis would engage a court in speculatingabout a jury's deliberations.176 In addition, since the government cannotappeal an acquittal, it would be unfair to force the government to give upits fairly-secured conviction.177 Moreover, collateral estoppel is based onthe "assumption that the jury acted rationally" and found identifiablefacts; in contrast, inconsistent verdicts are by their nature inherently irra-tional so that collateral estoppel cannot apply to require reversal of oneof them. 178 In essence, the Court held that a defendant presenting a col-lateral estoppel claim based on inconsistent verdicts cannot meet theheavy burden of establishing that the acquittal represented a final resolu-tion of any specific factual issue.179

170. Id.171. Id.172. Id. at 69.173. Id. at 63-69.174. Id. at 66, 69.175. Id. at 65-66.176. Id. at 66.177. Id.178. Id. at 68.179. At its core, the Court explained that Dunn is the "recognition of the jury's historic

function, in criminal trials, as a check against arbitrary or oppressive exercises of power bythe Executive Branch." Id. at 65. Although this is an "assumption of a power which [thejury has] no right to exercise," that does not make the exercise of that power reversibleerror. Id. at 66 (alteration in original).

The Court also rejected "as imprudent and unworkable" a rule that would require "indi-vidualized assessment of the reason for the inconsistency" in every inconsistent verdictcase. Id. According to the Court, such a rule would be based either on "pure speculation"or would require a prohibited inquiry into the jury's deliberations. Id. Courts will notundertake that inquiry out of deference to the determination of the community. Powell is,thus, consistent with the Supreme Court's unwavering line of authority that establishes thatthere is no such thing as an erroneous acquittal, with its recognition that the jury alwayshas the power to acquit. In order to protect that power, the Court allowed the acquittal andconviction to stand. Id. at 69.

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the verdicts were inconsistent, but this time he added a collateral estoppel claim.170 The Ninth Circuit reversed the conviction on the telephone charge.171 Relying on Dunn, the Supreme Court reversed the Ninth Circuit and reinstated the defendant's telephone facilitation conviction. I72

The Court characterized the Dunn doctrine as having four parts: (1) courts are prohibited from attempting to interpret the reasons for a jury's acquittal; (2) the jury's power of leniency is fundamentally important and entitled to protection; (3) courts cannot speculate about what went on during jury deliberations; and (4) existing insufficiency review is an adequate safeguard against factually erroneous verdicts.173 Accordingly, the Court held that collateral estoppel did not preclude acceptance of the inconsistent verdictp4 The Court explained that because the jury may have acquitted as an exercise in leniency, its power to have done so must be protectedP5 Any other analysis would engage a court in speculating about a jury's deliberationsp6 In addition, since the government cannot appeal an acquittal, it would be unfair to force the government to give up its fairly-secured convictionP7 Moreover, collateral estoppel is based on the "assumption that the jury acted rationally" and found identifiable facts; in contrast, inconsistent verdicts are by their nature inherently irrational so that collateral estoppel cannot apply to require reversal of one of them.178 In essence, the Court held that a defendant presenting a collateral estoppel claim based on inconsistent verdicts cannot meet the heavy burden of establishing that the acquittal represented a final resolution of any specific factual issue. I79

170. Id. 171. Id. 172. !d. at 69. 173. Id. at 63-69. 174. Id. at 66, 69. 175. Id. at 65-66. 176. Id. at 66. 177. Id. 178. Id. at 68. 179. At its core, the Court explained that Dunn is the "recognition of the jury's historic

function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch." Id. at 65. Although this is an "assumption of a power which [the jury has] no right to exercise," that does not make the exercise of that power reversible error. Id. at 66 (alteration in original).

The Court also rejected "as imprudent and unworkable" a rule that would require "individualized assessment of the reason for the inconsistency" in every inconsistent verdict case. Id. According to the Court, such a rule would be based either on "pure speculation" or would require a prohibited inquiry into the jury's deliberations. Id. Courts will not undertake that inquiry out of deference to the determination of the community. Powell is, thus, consistent with the Supreme Court's unwavering line of authority that establishes that there is no such thing as an erroneous acquittal, with its recognition that the jury always has the power to acquit. In order to protect that power, the Court allowed the acquittal and conviction to stand. Id. at 69.


III. UNITED STATES V. YEAGER

A. THE FACTS

The Yeager case arose out of the Enron debacle. 180 In 1997, EnronCorporation acquired a telecommunications business that became knownas Enron Broadband Services (EBS). 81 F. Scott Yeager became its Se-nior Vice President of Strategic Development. 182 In 1999, Enron an-nounced to the media that EBS would become a major part of itsbusiness. 183 Then, at the company's annual equity analyst conference in2000, Yeager and others1 84 allegedly made false and misleading state-ments about the company's value.185 The stock price of Enron rose dra-matically. 186 Over the next several months, Yeager sold more than700,000 of his Enron shares for a personal profit of $19 million.187 EBSturned out to be worthless.188 EBS's sole asset, the network, "was rid-dled with technological problems and never fully developed."189

On November 5, 2004, a grand jury returned a 176-count indictmentbased on these events; 126 of those charges were brought against Ye-ager.190 Count 1 charged conspiracy to commit securities fraud and wirefraud, and included as overt acts the offenses charged in counts 2 through6.191 Count 2 charged securities fraud based on false and misleadingstatements at the 2000 conference and Yeager's failure to state facts nec-essary to prevent statements by others from being misleading. 192 Counts3 through 6 alleged four acts of wire fraud based on four press releasesrelating to EBS in 2000.193 Counts 27 through 46 (the insider tradingcounts) alleged insider trading violations based on twenty sales of Ye-ager's Enron stock "while in the possession of material non-public infor-mation regarding the technological capabilities, value, revenue andbusiness performance of [EBS]. "194 Counts 67 through 165 (the moneylaundering counts) alleged ninety-nine transactions involving Yeager'suse of the proceeds of his illegal stock sales, which the government de-scribed as "criminally derived property."195

180. See generally Yeager v. United States, 129 S. Ct. 2360 (2009).181. Id. at 2363.182. Id.183. Id.184. The Indictment charged Yeager and Joseph Hirko, Kevin Howard, Rex Shelby,

and Michael Krautz. United States v. Yeager, 446 F. Supp. 2d 719, 727 (S.D. Tex. 2006).185. Yeager, 129 S. Ct. at 2363.186. Id.187. Id.188. Id.189. Id.190. Id.191. Id.192. Id.193. Id.194. Id. at 2363-64 (alteration in original).195. Id. at 2364. As did the Supreme Court, we "refer to counts 1 through 6 as the

'fraud counts' and the remaining counts as the 'insider trading counts."' Id.

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III. UNITED STATES V. YEAGER

A. THE FACTS

The Yeager case arose out of the Enron debacle.180 In 1997, Enron Corporation acquired a telecommunications business that became known as Enron Broadband Services (EBS).181 F. Scott Yeager became its Senior Vice President of Strategic Development.182 In 1999, Enron announced to the media that EBS would become a major part of its business.183 Then, at the company's annual equity analyst conference in 2000, Yeager and others184 allegedly made false and misleading statements about the company's value.18S The stock price of Enron rose dramatically.186 Over the next several months, Yeager sold more than 700,000 of his Enron shares for a personal profit of $19 million.187 EBS turned out to be worthless.188 EBS's sole asset, the network, "was riddled with technological problems and never fully developed."189

On November 5, 2004, a grand jury returned a 176-count indictment based on these events; 126 of those charges were brought against Yeager.190 Count 1 charged conspiracy to commit securities fraud and wire fraud, and included as overt acts the offenses charged in counts 2 through 6.191 Count 2 charged securities fraud based on false and misleading statements at the 2000 conference and Yeager's failure to state facts necessary to prevent statements by others from being misleading.192 Counts 3 through 6 alleged four acts of wire fraud based on four press releases relating to EBS in 2000.193 Counts 27 through 46 (the insider trading counts) alleged insider trading violations based on twenty sales of Yeager's Enron stock "while in the possession of material non-public information regarding the technological capabilities, value, revenue and business performance of [EBS]."194 Counts 67 through 165 (the money laundering counts) alleged ninety-nine transactions involving Yeager's use of the proceeds of his illegal stock sales, which the government described as "criminally derived property."19S

180. See generally Yeager v. United States, 129 S. Ct. 2360 (2009). 181. [d. at 2363. 182. [d. 183. [d. 184. The Indictment charged Yeager and Joseph Hirko, Kevin Howard, Rex Shelby,

and Michael Krautz. United States v. Yeager, 446 F. Supp. 2d 719, 727 (S.D. Tex. 2006). 185. Yeager, 129 S. Ct. at 2363. 186. [d. 187. [d. 188. [d. 189. [d. 190. [d. 191. [d. 192. [d. 193. [d. 194. [d. at 2363-64 (alteration in original). 195. [d. at 2364. As did the Supreme Court, we "refer to counts 1 through 6 as the

'fraud counts' and the remaining counts as the 'insider trading counts.'" [d.

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After a thirteen-week trial and four days of deliberation, the jury re-ported that while it agreed on some counts, it could not reach a verdict onothers.1 9 6 The trial court delivered an Allen charge1 97 and directed thejury to continue deliberating "until the end of the day."198 When the juryfailed to agree by that time, the court accepted its partial verdict acquit-ting Yeager on the fraud and conspiracy counts (counts 1- 6) but failingto reach a verdict on the insider trading and money laundering counts(counts 7-165).199 The court declared a mistrial as to the latter counts.200

Thereafter, the government obtained another superseding indictmentthat was substantially different than the one on which Yeager had beentried.201 Unlike its prior indictments, this one named only Yeager 202 andfocused solely on Yeager's knowledge of information about the EBS pro-ject and his failure to disclose that information before selling his stock.203

Also, the indictment re-alleged only select insider trading counts onwhich the jury had deadlocked. 204

Yeager moved to dismiss the new indictment. 205 He argued that theacquittals on the fraud counts collaterally estopped "the Governmentfrom retrying him on the insider trading counts." 206 According to Yeager,the record established that the single issue a rational jury could have re-solved in acquitting him was that he "did not possess material, nonpublicinformation" about the value of EBS.2 0 7 Because the new prosecution onthe insider trading and money laundering counts would require the gov-ernment to prove that he possessed such information, collateral estoppelbarred the second trial. 208

196. Id.197. See generally Allen v. United States, 164 U.S. 492 (1896).198. Yeager, 129 S. Ct. at 2364.199. Id. Interestingly, during the trial, the court had observed that the jurors were up-

set about the economic hardship of the extended trial.The jury is going insane back there [due to the length of the witness examina-tions] .... They're back there having a fit .... A whole bunch of people arenot being paid [by their employers], so another month out of work is likegoing to drive them-they're having fits back there. They said everybody butone person says they're not going to get paid . . .. I am just trying to tell y'all,you got a jury that's getting ready to go insane. They're not getting paid.. . [E]verybody has got problems except for one person."

Reply Brief for Petitioner at 10, United States v. Yeager, 129 S. Ct. 2360 (2009) (No. 08-67), 2009 WL 663923, at *10. Indeed, several statements and actions taken by the courtreveal that the jurors were enduring severe financial hardship. First, the court considereddismissing two jurors on that basis and observed that some jurors "aren't even paying at-tention anymore, they're in such dire financial straits." Id. And when the jurors asked notto take off Memorial Day, the court observed that "[tihese jurors want this case over." Id."One juror was [actually] forced to borrow money to remain on the jury." Id.

200. Yeager, 129 S. Ct. at 2364.201. Id.202. Id.203. Id.204. Id.205. Id.206. Id.207. Id.208. Id.

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After a thirteen-week trial and four days of deliberation, the jury reported that while it agreed on some counts, it could not reach a verdict on others.196 The trial court delivered an Allen charge197 and directed the jury to continue deliberating "until the end of the day."198 When the jury failed to agree by that time, the court accepted its partial verdict acquitting Yeager on the fraud and conspiracy counts (counts 1- 6) but failing to reach a verdict on the insider trading and money laundering counts (counts 7-165).199 The court declared a mistrial as to the latter counts.200

Thereafter, the government obtained another superseding indictment that was substantially different than the one on which Yeager had been tried.201 Unlike its prior indictments, this one named only Yeager202 and focused solely on Yeager's knowledge of information about the EBS project and his failure to disclose that information before selling his stock.203 Also, the indictment re-alleged only select insider trading counts on which the jury had deadlocked.204

Yeager moved to dismiss the new indictment.2os He argued that the acquittals on the fraud counts collaterally estopped "the Government from retrying him on the insider trading counts."206 According to Yeager, the record established that the single issue a rational jury could have resolved in acquitting him was that he "did not possess material, nonpublic information" about the value of EBS.207 Because the new prosecution on the insider trading and money laundering counts would require the government to prove that he possessed such information, collateral estoppel barred the second trial. 208

196. Id. 197. See generally Allen v. United States, 164 U.S. 492 (1896). 198. Yeager, 129 S. Ct. at 2364. 199. Id. Interestingly, during the trial, the court had observed that the jurors were up-

set about the economic hardship of the extended trial. The jury is going insane back there [due to the length of the witness examinations] . . .. They're back there having a fit .... A whole bunch of people are not being paid [by their employers], so another month out of work is like going to drive them-they're having fits back there. They said everybody but one person says they're not going to get paid .... I am just trying to tell y'all, you got a jury that's getting ready to go insane. They're not getting paid .... [E]verybody has got problems except for one person."

Reply Brief for Petitioner at 10, United States v. Yeager, 129 S. Ct. 2360 (2009) (No. 08-67), 2009 WL 663923, at *10. Indeed, several statements and actions taken by the court reveal that the jurors were enduring severe financial hardship. First, the court considered dismissing two jurors on that basis and observed that some jurors "aren't even paying attention anymore, they're in such dire financial straits." Id. And when the jurors asked not to take off Memorial Day, the court observed that "[t]hese jurors want this case over." Id. "One juror was [actually] forced to borrow money to remain on the jury." !d.

200. Yeager, 129 S. Ct. at 2364. 201. [d. 202. [d. 203. [d. 204. [d. 205. [d. 206. [d. 207. /d. 208. [d.


The trial judge denied the motion.209 She disagreed with Yeager's con-clusion about the basis for the jury's acquittals.210 Having presided attrial, the judge interpreted the record to conclude that the jury could havebased its acquittal on a finding that Yeager had "'not knowingly and will-fully participate[d] in the scheme to defraud." 211 According to thejudge, the question of "whether [he] possessed insider information wasnot necessarily resolved in the first trial" so that it could be litigated atthe second trial.212

Yeager took an immediate appeal.213 On appeal, the court of appealsdisagreed with the district court's factual analysis and agreed with Yeagerthat the only rational basis for the jury's acquittal was its conclusion thatYeager did not possess any insider information. 214 It reasoned that Ye-ager had not disputed the government's proof that he had "helped shapethe message" of the fraudulent representations at the analyst's confer-ence and, thus, rejected the district court's finding that the jury couldhave found that he had not participated in the fraud.215 While the courtof appeals acknowledged that its finding normally would preclude retrialon the insider trading and money laundering counts, it nevertheless af-firmed.216 It held that the jury's inability to agree on some of the countsprevented the application of collateral estoppel.217 According to thecourt, if "the jury, acting rationally," had concluded that Yeager did nothave insider information, it "would have acquitted him of insider trad-ing," rather than deadlocking on those counts. 218 On that basis, the courtfound it "impossible . . . to decide with any certainty what the jury neces-sarily determined." 2 1 9

B. THE SUPREME COURT'S MAJORITY OPINION

The Supreme Court reversed. 220 Justice Stevens began his opinion byciting Dunn v. United States,221 where "the Court ... held that a logicalinconsistency between a guilty verdict [on some counts] and a verdict ofacquittal [on other counts] does not impugn the validity of either ver-

209. Id.210. Id.211. Id.212. Id.213. Id. An immediate appeal is allowed under the collateral order doctrine. Abney v.

United States, 431 U.S. 651, 662-63 (1977).214. United States v. Yeager, 521 F.3d 367, 376-78 (5th Cir. 2008), rev'd, 129 S. Ct. 2360

(2009). Apparently, the court of appeals analyzed only the securities fraud acquittal. Id. at377. Since that acquittal necessarily found that Yeager did not possess insider information,it was "unnecessary ... to determine whether the jury made the same conclusion when itacquitted Yeager of [the] other counts." Id. at 378 n.20.

215. Id. at 377.216. Id. at 378, 381.217. Id. at 380.218. Id. at 379.219. Id. at 378.220. Yeager v. United States, 129 S. Ct. 2360, 2365 (2009).221. See generally 284 U.S. 390 (1932).

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The trial judge denied the motion.209 She disagreed with Yeager's conclusion about the basis for the jury's acquittals.210 Having presided at trial, the judge interpreted the record to conclude that the jury could have based its acquittal on a finding that Yeager had" 'not knowingly and willfully participate[ d] in the scheme to defraud. "'211 According to the judge, the question of "whether [he] possessed insider information was not necessarily resolved in the first trial" so that it could be litigated at the second trial.212

Yeager took an immediate appeal.213 On appeal, the court of appeals disagreed with the district court's factual analysis and agreed with Yeager that the only rational basis for the jury's acquittal was its conclusion that Yeager did not possess any insider information.214 It reasoned that Yeager had not disputed the government's proof that he had "helped shape the message" of the fraudulent representations at the analyst's conference and, thus, rejected the district court's finding that the jury could have found that he had not participated in the fraud.215 While the court of appeals acknowledged that its finding normally would preClude retrial on the insider trading and money laundering counts, it nevertheless affirmed.216 It held that the jury's inability to agree on some of the counts prevented the application of collateral estoppel.217 According to the court, if "the jury, acting rationally," had concluded that Yeager did not have insider information, it "would have acquitted him of insider trading," rather than deadlocking on those counts.218 On that basis, the court found it "impossible ... to decide with any certainty what the jury necessarily determined. "219

B. THE SUPREME COURT'S MAJORITY OPINION

The Supreme Court reversed.220 Justice Stevens began his opinion by citing Dunn v. United States,221 where "the Court ... held that a logical inconsistency between a guilty verdict [on some counts] and a verdict of acquittal [on other counts] does not impugn the validity of either ver-

209. Id. 210. [d. 211. ld. 212. [d. 213. [d. An immediate appeal is allowed under the collateral order doctrine. Abney v.

United States, 431 U.S. 651, 662-63 (1977). 214. United States v. Yeager, 521 F.3d 367, 376-78 (5th Cir. 2008), rev'd, 129 S. Ct. 2360

(2009). Apparently, the court of appeals analyzed only the securities fraud acquittal. [d. at 377. Since that acquittal necessarily found that Yeager did not possess insider information, it was "unnecessary ... to determine whether the jury made the same conclusion when it acquitted Yeager of [the] other counts." [d. at 378 n.20.

215. ld. at 377. 216. ld. at 378, 381. 217. [d. at 380. 218. [d. at 379. 219. [d. at 378. 220. Yeager v. United States, 129 S. Ct. 2360, 2365 (2009). 221. See generally 284 U.S. 390 (1932).

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dict." 222 According to Justice Stevens, the related question in Yeager was"whether an apparent inconsistency between a jury's . . . acquittal on

some counts and its" inability to agree on other accounts impacts the col-lateral estoppel effect of the acquittals.223 The Court held that it doesnot.224

By way of introduction, the Court first noted that in deciding "an ex-ceptionally large number of cases interpreting" the Double JeopardyClause, it had "found more guidance in the common-law ancestry of theClause than in its brief text." 225 It then relied on "the spirit of the[Double Jeopardy Clause] to prevent a second punishment under judicialproceedings for the same crime, so far as the common law gave that pro-tection." 226 The majority articulated the "two vitally important interests"embodied in double jeopardy protection-first, "that 'the State . . .should not be allowed . . . repeated attempts to convict'", subjecting thedefendant to stress, anxiety, expense, and the possibility, that althoughinnocent, he will be convicted;227 and second, "the preservation of 'thefinality of judgments.' "228229

The Court dismissed the first interest, freedom from repeated prosecu-tion, by stating that the Clause does not always prevent the governmentfrom reprosecution.230 Thus, for example, a hung jury does not bar re-trial because it does not terminate the original jeopardy.231 Rather, ajury's inability to agree is a "manifest necessity," permitting a mistrial and"continuation of the initial jeopardy".232 According to the Court, "[tihe'interest in giving the prosecution one complete opportunity to convict

.' justifies treating the jury's inability to reach a verdict as a noneventthat does not bar retrial." 233

Having articulated these principles, however, the Court then statedthat "the question presented cannot be resolved by asking whether theGovernment should be given one complete opportunity to convict peti-tioner on those charges." 234 According to the Court, "the case turns onthe second interest"-finality-that is, "whether the interest in preserv-ing the finality of the jury's judgment on the fraud counts, including thejury's finding that petitioner did not possess insider information, bars aretrial on the insider trading counts."235 To answer this question in themistrial situation presented in Yeager, the Court admitted it needed "to

222. Yeager, 129 S. Ct. at 2362 (citing Dunn, 284 U.S. at 393).223. Id. at 2362-63.224. Id. at 2363.225. Id. at 2365.226. Id. at 2365 (quoting Ex parte Lange, 85 U.S. (1 Wall.) 163, 170 (1873)).227. Id. at 2365-66 (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).228. Id. at 2366 (quoting Crist v. Bretz, 437 U.S. 28, 33 (1978)).229. Id.230. Id.231. Id. at 2369 (quoting Richardson v. United States, 468 U.S. 317, 325 (1984)).232. Id. at 2366 (citing Arizona v. Washington, 434 U.S. 497, 505-06 (1978)).233. Id. (quoting Arizona, 434 U.S. at 509).234. Id.235. Id.

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dict."222 According to Justice Stevens, the related question in Yeager was "whether an apparent inconsistency between a jury's . . . acquittal on some counts and its" inability to agree on other accounts impacts the collateral estoppel effect of the acquittals.223 The Court held that it does not.224

By way of introduction, the Court first noted that in deciding "an exceptionally large number of cases interpreting" the Double Jeopardy Clause, it had "found more guidance in the common-law ancestry of the Clause than in its brief text. "225 It then relied on "the spirit of the [Double Jeopardy Clause] to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection."226 The majority articulated the "two vitally important interests" embodied in double jeopardy protection-first, "that 'the State . . . should not be allowed ... repeated attempts to convict"', subjecting the defendant to stress, anxiety, expense, and the possibility, that although innocent, he will be convicted;227 and second, "the preservation of 'the finality of judgments."'228229

The Court dismissed the first interest, freedom from repeated prosecution, by stating that the Clause does not always prevent the government from reprosecution.230 Thus, for example, a hung jury does not bar retrial because it does not terminate the original jeopardy.231 Rather, a jury's inability to agree is a "manifest necessity," permitting a mistrial and "continuation of the initial jeopardy".232 According to the Court, "[t]he 'interest in giving the prosecution one complete opportunity to convict ... ' justifies treating the jury's inability to reach a verdict as a nonevent that does not bar retrial."233

Having articulated these principles, however, the Court then stated that "the question presented cannot be resolved by asking whether the Government should be given one complete opportunity to convict petitioner on those charges."234 According to the Court, "the case turns on the second interest" -finality-that is, "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 possess insider information, bars a retrial on the insider trading counts."235 To answer this question in the mistrial situation presented in Yeager, the Court admitted it needed "to

222. Yeager, 129 S. Ct. at 2362 (citing Dunn, 284 U.S. at 393). 223. [d. at 2362-63. 224. [d. at 2363. 225. [d. at 2365. 226. [d. at 2365 (quoting Ex parte Lange, 85 U.S. (1 Wall.) 163, 170 (1873». 227. [d. at 2365-66 (quoting Green v. United States, 355 U.S. 184, 187-88 (1957». 228. [d. at 2366 (quoting Crist v. Bretz, 437 U.S. 28,33 (1978». 229. [d. 230. [d. 231. [d. at 2369 (quoting Richardson v. United States, 468 U.S. 317, 325 (1984». 232. [d. at 2366 (citing Arizona v. Washington, 434 U.S. 497, 505-06 (1978». 233. [d. (quoting Arizona, 434 U.S. at 509). 234. [d. 235. [d.


look beyond the Clause's prohibition on being put in jeopardy twice." 236

To do this, the Court turned to Ashe v. Swenson, its seminal collateralestoppel case.2 3 7 It began by conceding that Ashe and Yeager involvedvery different facts. 238 But, the court then proceeded to ignore those dif-ferences. 239 It simply noted that "[t]he reasoning in Ashe is neverthelesscontrolling because . . . the jury's inability to reach a verdict . . . was anonevent and the acquittals on the fraud counts are entitled to the sameeffect as Ashe's acquittal."240 According to the majority, as in Ashe, bothsets of charges contain an element (knowledge of insider information)that was finally determined in defendant's favor by the acquittal.241 Thatconclusion barred retrial on the hung counts because "the jury's inabilityto reach a verdict on the insider trading counts was a nonevent and theacquittals on the fraud counts are entitled to the same effect as Ashe'sacquittal. "242

The Court, thus, held that the court of appeals erred when it consid-ered the hung counts in its issue-preclusion analysis. 243 According to Jus-tice Stevens, a jury's failure to agree is neither relevant nor part of therecord for collateral estoppel purposes because "there is no way to deci-pher what a hung count represents." 2 4 4 A jury speaks by a verdict, andthe failure to reach a verdict does not "yield a piece of information thathelps put together the trial puzzle." 245 According to the Court, the "mis-tried count is therefore nothing like the other . . . record material thatAshe suggested should be part of the preclusion inquiry." 246 Thus,"[e]ven in the usual sense of 'relevance,"' under Federal Rule Evidence401,247 the existence of a "host of reasons" for jury disagreement makes ahung jury a "nonevent."2 4 8 Relying in part on Black's Law Dictionary'sdefinition of "record" as "the 'official report of the proceedings,' 2 4 9 theCourt noted that it is impossible to determine from the record why a juryfails to agree, whether it be confusion, exhaustion, or anything else.2 5 0

Ascribing meaning to a hung count is "not reasoned analysis; it is guess-

236. Id.237. Id.; see generally Ashe v. Swenson, 397 U.S. 436 (1970).238. Yeager, 129 S. Ct. at 2367 ("Unlike Ashe, the case before us today entails a trial

that included multiple counts rather than a trial for a single offense. And, while Asheinvolved an acquittal for that single offense, this case involves an acquittal on some countsand a mistrial declared on others.").

239. See id.240. Id.241. Id.242. Id.243. Id.244. Id. at 2367-68.245. Id. at 2367.246. Id.247. Id. at 2368; see also FED. R. EvID. 401 ("'Relevant evidence' means evidence hav-

ing any tendency to make the existence of any fact that is of consequence to the determina-tion of the action more probable or less probable than it would be without the evidence.").

248. Yeager, 129 S. Ct. at 2368.249. Id. at 2367-68 (quoting BLACK's LAw DicIONARY 1301 (8th ed. 2004)).250. Id. at 2368.

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look beyond the Clause's prohibition on being put in jeopardy twice."236 To do this, the Court turned to Ashe v. Swenson, its seminal collateral

estoppel case.237 It began by conceding that Ashe and Yeager involved very different facts.238 But, the court then proceeded to ignore those differences. 239 It simply noted that "[t]he reasoning in Ashe is nevertheless controlling because ... the jury's inability to reach a verdict ... was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal."24o According to the majority, as in Ashe, both sets of charges contain an element (knowledge of insider information) that was finally determined in defendant's favor by the acquittal,241 That conclusion barred retrial on the hung counts because "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. "242

The Court, thus, held that the court of appeals erred when it considered the hung counts in its issue-preclusion analysis.243 According to Justice Stevens, a jury's failure to agree is neither relevant nor part of the record for collateral estoppel purposes because "there is no way to decipher what a hung count represents."244 A jury speaks by a verdict, and the failure to reach a verdict does not "yield a piece of information that helps put together the trial puzzle."245 According to the Court, the "mistried count is therefore nothing like the other ... record material that Ashe suggested should be part of the preclusion inquiry."246 Thus, "[e]ven in the usual sense of 'relevance,'" under Federal Rule Evidence 401,247 the existence of a "host of reasons" for jury disagreement makes a hung jury a "nonevent."248 Relying in part on Black's Law Dictionary's definition of "record" as "the 'official report of the proceedings,' "249 the Court noted that it is impossible to determine from the record why a jury fails to agree, whether it be confusion, exhaustion, or anything else.250 Ascribing meaning to a hung count is "not reasoned analysis; it is guess-

236. [d. 237. [d.; see generally Ashe v. Swenson, 397 U.S. 436 (1970). 238. Yeager, 129 S. Ct. at 2367 ("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. ").

239. See id. 240. [d. 241. [d. 242. [d. 243. [d. 244. [d. at 2367-68. 245. [d. at 2367. 246. Id. 247. [d. at 2368; see also FED. R. EVID. 401 (" 'Relevant evidence' means evidence hav

ing any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").

248. Yeager, 129 S. Ct. at 2368. 249. [d. at 2367-68 (quoting BLACK'S LAW DICflONARY 1301 (8th ed. 2004». 250. [d. at 2368.

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work." 251 Thus, "[s]uch conjecture about possible reasons for a jury'sfailure to reach a decision should play no part in assessing the legal conse-quences of a unanimous verdict that the jurors did return." 252 Moreover,the only evidence of "what transpired in the jury room" must be "'con-fined to the points in controversy on the former trial, to the testimonygiven by the parties, and to the questions submitted to the jury for theirconsideration.'"253 Accordingly, the Court concluded, "the considerationof hung counts has no place in the issue-preclusion analysis." 254 Because"[a] jury's verdict of acquittal represents the community's collective judg-ment regarding all the evidence and arguments . .. its finality is unassaila-ble." 2 5 5 Thus, if the possession of insider information was ultimatelydecided in Yeager's favor at the first trial, the second prosecution on dif-ferent counts would be barred.256

The Court summarily dismissed the government's reliance on Richard-son v. United States,257 where the Court clearly held that a hung jury doesnot terminate original jeopardy and, therefore, does not bar retrial. Themajority characterized Richardson's holding-that a mistrial does not ter-minate jeopardy-as "not so broad." 258 The Court held that Richardsondid not establish that a retrial is always permitted after a hung jury.2 5 9

Rather, as the Court explained, Richardson simply established that "amistrial is [not] an event of [double jeopardy] significance." 2 6 0

Finally, the Court rejected the government's reliance on United Statesv. Powell, 261 where the Court upheld the integrity of inconsistent ver-dicts. 262 Based on PowelP63 the government argued that an acquittal"can never preclude retrial on a mistried count because" that split verdictis inherently irrational.264 In Powell, the jury acquitted the defendant ofsubstantive drug charges but convicted her of using a telephone to com-mit them. 2 6 5 The defendant claimed the verdicts were irrational andurged reversal of the conviction based on collateral estoppel.266 The Su-preme Court rejected this argument, stating that issue preclusion is"predicated on the assumption that the jury acted rationally."2 6 7 TheCourt in Yeager refused to apply Powell's treatment of inconsistent ver-dicts to inconsistent hung counts for two reasons. First, the conclusion in

251. Id.252. Id.253. Id. (quoting Packet Co. v. Sickles, 72 U.S. (1 Wall.) 580 (1866)).254. Id.255. Id.256. Id. at 2368-69.257. See generally 468 U.S. 317 (1984).258. Yeager, 129 S. Ct. at 2369.259. Id.260. Id.261. See generally 469 U.S. 57 (1984).262. Yeager, 129 S. Ct. at 2369 (citing Powell, 469 U.S. at 67).263. See generally 469 U.S. 57 (1984).264. Yeager, 129 S. Ct. at 2370.265. Powell, 469 U.S. at 59-60.266. Id. at 60.267. Id. at 68.

1056 [Vol. 63



work."251 Thus, "[s]uch conjecture about possible reasons for a jury's failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return."252 Moreover, the only evidence of "what transpired in the jury room" must be "'confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration.' "253 Accordingly, the Court concluded, "the consideration of hung counts has no place in the issue-preclusion analysis. "254 Because "[ a] jury's verdict of acquittal represents the community's collective judgment regarding all the evidence and arguments ... its finality is unassailable."255 Thus, if the possession of insider information was ultimately decided in Yeager's favor at the first trial, the second prosecution on different counts would be barred.256

The Court summarily dismissed the government's reliance on Richardson v. United States,257 where the Court clearly held that a hung jury does not terminate original jeopardy and, therefore, does not bar retrial. The majority characterized Richardson's holding-that a mistrial does not terminate jeopardy-as "not so broad."258 The Court held that Richardson did not establish that a retrial is always permitted after a hung jury.259 Rather, as the Court explained, Richardson simply established that "a mistrial is [not] an event of [double jeopardy] significance."26o

Finally, the Court rejected the government's reliance on United States v. Powell,261 where the Court upheld the integrity of inconsistent verdicts.262 Based on Powel(263 the government argued that an acquittal "can never preclude retrial on a mistried count because" that split verdict is inherently irrational.264 In Powell, the jury acquitted the defendant of substantive drug charges but convicted her of using a telephone to commit them.265 The defendant claimed the verdicts were irrational and urged reversal of the conviction based on collateral estoppel.266 The Supreme Court rejected this argument, stating that issue preclusion is "predicated on the assumption that the jury acted rationally."267 The Court in Yeager refused to apply Powell's treatment of inconsistent verdicts to inconsistent hung counts for two reasons. First, the conclusion in

251. [d. 252. [d. 253. [d. (quoting Packet Co. v. Sickles, 72 U.S. (1 Wall.) 580 (1866». 254. [d. 255. [d. 256. [d. at 2368-69. 257. See generally 468 U.S. 317 (1984). 258. Yeager, 129 S. Ct. at 2369. 259. [d. 260. [d. 261. See generally 469 U.S. 57 (1984). 262. Yeager, 129 S. Ct. at 2369 (citing Powell, 469 U.S. at 67). 263. See generally 469 U.S. 57 (1984). 264. Yeager, 129 S. Ct. at 2370. 265. Powell, 469 U.S. at 59-60. 266. [d. at 60. 267. Id. at 68.


Powell was required to give full effect to the jury's verdicts,268 but Yeagerdid not involve two verdicts. Second, Powell's assumption that a mistriedcount is evidence of irrationality is simply wrong: "the fact that a juryhangs is evidence of nothing-other than, of course, that it has failed todecide anything." 269

Having held that the court of appeals erred in considering the hungjury in its collateral estoppel analysis, the Court reversed. 270 Rather thandismiss the mistried counts, however, it remanded the case to the court ofappeals "for further proceedings consistent with this opinion." 271 TheCourt explained that "[g]iven the length and complexity of the proceed-ings," the factual dispute between the district and circuit courts was un-derstandable, but it declined to resolve this dispute since to do so wouldrequire "a fact-intensive analysis of the voluminous record, an undertak-ing unnecessary to the resolution of the narrow legal question we grantedcertiorari to answer." 272 Because the Court had assumed the correctnessof the court of appeals' factual conclusions, it remanded the case to thecourt of appeals and advised that, "[i]f it chooses, the Court of Appealsmay revisit its factual analysis in light of the Government's argumentsbefore this Court." 273 On remand, the circuit court unanimously declinedto do So. 274

C. THE CONCURRING OPINION

Justice Kennedy concurred in part and concurred in the judgment.275

But, he did not join the Court's hortatory suggestion that the court ofappeals "'may' '[i]f it chooses,'" revisit its factual findings.276 As JusticeKennedy noted, the petitioner bore a very heavy burden under collateralestoppel to establish that "it would have been irrational for the jury toacquit" without it finding that he did not have insider information.277 Ac-cording to Justice Kennedy, the district court presiding at trial found thatthe petitioner had not carried this burden, and the court of appeals' anal-ysis to the contrary was "not convincing." 278 Accordingly, Justice Ken-nedy would have required the court of appeals to reconsider its factual

268. Yeager, 129 S. Ct. at 2369.269. Id. at 2370.270. Id. at 2370-71.271. Id.272. Id. at 2370.273. Id.274. United States v. Yeager, 334 F. App'x 707, 709 (5th Cir. 2009).275. Yeager, 129 S. Ct. at 2371 (Kennedy, J., concurring in part). He did not disagree

with the Court's holding that the hung jury did not prevent the application of collateralestoppel to mixed verdicts; rather, he held that the court should be required to reconsiderwhether Yeager had met the demanding Ashe standard. Id. In view of the factual disa-greement between the district court and the court of appeals, Justice Kennedy would nothave left it entirely up to the court of appeals to re-examine its factual determinations. Id.

276. Id.277. Id. at 2371 (quoting id. at 2375 (Alito, J., dissenting)).278. Id. (citing id. at 2376 (Alito, J., dissenting)).

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Powell was required to give full effect to the jury's verdicts,268 but Yeager did not involve two verdicts. Second, Powell's assumption that a mistried count is evidence of irrationality is simply wrong: "the fact that a jury hangs is evidence of nothing-other than, of course, that it has failed to decide any thing. "269

Having held that the court of appeals erred in considering the hung jury in its collateral estoppel analysis, the Court reversed.270 Rather than dismiss the mistried counts, however, it remanded the case to the court of· appeals "for further proceedings consistent with this opinion. "271 The Court explained that "[g]iven the length and complexity of the proceedings," the factual dispute between the district and circuit courts was understandable, but it declined to resolve this dispute since to do so would require "a fact-intensive analysis of the voluminous record, an undertaking unnecessary to the resolution of the narrow legal question we granted certiorari to answer. "272 Because the Court had assumed the correctness of the court of appeals' factual conclusions, it remanded the case to the court of appeals and advised that, "[i]f it chooses, the Court of Appeals may revisit its factual analysis in light of the Government's arguments before this Court."273 On remand, the circuit court unanimously declined ~~w~ .

C. THE CONCURRING OPINION

Justice Kennedy concurred in part and concurred in the judgment.275

But, he did not join the Court's hortatory suggestion that the court of appeals '''may' '[i]f it chooses,'" revisit its factual findings.276 As Justice Kennedy noted, the petitioner bore a very heavy burden under collateral estoppel to establish that "it would have been irrational for the jury to acquit" without it finding that he did not have insider information.277 According to Justice Kennedy, the district court presiding at trial found that the petitioner had not carried this burden, and the court of appeals' analysis to the contrary was "not convincing."278 Accordingly, Justice Kennedy would have required the court of appeals to reconsider its factual

268. Yeager, 129 S. Ct. at 2369. 269. [d. at 2370. 270. [d. at 2370-71. 271. [d. 272. [d. at 2370. 273. [d. 274. United States v. Yeager, 334 F. App'x 707, 709 (5th Cir. 2009). 275. Yeager, 129 S. Ct. at 2371 (Kennedy, J., concurring in part). He did not disagree

with the Court's holding that the hung jury did not prevent the application of collateral estoppel to mixed verdicts; rather, he held that the court should be required to reconsider whether Yeager had met the demanding Ashe standard. [d. In view of the factual disagreement between the district court and the court of appeals, Justice Kennedy would not have left it entirely up to the court of appeals to re-examine its factual determinations. [d.

276. [d. 277. [d. at 2371 (quoting id. at 2375 (Alito, J., dissenting». 278. [d. (citing id. at 2376 (Alito, J., dissenting».

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analysis. 279

D. THE DISSENTING OPINIONS

Justice Scalia, joined by Justices Thomas and Alito, dissented.280 Inbrief, Justice Scalia concluded that because, under well-established princi-ples, jeopardy did not terminate with the hung jury, the retrial was simplya continuation of the original jeopardy and, thus, was not barred bydouble jeopardy protection.281

Justice Scalia began by deriding the majority's suggestion that its deci-sion was grounded in the "common-law ancestry" of the Double Jeop-ardy Clause. 282 As Justice Scalia pointed out, at common law, the pleasof autrefois acquit and autrefois convict "barred only repeated 'prosecu-tion for the same identical act and crime"' and would not have recog-nized issue preclusion at all.2 8 3 Thus, Ashe itself was a major departurefrom the original meaning of the Double Jeopardy Clause. Relying onthe common-law history of the Clause, Justice Scalia argued that if onewho steals a horse and saddle can be successively prosecuted for stealingthe horse and then for stealing the saddle, then is no bar to retrial ofinsider trading counts after an acquittal for fraud.284

Even assuming adherence to Ashe for stare decisis purposes,285 JusticeScalia labeled the majority's opinion an "illogical extension" of that deci-sion.2 86 First, Ashe barred successive prosecution of ultimate facts foundduring a completed prior proceeding (that resulted in an outright acquit-tal). 287 An acquittal-like a conviction-incontestably terminates jeop-ardy so that when a subsequent proceeding is brought a second jeopardyclearly begins.288 The original jeopardy in Yeager never terminated, how-ever, because a mistrial after a hung jury does not terminate jeopardy. 289

Thus, according to Justice Scalia, the majority's decision for the first timeinterpreted the Double Jeopardy Clause to apply "internally within a sin-gle prosecution." 2 9 0

Justice Scalia also disagreed with the majority's reliance on the under-

279. Id.280. Id. at 2371 (Scalia, J., dissenting).281. Id. at 2374 ("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 beno second jeopardy where there has been no second prosecution. Because I believe hold-ing that line against this extension of Ashe is more consistent with the Court's cases andwith the original meaning of the Double Jeopardy Clause, I would affirm the judgment.").

282. Id. at 2371.283. Id. (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *330 (emphasis added)).284. Id. at 2371-72.285. Id. ("But that is water over the dam.").286. Id.287. Id.288. Id.289. See id.290. Id. at 2372-73. As noted above, Justices Kennedy, Alito, and Thomas would also

have remanded with a requirement that the court of appeals revisit its factual findings. Id.at 2371 (Kennedy, J., concurring in part); id. at 2374 (Alito, J., dissenting).

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analysis.279

D. THE DISSENTING OPINIONS

Justice Scalia, joined by Justices Thomas and Alito, dissented.280 In brief, Justice Scalia concluded that because, under well-established principles, jeopardy did not terminate with the hung jury, the retrial was simply a continuation of the original jeopardy and, thus, was not barred by double jeopardy protection.281

Justice Scalia began by deriding the majority's suggestion that its decision was grounded in the "common-law ancestry" of the Double Jeopardy Clause.282 As Justice Scalia pointed out, at common law, the pleas of autrefois acquit and autrefois convict "barred only repeated 'prosecution for the same identical act and crime'" and would not have recognized issue preclusion at all.283 Thus, Ashe itself was a major departure from the original meaning of the Double Jeopardy Clause. Relying on the common-law history of the Clause, Justice Scalia argued that if one who steals a horse and saddle can be successively prosecuted for stealing the horse and then for stealing the saddle, then is no bar to retrial of insider trading counts after an acquittal for fraud.284

Even assuming adherence to Ashe for stare decisis purposes,285 Justice Scalia labeled the majority's opinion an "illogical extension" of that decision.286 First, Ashe barred successive prosecution of ultimate facts found during a completed prior proceeding (that resulted in an outright acquittal).287 An acquittal-like a conviction-incontestably terminates jeopardy so that when a subsequent proceeding is brought a second jeopardy clearly begins.288 The original jeopardy in Yeager never terminated, however, because a mistrial after a hung jury does not terminate jeopardy.289 Thus, according to Justice Scalia, the majority's decision for the first time interpreted the Double Jeopardy Clause to apply "internally within a single prosecution. "290

Justice Scalia also disagreed with the majority's reliance on the under-

279. Id. 280. Id. at 2371 (Scalia, J., dissenting). 281. Id. at 2374 ("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.").

282. Id. at 2371. 283. Id. (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *330 (emphasis added)). 284. Id. at 2371-72. 285. Id. ("But that is water over the dam."). 286. Id. 287. Id. 288. Id. 289. See id. 290. Id. at 2372-73. As noted above, Justices Kennedy, Alito, and Thomas would also

have remanded with a requirement that the court of appeals revisit its factual findings. Id. at 2371 (Kennedy, J., concurring in part); id. at 2374 (Alito, J., dissenting).


lying rationale of Ashe. 291 While acknowledging that applying issue pre-clusion to bar seriatim prosecutions prevents the government fromcircumventing acquittals where the prosecution merely seeks to get onefull and fair opportunity to convict, there is no risk of such overreach-ing.2 9 2 As such, where a retrial is sought following a mistrial, in cases likeYeager, there is no risk of government overreaching and the core con-cerns underlying double jeopardy are not triggered. 293 In addition, bar-ring retrial after a jury acquits on only some counts-and deadlocks onothers-"bears only a tenuous relationship" to collateral estoppel's inter-est in preserving the finality of "'an issue of ultimate fact [actually] deter-mined by a valid and final judgment." 294 The finality of the acquittal isfully preserved; it simply is not extended to other charges.295 And, ac-cording to Justice Scalia, there is little justification for that extension in amixed verdict situation because "all that can be said for certain is that theconflicting dispositions are irrational." 2 9 6 That is, "[i]t is at least as likelythat the irrationality consisted of failing to make the factual finding nec-essary to support the acquittal as it is that the irrationality consisted offailing to adhere to that factual finding with respect to the hungcount." 297 Thus, where a jury acquits and hangs on charges involving asimilar element, the most that can be said is that the jury-in both acquit-ting and failing to agree-acted irrationally. 298 While that irrationalitydoes not deprive the acquittal of its own finality, it defeats the collateralestoppel claim, which is based on the premise that the jury rationally ac-quitted based on a single, identifiable issue. 2 9 9

Thus, while Justice Scalia agreed that courts should avoid speculatingabout the basis for any jury verdict, "the Court's opinion steps in thewrong direction by pretending that the acquittals here mean somethingthat they in all probability do not."300 As in Dunn and Powell, "the bestcourse to take" is to insulate both parts of the jury's verdict from scrutinyby upholding the integrity of both the acquittal and the mistried countsand, as required by Richardson, allow retrial on the mistried counts.301

This course of action would be consistent with the long-established ruleagainst scrutinizing the basis for a jury's decision. "If a conviction canstand with a contradictory acquittal when both are pronounced at thesame trial, there is no reason why an acquittal should prevent the Statefrom pressing for a contradictory conviction .... ."302

291. Id.292. Id. at 2373-74.293. Id. at 2373.294. Id. at 2374 (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)).295. Id.296. Id.297. See id.298. Id.299. Id.300. Id.301. Id. at 2373-74 (quoting United States v. Powell, 469 U.S. 57, 69 (1984)).302. Id. at 2373 (Scalia, J., dissenting). Finally, Justice Scalia asserted that the major-

ity's decision is likely to create substantial burdens. Id. at 2374. The fact-intensive Ashe

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lying rationale of Ashe.291 While acknowledging that applying issue preclusion to bar seriatim prosecutions prevents the government from circumventing acquittals where the prosecution merely seeks to get one full and fair opportunity to convict, there is no risk of such overreaching.292 As such, where a retrial is sought following a mistrial, in cases like Yeager, there is no risk of government overreaching and the core concerns underlying double jeopardy are not triggered.293 In addition, barring retrial after a jury acquits on only some counts-and deadlocks on others-"bears only a tenuous relationship" to collateral estoppel's interest in preserving the finality of" 'an issue of ultimate fact [actually] determined by a valid and final judgment.' "294 The finality of the acquittal is fully preserved; it simply is not extended to other charges.295 And, according to Justice Scalia, there is little justification for that extension in a mixed verdict situation because "all that can be said for certain is that the conflicting dispositions are irrational."296 That is, "[i]t is at least as likely that the irrationality consisted of failing to make the factual finding necessary to support the acquittal as it is that the irrationality consisted of failing to adhere to that factual finding with respect to the hung count."297 Thus, where a jury acquits and hangs on charges involving a similar element, the most that can be said is that the jury-in both acquitting and failing to agree-acted irrationally,298 While that irrationality does not deprive the acquittal of its own finality, it defeats the collateral estoppel claim, which is based on the premise that the jury rationally acquitted based on a single, identifiable issue.299

Thus, while Justice Scalia agreed that courts should avoid speculating about the basis for any jury verdict, "the Court's opinion steps in the wrong direction by pretending that the acquittals here mean something that they in all probability do not."300 As in Dunn and Powell, "the best course to take" is to insulate both parts of the jury's verdict from scrutiny by upholding the integrity of both the acquittal and the mistried counts and, as required by Richardson, allow retrial on the mistried counts.301

This course of action would be consistent with the long-established rule against scrutinizing the basis for a jury's decision. "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 .... "302

291. Id. 292. Id. at 2373-74. 293. Id. at 2373. 294. Id. at 2374 (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). 295. Id. 296. Id. 297. See id. 298. Id. 299. Id. 300. Id. 301. Id. at 2373-74 (quoting United States v. Powell, 469 U.S. 57,69 (1984)). 302. Id. at 2373 (Scalia, J., dissenting). Finally, Justice Scalia asserted that the major

ity's decision is likely to create substantial burdens. Id. at 2374. The fact-intensive Ashe

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Justice Alito, joined by Justices Scalia and Thomas, joined JusticeScalia's opinion but wrote separately "to note that the Court's holdingmakes it imperative that the doctrine of issue preclusion be applied withthe rigor prescribed in Ashe . . . ."3 According to Justice Alito, applyingAshe to the case of mixed verdicts requires "special care." 304 Ashe re-quires a finding that a rational jury could not have acquitted on a firstcharge without finding in the defendant's favor on an issue essential toanother charge.305 But, in Yeager, the mixed verdict proved the jury didnot act rationally. 306 As in Dunn and Powell, the Court had a duty toreconcile those two verdicts by upholding the finality of the acquittal onthe fraud charges and the non-finality of the jury's disagreement on theothers.307

Moreover, as the facts, and as the district court's findings demonstrate,the fraud counts required proof of an element not necessary for the in-sider trading charge, i.e., that Yeager had caused the misstatements oromissions in the conference and press releases, which could have beenthe reason for the acquittal.308 According to Justice Alito the districtcourt's holding, it cannot be said that the acquittal could not rationallyhave been based on this element.309 "In light of the length and complex-ity of the trial record" and the court of appeals' "brief discussion of thequestion," Justice Alito would have directed the circuit court to recon-sider its factual determination.310

IV. ANALYSIS

A. YEAGER IS UNSUPPORTED BY PRECEDENT

As noted above, the Supreme Court majority in Yeager misinterpretedand extended Ashe well beyond its idiosyncratic facts by holding that thefact of a hung jury should not be considered in evaluating a claim of col-lateral estoppel. The Court explicitly based this finding on its cases rec-ognizing the finality of an acquittal even though those cases-excepting

inquiry-currently required only in the case of outright prior acquittals-will now be re-quired in mixed-verdict cases. Id. Citing a concern closer to home, Justice Scalia notedthat, under Abney v. United States, every defendant who raises such a mixed verdict collat-eral estoppel issue "will be entitled to an immediate interlocutory appeal (and petition forcertiorari) whenever his Ashe claim is rejected by the trial court." Id.

303. Id. at 2375 (Alito, J., dissenting).304. Id.305. Id. ("Only if it would have been irrational for the jury to acquit without finding

that fact is the subsequent trial barred.").306. Id.307. Id. at 2376.308. Id. at 2375-76.309. Id. at 2376 (discussing Alito's opinion at length about the facts).310. Id. See United States v. Yeager for the district court's discussion of the record evi-

dence. 446 F. Supp. 3d 719, 731-37 (S.D. Tex. 2006). The Fifth Circuit stated that peti-tioner "did not dispute" that he had "helped shape the message of the conferencepresentations." United States v. Yeager, 521 F.3d 367, 377 (5th Cir. 2008). See Yeager, 521F.3d at 377-78, for further discussion.

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Justice Alito, joined by Justices Scalia and Thomas, joined Justice Scalia's opinion but wrote 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 . ... "303 According to Justice Alito, applying Ashe to the case of mixed verdicts requires "special care. "304 Ashe requires a finding that a rational jury could not have acquitted on a first charge without finding in the defendant's favor on an issue essential to another charge.305 But, in Yeager, the mixed verdict proved the jury did not act rationally.306 As in Dunn and Powell, the Court had a duty to reconcile those two verdicts by upholding the finality of the acquittal on the fraud charges and the non-finality of the jury's disagreement on the others.307

Moreover, as the facts, and as the district court's findings demonstrate, the fraud counts required proof of an element not necessary for the insider trading charge, i.e., that Yeager had caused the misstatements or omissions in the conference and press releases, which could have been the reason for the acquittal,308 According to Justice Alito the district court's holding, it cannot be said that the acquittal could not rationally have been based on this element.309 "In light of the length and complexity of the trial record" and the court of appeals' "brief discussion of the question," Justice Alito would have directed the circuit court to reconsider its factual determination.310

IV. ANALYSIS

A. YEAGER IS UNSUPPORTED BY PRECEDENT

As noted above, the Supreme Court majority in Yeager misinterpreted and extended Ashe well beyond its idiosyncratic facts by holding that the fact of a hung jury should not be considered in evaluating a claim of collateral estoppel. The Court explicitly based this finding on its cases recognizing the finality of an acquittal even though those cases-excepting

inquiry-currently required only in the case of outright prior acquittals-will now be required in mixed-verdict cases. [d. Citing a concern closer to home, Justice Scalia noted that, under Abney v. United States, every defendant who raises such a mixed verdict collateral estoppel issue "will be entitled to an immediate interlocutory appeal (and petition for certiorari) whenever his Ashe claim is rejected by the trial court." [d.

303. [d. at 2375 (Alito, J., dissenting). 304. [d. 305. [d. ("Only if it would have been irrational for the jury to acquit without finding

that fact is the subsequent trial barred."). 306. Id. 307. Id. at 2376. 308. [d. at 2375-76. 309. [d. at 2376 (discussing Alito's opinion at length about the facts). 310. [d. See United States v. Yeager for the district court's discussion of the record evi

dence. 446 F. Supp. 3d 719, 731-37 (S.D. Tex. 2006). The Fifth Circuit stated that petitioner "did not dispute" that he had "helped shape the message of the conference presentations." United States v. Yeager, 521 F.3d 367, 377 (5th Cir. 2008). See Yeager, 521 F.3d at 377-78, for further discussion.


Ashe-have never been applied to other charges beyond the acquittal.3 11

In fact, by reaching this decision, the Court also extended double jeop-ardy for the first time to apply internally-within a single indictment. 312

At the same time, the Court disregarded Richardson's non-finality ruleand its more general balancing approach to retrials following mistrials.313

Finally, the Court contravened the jury deference principles reflected inits inconsistent verdict cases, Powell and Dunn, by refusing to recognizethe Yeager jury's actual verdict.314 The Yeager decision is neither man-dated by nor consistent with precedent.

1. Extending Collateral Estoppel

Although all of the collateral estoppel cases since Ashe have narrowlyinterpreted the collateral estoppel doctrine in criminal cases, the YeagerCourt clearly extended Ashe well beyond its analytical limits. Ashe in-volved two charges of robbery, the first of which resulted in an acquit-tal.3 15 That acquittal finally terminated jeopardy on the first count, sothat Ashe was clearly placed in double jeopardy when the second chargewas brought to trial.316 By contrast, Yeager involved related charges in asingle indictment as to which jeopardy had not yet terminated.317 As Jus-tice Scalia pointed out, Yeager is the first case to apply double jeopardyprinciples to a single proceeding involving a single indictment. 318

Second, the charges in Ashe were based on a single robbery and wereidentical except for the name of the victim. 3 19 It was not a huge leap forthe Court to conclude that these charges were the same offense fordouble jeopardy purposes. On the other hand, the charges in Yeagerwere based on a complicated series of transactions over time and in-volved different sets of acts, different sets of actors, and entirely differentstatutory charges.320 Unlike the nearly identical charges in Ashe, thecharges in Yeager were different except for one fact-the possession ofinsider information. 321

Third, the prosecutor in Ashe conceded that he had brought thecharges separately and serially to get a chance to rehearse and thus get abetter chance to convict Ashe on any one of the robberies.322 This gov-ernment manipulation, or even the potential for government manipula-tion, lies at the heart of many of the Supreme Court's double jeopardy

311. See Yeager, 129 S. Ct. at 2372-73.312. Id. at 2373.313. Id. at 2369.314. Id. at 2370.315. Ashe v. Swenson, 397 U.S. 436, 438-40 (1970).316. Id. at 447.317. Yeager, 129 S.Ct. at 2363-65.318. Id. at 2372-73 (Scalia, J., dissenting).319. Ashe, 397 U.S. at 438-40.320. Id. at 2363-65.321. Id. at 2364.322. Yeager, 129 S. Ct. at 2363-65.



Ashe-have never been applied to other charges beyond the acquittaPll In fact, by reaching this decision, the Court also extended double jeopardy for the first time to apply internally-within a single indictment.312

At the same time, the Court disregarded Richardson's non-finality rule and its more general balancing approach to retrials following mistrials.313

Finally, the Court contravened the jury deference principles reflected in its inconsistent verdict cases, Powell and Dunn, by refusing to recognize the Yeager jury's actual verdict.314 The Yeager decision is neither mandated by nor consistent with precedent.

1. Extending Collateral Estoppel

Although all of the collateral estoppel cases since Ashe have narrowly interpreted the collateral estoppel doctrine in criminal cases, the Yeager Court clearly extended Ashe well beyond its analytical limits. Ashe involved two charges of robbery, the first of which resulted in an acquittaPIS That acquittal finally terminated jeopardy on the first count, so that Ashe was clearly placed in double jeopardy when the second charge was brought to trial.316 By contrast, Yeager involved related charges in a single indictment as to which jeopardy had not yet terminated.317 As Justice Scalia pointed out, Yeager is the first case to apply double jeopardy principles to a single proceeding involving a single indictment.318

Second, the charges in Ashe were based on a single robbery and were identical except for the name of the victim.319 It was not a huge leap for the Court to conclude that these charges were the same offense for double jeopardy purposes. On the other hand, the charges in Yeager were based on a complicated series of transactions over time and involved different sets of acts, different sets of actors, and entirely different statutory charges.32o Unlike the nearly identical charges in Ashe, the charges in Yeager were different except for one fact-the possession of insider information.321

Third, the prosecutor in Ashe conceded that he had brought the charges separately and serially to get a chance to rehearse and thus get a better chance to convict Ashe on anyone of the robberies.322 This government manipulation, or even the potential for government manipulation, lies at the heart of many of the Supreme Court's double jeopardy

311. See Yeager, 129 S. Ct. at 2372-73. 312. [d. at 2373. 313. [d. at 2369. 314. [d. at 2370. 315. Ashe v. Swenson, 397 U.S. 436, 438-40 (1970). 316. [d. at 447. 317. Yeager, 129 S.Ct. at 2363-65. 318. [d. at 2372-73 (Scalia, J., dissenting). 319. Ashe, 397 U.S. at 438-40. 320. [d. at 2363-65. 321. [d. at 2364. 322. Yeager, 129 S. Ct. at 2363-65.

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rulings. 32 3 In YeageT, of course, the prosecution purposely brought all ofthe charges contemplated against the defendant at once. 3 2

4 That is,rather than manipulating a single criminal event by dividing it into severalindictments and proceedings, the government joined all of the chargestogether to be tried in one proceeding so that the defendant would not besubjected to successive prosecutions. 3 2 5 This is exactly what Ashe re-quired it to do.

Fourth, Ashe directed the lower courts to apply collateral estoppel real-istically to the entire record, "taking into account the pleadings, evidence,charge, and other relevant matter and conclude whether a rational jurycould have grounded its verdict upon an issue other than that which thedefendant seeks to foreclose from consideration." 326 The Ashe Court ob-served that "[t]he inquiry 'must be set in a practical frame and viewedwith an eye to all the circumstances of the proceedings.'" 3 2 7 The YeagerCourt narrowly interpreted the terms "relevance" and "record" accord-ing to their dictionary definitions and found they did not include the factof the hung jury, but this reading excludes facts significant to the collat-eral estoppel inquiry, and is both hypertechnical and clearly wrong.328 Itis one thing to say that a court may not be able to articulate the reasonfor a hung jury; but, it is quite another thing and quite wrong to act asthough a hung jury-a circumstance, entered on the record-did not oc-cur. Obviously, the Court's very broad language in Ashe-instructing thecourt to consider "other relevant matter" and use "a practical frame ...with an eye to all the circumstances of the proceedings" 329 -was meant togive a reviewing court the discretion to consider all the circumstances atwork in the case in a realistic way, all to see if identification of a single,rational basis for an acquittal is possible. One need not be able to iden-tify the reason for a jury's indecision to include the fact of that deliberateindecision-the rejection of an opportunity to make a final decision-in acollateral estoppel analysis. The only decision that needs to be analyzedfor issue preclusion purposes is the basis of the acquittal. The courtsshould be restricted to realistically interpreting the failure to agree.33 0

323. See, e.g., Arizona v. Washington, 434 U.S. 497, 506-08 (1978). Thus, for example,in Washington, the Supreme Court prescribed a sliding scale of appellate deference to atrial court's order granting a mistrial that depended on the extent to which the cause of themistrial was subject to government manipulation. Id.

324. Id.325. Ashe v. Swenson, 397 U.S. 436, 447 (1970).326. Id. at 444.327. Id. (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).328. Yeager v. United States, 129 S. Ct. 2360, 2367-68 (2009).329. Id. at 2367 (quoting Ashe, 397 U.S. at 444).330. Significantly, there may be cases in which the record establishes the reasons that a

jury failed to agree. Their questions may do so, for example, and this would legitimately berelevant parts of the record in a way that the content of the jury's secret deliberations arenot.

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rulings.323 In Yeager, of course, the prosecution purposely brought all of the charges contemplated against the defendant at once.324 That is, rather than manipulating a single criminal event by dividing it into several indictments and proceedings, the government joined all of the charges together to be tried in one proceeding so that the defendant would not be subjected to successive prosecutions.325 This is exactly what Ashe required it to do.

Fourth, Ashe directed the lower courts to apply collateral estoppel realistically to the entire record, "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."326 The Ashe Court observed that "[t]he inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' "327 The Yeager Court narrowly interpreted the terms "relevance" and "record" according to their dictionary definitions and found they did not include the fact of the hung jury, but this reading excludes facts significant to the collateral estoppel inquiry, and is both hypertechnical and clearly wrong.328 It is one thing to say that a court may not be able to articulate the reason for a hung jury; but, it is quite another thing and quite wrong to act as though a hung jury-a circumstance, entered on the record-did not occur. Obviously, the Court's very broad language in Ashe-instructing the court to consider "other relevant matter" and use "a practical frame ... with an eye to all the circumstances of the proceedings"329-was meant to give a reviewing court the discretion to consider all the circumstances at work in the case in a realistic way, all to see if identification of a single, rational basis for an acquittal is possible. One need not be able to identify the reason for a jury's indecision to include the fact of that deliberate indecision-the rejection of an opportunity to make a final decision-in a collateral estoppel analysis. The only decision that needs to be analyzed for issue preclusion purposes is the basis of the acquittal. The courts should be restricted to realistically interpreting the failure to agree.330

323. See, e.g., Arizona v. Washington, 434 U.S. 497, 506-08 (1978). Thus, for example, in Washington, the Supreme Court prescribed a sliding scale of appellate deference to a trial court's order granting a mistrial that depended on the extent to which the cause of the mistrial was subject to government manipulation. [d.

324. /d. 325. Ashe v. Swenson, 397 U.S. 436, 447 (1970). 326. [d. at 444. 327. Id. (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948». 328. Yeager v. United States, 129 S. Ct. 2360, 2367-68 (2009). 329. Id. at 2367 (quoting Ashe, 397 U.S. at 444). 330. Significantly, there may be cases in which the record establishes the reasons that a

jury failed to agree. Their questions may do so, for example, and this would legitimately be relevant parts of the record in a way that the content of the jury's secret deliberations are not.


2. Extending the Absolute Finality of an Acquittal to Other Chargeswithout Considering the Government's Interest

The Court was incorrect to say that resolving the collateral estoppelissue in a mixed verdict case by considering the fact of a hung jury wouldviolate its principles of finality of acquittals and its long-standing ruleagainst scrutiny of jury deliberations. While it is true that collateral es-toppel is based on respect for the finality of judgments,331 the reason theCourt recognized collateral estoppel in a unique case and has consistentlyconstrued collateral estoppel narrowly-while construing the finality ofan actual acquittal very broadly-is that collateral estoppel extends re-spect for finality beyond the final judgment to prevent prosecution onother charges. The respect accorded to final judgments should not carryas much weight in the context of a mixed verdict as in that of an outrightacquittal, since the jury in the former situation-given the opportunity torender a final verdict for the defendant-did not acquit.

The decision in Yeager is also not supported by the Court's precedentbarring additional proceedings where there is real or potential govern-ment manipulation. 332 Thus, for example, a trial court's decision con-cerning whether a mistrial is "manifestly necessary" such that a retrial ispermitted, is deferred to using a continuum of deference that applies de-pending on the amenability of the cause to government manipulation.The same is true of mistrials granted at the defendant's request: If theprosecutor intended to provoke the defendant into moving for a mistrial,then the government no longer has a legitimate interest in barring re-trial.3 33 And, of course, in Ashe itself the prosecutor candidly admittedhe had treated the first trial as a rehearsal. 334 There was no such govern-ment manipulation in Yeager. In fact, the prosecution did exactly whatwas required of it by Ashe. Rather than breaking up a criminal event intoseparate prosecutions or charges, it brought them all together.3 35 If theYeager Court senses or fears a potential for government manipulation inbringing related counts together, it did not say so.

3. Disregarding the Non-Finality Rule for Mistrials

The Yeager decision is also inconsistent with Richardson and its prog-eny. Richardson has consistently been interpreted as holding that a hungjury does not terminate jeopardy so that a mistrial declared after a jury

331. See United States v. Powell, 469 U.S. 57, 67 (1984) ("[W]ith few exceptions ...once the jury has heard the evidence and the case has been submitted, the litigants mustaccept the jury's collective judgment.")

332. See Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984) ("[W]here the State has made noeffort to prosecute the charges seriatim, the considerations of double jeopardy protectionimplicit in the application of collateral estoppel are inapplicable."). For a thorough discus-sion of the Supreme Court's treatment of government oppression and its place in the inter-pretation of the double jeopardy clause, see Thomas, supra note 2, at 869-78.

333. Oregon v. Kennedy, 456 U.S. 667, 674-75 (1982).334. Ashe v. Swenson, 397 U.S. 436, 447 (1970).335. Yeager v. United States, 129 S. Ct. 2360, 2363-65 (2009).

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2. Extending the Absolute Finality of an Acquittal to Other Charges without Considering the Government's Interest

The Court was incorrect to say that resolving the collateral estoppel issue in a mixed verdict case by considering the fact of a hung jury would violate its principles of finality of acquittals and its long-standing rule against scrutiny of jury deliberations. While it is true that collateral estoppel is based on respect for the finality of judgments,331 the reason the Court recognized collateral estoppel in a unique case and has consistently construed collateral estoppel narrowly-while construing the finality of an actual acquittal very broadly-is that collateral estoppel extends respect for finality beyond the final judgment to prevent prosecution on other charges. The respect accorded to final judgments should not carry as much weight in the context of a mixed verdict as in that of an outright acquittal, since the jury in the former situation-given the opportunity to render a final verdict for the defendant-did not acquit.

The decision in Yeager is also not supported by the Court's precedent barring additional proceedings where there is real or potential government manipulation.332 Thus, for example, a trial court's decision concerning whether a mistrial is "manifestly necessary" such that a retrial is permitted, is deferred to using a continuum of deference that applies depending on the amenability of the cause to government manipulation. The same is true of mistrials granted at the defendant's request: If the prosecutor intended to provoke the defendant into moving for a mistrial, then the government no longer has a legitimate interest in barring retrial,333 And, of course, in Ashe itself the prosecutor candidly admitted he had treated the first trial as a rehearsal,334 There was no such government manipulation in Yeager. In fact, the prosecution did exactly what was required of it by Ashe. Rather than breaking up a criminal event into separate prosecutions or charges, it brought them all together.335 If the Yeager Court senses or fears a potential for government manipulation in bringing related counts together, it did not say so.

3. Disregarding the Non-Finality Rule for Mistrials

The Yeager decision is also inconsistent with Richardson and its progeny. Richardson has consistently been interpreted as holding that a hung jury does not terminate jeopardy so that a mistrial declared after a jury

331. See United States v. Powell, 469 U.S. 57, 67 (1984) ("[W]ith few exceptions ... once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment.")

332. See Ohio v. Johnson, 467 U.S. 493, 500 n.9 (1984) ("[W]here the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable."). For a thorough discussion of the Supreme Court's treatment of government oppression and its place in the interpretation of the double jeopardy clause, see Thomas, supra note 2, at 869-78.

333. Oregon v. Kennedy, 456 U.S. 667, 674-75 (1982). 334. Ashe v. Swenson, 397 U.S. 436, 447 (1970). 335. Yeager v. United States, 129 S. Ct. 2360, 2363-65 (2009).

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fails to agree does not bar retrial.3 36 Indeed, the Yeager Court quotedRichardson's holding that "the protection of the Double Jeopardy Clauseby its terms applies only if there has been some event, such as an acquit-tal, which terminates the original jeopardy."337

The Yeager Court also failed even to mention its long line of mistrialcases in which it balanced the government interest in one full and fairopportunity to convict against the defendant's interest in avoiding a sec-ond prosecution. 338 To be sure, the finality of an acquittal is absolute andrequires no balancing.339 But once there is a mixed verdict, as in Yeager,the government's interest in trying the non-final counts should beweighed against the defendant's interest in applying the acquittal tocounts on which the jury did not acquit and that involve different conductby different actors at different times.340 In the mixed-verdict context, thepublic interest in the prosecution of non-final charges should outweighthe defendant's interest in extending the finality of the acquittal beyondthe charges for which he was acquitted. The acquittal stands because thedefendant has an absolute right to its finality, but the defendant does nothave an absolute right to extend its effect to non-final, factually distinctcharges.

4. Ignoring the Principles Protecting Inconsistent Verdicts

While it is true that collateral estoppel extends an acquittal's finalityfrom one charge to another, the Yeager Court gave no explanation forwhy that should be so when the jury was given a chance to acquit on asecond set of factually distinct charges and simply failed to agree. Recog-nizing the finality of the acquittal but the non-finality of the mistriedcharges would maximize the deference to the jury verdict that underliesthe inconsistent-verdict precedent.

Moreover, the sanctity of jury deliberations is not violated by recogniz-ing that the jury failed to agree. In fact, considering this fact would rec-ognize rather than negate the jury's decision to announce its deadlockinstead of acquitting or convicting. Moreover, one need not determine

336. See, e.g., United States v. Mauskar, 557 F.3d 219, 228 (5th Cir. 2009); United Statesv. Charlton, 502 F.3d 1, 6 (1st Cir. 2007); United States v. James, 109 F.3d 597, 601-02 (9thCir. 1997); United States v. Powers, 978 F.2d 354, 359-60 (7th Cir. 1992).

337. Yeager, 129 S. Ct. at 2369 (2009) (quoting Richardson v. United States, 468 U.S.317, 325 (1984)).

338. See, e.g., Arizona v. Washington, 434 U.S. 497, 508-10 (1978); Illinois v. Somer-ville, 410 U.S. 458, 463-64 (1973).

339. Burks v. United States, 437 U.S. 1, 11 n.6 (1978); Sanabria v. United States, 437U.S. 54, 75 (1978); see also Thomas, supra note 2, at 834-38 (collecting cases andcommentators).

340. In this connection it is worth noting that the result in Yeager is also contrary to theCourt's reversal of its own decision in Grady v. Corbin, in which it adopted a broad sameconduct definition of "same offense." 495 U.S. 508, 527-28 (1990). In United States v.Dixon, the Court reversed Grady and reaffirmed the narrow same elements test that wouldallow successive prosecution of two crimes as long as each involves proof of a fact that theother does not. 509 U.S. 688, 603-04 (1993); see also Blockburger v. United States, 284U.S. 299, 304 (1932).

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fails to agree does not bar retrial. 336 Indeed, the Yeager Court quoted Richardson's holding 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. "337

The Yeager Court also failed even to mention its long line of mistrial cases in which it balanced the government interest in one full and fair opportunity to convict against the defendant's interest in avoiding a second prosecution.338 To be sure, the finality of an acquittal is absolute and requires no balancing.339 But once there is a mixed verdict, as in Yeager, the government's interest in trying the non-final counts should be weighed against the defendant's interest in applying the acquittal to counts on which the jury did not acquit and that involve different conduct by different actors at different times.34o In the mixed-verdict context, the public interest in the prosecution of non-final charges should outweigh the defendant's interest in extending the finality of the acquittal beyond the charges for which he was acquitted. The acquittal stands because the defendant has an absolute right to its finality, but the defendant does not have an absolute right to extend its effect to non-final, factually distinct charges.

4. Ignoring the Principles Protecting Inconsistent Verdicts

While it is true that collateral estoppel extends an acquittal's finality from one charge to another, the Yeager Court gave no explanation for why that should be so when the jury was given a chance to acquit on a second set of factually distinct charges and simply failed to agree. Recognizing the finality of the acquittal but the non-finality of the mistried charges would maximize the deference to the jury verdict that underlies the inconsistent-verdict precedent.

Moreover, the sanctity of jury deliberations is not violated by recognizing that the jury failed to agree. In fact, considering this fact would recognize rather than negate the jury's decision to announce its deadlock instead of acquitting or convicting. Moreover, one need not determine

336. See, e.g., United States v. Mauskar, 557 F.3d 219, 228 (5th Cir. 2009); United States v. Charlton, 502 F.3d 1, 6 (1st Cir. 2007); United States v. James, 109 F.3d 597, 601-02 (9th Cir. 1997); United States v. Powers, 978 F.2d 354, 359-60 (7th Cir. 1992).

337. Yeager, 129 S. Ct. at 2369 (2009) (quoting Richardson v. United States, 468 U.S. 317, 325 (1984».

338. See, e.g., Arizona v. Washington, 434 U.S. 497, 508-10 (1978); Illinois v. Somerville, 410 U.S. 458, 463-64 (1973).

339. Burks v. United States, 437 U.S. 1, 11 n.6 (1978); Sanabria v. United States, 437 U.S. 54, 75 (1978); see also Thomas, supra note 2, at 834-38 (collecting cases and commentators).

340. In this connection it is worth noting that the result in Yeager is also contrary to the Court's reversal of its own decision in Grady v. Corbin, in which it adopted a broad same conduct definition of "same offense." 495 U.S. 508, 527-28 (1990). In United States v. Dixon, the Court reversed Grady and reaffirmed the narrow same elements test that would allow successive prosecution of two crimes as long as each involves proof of a fact that the other does not. 509 U.S. 688, 603-04 (1993); see also Blockburger v. United States, 284 U.S. 299, 304 (1932).


the reason for the deadlock; it is the simple fact of lack of resolution thatis considered in analyzing collateral estoppel.

Finally, a collateral estoppel analysis uniquely allows-indeed, re-quires-a court to scrutinize a jury's deliberations to determine if there isonly a single issue that could rationally lead to the acquittal. Comparedto this invasive inquiry, simply considering the fact of a hung jury in de-termining whether the issue preclusion standard is satisfied would be anincidental and utterly de minimis intrusion into the jury's deliberativeprocess.

B. YEAGER WILL CREATE CONFUSION AND IS UNSTABLE.

The Supreme Court's double jeopardy jurisprudence is alreadyuniquely unstable. In three entirely separate double jeopardy areas, theCourt has been forced to overrule recently established precedent. Yeagerwill only add to that confusion and may be a similarly vulnerableprecedent.

Certainly, the Yeager decision has added to the confusion surroundinginterpretation of the Double Jeopardy Clause. This is the first time thatthe Court has applied double jeopardy within a single prosecution involv-ing a single accusatory instrument, in direct contradiction of all previousdouble jeopardy jurisprudence. Refusing to acknowledge the jury's deci-sion to declare a deadlock rather than acquit contradicts the finality af-forded an acquittal that gives maximum deference to a jury's powers.Richardson and its progeny held that a hung jury has meaning-a lack ofagreement representing non-finality-while Yeager says that it doesnot.3 4 1 Ashe directs the lower courts to scrutinize the entire record realis-tically, while Yeager does not.3 4 2 Until Yeager, collateral estoppel wasconsidered to be a double jeopardy protection rarely applied in criminalcases, where general verdicts most likely preclude its application. By rad-ically extending Ashe to bar charges that are based on other conduct oc-curring at different times and involving other actors and other events, theCourt has encouraged its use where it clearly was not intended to apply.By prohibiting the courts from considering a jury's mixed verdict, theCourt has also contravened Ashe's warning to view all of the circum-stances in a realistic light and has left the lower courts clueless about howto proceed.343 Certainly, the lower courts would consider a jury's mixedverdict a "circumstance" that should "realistically" be considered underAshe. After Yeager, claims of collateral estoppel will proliferate, eventhough that protection adds only marginally to its underlying rationale-the protection afforded the finality of an acquittal.

Other questions remain: what other interests, in addition toprosecutorial bad faith or an accompanying acquittal, will outweigh thegovernment's interest in the one full and fair opportunity to prosecute

341. Compare Richardson, 468 U.S. at 325-26, with Yeager, 129 S. Ct. at 2368.342. Compare Ashe v. Swenson, 397 U.S. 436, 444 (1970), with Yeager, 129 S. Ct. 2368.343. Yeager, 129 S. Ct. at 2368; Ashe, 397 U.S. at 444.

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the reason for the deadlock; it is the simple fact of lack of resolution that is considered in analyzing collateral estoppel.

Finally, a collateral estoppel analysis uniquely allows-indeed, requires-a court to scrutinize a jury's deliberations to determine if there is only a single issue that could rationally lead to the acquittal. Compared to this invasive inquiry, simply considering the fact of a hung jury in determining whether the issue preclusion standard is satisfied would be an incidental and utterly de minimis intrusion into the jury's deliberative process.

B. YEAGER WILL CREATE CONFUSION AND Is UNSTABLE.

The Supreme Court's double jeopardy jurisprudence is already uniquely unstable. In three entirely separate double jeopardy areas, the Court has been forced to overrule recently established precedent. Yeager will only add to that confusion and may be a similarly vulnerable precedent.

Certainly, the Yeager decision has added to the confusion surrounding interpretation of the Double Jeopardy Clause. This is the first time that the Court has applied double jeopardy within a single prosecution involving a single accusatory instrument, in direct contradiction of all previous double jeopardy jurisprudence. Refusing to acknowledge the jury's decision to declare a deadlock rather than acquit contradicts the finality afforded an acquittal that gives maximum deference to a jury's powers. Richardson and its progeny held that a hung jury has meaning-a lack of agreement representing non-finality-while Yeager says that it does not.341 Ashe directs the lower courts to scrutinize the entire record realistically, while Yeager does not.342 Until Yeager, collateral estoppel was considered to be a double jeopardy protection rarely applied in criminal cases, where general verdicts most likely preclude its application. By radically extending Ashe to bar charges that are based on other conduct occurring at different times and involving other actors and other events, the Court has encouraged its use where it clearly was not intended to apply. By prohibiting the courts from considering a jury's mixed verdict, the Court has also contravened Ashe's warning to view all of the circumstances in a realistic light and has left the lower courts clueless about how to proceed.343 Certainly, the lower courts would consider a jury's mixed verdict a "circumstance" that should "realistically" be considered under Ashe. After Yeager, claims of collateral estoppel will proliferate, even though that protection adds only marginally to its underlying rationalethe protection afforded the finality of an acquittal.

Other questions remain: what other interests, in addition to prosecutorial bad faith or an accompanying acquittal, will outweigh the government's interest in the one full and fair opportunity to prosecute

341. Compare Richardson, 468 U.S. at 325-26, with Yeager, 129 S. Ct. at 2368. 342. Compare Ashe v. Swenson, 397 U.S. 436, 444 (1970), with Yeager, 129 S. Ct. 2368. 343. Yeager, 129 S. Ct. at 2368; Ashe, 397 U.S. at 444.

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that Richardson was designed to protect? If a hung jury only sometimescontinues jeopardy, when does that occur? Under what other circum-stances is a hung jury to be considered final? The Court's failure to bal-ance the collateral estoppel effect of the acquittal was consistent with itsdecisions eschewing a balancing test for acquittal cases but inconsistentwith its mistrial cases. The failure to balance has left the lower courtswithout a principled analysis of mixed-verdict cases.

In addition to doctrinal confusion, what has Yeager wrought for proce-dures in the lower courts? Will any judge now ever take a partial ver-dict?3" If a court learns of a partial verdict of acquittal, will that courtever grant a mistrial on the remaining counts and let the jury go? TheSupreme Court has consistently commented on the virtually absolute dis-cretion afforded to trial judges in determining whether to dismiss a dead-locked jury. Yeager clearly will interfere with that discretion. Will trialcourts now seek to define what a deliberating jury is doing, from jurynotes and questions, before deciding whether to declare a mistrial? Willthey be less willing to grant a mistrial at all if the mistried counts willnever be retried?

Serious questions arise concerning how crimes will be prosecuted. WillYeager effect how prosecutors charge? Will prosecutors now go back toseparately prosecuting related charges but with more sophistication thanthe Ashe prosecutor's clumsy attempt to rehearse?

Finally, will Yeager have to be revisited and reversed in the not-too-distant future, as has happened with at least three other double jeopardycases before? What will the Supreme Court hold, in a future mixed-ver-dict case, when a concededly erroneous acquittal, which is entitled to thesame finality as a true acquittal, is held to collaterally estop retrial onaccompanying mistried counts? Will Yeager be extended in that situa-tion? Will Richardson be overruled? It may be that the Court will againabandon its expansive reading of the double jeopardy protection, as it didwith the short-lived Grady, Halper, and Jenkins decisions.3 4 5

V. CONCLUSION

The Supreme Court's Yeager decision is wrong, its underlying reason-ing is deficient, and it is likely to create confusion. The extension of Asheto complex, factually distinctive charges and its applicability within a sin-gle prosecution is absolutely novel and not adequately explained. At thesame time, Yeager's suggestion that a hung jury only sometimes continuesjeopardy is confusing. None of this is justified either by the Court's ar-ticulated analysis or by any traditional double jeopardy concerns. Theabsolute finality accorded an acquittal has been extended to outweighwell-recognized government interests, even though the additional protec-

344. FED. R. CRIM. P. 31 (providing that taking a partial verdict is within a federaljudge's discretion).

345. Grady v. Corbin, 495 U.S. 508 (1990); United States v. Halper, 490 U.S. 435 (1989);United States v. Jenkins, 420 U.S. 358 (1975).

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that Richardson was designed to protect? If a hung jury only sometimes continues jeopardy, when does that occur? Under what other circumstances is a hung jury to be considered final? The Court's failure to balance the collateral estoppel effect of the acquittal was consistent with its decisions eschewing a balancing test for acquittal cases but inconsistent with its mistrial cases. The failure to balance has left the lower courts without a principled analysis of mixed-verdict cases.

In addition to doctrinal confusion, what has Yeager wrought for procedures in the lower courts? Will any judge now ever take a partial verdict?344 If a court learns of a partial verdict of acquittal, will that court ever grant a mistrial on the remaining counts and let the jury go? The Supreme Court has consistently commented on the virtually absolute discretion afforded to trial judges in determining whether to dismiss a deadlocked jury. Yeager clearly will interfere with that discretion. Will trial courts now seek to define what a deliberating jury is doing, from jury notes and questions, before deciding whether to declare a mistrial? Will they be less willing to grant a mistrial at all if the mistried counts will never be retried?

Serious questions arise concerning how crimes will be prosecuted. Will Yeager effect how prosecutors charge? Will prosecutors now go back to separately prosecuting related charges but with more sophistication than the Ashe prosecutor's clumsy attempt to rehearse?

Finally, will Yeager have to be revisited and reversed in the not-toodistant future, as has happened with at least three other double jeopardy cases before? What will the Supreme Court hold, in a future mixed-verdict case, when a concededly erroneous acquittal, which is entitled to the same finality as a true acquittal, is held to collaterally estop retrial on accompanying mistried counts? Will Yeager be extended in that situation? Will Richardson be overruled? It may be that the Court will again abandon its expansive reading of the double jeopardy protection, as it did with the short-lived Grady, Halper, and Jenkins decisions.345

V. CONCLUSION

The Supreme Court's Yeager decision is wrong, its underlying reasoning is deficient, and it is likely to create confusion. The extension of Ashe to complex, factually distinctive charges and its applicability within a single prosecution is absolutely novel and not adequately explained. At the same time, Yeager's suggestion that a hung jury only sometimes continues jeopardy is confusing. None of this is justified either by the Court's articulated analysis or by any traditional double jeopardy concerns. The absolute finality accorded an acquittal has been extended to outweigh well-recognized government interests, even though the additional protec-

344. FED. R. CRIM. P. 31 (providing that taking a partial verdict is within a federal judge's discretion).

345. Grady v. Corbin, 495 U.S. 508 (1990); United States v. Halper, 490 U.S. 435 (1989); United States v. Jenkins, 420 U.S. 358 (1975).


tion afforded to the acquittal is marginal and inconsistent with the actualdecision of the jury. None of these conclusions are justified by the Su-preme Court's precedent or by Yeager's superficial analysis. It may bethat this decision-like Grady,346 Halper,347 and Jenkins,348-will yieldunexpected results and, like those decisions, be vulnerable to reversal inthe future.

346. 495 U.S. 508.347. 490 U.S. 435.348. 420 U.S. 358.

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tion afforded to the acquittal is marginal and inconsistent with the actual decision of the jury. None of these conclusions are justified by the Supreme Court's precedent or by Yeager's superficial analysis. It may be that this decision-like Grady,346 Halper,347 and Jenkins,348-will yield unexpected results and, like those decisions, be vulnerable to reversal in the future.

346. 495 U.S. 508. 347. 490 U.S. 435. 348. 420 U.S. 358.

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