Yeager v. United States

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

YEAGER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT

No. 08–67. Argued March 23, 2009—Decided June 18, 2009
A federal indictment charged petitioner Yeager with securities and wire
fraud for allegedly misleading the public about the virtues of a fiber
optic telecommunications system offered by his employer, a subsidi
ary of Enron Corp., and with insider trading for selling his Enron
stock while in possession of material, nonpublic information about
the new system’s performance and value to Enron. The indictment
also charged petitioner with money laundering for conducting various
transactions with the proceeds of his stock sales. The jury acquitted
Yeager on the fraud counts but failed to reach a verdict on the in
sider-trading and money-laundering counts. After the Government
recharged him with some of the insider-trading and money
laundering counts, Yeager moved to dismiss the charges on the
ground that the jury, by acquitting him on the fraud counts, had nec
essarily decided that he did not possess material, nonpublic informa
tion about the project’s performance and value, and that the issue
preclusion component of the Double Jeopardy Clause therefore
barred a second trial for insider trading and money laundering. The
District Court denied the motion, and the Fifth Circuit affirmed, rea
soning that the fact that the jury hung on the insider-trading and
money-laundering counts—as opposed to acquitting petitioner—cast
doubt on whether it had necessarily decided that petitioner did not
possess material, nonpublic information. This inconsistency between
the acquittals and the hung counts, the Fifth Circuit concluded,
meant that the Government could prosecute petitioner anew for in
sider trading and money laundering.
Held: An apparent inconsistency between a jury’s verdict of acquittal on
some counts and its failure to return a verdict on other counts does
not affect the acquittals’ preclusive force under the Double Jeopardy
2 YEAGER v. UNITED STATES

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Clause. Pp. 6–15.
(a) This case is controlled by the reasoning in Ashe v. Swenson, 397
U. S. 436, where the Court squarely held that the Double Jeopardy
Clause precludes the Government from relitigating any issue that
was necessarily decided by a jury’s acquittal in a prior trial. For
double jeopardy purposes, the jury’s inability to reach a verdict on
Yeager’s insider-trading and money-laundering counts was a non
event that should be given no weight in the issue-preclusion analysis.
To identify what a jury necessarily determined at trial, courts should
scrutinize the jury’s decisions, not its failures to decide. A jury’s ver
dict of acquittal represents the community’s collective judgment re
garding all the evidence and arguments presented to it. Even if the
verdict is “based upon an egregiously erroneous foundation,” Fong
Foo v. United States, 369 U. S. 141, 143, its finality is unassailable,
see, e.g., Arizona v. Washington, 434 U. S. 497, 503. Thus, if the pos
session of insider information was a critical issue of ultimate fact in
all of the charges against Yeager, a jury verdict that necessarily de
cided that issue in his favor protects him from prosecution for any
charge for which that is an essential element. Pp. 6–12.
(b) Neither Richardson v. United States, 468 U. S. 317, nor United
States v. Powell, 469 U. S. 57, supports the Government’s argument
that it can retry Yeager for insider trading or money laundering.
Richardson’s conclusion that a jury’s “failure . . . to reach a verdict is
not an event which terminates jeopardy,” 468 U. S., at 325, did not
open the door to using a hung count to ignore the preclusive effect of
a jury’s acquittal, but was simply a rejection of the argument—
similar to the Government’s today—that a mistrial is an event of sig
nificance. Also rejected is the contention that an acquittal can never
preclude retrial on a hung count because it would impute irrational
ity to the jury in violation of Powell’s rule that issue preclusion is
“predicated on the assumption that the jury acted rationally,” 469
U. S., at 68. The Court’s refusal in Powell and in Dunn v. United
States, 284 U. S. 390, to impugn the legitimacy of jury verdicts that,
on their face, were logically inconsistent shows, a fortiori, that a po
tentially inconsistent hung count could not command a different re
sult. Pp. 12–14.
(c) The Government has argued that, even if hung counts cannot
enter the issue-preclusion analysis, Yeager has failed to show that
the jury’s acquittals necessarily resolved in his favor an issue of ulti
mate fact that must be proved to convict him of insider trading and
money laundering. Having granted certiorari on the assumption that
the Fifth Circuit ruled correctly that the acquittals meant the jury
found that Yeager did not have insider information that contradicted
what was presented to the public, this Court declines to engage in a
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Syllabus

fact-intensive analysis of the voluminous record that is unnecessary
to resolve the narrow legal question at issue. If the Court of Appeals
chooses, it may revisit its factual analysis in light of the Govern
ment’s arguments before this Court. Pp. 14–15.
521 F. 3d 367, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SOUTER, GINSBURG, and BREYER, JJ., joined, and in which
KENNEDY, J., joined as to Parts I–III and V. KENNEDY, J., filed an opin
ion concurring in part and concurring in the judgment. SCALIA, J., filed
a dissenting opinion, in which THOMAS and ALITO, JJ., joined. ALITO, J.,
filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
 Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–67
_________________

F. SCOTT YEAGER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2009]

JUSTICE STEVENS delivered the opinion of the Court.
In Dunn v. United States, 284 U. S. 390, 393 (1932), 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 appar
ent inconsistency between a jury’s verdict of acquittal on
some counts and its failure to return a verdict on other
counts affects the preclusive force of the acquittals under
the Double Jeopardy Clause of the Fifth Amendment. We
hold that it does not.
I
In 1997, Enron Corporation (Enron) acquired a tele
communications business that it expanded and ultimately
renamed Enron Broadband Services (EBS). Petitioner F.
Scott Yeager served as Senior Vice President of Strategic
Development for EBS from October 1, 1998, until his
employment was terminated a few months before Enron
filed for bankruptcy on December 2, 2001. During his
tenure, petitioner played an active role in EBS’s attempt
to develop a nationwide fiber-optic telecommunications
system called the Enron Intelligent Network (EIN).
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Opinion of the Court

In the summer of 1999, Enron announced that EBS
would become a “ ‘core’ ” Enron business and a major part
of its overall strategy. App. 11. Thereafter, Enron issued
press releases touting the advanced capabilities of EIN
and claiming that the project was “ ‘lit,’ ” or operational.
Id., at 10. On January 20, 2000, at the company’s annual
equity analyst conference, petitioner and others allegedly
made false and misleading statements about the value
and performance of the EIN project. On January 21, 2000,
the price of Enron stock rose from $54 to $67. The next
day it reached $72. At that point petitioner sold more
than 100,000 shares of Enron stock that he had received
as part of his compensation. During the next several
months petitioner sold an additional 600,000 shares. All
told, petitioner’s stock sales generated more than $54
million in proceeds and $19 million in personal profit. As
for the EIN project, its value turned out to be illusory.
The “intelligent” network showcased to the public in the
press releases and at the analyst conference was riddled
with technological problems and never fully developed.
On November 5, 2004, a grand jury returned a “Fifth
Superseding Indictment” charging petitioner with 126
counts of five federal offenses: (1) conspiracy to commit
securities and wire fraud; (2) securities fraud; (3) wire
fraud; (4) insider trading; and (5) money laundering.1 The
Government’s theory of prosecution was that petitioner—
acting in concert with other Enron executives—
purposefully deceived the public about the EIN project in
order to inflate the value of Enron’s stock and, ultimately,
to enrich himself.2 Id., at 6.
——————
1 See 18 U. S. C. §371 (conspiracy to commit fraud against the United

States); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR
§240.10b–5 (2004) (securities fraud); 18 U. S. C. §1343 (2000 ed.) (wire
fraud); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR
§240.10b–5–1 (insider trading); 18 U. S. C. §1957 (money laundering).
2 While petitioner was charged with 126 counts, the indictment in
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Opinion of the Court

Count 1 of the indictment described in some detail the
alleged conspiracy to commit securities fraud and wire
fraud and included as overt acts the substantive offenses
charged in counts 2 through 6. Count 2, the securities
fraud count, alleged that petitioner made false and mis
leading statements at the January 20, 2000, analyst con
ference or that he failed to state facts necessary to prevent
statements made by others from being misleading. Counts
3 through 6 alleged that petitioner and others committed
four acts of wire fraud when they issued four EBS-related
press releases in 2000. Counts 27 through 46, the insider
trading counts, alleged that petitioner made 20 separate
sales of Enron stock “while in the possession of material
non-public information regarding the technological capa
bilities, value, revenue and business performance of
[EBS].” Id., at 31. And counts 67 through 165, the money
laundering counts, described 99 financial transactions
involving petitioner’s use of the proceeds of his sales of
Enron stock, which the indictment characterized as
“criminally derived property.” Id., at 37. To simplify our
discussion, we shall refer to counts 1 through 6 as the
“fraud counts” and the remaining counts as the “insider
trading counts.”
The trial lasted 13 weeks. After four days of delibera
tions, the jury notified the court that it had reached
agreement on some counts but had deadlocked on others.
The judge then gave the jury an Allen charge, see Allen v.
United States, 164 U. S. 492, 501–502 (1896), urging the
jurors to reexamine the grounds for their opinions and to
continue deliberations “until the end of the day” to achieve
a final verdict on all counts. Tr. 13724 (July 20, 2005).
When the jury failed to break the deadlock, the court told
the jurors that it would “take their verdict” instead of
——————

cluded 176 counts in all, covering conduct by executives purportedly

involved in the alleged fraud.

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prolonging deliberations. Id., at 13725. The jury acquit
ted petitioner on the fraud counts but failed to reach a
verdict on the insider trading counts. The court entered
judgment on the acquittals and declared a mistrial on the
hung counts.
On November 9, 2005, the Government obtained a new
indictment against petitioner. This “Eighth Superseding
Indictment” recharged petitioner with some, but not all, of
the insider trading counts on which the jury had previ
ously hung. App. 188. The new indictment refined the
Government’s case: Whereas the earlier indictment had
named multiple defendants, the new indictment dealt
exclusively with petitioner. And instead of alleging facts
implicating a broader fraudulent scheme, the new indict
ment focused on petitioner’s knowledge of the EIN project
and his failure to disclose that information to the public
before selling his Enron stock.
Petitioner moved to dismiss all counts in the new in
dictment on the ground that the acquittals on the fraud
counts precluded the Government from retrying him on
the insider trading counts.3 He argued that the jury’s
acquittals had necessarily decided that he did not possess
material, nonpublic information about the performance of
the EIN project and its value to Enron. In petitioner’s
view, because reprosecution for insider trading would
require the Government to prove that critical fact, the
issue-preclusion component of the Double Jeopardy Clause
barred a second trial of that issue and mandated dismissal
of all of the insider trading counts.
The District Court denied the motion. After reviewing
the trial record, the court disagreed with petitioner’s

——————
3 Petitioner
had also moved to dismiss the relevant counts in the ear
lier indictment in response to the Government’s assertion that it could
reprosecute petitioner for the previously hung counts under that
indictment as well. See 521 F. 3d 367, 370, n. 4 (CA5 2008).
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Opinion of the Court

reading of what the jury necessarily decided. In the
court’s telling, the jury likely concluded that petitioner
“did not knowingly and willfully participate in the scheme
to defraud described in the conspiracy, securities fraud,
and wire fraud counts.” 446 F. Supp. 2d 719, 735 (SD Tex.
2006). The court therefore concluded that the question
whether petitioner possessed insider information was not
necessarily resolved in the first trial and could be litigated
anew in a second prosecution.
The Court of Appeals disagreed with the District Court’s
analysis of the record, but nevertheless affirmed. It rea
soned that petitioner “did not dispute” the Government’s
theory that he “helped shape the message” of the allegedly
fraudulent presentations made at the analyst conference,
and therefore rejected the District Court’s conclusion that
the jury had “acquitted [petitioner] on the groun[d] that he
did not participate in the fraud.” 521 F. 3d 367, 377 (CA5
2008). Based on its independent review of the record, the
Court of Appeals instead concluded that “the jury must
have found when it acquitted [petitioner] that [he] did not
have any insider information that contradicted what was
presented to the public.” Id., at 378. The court acknowl
edged that this factual determination would normally
preclude the Government from retrying petitioner for
insider trading or money laundering.
The court was nevertheless persuaded that a truly
rational jury, having concluded that petitioner did not
have any insider information, would have acquitted him
on the insider trading counts. That the jury failed to
acquit, and instead hung on those counts, was pivotal in
the court’s issue-preclusion analysis. Considering “the
hung counts along with the acquittals,” the court found it
impossible “to decide with any certainty what the jury
necessarily determined.” Ibid. Relying on Circuit prece
dent, United States v. Larkin, 605 F. 2d 1360 (1979), the
court concluded that the conflict between the acquittals
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and the hung counts barred the application of issue pre
clusion in this case. 521 F. 3d, at 378–379.
Several courts have taken the contrary view and have
held that a jury’s failure to reach a verdict on some counts
should play no role in determining the preclusive effect of
an acquittal. See United States v. Ohayon, 483 F. 3d 1281
(CA11 2007); United States v. Romeo, 114 F. 3d 141 (CA9
1997); United States v. Bailin, 977 F. 2d 270 (CA7 1992);
United States v. Frazier, 880 F. 2d 878 (CA6 1989). Oth
ers have sided with the Court of Appeals. See United
States v. Howe, 538 F. 3d 820 (CA8 2008); United States v.
Aguilar-Aranceta, 957 F. 2d 18 (CA1 1992); United States
v. White, 936 F. 2d 1326 (CADC 1991). We granted certio
rari to resolve the conflict, 555 U. S. ___ (2008), and now
reverse.
II
The Double Jeopardy Clause of the Fifth Amendment
provides: “[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or limb.”
While we have decided an exceptionally large number of
cases interpreting this provision, see, e.g., United States v.
DiFrancesco, 449 U. S. 117, 126–127 (1980) (collecting
cases), most of our decisions have found more guidance in
the common-law ancestry of the Clause than in its brief
text. Thus, for example, while the risk of being fined or
imprisoned implicates neither “life” nor “limb,” our early
cases held that double jeopardy protection extends to
punishments that are not “positively covered by the lan
guage of [the] amendment.” Ex parte Lange, 18 Wall. 163,
170 (1874). As we explained, “[i]t is very clearly the spirit
of the instrument to prevent a second punishment under
judicial proceedings for the same crime, so far as the
common law gave that protection.” Ibid.
Our cases have recognized that the Clause embodies two
vitally important interests. The first is the “deeply in
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Opinion of the Court

grained” principle that “the State with all its resources
and power should not be allowed to make repeated at
tempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibil
ity that even though innocent he may be found guilty.”
Green v. United States, 355 U. S. 184, 187–188 (1957); see
Benton v. Maryland, 395 U. S. 784, 795–795 (1969); Di-
Francesco, 449 U. S., at 127–128. The second interest is
the preservation of “the finality of judgments.” Crist v.
Bretz, 437 U. S. 28, 33 (1978).
The first interest is implicated whenever the State seeks
a second trial after its first attempt to obtain a conviction
results in a mistrial because the jury has failed to reach a
verdict. In these circumstances, however, while the de
fendant has an interest in avoiding multiple trials, the
Clause does not prevent the Government from seeking to
reprosecute. Despite the argument’s textual appeal, we
have held that the second trial does not place the defen
dant in jeopardy “twice.” Richardson v. United States, 468
U. S. 317, 323 (1984); see 3 J. Story, Commentaries on the
Constitution §1781, pp. 659–660 (1833). Instead, a jury’s
inability to reach a decision is the kind of “manifest neces
sity” that permits the declaration of a mistrial and the
continuation of the initial jeopardy that commenced when
the jury was first impaneled. See Arizona v. Washington,
434 U. S. 497, 505–506 (1978); United States v. Perez, 9
Wheat. 579, 580 (1824). The “interest in giving the prose
cution one complete opportunity to convict those who have
violated its laws” justifies treating the jury’s inability to
reach a verdict as a nonevent that does not bar retrial.
Washington, 434 U. S., at 509.
While the case before us involves a mistrial on the
insider trading counts, the question presented cannot be
resolved by asking whether the Government should be
8 YEAGER v. UNITED STATES

Opinion of the Court

given one complete opportunity to convict petitioner on
those charges. Rather, the case turns on the second inter
est at the core of the Clause. We must determine whether
the interest in preserving the finality of the jury’s judg
ment on the fraud counts, including the jury’s finding that
petitioner did not possess insider information, bars a
retrial on the insider trading counts. This requires us to
look beyond the Clause’s prohibition on being put in jeop
ardy “twice”; the jury’s acquittals unquestionably termi
nated petitioner’s jeopardy with respect to the issues
finally decided in those counts. The proper question,
under the Clause’s text, is whether it is appropriate to
treat the insider trading charges as the “same offence” as
the fraud charges. Our opinion in Ashe v. Swenson, 397
U. S. 436 (1970), provides the basis for our answer.
In Ashe, we squarely held that the Double Jeopardy
Clause precludes the Government from relitigating any
issue that was necessarily decided by a jury’s acquittal in
a prior trial. In that case, six poker players were robbed
by a group of masked men. Ashe was charged with—and
acquitted of—robbing Donald Knight, one of the six play
ers. The State sought to retry Ashe for the robbery of
another poker player only weeks after the first jury had
acquitted him. The second prosecution was successful:
Facing “substantially stronger” testimony from “witnesses
[who] were for the most part the same,” id., at 439–440,
Ashe was convicted and sentenced to a 35-year prison
term. We concluded that the subsequent prosecution was
constitutionally prohibited. Because the only contested
issue at the first trial was whether Ashe was one of the
robbers, we held that the jury’s verdict of acquittal collat
erally estopped the State from trying him for robbing a
different player during the same criminal episode. Id., at
446. We explained that “when an issue of ultimate fact
has once been determined by a valid and final judgment”
of acquittal, it “cannot again be litigated” in a second trial
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Opinion of the Court

for a separate offense. Id., at 443.4 To decipher what a
jury has necessarily decided, we held that courts should
“examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other rele
vant 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 considera
tion.” Id., at 444 (internal quotation marks omitted). We
explained that the inquiry “must be set in a practical
frame and viewed with an eye to all the circumstances of
the proceedings.” Ibid. (quoting Sealfon v. United States,
332 U. S. 575, 579 (1948) (internal quotation marks
omitted)).
Unlike Ashe, the case before us today entails a trial that
included multiple counts rather than a trial for a single
offense. And, while Ashe involved an acquittal for that
single offense, this case involves an acquittal on some
counts and a mistrial declared on others. The reasoning in
Ashe is nevertheless controlling because, for double jeop
ardy purposes, the jury’s inability to reach a verdict on the
insider trading counts was a nonevent and the acquittals
on the fraud counts are entitled to the same effect as
Ashe’s acquittal.
As noted above, see supra, at 4, the Court of Appeals
reasoned that the hung counts must be considered to
determine what issues the jury decided in the first trial.
Viewed in isolation, the court explained, the acquittals on
——————
4 Although the doctrine of collateral estoppel had developed in civil

litigation, we had already extended it to criminal proceedings when
Ashe was decided. The justification for this application was first offered
by Justice Holmes, who observed that “[i]t cannot be that the safe
guards of the person, so often and so rightly mentioned with solemn
reverence, are less than those that protect from a liability in debt.”
United States v. Oppenheimer, 242 U. S. 85, 87 (1916). Currently, the
more descriptive term “issue preclusion” is often used in lieu of “collat
eral estoppel.” See Restatement (Second) of Judgments §27 (1980).
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Opinion of the Court

the fraud charges would preclude retrial because they
appeared to support petitioner’s argument that the jury
decided he lacked insider information. 521 F. 3d, at 378.
Viewed alongside the hung counts, however, the acquittals
appeared less decisive. The problem, as the court saw it,
was that, if “the jury found that [petitioner] did not have
insider information, then the jury, acting rationally, would
also have acquitted [him] of the insider trading counts.”
Ibid. The fact that the jury hung was a logical wrinkle
that made it impossible for the court “to decide with any
certainty what the jury necessarily determined.” Ibid.
Because petitioner failed to show what the jury decided,
id., at 380, the court refused to find the Government
precluded from pursuing the hung counts in a new
prosecution.
The Court of Appeals’ issue-preclusion analysis was in
error. A hung count is not a “relevant” part of the “record
of [the] prior proceeding.” See Ashe, 397 U. S., at 444
(internal quotation marks omitted). Because a jury speaks
only through its verdict, its failure to reach a verdict
cannot—by negative implication—yield a piece of informa
tion that helps put together the trial puzzle. A mistried
count is therefore nothing like the other forms of record
material that Ashe suggested should be part of the preclu
sion inquiry. Ibid.; see also Black’s Law Dictionary 1301
(8th ed. 2004) (defining “record” as the “official report of
the proceedings in a case, including the filed papers, ver
batim transcript of the trial or hearing (if any), and tangi
ble exhibits”). Unlike the pleadings, the jury charge, or
the evidence introduced by the parties, there is no way to
decipher what a hung count represents. Even in the usual
sense of “relevance,” a hung count hardly “make[s] the
existence of any fact . . . more probable or less probable.”
Fed. Rule Evid. 401. A host of reasons—sharp disagree
ment, confusion about the issues, exhaustion after a long
trial, to name but a few—could work alone or in tandem to
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Opinion of the Court

cause a jury to hang.5 To ascribe meaning to a hung count
would presume an ability to identify which factor was at
play in the jury room. But that is not reasoned analysis; it
is guesswork.6 Such 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.
A contrary conclusion would require speculation into
what transpired in the jury room. Courts properly avoid
such explorations into the jury’s sovereign space, see
United States v. Powell, 469 U. S. 57, 66 (1984); Fed. Rule
Evid. 606(b), and for good reason. The jury’s deliberations
are secret and not subject to outside examination. If there
is to be an inquiry into what the jury decided, the “evi
dence should 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 considera
tion.” Packet Co. v. Sickles, 5 Wall. 580, 593 (1866); see
also Vaise v. Delaval, 99 Eng. Rep. 944 (K. B. 1785) (Lord
Mansfield, C. J.) (refusing to rely on juror affidavits to
impeach a verdict reached by a coin flip); J. Wigmore,
Evidence §2349, pp. 681–690, and n. 2 (McNaughton rev.
ed. 1961 and Supp. 1991).
Accordingly, we hold that the consideration of hung
counts has no place in the issue-preclusion analysis.
——————
5 Indeed, there were many indications that the jury in this case could

have been exhausted after the 13-week trial. See Reply Brief for
Petitioner 9–10 (cataloging numerous “statements on the record [that]
reveal the very real possibility that the jurors cut their deliberations
short out of exhaustion”).
6 It would also require too much of the defendant. To preclude retrial,

he must show that the jury necessarily decided an issue in his favor.
Yet, to borrow from the Court of Appeals, “[b]ecause it is impossible to
determine why [a] jury hung,” 521 F. 3d, at 379, the defendant will
have to rebut all inferences about what may have motivated the jury to
hang without the ability to seek conclusive proof. See Fed. Rule Evid.
606(b). There is no reason to impose such a burden on a defendant.
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Indeed, if it were relevant, the fact that petitioner has
already survived one trial should be a factor cutting in
favor of, rather than against, applying a double jeopardy
bar. To identify what a jury necessarily determined at
trial, courts should scrutinize a jury’s decisions, not its
failures to decide. A jury’s verdict of acquittal represents
the community’s collective judgment regarding all the
evidence and arguments presented to it. Even if the ver
dict is “based upon an egregiously erroneous foundation,”
Fong Foo v. United States, 369 U. S. 141, 143 (1962) (per
curiam), its finality is unassailable. See, e.g., Washington,
434 U. S., at 503; Sanabria v. United States, 437 U. S. 54,
64 (1978). Thus, if the possession of insider information
was a critical issue of ultimate fact in all of the charges
against petitioner, a jury verdict that necessarily decided
that issue in his favor protects him from prosecution for
any charge for which that is an essential element.
III
The Government relies heavily on two of our cases,
Richardson v. United States, 468 U. S. 317, and United
States v. Powell, 469 U. S. 57, to argue that it is entitled to
retry petitioner on the insider trading counts. Neither
precedent can bear the weight the Government places on
it.
In Richardson, the defendant was indicted on three
counts of narcotics violations. The jury acquitted him on
one count but hung on the others. Richardson moved to
bar retrial on the hung counts, insisting that reprosecu
tion would place him twice in jeopardy for the same of
fense. Unlike petitioner in this case, Richardson did not
argue that retrial was barred because the jury’s verdict of
acquittal meant that it necessarily decided an essential
fact in his favor. He simply asserted that the hung counts,
standing alone, shielded him from reprosecution. We
disagreed and held that “the protection of the Double
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Opinion of the Court

Jeopardy Clause by its terms applies only if there has
been some event, such as an acquittal, which terminates
the original jeopardy.” 468 U. S., at 325. “[T]he failure of
the jury to reach a verdict,” we explained, “is not an event
which terminates jeopardy.” Ibid. From this the Govern
ment extrapolates the altogether different principle that
retrial is always permitted whenever a jury convicts on
some counts and hangs on others. Brief for United States
23–24. But Richardson was not so broad. Rather, our
conclusion was a rejection of the argument—similar to the
one the Government urges today—that a mistrial is an
event of significance. In so holding, we did not open the
door to using a mistried count to ignore the preclusive
effect of a jury’s acquittal.
The Government next contends that an acquittal can
never preclude retrial on a mistried count because it
would impute irrationality to the jury in violation of the
rule articulated in Powell, 469 U. S. 57. In Powell, the
defendant was charged with various drug offenses. The
jury acquitted Powell of the substantive drug charges but
convicted her of using a telephone in “ ‘committing and in
causing and facilitating’ ” those same offenses. Id., at 59–
60. Powell attacked the verdicts on appeal as irrationally
inconsistent and urged the reversal of her convictions.
She insisted that “collateral estoppel should apply to
verdicts rendered by a single jury, to preclude acceptance
of a guilty verdict on a telephone facilitation count where
the jury acquits the defendant of the predicate felony.”
Id., at 64. We rejected this argument, reasoning that
issue preclusion is “predicated on the assumption that the
jury acted rationally.” Id., at 68.
Arguing that a jury that acquits on some counts while
inexplicably hanging on others is not rational, the Gov
ernment contends that issue preclusion is as inappropriate
in this case as it was in Powell. There are two serious
flaws in this line of reasoning. First, it takes Powell’s
14 YEAGER v. UNITED STATES

Opinion of the Court

treatment of inconsistent verdicts and imports it into an
entirely different context involving both verdicts and
seemingly inconsistent hung counts. But the situations
are quite dissimilar. In Powell, respect for the jury’s
verdicts counseled giving each verdict full effect, however
inconsistent. As we explained, the jury’s verdict “brings to
the criminal process, in addition to the collective judgment
of the community, an element of needed finality.” Id., at
67. By comparison, hung counts have never been accorded
respect as a matter of law or history, and are not similar
to jury verdicts in any relevant sense. By equating them,
the Government’s argument fails. Second, the Govern
ment’s reliance on Powell assumes that a mistried count
can, in context, be evidence of irrationality. But, as we
explained above, see supra, at 7–8, the fact that a jury
hangs is evidence of nothing—other than, of course, that it
has failed to decide anything. By relying on hung counts
to question the basis of the jury’s verdicts, the Govern
ment violates the very assumption of rationality it invokes
for support.
At bottom, the Government misreads our cases that
have rejected attempts to question the validity of a jury’s
verdict. In Powell and, before that, in Dunn, 284 U. S.
390, we were faced with jury verdicts that, on their face,
were logically inconsistent and yet we refused to impugn
the legitimacy of either verdict. In this case, there is
merely a suggestion that the jury may have acted irration
ally. And instead of resting that suggestion on a verdict,
the Government relies on a hung count, the thinnest reed
of all. If the Court in Powell and Dunn declined to use a
clearly inconsistent verdict to second-guess the soundness
of another verdict, then, a fortiori, a potentially inconsis
tent hung count could not command a different result.
IV
One final matter requires discussion. The Government
 Cite as: 557 U. S. ____ (2009) 15

Opinion of the Court

argues that even if we conclude (as we do) that acquittals
can preclude retrial on counts on which the same jury
hangs, we should nevertheless affirm the judgment of the
Court of Appeals because petitioner failed to show that the
jury necessarily resolved in his favor an issue of ultimate
fact that the Government must prove in order to convict
him of insider trading and money laundering. See Brief
for United States 41–45. Given the length and complexity
of the proceedings, this factual dispute is understandable.
The District Court and Court of Appeals each read the
record differently, disagreeing as to what the jury neces
sarily decided in its acquittals. Compare 446 F. Supp. 2d,
at 735 (“[T]he jury necessarily determined that Defendant
Yeager did not knowingly and willfully participate or
agree to participate in a scheme to defraud in connection
with the alleged false statements or material omissions
made at the analyst conference and press releases”), with
521 F. 3d, at 378 (“[T]he jury must have found when it
acquitted Yeager that Yeager himself did not have any
insider information that contradicted what was presented
to the public”). Our grant of certiorari was based on the
assumption that the Court of Appeals’ interpretation of
the record was correct. We recognize the Government’s
right, as the prevailing party in the Court of Appeals, to
“defend its judgment on any ground properly raised below
whether or not that ground was relied upon, rejected, or
even considered by the District Court or the Court of
Appeals.” Washington v. Confederated Bands and Tribes
of Yakima Nation, 439 U. S. 463, 476, n. 20 (1979). But
we decline to engage in a fact-intensive analysis of the
voluminous record, an undertaking unnecessary to the
resolution of the narrow legal question we granted certio
rari to answer. If it chooses, the Court of Appeals may
revisit its factual analysis in light of the Government’s
arguments before this Court.
16 YEAGER v. UNITED STATES

Opinion of the Court

V
The judgment is reversed, and the case is remanded to
the Court of Appeals for further proceedings consistent
with this opinion.
It is so ordered.
 Cite as: 557 U. S. ____ (2009) 1

Opinion of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–67
_________________

F. SCOTT YEAGER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2009]

JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
I join Parts I–III and V of the Court’s opinion but cannot
join Part IV. In my view the concerns expressed by
JUSTICE ALITO are well justified. Post, ___ (dissenting
opinion). It is insufficient for the Court to say that, on
remand, the Court of Appeals “may,” “[i]f it chooses,”
“revisit its factual analysis.” Ante, at 15. The correct
course would be to require the Court of Appeals to do so.
As JUSTICE ALITO explains, the judgments of acquittal
preclude the Government from retrying petitioner on the
issue of his possession of insider information if, and only
if, “it would have been irrational for the jury to acquit
without finding that fact.” Post, at 1; see Ashe v. Swenson,
397 U. S. 436, 444 (1970) (retrial not precluded if “a ra
tional jury could have grounded its verdict upon an issue
other than that which the defendant seeks to foreclose”).
For the reasons given by JUSTICE ALITO, there are
grounds here to question whether petitioner has met this
demanding standard. Post, at 2. The District Court,
which was the court most familiar with the record, found
that petitioner could not make this showing because a
rational jury could have acquitted him of securities fraud
on a different basis—namely, that petitioner did not cause
the misleading statements to be made. Post, at 3–4. The
2 YEAGER v. UNITED STATES

Opinion of KENNEDY, J.

Court of Appeals’ contrary analysis is not convincing.
Post, at 4.
The Court of Appeals held the Double Jeopardy Clause
permits petitioner’s retrial because, in that court’s view,
the acquitted counts were inconsistent with the jury’s
inability to reach a verdict on other counts. 521 F. 3d 367,
379 (CA5 2008). The Court today corrects that misreading
of the Double Jeopardy Clause. The question remains
whether the Clause permits petitioner’s retrial for the
quite distinct reason JUSTICE ALITO describes. On
remand, the Court of Appeals should reexamine this
question.
 Cite as: 557 U. S. ____ (2009) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–67
_________________

F. SCOTT YEAGER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 18, 2009]

JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
The Double Jeopardy Clause of the Fifth Amendment
provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” The
Court today holds that this proscription, as interpreted in
Ashe v. Swenson, 397 U. S. 436 (1970), sometimes bars
retrial of hung counts if the jury acquits on factually re
lated counts. Because that result neither accords with the
original meaning of the Double Jeopardy Clause nor is
required by the Court’s precedents, I dissent.
I
Today’s opinion begins with the proclamation that this
Court has “found more guidance in the common-law ances
try of the [Double Jeopardy] Clause than its brief text.”
Ante, at 6. Would that it were so. This case would be easy
indeed if our cases had adhered to the Clause’s original
meaning. The English common-law pleas of auterfoits
acquit and auterfoits convict, on which the Clause was
based, barred only repeated “prosecution for the same
identical act and crime.” 4 W. Blackstone, Commentaries
on the Laws of England 330 (1769) (emphasis added). See
also Grady v. Corbin, 495 U. S. 508, 530–535 (1990)
(SCALIA, J., dissenting). As described by Sir Matthew
Hale, “a man acquitted for stealing [a] horse” could be
2 YEAGER v. UNITED STATES

SCALIA, J., dissenting

later “arraigned and convict[ed] for stealing the saddle,
tho both were done at the same time.” 2 Pleas of the
Crown 246 (1736). Under the common-law pleas, the
jury’s acquittal of Yeager on the fraud counts would have
posed no bar to further prosecution for the distinct crimes
of insider trading and money laundering.
But that is water over the dam. In Ashe the Court
departed from the original meaning of the Double Jeop
ardy Clause, holding that it precludes successive prosecu
tions on distinct crimes when facts essential to conviction
of the second crime have necessarily been resolved in the
defendant’s favor by a verdict of acquittal of the first
crime. 397 U. S., at 445–446.1 Even if I am to adhere to
Ashe on stare decisis grounds, cf. Grady, supra, at 528
(SCALIA, J., dissenting), today’s holding is an illogical
extension of that case. Ashe held only that the Clause
sometimes bars successive prosecution of facts found
during “a prior proceeding.” 397 U. S., at 444. But today
the Court bars retrial on hung counts after what was not,
under this Court’s theory of “continuing jeopardy,” Jus
tices of Boston Municipal Court v. Lydon, 466 U. S. 294,
308 (1984), a prior proceeding but simply an earlier stage
of the same proceeding.
As an historical matter, the common-law pleas could be
invoked only once “there ha[d] been a conviction or an
acquittal—after a complete trial.” Crist v. Bretz, 437 U. S.
——————
1 Because this case arises in federal court, the federal doctrine of
issue preclusion might have prevented the Government from retrying
Yeager even without Ashe’s innovation. See United States v. Oppen
heimer, 242 U. S. 85, 87 (1916). But the District Court held that the
jury in this case had not necessarily decided that Yeager lacked inside
information (the fact that Yeager claims the Government is barred from
relitigating), 446 F. Supp. 2d 719, 735 (SD Tex. 2006), and jurisdiction
for this interlocutory appeal of that holding comes by way of the collat
eral order doctrine, which encompasses claims of former jeopardy,
Abney v. United States, 431 U. S. 651, 662 (1977). We have not ac
corded the same privilege to litigants asserting issue preclusion.
 Cite as: 557 U. S. ____ (2009) 3

SCALIA, J., dissenting

28, 33 (1978). This Court has extended the protections of
the Double Jeopardy Clause by holding that jeopardy
attaches earlier: at the time a jury is empanelled and
sworn. Id., at 38. Although one might think that this
early attachment would mean that any second trial with a
new jury would constitute a second jeopardy, the Court
amended its innovation by holding that discharge of a
deadlocked jury does not “terminat[e] the original jeop
ardy,” Richardson v. United States, 468 U. S. 317, 325
(1984). Under this continuing-jeopardy principle, retrial
after a jury has failed to reach a verdict is not a new trial
but part of the same proceeding.2
Today’s holding is inconsistent with this principle. It
interprets the Double Jeopardy Clause, for the first time,
to have effect internally within a single prosecution, even
though the “ ‘criminal proceedings against [the] accused
have not run their full course.’ ” Lydon, supra, at 308
(quoting Price v. Georgia, 398 U. S. 323, 326 (1970)). As a
conceptual matter, it makes no sense to say that events
occurring within a single prosecution can cause an accused
to be “twice put in jeopardy.” U. S. Const., Amdt. 5. And
our cases, until today, have acknowledged that. Ever
since Dunn v. United States, 284 U. S. 390, 393 (1932), we
have refused to set aside convictions that were inconsis
tent with acquittals in the same trial; and we made clear
——————
2 That the Government issued a new indictment after the mistrial in

this case does not alter the fact that, for double jeopardy purposes,
retrial would have been part of the same, initial proceeding. As a
matter of practice, it seems that prosecutors and courts treat retrials
after mistrials as part of the same proceeding by filing superseding
indictments under the original docket number. See, e.g., Superseding
Information in United States v. Pena, Case No. 8:03–cr–476–T–23EAJ
(MD Fla., Feb. 17, 2005). The Court implies that the new indictment in
this case materially refined the charges, ante, at 4, but the only rele
vant changes were dropping of the other defendants and elimination of
a few counts and related factual allegations. Compare App. 6–71 with
App. 188–200.
4 YEAGER v. UNITED STATES

SCALIA, J., dissenting

in United States v. Powell, 469 U. S. 57, 64–65 (1984), that
Ashe does not mandate a different result. There is no
reason to treat perceived inconsistencies between hung
counts and acquittals any differently.
Richardson accentuates the point. Under our cases, if
an appellate court reverses a conviction for lack of consti
tutionally sufficient evidence, that determination consti
tutes an acquittal which, under the Double Jeopardy
Clause, precludes further prosecution. Burks v. United
States, 437 U. S. 1, 11 (1978). In Richardson, the defen
dant sought to prevent retrial after a jury failed to reach a
verdict, claiming that the case should not have gone to the
jury because the Government failed to present sufficient
evidence. 468 U. S., at 322–323. The Court held that the
Double Jeopardy Clause was inapplicable because there
had not been an “event, such as an acquittal, which termi
nate[d] the original jeopardy.” Id., at 325. I do not see
why the Double Jeopardy Clause effect of a jury acquittal
on a different count should be any different from the Dou
ble Jeopardy Clause effect of the prosecution’s failure to
present a case sufficient to go to the jury on the same
count. In both cases, the predicate necessary for Double
Jeopardy Clause preclusion of a new prosecution exists: in
the former, the factual findings implicit in the jury’s ver
dict of acquittal, in the latter, the State’s presentation of a
case so weak that it would have demanded a jury verdict
of acquittal. In both cases, it seems to me, the Double
Jeopardy Clause cannot be invoked because the jeopardy
with respect to the retried count has not terminated.
The acquittals here did not, as the majority argues,
“unquestionably terminat[e] [Yeager’s] jeopardy with
respect to the issues finally decided” in those counts. Ante,
at 8 (emphasis added). Jeopardy is commenced and ter
minated charge by charge, not issue by issue. And if the
prosecution’s failure to present sufficient evidence at a
first trial cannot prevent retrial on a hung count because
 Cite as: 557 U. S. ____ (2009) 5

SCALIA, J., dissenting

the retrial is considered part of the same proceeding, then
there is no basis for invoking Ashe to prevent retrial in the
present case. If a conviction can stand with a contradic
tory acquittal when both are pronounced at the same trial,
there is no reason why an acquittal should prevent the
State from pressing for a contradictory conviction in the
continuation of the prosecution on the hung counts.
II
The Court’s extension of Ashe to these circumstances
cannot even be justified based on the rationales underly
ing that holding. Invoking issue preclusion to bar seriatim
prosecutions has the salutary effect of preventing the
Government from circumventing acquittals by forcing
defendants “to ‘run the gantlet’ a second time” on effec
tively the same charges. 397 U. S., at 446. In cases where
the prosecution merely seeks to get “one full and fair
opportunity to convict” on all charges brought in an initial
indictment, Ohio v. Johnson, 467 U. S. 493, 502 (1984),
there is no risk of such gamesmanship. We have said that
“where 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.” Id., at 500, n. 9.
Moreover, barring retrial when a jury acquits on some
counts and hangs on others bears only a tenuous relation
ship to preserving the finality of “an issue of ultimate fact
[actually] determined by a valid and final judgment.”
Ashe, supra, at 443. There is no clear, unanimous jury
finding here. In the unusual situation in which a factual
finding upon which an acquittal must have been based
would also logically require an acquittal on the hung
count, all that can be said for certain is that the conflicting
dispositions are irrational—the result of “mistake, com
promise, or lenity.” Powell, 469 U. S., at 65. It is at least
as likely that the irrationality consisted of failing to make
6 YEAGER v. UNITED STATES

SCALIA, J., dissenting

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. While
I agree that courts should avoid speculation as to why a
jury reached a particular result, ante, at 11, the Court’s
opinion steps in the wrong direction by pretending that
the acquittals here mean something that they in all prob
ability do not.3 Powell, supra, at 69, concluded that “the
best course to take is simply to insulate jury verdicts” from
review on grounds of inconsistency. In my view the same
conclusion applies to claims that inconsistency will arise
from proceeding to conviction on hung counts.
The burdens created by the Court’s opinion today are
likely to be substantial. The Ashe inquiry will require
courts to “examine the record of a prior proceeding, taking
into account the pleadings, evidence, charge, and other
relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than
that which the defendant seeks to foreclose from consid
eration.” 397 U. S., at 446 (internal quotation marks
omitted). What is more, our holding in Abney v. United
States, 431 U. S. 651 (1977), ensures that every defendant
in Yeager’s shoes will be entitled to an immediate inter
locutory appeal (and petition for certiorari) whenever his
Ashe claim is rejected by the trial court. Abney, supra, at
662.
* * *
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
——————
3 The Court claims that a jury’s failure to reach a verdict is not rele

vant evidence, ante, at 10, but its justifications for that statement are
utterly unpersuasive. It is obvious that a failure to reach a verdict on
one count “make[s] the existence” of a factual finding on a necessary
predicate for both counts substantially “less probable,” Fed. Rule Evid.
401; how the Court can believe otherwise is beyond me.
 Cite as: 557 U. S. ____ (2009) 7

SCALIA, J., dissenting

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.
 Cite as: 557 U. S. ____ (2009) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–67
_________________

F. SCOTT YEAGER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2009]

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
I join JUSTICE SCALIA’s dissenting opinion. When a jury
acquits on some counts but cannot reach agreement on
others, I do not think that the Double Jeopardy Clause
precludes retrial on the “hung” counts.
As a result of today’s decision, however, the law is now
to the contrary, and I write separately to note that the
Court’s holding makes it imperative that the doctrine of
issue preclusion be applied with the rigor prescribed in
Ashe v. Swenson, 397 U. S. 436 (1970). Loose application
of the doctrine will lead to exceedingly complicated and
protracted litigation, both in the trial court and on appeal,
and may produce unjust results.
Ashe made it clear that an acquittal on one charge
precludes a subsequent trial on a different charge only if
“a rational jury” could not have acquitted on the first
charge without finding in the defendant’s favor on a fac
tual issue that the prosecution would have to prove in
order to convict in the later trial. Id., at 444. This is a
demanding standard. The second trial is not precluded
simply because it is unlikely—or even very unlikely—that
the original jury acquitted without finding the fact in
question. Only if it would have been irrational for the jury
to acquit without finding that fact is the subsequent trial
barred. And the defendant has the burden of showing that
2 YEAGER v. UNITED STATES

ALITO, J., dissenting

“the issue whose relitigation he seeks to foreclose was
actually decided in the first proceeding.” Dowling v.
United States, 493 U. S. 342, 350 (1990).
The situation presented in a case like the one now be
fore us—where the jury acquits on some counts but cannot
reach a verdict on others—calls for special care in the
application of the Ashe standard. In such a situation, the
conclusion that the not-guilty verdicts preclude retrial on
the hung counts necessarily means that the jury did not
act rationally. But courts should begin with the presump
tion that a jury’s actions can rationally be reconciled. In
an analogous situation—where it is claimed that a verdict
must be set aside on the ground that the findings set out
in a jury’s answers to special interrogatories are inconsis
tent—“it is the duty of the courts to attempt to harmonize
the answers, if it is possible under a fair reading of them:
‘Where there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be
resolved that way.’ ” Gallick v. Baltimore & Ohio R. Co.,
372 U. S. 108, 119 (1963) (quoting Atlantic & Gulf Steve
dores, Inc. v. Ellerman Lines, Ltd., 369 U. S. 355, 364
(1962)). A similar approach is appropriate here.
In the present case, there is reason to question whether
the Ashe standard was met. It is clear that the fraud
counts required proof of an element not necessary for
conviction on the insider trading charge, namely, that
petitioner “caused” material misstatements or omissions
to be made at the January 20, 2000, analyst conference
and in the press releases that formed the basis for the
wire fraud counts. See App. 107 (jury instruction on count
two (securities fraud)), 118 (jury instruction on counts
three through six (wire fraud)). And it is far from appar
ent that the jury’s not-guilty verdict on the fraud counts
could not have rationally been based on a determination
that this element—that petitioner caused the material
misstatements or omissions—was not proved beyond a
 Cite as: 557 U. S. ____ (2009) 3

ALITO, J., dissenting

reasonable doubt.
The District Court Judge, who was of course familiar
with the trial evidence, analyzed this issue as follows:
“The theory of the defense, evident in closing argu
ment and the direct testimony of Defendant Yeager,
argued that Defendant Yeager did not participate in
the crafting of the statements in the press releases;
did not participate in the creation of slides or state
ments presented at the analysts conference; and did
not reach an agreement with any other person to
make false, misleading, or deceptive statements or
material omissions of fact.” App. to Pet. for Cert. 55a.
The record provides support for the District Court’s
analysis. In his summation, petitioner’s attorney argued
that “Scott Yeager had nothing to do with Counts 3 to 6
[the securities and wire fraud counts].” 80 Tr. 13384.
With respect to the January 20, 2000, conference that
provided the basis for the securities fraud count, peti
tioner’s attorney emphasized that his client “didn’t say
anything.” Id., at 13365. Counsel reiterated that peti
tioner “didn’t make a presentation. He didn’t make a
statement.” Ibid.; id., at 13394. Counsel’s summation on
this point summarized portions of petitioner’s trial testi
mony in which he minimized his involvement in matters
relating to the conference. See 52 id., at 9932–9933,
9938–9947, and 9953.
With respect to the press releases on which the wire
fraud counts were based, petitioner’s attorney argued:
“Scott Yeager had nothing to do with the press releases.”
80 id., at 13384. “We didn’t make any press releases.” Id.,
at 13394. “Show me the evidence. Show me where Scott
participated in a press release.” Id., at 13406. Again,
counsel’s comments in summation tracked petitioner’s
testimony denying participation in the press releases. See
52 id., at 9911, 9913; 80 id., at 13384.
4 YEAGER v. UNITED STATES

ALITO, J., dissenting

The above portions of the record suggest that a rational
jury might have found that petitioner did not “cause” the
misstatements or omissions at the conference or in the
press releases. In light of the length and complexity of the
trial record, I am not in a position to say with certainty
that the Ashe standard was not met in this case, but the
brief discussion of this question in the opinion of the Court
of Appeals does not satisfactorily show that the District
Court’s analysis was incorrect. Concluding that the not
guilty verdict on the securities fraud count could not have
been based on a finding that respondent did not cause the
misstatements or omissions at the conference, the Court of
Appeals stated that petitioner “did not dispute” that he
“helped shape the message of the conference presenta
tions.” App. to Pet. for Cert. 20a. But there is surely
tension between that statement and the previously men
tioned portions of petitioner’s trial testimony and the
defense summation.
Because the Court of Appeals held that Ashe does not
apply when a jury acquits on some counts and hangs on
others, that court’s analysis of the possible grounds for the
jury’s securities fraud verdict was not necessary to support
the court’s decision. Now that this Court has held that
Ashe does govern in this context, a reexamination of
the possible grounds for the fraud count acquittals is
warranted.