Circuit Split Over Whether Court Must Consider Mistried Counts in Collateral Estoppel Analysis?

United States v. Yeager, No. 06-20321 (5th Cir. Mar. 17, 2008) (Higginbotham, Garza, Benavides)

Tired of reading about one crime-of-violence case after another? Well here's some legal sorbet to cleanse your palate: a discussion of a (possible) circuit split over whether a court must consider mistried counts along with acquitted counts when determining whether collateral estoppel bars a retrial.

Yeager was indicted on a number of charges arising out of the Enron debacle. The jury found him not guilty of some counts, but hung on the others. The Government then obtained a new indictment, recharging some of the mistried counts. Yeager moved to dismiss the indictment, arguing that his "previous acquittals collaterally estopped the Government from pursuing these charges." The district court denied the motion, and Yeager appealed.

Our legal landscape:

The Fifth Amendment’s guarantee against double jeopardy incorporates the collateral estoppel doctrine. Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense. Ashe [v. Swenson], however, limits successive prosecution of defendants, not for the same offenses but for different offenses. After an acquittal, Ashe bars the government from prosecuting defendants on a different charge “if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution.” Defendants asserting collateral estoppel carry the burden to make this showing.

To determine whether collateral estoppel bars a subsequent criminal prosecution, courts must conduct a two-step analysis. “Initially, we must decide which facts necessarily were decided in the first proceeding. Then we must consider whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.”

(cites omitted).

The court held that, if it considered the acquitted counts by themselves, collateral estoppel would bar retrial. But the Fifth Circuit case of United States v. Larkin "requires that we consider mistried counts in our collateral estoppel analysis; and, in particular, under Larkin, the presence of mistried counts diminishes the likelihood that, in acquitting defendants on related counts, the jury made a factual determination that bars a retrial."

Viewed through that lens, the court held that Yeager failed to carry his burden. Without going into the tedious details here, just understand that the court concluded that there were four possible explanations for the jury's decision. Two of those scenarios necessarily involved findings that would collaterally estop the Government from pursuing the new charges, and two of those scenarios would not. Because it was impossible to tell which one of those scenarios happened in this case, the court found that collateral estoppel did not bar retrial on the new charges.

In sticking to Larkin, the court rejected the Government's argument for an extension of the Supreme Court's decision in United States v. Powell, which bars the application of collateral estoppel when there are inconsistent verdicts. A number of other circuits have held that Powell doesn't apply in this situation: because there could be a number of reasons why a jury acquitted on some counts and hung on others, there is not necessarily any inconsistency present.

And that's where the circuit split comes in. The court says it agrees with these other circuits to the extent that "it is impossible to discern definitively why a jury hung. Therefore, we also reject the Government's argument because it requires us to necessarily find an inconsistency where one may not exist." But those courts apparently, for whatever reasons, "ignored the mistried counts after they determined that Powell does not apply. Because our precedent dictates that we weigh mistried counts, however, we cannot do the same."

This sure looks like a circuit split, but it's hard to say for sure. The opinion notes that "[w]e can only speculate as to why our sister circuits did not also consider the mistried counts in its analysis under Ashe. While our precedent requires us to weigh mistried counts in determining whether collateral estoppel applies under the Ashe framework, the other circuits may not be similarly bound by their precedent."

Nevertheless, this case looks like a likely candidate for a cert petition. In fact, without having read those other circuits' decisions, I'll go out on a limb and say this is a likely candidate for a cert grant. Not only because of the apparent circuit split, but also because it's an interesting question and because the Government hasn't fared well on appeal with its Enron/Arthur Andersen prosecutions. Just remember, you heard it here first. (Unless someone else has already predicted this, which wouldn't surprise me.)