YEAGER v. UNITED STATES

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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 subsidiary
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 insider 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 necessarily decided that he did not possess mate
rial, nonpublic information 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 launder
ing. The District Court denied the motion, and the Fifth Circuit af
firmed, reasoning 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 pos
sess 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 insider 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
Clause. Pp. 117–126.
(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 nonevent that should
be given no weight in the issue-preclusion analysis. To identify what a

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jury necessarily determined at trial, courts should scrutinize the jury’s
decisions, not its failures to decide. A jury’s verdict of acquittal repre
sents the community’s collective judgment regarding 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 possession of insider information was a
critical issue of ultimate fact in all of the charges against Yeager, 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.
Pp. 117–123.
(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. Richard
son’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 significance. Also
rejected is the contention that an acquittal can never preclude retrial
on a hung count because it would impute irrationality to the jury in
violation of Powell’s rule that issue preclusion is “predicated on the as
sumption 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 incon
sistent shows, a fortiori, that a potentially inconsistent hung count could
not command a different result. Pp. 123–125.
(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 ultimate 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 fact-intensive analysis of the
voluminous record that is unnecessary to resolve the narrow legal ques
tion at issue. If the Court of Appeals chooses, it may revisit its fac
tual analysis in light of the Government’s arguments before this Court.
Pp. 125–126.
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,

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J., joined as to Parts I–III and V. Kennedy, J., filed an opinion concur
ring in part and concurring in the judgment, post, p. 126. Scalia, J., filed
a dissenting opinion, in which Thomas and Alito, JJ., joined, post, p. 127.
Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ.,
joined, post, p. 133.
Samuel J. Buffone argued the cause for petitioner. With
him on the briefs were Ryan M. Malone and J. A. Canales.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were then-Acting
Solicitor General Kneedler, Acting Assistant Attorney Gen
eral Glavin, Matthew D. Roberts, and Joseph C. Wyderko.*
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 ac
quittal does not impugn the validity of either verdict. The
question presented in this case is whether an apparent incon
sistency 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 telecommu
nications business that it expanded and ultimately renamed
Enron Broadband Services (EBS). Petitioner F. Scott Yea
ger served as Senior Vice President of Strategic Develop
ment for EBS from October 1, 1998, until his employment
was terminated a few months before Enron filed for bank
ruptcy on December 2, 2001. During his tenure, petitioner
*Briefs of amici curiae urging reversal were filed for Criminal Law
Professors by Jeffrey A. Lamken; for the National Association of Criminal
Defense Lawyers by Kevin C. Newsom, Jack W. Selden, and Joshua L.
Dratel; and for the Texas Criminal Defense Lawyers Association et al. by
J. Craig Jett, Greg Westfall, and Susan Hays.

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played an active role in EBS’s attempt to develop a nation
wide fiber-optic telecommunications system called the Enron
Intelligent Network (EIN).
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 claim
ing 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 compensa
tion. During the next several months petitioner sold an ad
ditional 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 Su
perseding 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 the
ory of prosecution was that petitioner—acting in concert
with other Enron executives—purposefully deceived the
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
§ 240.10b5–1 (insider trading); 18 U. S. C. § 1957 (money laundering).

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public about the EIN project in order to inflate the value of
Enron’s stock and, ultimately, to enrich himself.2 Id., at 6.
Count 1 of the indictment described in some detail the al
leged 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 misleading statements
at the January 20, 2000, analyst conference or that he failed
to state facts necessary to prevent statements made by oth
ers 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 peti
tioner made 20 separate sales of Enron stock “while in the
possession of material non-public information regarding the
technological capabilities, value, revenue and business per
formance of [EBS].” Id., at 31. And counts 67 through 165,
the money laundering counts, described 99 financial transac
tions involving petitioner’s use of the proceeds of his sales of
Enron stock, which the indictment characterized as “crimi
nally derived property.” Id., at 37. To simplify our discus
sion, 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 agree
ment 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 ju
rors to reexamine the grounds for their opinions and to con
tinue deliberations “until the end of the day” to achieve a
final verdict on all counts. 56 Tr. 13724 (July 20, 2005).
When the jury failed to break the deadlock, the court told
2 While petitioner was charged with 126 counts, the indictment included
176 counts in all, covering conduct by executives purportedly involved in
the alleged fraud.

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the jurors that it would “take their verdict” instead of pro
longing deliberations. Id., at 13725. The jury acquitted
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 in
dictment against petitioner. This “Eighth Superseding In
dictment” recharged petitioner with some, but not all, of the
insider trading counts on which the jury had previously
hung. App. 188. The new indictment refined the Govern
ment’s case: Whereas the earlier indictment had named mul
tiple defendants, the new indictment dealt exclusively with
petitioner. And instead of alleging facts implicating a
broader fraudulent scheme, the new indictment 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 indict
ment 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, nonpub
lic information about the performance of the EIN project
and its value to Enron. In petitioner’s view, because re
prosecution for insider trading would require the Govern
ment to prove that critical fact, the issue-preclusion com
ponent 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 reading
of what the jury necessarily decided. In the court’s telling,
3 Petitioner had also moved to dismiss the relevant counts in the earlier
indictment in response to the Government’s assertion that it could repros
ecute 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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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 in
sider 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 the
ory 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 in
sider information that contradicted what was presented to
the public.” Id., at 378. The court acknowledged that this
factual determination would normally preclude the Govern
ment 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 in
sider 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 precedent, United States v. Lar
kin, 605 F. 2d 1360 (1979), the court concluded that the con
flict between the acquittals and the hung counts barred the
application of issue preclusion in this case. 521 F. 3d, at
378–379.

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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 acquit
tal. 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). Others have
sided with the Fifth Circuit. 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 certiorari to resolve the
conflict, 555 U. S. 1028 (2008), and now reverse.
II
The Double Jeopardy Clause of the Fifth Amendment pro
vides: “[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 impris
oned implicates neither “life” nor “limb,” our early cases held
that double jeopardy protection extends to punishments that
are not “positively covered by the language of [the] amend
ment.” 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 protec
tion.” Ibid.
Our cases have recognized that the Clause embodies two
vitally important interests. The first is the “deeply in
grained” principle that “the State with all its resources and
power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subject

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ing him to embarrassment, expense and ordeal and compel
ling him to live in a continuing state of anxiety and insecu
rity, as well as enhancing the possibility 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 (1969); DiFrancesco, 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 defend
ant has an interest in avoiding multiple trials, the Clause
does not prevent the Government from seeking to reprose
cute. Despite the argument’s textual appeal, we have held
that the second trial does not place the defendant 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 necessity” that per
mits the declaration of a mistrial and the continuation of the
initial jeopardy that commenced when the jury was first im
paneled. 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 prosecution 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 given one com
plete opportunity to convict petitioner on those charges.
Rather, the case turns on the second interest at the core
of the Clause. We must determine 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

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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 jeopardy “twice”; the jury’s
acquittals unquestionably terminated 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. Swen
son, 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 acquit
ted of—robbing Donald Knight, one of the six players. 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 sen
tenced to a 35-year prison term. We concluded that the sub
sequent prosecution was constitutionally prohibited. Be
cause 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 collaterally estopped the State from trying him
for robbing a different player during the same criminal epi
sode. Id., at 446. We explained that “when an issue of ulti
mate fact has once been determined by a valid and final judg
ment” of acquittal, it “cannot again be litigated” in a second
trial for a separate offense. Id., at 443.4 To decipher what
4 Although the doctrine of collateral estoppel had developed in civil liti
gation, 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 safeguards of
the person, so often and so rightly mentioned with solemn reverence, are

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a jury has necessarily decided, we held that courts should
“examine the record of a prior proceeding, taking into ac
count 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.” 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 of
fense. 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 never
theless controlling because, for double jeopardy 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 116, the Court of Appeals
reasoned that the hung counts must be considered to deter
mine what issues the jury decided in the first trial. Viewed
in isolation, the court explained, the acquittals on 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 infor
mation, then the jury, acting rationally, would also have ac
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 “collateral estoppel.” See
Restatement (Second) of Judgments § 27 (1980).

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quitted [him] of the insider trading counts.” Ibid. The fact
that the jury hung was a logical wrinkle that made it impos
sible 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 (in
ternal quotation marks omitted). Because a jury speaks
only through its verdict, its failure to reach a verdict can
not—by negative implication—yield a piece of information
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 preclusion 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, a verbatim transcript of
the trial or hearing (if any), and tangible 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 disagreement, confusion about the issues,
exhaustion after a long trial, to name but a few—could work
alone or in tandem to 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
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 Peti
tioner 9–10 (cataloging numerous “statements on the record [that] reveal
the very real possibility that the jurors cut their deliberations short out
of exhaustion”).

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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 unani
mous verdict that the jurors did return.
A contrary conclusion would require speculation into what
transpired in the jury room. Courts properly avoid such ex
plorations 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 “evidence should be confined
to the points in controversy on the former trial, to the testi
mony given by the parties, and to the questions submitted
to the jury for their consideration.” Packet Co. v. Sickles, 5
Wall. 580, 593 (1867); 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 (McNaughton rev. 1961 and
Supp. 1991).
Accordingly, we hold that the consideration of hung counts
has no place in the issue-preclusion analysis. 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 verdict is “based upon an egregiously erroneous
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 deter
mine 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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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 de
cided 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, Rich
ardson v. United States, 468 U. S. 317, and United States v.
Powell, 469 U. S. 57, to argue that it is entitled to retry peti
tioner 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 reprosecution would place
him twice in jeopardy for the same offense. Unlike peti
tioner 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 pro
tection of the Double Jeopardy Clause by its terms ap
plies 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 Government 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 mis

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124 YEAGER v. UNITED STATES
Opinion of the Court
trial is an event of significance. In so holding, we did not
open the door to using a mistried count to ignore the preclu
sive 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 es
toppel should apply to verdicts rendered by a single jury, to
preclude acceptance of a guilty verdict on a telephone facili
tation 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 assump
tion that the jury acted rationally.” Id., at 68.
Arguing that a jury that acquits on some counts while in
explicably hanging on others is not rational, the Government
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 treatment of inconsist
ent 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 his
tory, and are not similar to jury verdicts in any relevant
sense. By equating them, the Government’s argument fails.
Second, the Government’s reliance on Powell assumes that a

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mistried count can, in context, be evidence of irrationality.
But, as we explained above, see supra, at 121–122, 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
Government 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 irrationally. 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 ver
dict to second-guess the soundness of another verdict, then,
a fortiori, a potentially inconsistent hung count could not
command a different result.
IV
One final matter requires discussion. The Government
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 nec
essarily resolved in his favor an issue of ultimate fact that
the Government must prove in order to convict him of in
sider trading and money laundering. See Brief for United
States 41–45. Given the length and complexity of the pro
ceedings, this factual dispute is understandable. The Dis
trict Court and Court of Appeals each read the record differ
ently, disagreeing as to what the jury necessarily decided in
its acquittals. Compare 446 F. Supp. 2d, at 735 (“[T]he jury
necessarily determined that Defendant Yeager did not know

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126 YEAGER v. UNITED STATES
Opinion of Kennedy, J.
ingly and willfully participate or agree to participate in a
scheme to defraud in connection with the alleged false state
ments 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 Ap
peals.” 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 volumi
nous record, an undertaking unnecessary to the resolution of
the narrow legal question we granted certiorari to answer.
If it chooses, the Court of Appeals may revisit its factual
analysis in light of the Government’s arguments before this
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.
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 Jus
tice Alito are well justified. Post, p. 133 (dissenting opin
ion). It is insufficient for the Court to say that, on remand,
the Court of Appeals “may,” “[i]f it chooses,” “revisit its fac
tual analysis.” Ante this page. The correct course would
be to require the Court of Appeals to do so.

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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 134; see Ashe v. Swenson, 397
U. S. 436, 444 (1970) (retrial not precluded if “ ‘a rational 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 134–135. 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 135–136.
The Court of Appeals’ contrary analysis is not convincing.
Post, at 136.
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 rea
son Justice Alito describes. On remand, the Court of Ap
peals should reexamine this question.
Justice Scalia, with whom Justice Thomas and Jus
tice Alito join, dissenting.
The Double Jeopardy Clause of the Fifth Amendment pro
vides 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. Swen
son, 397 U. S. 436 (1970), sometimes bars retrial of hung
counts if the jury acquits on factually related counts. Be
cause that result neither accords with the original meaning

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128 YEAGER v. UNITED STATES
Scalia, J., dissenting
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 ancestry
of the [Double Jeopardy] Clause than its brief text.” Ante,
at 117. 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 ac
quit 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 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 de
parted from the original meaning of the Double Jeopardy
Clause, holding that it precludes successive prosecutions on
distinct crimes when facts essential to conviction of the sec
ond 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
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. Oppenheimer, 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 collateral order doctrine, which

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grounds, cf. Grady, supra, at 528 (Scalia, J., dissenting), to
day’s holding is an illogical extension of that case. Ashe
held only that the Clause sometimes bars successive prosecu
tion 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,” Justices 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 a historical matter, the common-law pleas could be
invoked only once “there ha[d] been a conviction or an ac
quittal—after a complete trial.” Crist v. Bretz, 437 U. S. 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 innova
tion by holding that discharge of a deadlocked jury does not
“terminat[e] the original jeopardy,” 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
encompasses claims of former jeopardy, Abney v. United States, 431 U. S.
651, 662 (1977). We have not accorded the same privilege to litigants
asserting issue preclusion.
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 115, but the only relevant 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.

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130 YEAGER v. UNITED STATES
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Today’s holding is inconsistent with this principle. It in
terprets 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 inconsistent with acquittals in the
same trial; and we made clear 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 constitution
ally sufficient evidence, that determination constitutes an ac
quittal which, under the Double Jeopardy Clause, precludes
further prosecution. Burks v. United States, 437 U. S. 1, 11
(1978). In Richardson, the defendant sought to prevent re
trial after a jury failed to reach a verdict, claiming that the
case should not have gone to the jury because the Govern
ment 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 terminate[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 differ
ent from the Double Jeopardy Clause effect of the prosecu
tion’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 ex
ists: in the former, the factual findings implicit in the jury’s
verdict of acquittal, in the latter, the State’s presentation of

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a case so weak that it would have demanded a jury verdict
of acquittal. In both cases, it seems to me, the Double Jeop
ardy 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, “un
questionably terminat[e] [Yeager’s] jeopardy with respect
to the issues finally decided” in those counts. Ante, at 119
(emphasis added). Jeopardy is commenced and terminated
charge by charge, not issue by issue. And if the prosecu
tion’s failure to present sufficient evidence at a first trial can
not prevent retrial on a hung count because 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 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 in the continuation of the prosecu
tion on the hung counts.
II
The Court’s extension of Ashe to these circumstances can
not even be justified based on the rationales underlying that
holding. Invoking issue preclusion to bar seriatim prosecu
tions has the salutary effect of preventing the Government
from circumventing acquittals by forcing defendants “to ‘run
the gantlet’ a second time” on effectively 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 gamesman
ship. We have said that “where the State has made no ef
fort to prosecute the charges seriatim, the considerations of
double jeopardy protection implicit in the application of col
lateral 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 relationship
to preserving the finality of “an issue of ultimate fact [actu

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132 YEAGER v. UNITED STATES
Scalia, J., dissenting
ally] 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 irra
tional—the result of “mistake, compromise, or lenity.” Pow
ell, supra, at 65. It 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. While I agree that courts should avoid specula
tion as to why a jury reached a particular result, ante, at
121–122, the Court’s opinion steps in the wrong direction by
pretending that the acquittals here mean something that
they in all probability do not.3 Powell, supra, at 69, con
cluded 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 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 consideration.” 397 U. S.,
at 444 (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 enti
3 The Court claims that a jury’s failure to reach a verdict is not relevant
evidence, ante, at 121, 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.

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tled to an immediate interlocutory 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 jeop
ardy 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.
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 oth
ers, I do not think that the Double Jeopardy Clause pre
cludes 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 preclu
sion 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 un
just results.
Ashe made it clear that an acquittal on one charge pre
cludes 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 factual issue
that the prosecution would have to prove in order to convict
in the later trial. Id., at 444. This is a demanding stand
ard. The second trial is not precluded simply because it is
unlikely—or even very unlikely—that the original jury ac

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134 YEAGER v. UNITED STATES
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quitted 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 “the issue whose relitiga
tion 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 before
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 presumption that a jury’s
actions can rationally be reconciled. In an analogous situa
tion—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 inconsistent—“it is the duty of
the courts to attempt to harmonize the answers, if it is possi
ble under a fair reading of them: ‘Where there is a view of
the case that makes the jury’s answers to special interrogato
ries consistent, they must be resolved that way.’ ” Gallick
v. Baltimore & Ohio R. Co., 372 U. S. 108, 119 (1963) (quoting
Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
369 U. S. 355, 364 (1962)). A similar approach is appro
priate 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 Janu
ary 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 apparent that the jury’s not-guilty verdict

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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 be
yond a 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 argument
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 partici
pate in the creation of slides or statements presented at
the analysts conference; and did not reach an agreement
with any other person to make false, misleading, or de
ceptive statements or material omissions of fact.” App.
to Pet. for Cert. 55a.
The record provides support for the District Court’s analy
sis. In his summation, petitioner’s attorney argued that
“Scott Yeager had nothing to do with Counts 3 to 6 [the secu
rities and wire fraud counts].” 54 Tr. 13384 (July 13, 2005).
With respect to the January 20, 2000, conference that pro
vided the basis for the securities fraud count, petitioner’s
attorney emphasized that his client “didn’t say anything.”
Id., at 13365. Counsel reiterated that petitioner “didn’t
make a presentation. He didn’t make a statement.” Ibid.;
id., at 13394. Counsel’s summation on this point summa
rized portions of petitioner’s trial testimony in which he min
imized his involvement in matters relating to the conference.
See 39 id., at 9932–9933, 9938–9947, and 9953 (June 17, 2005).
With respect to the press releases on which the wire fraud
counts were based, petitioner’s attorney argued: “Scott Yea
ger had nothing to do with the press releases.” 54 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 com
ments in summation tracked petitioner’s testimony denying

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136 YEAGER v. UNITED STATES
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participation in the press releases. See 39 id., at 9911, 9913;
54 id., at 13384.
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 discus
sion 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 omis
sions at the conference, the Court of Appeals stated that
petitioner “did not dispute” that he “helped shape the mes
sage of the conference presentations.” App. to Pet. for
Cert. 20a. But there is surely tension between that state
ment and the previously mentioned 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 oth
ers, 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.