Justices take appeal from former Enron Corp. official (Nov. 14, 2008)

The Supreme Court has agreed to decide whether a new round of criminal charges can be brought against a former executive at Enron Corp.’s broadband unit.

In November, former Enron Broadband Services senior executives Scott Yeager, Joseph Hirkoand Rex Shelby were indicted for allegedly engaging in fraud to drive up Enron’s stock price and in turn sell the company’s stock for millions of dollars.

In July 2005, a jury acquitted the men on some counts but could not reach a verdict on others. Yeager was acquitted of the conspiracy, wire fraud, and security fraud counts. Hirko was acquitted of some of the insider trading and money laundering counts; and Shelby was acquitted of some of the insider trading counts. Because the jury hung on the remaining counts, the district court declared a mistrial on those counts.

In November 2005, the government obtained new indictments against the defendants. These post-trial indictments recharged Shelby and Hirko with all of the mistried counts and recharged Yeager with some of the mistried insider trading and money laundering counts. Shelby and Hirko moved to dismiss all of the recharged counts, except for the conspiracy counts against Hirko and Shelby and the 2001 insider trading counts against Hirko. Yeager moved to dismiss all of the mistried insider trading and money laundering counts. Defendants argud that the Double Jeopardy Clause prevents the government from pursuing these charges.

The U.S. District Court for the Southern District of Texas held that Yeager could be retried for charges where the earlier jury had failed to reach a conclusion.

On March 17, 2008, a three-judge panel on the 5th U.S. Circuit Court of Appeals upheld the lower court’s ruling.

“When we consider the hung counts along with the acquittals, we are faced with a potential inconsistency, making it impossible for us to decide with any certainty what the jury necessarily determined,” the appeals court noted.

Meanwhile, in asking the Supreme Court to hear his appeal, Yeager argued: “the impossible burden the 5th Circuit placed on defendants is inconsistent with the Fifth Amendment’s protection against double jeopardy.”

On Nov. 14, the justices accepted the case for review.

Question presented: Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict.