- The Washington Times - Saturday, March 21, 2009

HOUSTON (AP) - A former Enron Corp. executive is hoping a little known component of the Fifth Amendment’s double jeopardy clause will help him avoid a retrial on charges related to financial fraud at the once mighty energy giant.

Attorneys for F. Scott Yeager are set to present oral arguments before the U.S. Supreme Court on Monday on the issue of whether double jeopardy prevents prosecutors from retrying individuals after a jury votes not guilty on some charges, but fails to reach a verdict on others that share an element with the acquitted charges.

Prosecutors contend retrying Yeager on counts the jury couldn’t decide doesn’t raise double jeopardy issues.

Yeager was one of five former executives from Enron’s failed broadband venture who were tried in 2005. They were accused of lying to shareholders and the market about the broadband division’s value and hoping to get rich by selling the inflated shares.

Prosecutors said their actions contributed to the fraud that eventually led to the 2001 collapse of what was once the nation’s seventh-largest company.

Their three-month-long trial in 2005 ended in a mistrial. Yeager, who faced 125 counts, was acquitted of five _ including four counts of wire fraud and one of conspiracy to commit wire and securities fraud. But the jury couldn’t reach a verdict on the remaining counts, which alleged insider trading and money laundering.

Yeager was later reindicted on 13 counts of insider trading and money laundering.

His attorneys argue that a component of double jeopardy known as collateral estoppel prevents prosecutors from retrying him because allegations made in the new indictment have already been answered in favor of the former Enron executive by the first jury’s acquittals.

“Double jeopardy says you can’t be tried twice for the same offense,” said Samuel Buffone, one of Yeager’s attorneys. “Collateral estoppel addresses a retrial of the facts. So if in a murder a jury determined Mr. X wasn’t in possession of a gun on that day, you can’t retry him for shooting someone else with that same gun on that day.”

In Yeager’s case, Buffone is arguing the first jury _ by its acquittals on the conspiracy, securities and wire fraud charges _ determined he was not in possession of insider information about Enron’s Internet venture when he traded in company stock and sold it for more than $54 million.

“The jury thus rejected an essential element necessary to convict Yeager on each of the pending insider trading counts,” Buffone wrote in his brief to the Supreme Court. Buffone said the money laundering charges also can’t be retried because they are directly tied to the insider trading counts.

Representatives of the Justice Department did not respond to an e-mail requesting comment on the upcoming high court arguments.

However, In their 52-page brief to the court, Justice Department attorneys say the defense argument is flawed.

“But, if the jury in fact acquitted because it determined that (Yeager) did not possess insider information, and that determination also requires acquittal on the insider trading and money laundering counts, then a rational jury should have acquitted on those counts as well,” prosecutors wrote.

An appeal by Yeager and two co-defendants was denied last year by a three-judge panel of the 5th U.S. Circuit Court of Appeals. The 5th Circuit said the acquittals would seem to indicate collateral estoppel would bar prosecutors from retrying him, but it said it could not ignore that the same jury couldn’t decide the insider trading counts.

Cynthia M. Monaco, a white collar criminal defense attorney with the New York firm of Buchanan, Ingersoll & Rooney, called Buffone’s legal argument “very interesting and smart.”

“What (Buffone) is saying is the government was wrong to say it can retry (Yeager) on the hung counts because the acquittals say the theory the government put forward (on the new charges) is dead … ,” she said.

The government, however, will be relying on case law that says a hung jury is not a final decision for double jeopardy purposes, she said.

Adam Sisitsky, a Boston-based attorney with the firm of Mintz Levin, said he thinks Buffone has more of an uphill battle than prosecutors.

He said it’s hard to know what the jury was thinking when it acquitted Yeager of the conspiracy, securities and wire fraud charges but couldn’t decide the insider trading charges.

“It very well could be the jury looked at his alleged (stock) profits and maybe said ‘He was up to something and we can’t just acquit,’” he said.

Sisitsky isn’t sure if the Supreme Court’s decision will have any broader legal ramifications.

“It’s a complex, fact-based case and often times the appellate decision that comes from such cases have a narrow application,” he said.

This isn’t the first Enron-related case the Supreme Court has heard.

In May 2005, justices overturned accounting firm Arthur Andersen LLP’s June 2002 conviction of obstruction of justice for destroying Enron-related audit documents. The high court ruled that vague jury instructions allowed jurors to convict without finding criminal intent behind the mass document destruction effort.

___

The case is F. Scott Yeager v. United States, 08-67.

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