- The Washington Times - Monday, March 23, 2009

WASHINGTON (AP) - The Supreme Court appears inclined to bar prosecutors from retrying a former Enron Corp., executive on charges related to financial fraud at the one-time energy giant.

“I can’t think of any reason to allow the government to have a second bite at this apple,” Justice Stephen Breyer said during arguments Monday, a sentiment that a majority of the court seemed to share.

The case involves charges against F. Scott Yeager, a former executive at Enron’s failed broadband venture. Yeager sold Enron stock for more than $54 million before the company began a downward spiral that ended in bankruptcy in 2001.

In his first trial in 2005, Yeager faced 125 counts and was acquitted of five, including four counts of wire fraud and one of conspiracy to commit wire and securities fraud. 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.

The issue for the court is whether a variation on the Constitution’s guarantee against double jeopardy applies in this situation: The jury votes not guilty on some charges, but fails to reach a verdict on others that are based upon the same essential facts as the acquitted charges.

Prosecutors frequently retry defendants when juries can’t reach a verdict. They may not pursue a defendant when juries return not guilty verdicts. This case asks what happens when there is a combination of those elements.

“The government may try to obtain a verdict where the jury is hung,” Justice Department lawyer Michael Dreeben told the justices.

But Samuel Buffone, Yeager’s lawyer, countered that jurors’ decision to acquit Yeager on the securities and wire fraud counts means they did not believe he was in possession of insider information about Enron’s Internet venture when he sold his stock.

“The only conclusion is that Mr. Yeager did not possess insider information,” Buffone said.

Justice Antonin Scalia wondered why, then, the jury did not acquit Yeager on the other charges. “How can you close your eyes to that circumstance?” Scalia asked.

Buffone responded, and other justices appeared to agree, that the sheer number of counts could have played a role in the failure to reach verdicts on almost all.

Should prosecutors get another chance, Justice John Paul Stevens asked, “when the government comes in with 117 counts?”

Last year, the New Orleans-based 5th U.S. Circuit Court of Appeals ruled against Yeager and two other ex-Enron executives, Joseph Hirko and Rex Shelby, whose cases also could be affected by the high court ruling.

The 5th Circuit said the acquittals would seem to prevent prosecutors from retrying Yeager, but it said it could not ignore that the same jury couldn’t decide the insider trading counts.

When discussion at the court Monday turned to whether jurors might have been confused, Stevens said, “The jury could not be as confused as the Court of Appeals.”

A decision is expected by late June.

The case is Yeager v. U.S., 08-67.

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