Rare Second Circuit Trial Reversal

This week we saw a rare Second Circuit reversal of a conviction after trial. In United States v. Cole, 23-7566 (2d Cir. October 27, 2025), Judge Carney, joined by judges Jacobs and Nardini, reversed on double jeopardy grounds Neil Cole's conviction for security fraud and related charges. Cole had been acquitted at his first trial of a securities fraud conspiracy but the jury was hung on related substantive charges. Cole argued that his retrial on the substantive charges was precluded by the protection against double jeopardy, arguing the jury, when it acquitted him of the conspiracy necessarily found he had not committed the substantive offenses (a jury's failure to reach a verdict on certain counts is considered of no relevance in analyzing a double jeopardy claim). The government presented two principal arguments that the conspiracy acquittal did not necessarily reflect the jury's finding that Cole had not committed the substantive offenses. The district court bought one of them and Cole was convicted at his retrial.

The Second Circuit reversed Cole's conviction and ordered that the indictment be dismissed, finding that the "issue preclusion" prong of double jeopardy forbade re-trial. Rejecting the government’s alternate theories, the court found that the jury’s conspiracy acquittal necessarily meant it rejected the government’s theory of prosecution relating to the substantive counts. In so holding, the court explained the appropriate analysis:

If our review establishes that the first jury necessarily decided an issue in the defendant’s favor, we proceed to the next step: ‘examin[ing] how that determination bears on the second case. Mespoulede, 597 F.2d at 333. If the first jury necessarily decided an issue that would be an “’essential element’ of the government’s case at the second trial, the government may be precluded entirely from retrying the defendant. Hicks, 5 F.4th at 275 (quoting Yeager, 557 U.S. at 123). Or, if the issue necessarily decided was relevant but not essential to the government’s case, the Double Jeopardy Clause may instead operate as an exclusionary rule: the government will be precluded from reintroducing evidence ‘for the specific purpose of proving conduct of which [the defendant] was previously acquitted.’ Zemlyansky, 908 F.3d at 13; see also Mespoulede, 587 F.2d at 333. Finally, where the government does not ‘seek to reuse . . . evidence for [that] specific purpose,’ the first verdict may have no effect on the second trial at all. Hicks, 5 F.4th at 277 (internal quotation marks omitted).  

Congratulations to Cole's appellate team, headed up by Alexandra A.E. Shapiro.