A court may consider notations on a verdict form, other than surplusage, to clarify the jury’s intent and the effect of its verdict in deciding whether the defendant has been acquitted of a particular charge for double jeopardy purposes.

A jury returned a special verdict form stating defendant was not guilty of racketeering, but it qualified the finding with a notation saying “except as to the seven predicate acts upon which we could not reach unanimous agreement.” The prosecutor then indicted defendant in a second case alleging several of the predicate acts as discrete and independent offenses. Defendant argued the charges were barred by the prohibition against double jeopardy. The Ninth Circuit disagreed. Because the verdict form did not reflect a unanimous verdict of acquittal, but rather indicated the jury could not reach a unanimous verdict, retrial of these acts was not barred by double jeopardy. This principle does not apply where the court declares a mistrial due to the fact the jury cannot reach a unanimous verdict. The jury’s notation on the special verdict form indicated that was the case here.