make them or help them reach a verdict and they simply couldn't and then not only did they not say not guilty they just simply left the verdict form blank the judge i guess what i'm asking is it seems to me from reading your your brief that you're saying that unless the district court makes a specific and uses the actual word mistrial in the statement without regard to the totality of the circumstance that means it's an automatic or implied acquittal and if so and i think we all understand that if there is an acquittal double jeopardy would apply but when there's been no decision no verdict on behalf of the jury and to be of there's only a box for guilty or not guilty and the and the jury does the exactly the same thing it doesn't check either box but that it comes down and checks guilty as to to be the lesser included offense so why don't we have the same inference with respect to the failure to answer to as we do with respect to paragraph one for two critical reasons your honor one is because the jury instruction told this question as applying to them so a the instructions told the jury they didn't need to hang to leave this blank and b we have no information from the jury that they are hung m i c m below the six minutes i'd like to  the jury deliberated over two days they announced they were hung after about four hours they received an allen charge they continued to deliberate deliberations apparently broke down to the point that one juror was being harassed by their fellow jurors so we knew there was a holdout at that point when the jury returns and declares itself deadlocked the court has no real alternative at that stage but to declare a mistrial and the court's presence don't require anything further at that point there is no need for further inquiry the jury has made claims that it is that law and a mistrial in that circumstance is totally appropriate with respect to the extent of the mistrial declaration as a matter of law there is no requirement that the court do anything say anything if you discharge a jury that has not reached a verdict that is a mistrial that has been clear since the supreme court's seminal decision in paris and in fact that's exactly what happened in pres the jury could not reach a verdict and they were discharged there was no declaration of anything and the supreme court held in those circumstances you can that's a manifest necessity wanting a new trial and that's a mistrial so the formula the court formulation of how it is occurring in this trial as to what counts is not controlling what is controlling is what the court did and the court this charge this jury that had not returned verdicts that is a mistrial with respect to the extent of the jurors deadlocked the defense is ignoring the instructions the court gave as to how to return a partial birth three times the jury was instructed that to return a partial  check not check the portions of the form about which you can unanimously agree and leave those or says in the form that you cannot unanimously agree black so those instructions taken together with the transition instruction for the lesser included when you read those two together it is clear that when the jury does not check a box in counts three dollars and six dollars for the greater offenses it is manifesting that is that that is exactly what the court told it to do the jury could really not have been much more clear on point and i understand that the court went and when you look at what the jury did when it returned its verdict it said it had reached a verdict on quote as the only natural way to read this record so even if the court were to find there was some ambiguity about what the transition instruction or allowed the judge when the jury was allowed to consider the lesser included which i would contend is one contrary to the language of instruction which i should note is the model instruction that the defendant proposed so the defense is now arguing that his proposed instruction somehow allowed the jury to do something it's not allowed to do that's unusual and to this court in caruthers construe this very instruction as allowing the jury to consider to move to the lesser only upon it that law so i don't think is really any dispute about what the jury and there's this is the briefing in this case prolix but at bottom this case can be decided by looking at the german the verdict form and a couple of pages a transcript about what the court instructed the jury to do about how to return  about that about the guilt findings on the two lesser included offenses yes so in effect the government has sort of a free a free shot here you you got this in the bag and you had to retry him on the other on the other things that is of the drugs and then it goes if you find the defendant guilty of the greater skip to be so you would know it and in the event the jury had convicted on the greater it would have been struck into the verdict form to skip the less so it would have blank but again we know that they were deadlocked because of the instructions especially the supplemental instructions so the record could have been more clear and that would be a good practice point going forward but i don't think it changes legally the effect of the verdict  exists truck of the jury that they can without hanging or equating turn to the lesser that's exactly the wording instruction there is nothing improper that and the i just understand the government's contention number two the obviously deadlocked on the greater as so easy there's no rock there's no hard place the court could easily have done that but it but returning to the government's other point about declaration a mistrial since the doctrine of applied consent doesn't it left it blank as they were instructed so now you're speculating as to what they meant by leaving it blank your honor i respectfully disagree we're not speculating because we don't we're saying we don't know what was in the jury's mind and it's the government's burden to we're saying the government is speculating and can't meet its burden by doing s