resolution on the merits of a charge an offense because the supreme court stated in the evans vs michigan a merits related ruling concludes proceedings absolutely and a primary purpose of the double jeopardy clause that water constitutes a final judgment on the merits and the government did not appeal this case is thus no different from the supreme court's decision in evans where the trial court directed a verdict on the ground that the state's evidence was legally insufficient to sustain a conviction based upon its erroneous addition of an element of the offense the council it seems to me the united states versus board might be a little closer to this case so many won't talk about it forward is a case which stands for the proposition that if a post conviction change in the law changes the legal standard of an element double jeopardy concerns do not preclude the government from retrying the defendant as to the same to retry him on a different double jeopardy would not have applied if it was to if the government sought to recharge or retry him on a different count but then i know that any different to this because in ford they were institution or someone who is a drug user if in ford the post conviction rule said that the defendant was no longer a felon under any circumstances and then the government sought to prove that he was a felon because he was an illegal drug but it didn't foreclose the ability of the government to actually prove that the defendant possessed a firearm with the prohibited status as a felon in fact that mr ford had other felony convictions and so in our case it's different there is absolutely way based on the elements as admitted and provided in the police meant that mr johnson could be convicted of a nine hundred and twenty four c if that's because the the allegation in this case the ones that were admitted to and specified in the specified a predicate of conspiracy to commit object robbery there is no way for the government to introduce new evidence to establish that the defendant was actually guilty of nine hundred and twenty four c based on press on that predicate the only thing that the government could do is substitute that predicate for a different predicate and that is analogous and then one hundred and twenty two g context for substituting one prohibited status for another and we know the government can't do that we know they can't do that because of this court's decision in the united states versus dunford in that case the defendant fell into two of those categories he was a convicted felon and he was also convicted of being an unlawful drug user and this court held that a person who was disqualified because possession of a firearm and then they either got an acquittal or a conviction the government could not then subsequently come back and prosecute him for being so you know the real drug isn't weakly in your argument is that there there was a determination by the district court on the merits that the defendant mr johnson could not be found guilty of not twenty forcing because of a change in the law that's you opinion in randle not because you've not been out terminations by anybody that he was guilty or innocent of this but this comes up the only determination is that this condo is no longer cannot be found guilty because it is not a federal crime that the elemental or the factual elements of the predicate offense as it met it in the police do not support the element of being a crime of violence the distinction the court is making is that if the district court makes a determination that there's as a matter of law that that's not an acquittal and happens versus michigan that's what the lower court said here the lower court said this is a question of law the district court made an error and add an extra element that's not an acquittal and the supreme court rejected that eight dollars to one dollar and they said essentially what that the district court did is made a determination as to culpability as to the offense of conviction and that's exactly what the  at as defined by what was in the plea agreement the offenses of conviction and the elements of those offenses include a specified predicate of conspiracy to commit object robbery and that is not sufficient to satisfy the element of the offense to use or brandishing a firearm during a crime of violence so you can characterize that as a matter of law you can characterize it as the admitted elements not supporting the element of nine hundred and twenty four see crime of violence substantive hobbs act robbery is a crime of violence that is not the offense specified in the plea agreements with which mr johnson pled guilty he pled guilty to nine hundred and twenty four dollars c based solely on conspiracy predicate and however error and i think that is an accurate characterization because we know the courts cannot simply switch short of coal in and out different predicates we know that when the government charges of defendant plead guilty to an offense with a specified predicate that is an ally critical element of the offense if the government were to come into a trial and present its evidence of conspiracy to commit object robbery and that just report word to give it to a jury and then that decision becomes final either because the government doesn't appeal or because this court affirms a district court's judgment of acquittal that is post verdict by a jury then that is subject to the bar of double jeopardy against someone saying that they're perhaps because they were no legal drug user and a felon and then in the plea agreement they drop one of those prohibited statuses this is exactly that same context and there's also a supreme court case the knobs which is also very analogous and which the government brought in indictment for an illegal gambling operation there were two theories of liability quartz betting and numbers betting the number of betting was dismissed because of an evidentiary issue i defended was convicted because he wasn't involved in worth betting and the government sought to bring back the charge of the illegal gambling operation based on the side of the number theory and the courts that know this is a single of facts and once the defendant was found not guilty of the gambling operation based on the original theory the government can come cannot come back with another theory of liability the same code so it means this is materially different and understand where you're going with the case here but really what we're struggling with what's with the deal is the issue of an acquittal versus a procedural dismissal and the political occurs when the evidence is insufficient or some other indications in a case that you cannot get criminal liability even though it's a crime they didn't present evidence to support the cram therefore acquittal that's not what you have here what you have it to st instance there's nothing they can produce to support this because it's not deals with the question of is this in fact a crime in it was does it meet a legal standard here and the answer is no so it looks like to me when you look at all would you look at cases like green and others that are here teo seems it seems to support it you know i think if you look at it in a holistic way it seems like it doesn't look right that you're being punished because you won't and that's really what it but it comes out to you what the road is you want this case midwest they come back with this and you said wait a minute how you do this we won and then you know you did you didn't want to deal with the fact you may have may end up worse than what you were in the in the whole process but from a legal perspective we're evidence the government did present was insufficient the cases that you just mentioned to teo and green are about procedural fairness the way that an element was described in a police colloquy or into tayo that defendant was unfairly co giving a plea that wasn't voluntary those are about the fairness of the proceedings that lead to conviction they are not about the viability of a conviction itself when you get to the viability of a conviction based on the sufficiency of the evidence or whether it is a crime at all there is a clear distinction between that and procedural fairness because mr johnson cannot be found guilty of the nine hundred and twenty four dollars c based on the conspiracy predicates he has essentially been found not insufficiency you don't say that when somebody did not commit an offense because there is no crime there was an acquittal that's just he's able to successfully vacate his guilty plea and then we're left with the question of does the government have a valid charge that they can pursue and this court's opinion in green i think is squarely on point and it decides this issue of the defendants  believe we know the use requires an act of employment that didn't happen in the case and so the defend it was able to get his guilty plea vacated because you couldn't base a conviction on  was satisfied that there was no double jeopardy parker and essentially the same thing is going on here well the problem is though that the and i can't sort of wondering why this didn't happen but holly figured it out they didn't and so it's similar to green and so far as the government ritually how to use and carry theory that justice and the use carry and just use theory and just went with terry essentially the creates distinct crimes and so it was a single single charge properly there and on the defense theory in this case the user is is the unit of prosecution or possess concluded that if you hand over drugs and get a gun you haven't got and so and robinson they said and why watson you can't government rely on that theory robinson and said well maybe the distinction between possess and further ants and using carry during a relation is two different crimes so maybe that church had two crimes that counted to be two separate crimes charged in that but it doesn't matter because the result eliminates any question about the unit or prosecution because now we have two distinct sect robberies two distinct uses and t bank robbery and there's the holiday inn express robbery under every theory of nine pick what you do with a conspiracy language and count seven and count nine so that just would be struck from the indictment just like has that been done well soon as we reinstated the charges but  and twenty four dollars c indictments to medan you would have you then you'd have another problem which is the alternative predicate problem if you put them both in there and so i would say this is very functionally similar to imagine if this case we had davis before the defendant pleaded guilty so the indictment was a turn davis came down and the government said we have a problem we have a conspiracy predicate in there that's not valid we would have then removed the conspiracy predicate from the indictment because there's two predicates and we don't have to have both in there in the case where the proceeded and the defendant would have pleaded guilty pleas guilty pleas are not the act of pleading guilty does not trigger an acquittal and so really what thirty dollars to ninety six dollars is doing what the government is doing here is putting ourselves in the position that we would have been and if we had had davis come so so so you you know you're presenting a pretty clear case and i want you to move me off of this kind of tantrum my mind is going to when i consider that when you made this indictment you made a choice you could go to the other way because we get another shot it let me aside and go to double jeopardy is there but there is something else in that scenario that is distasteful there's something to say because we're talking about going through the trial process and the government controls the charge and you choose you could have done this is not like is something new to that came up or you could have done both and it would have been an alternative and then once it goes due to the the deported to court except in it make the choice of which one and maybe you still could come back to the well we chose that we come back we since we brought it before it in all fairness he has notice of it we can go back and get the other one but this only all rises because the defendant was cysts in it and indicating it was not a crime of a valve sometimes later not because the government comes up with it but i'm just curious about that in terms of the fairness of it that you had this choice from the beginning that you could put this there is nothing that what would prevent you from doing it i don't know why you chose a may help your honor i hope on this court which is in the context of a clear cream and there is risk signed by both parties the way the law works is that the defendant ordinarily in many situations would view the plea agreement if morgan don't weigh future changes a lot now we make an exception for this type of claim to know the defendant was  exceptions but subject managers diction remains oh time just a way i view it because it's one thing to say procedurally something happened here you know you can't use this and can't do that but of those things since that's not a crime that he  guilty to because of the choice that the government made to charge it in that way for for him to go back to a situation that they could have used in the st instance which all smale sort of wrong that you don't get to sit back and do something that little room blows up because the court says it goes the other way and then you go back and redo it so that's the you know i get get your point but i don't i don't buy the part about it they the risk part about it because it's they don't they don't create the crime they don't they don't the defendant does not create the risk of the indictment you do you you you objection of something like that you couldn't a foresee or did not make that objection before the supreme court had he done it you know would have been a whole different ballgame would have been included and i know that's a waiver type thing but it seems to be some how do you then come back and say well i'm going to judge something different i mean respectfully on the points you're making just have no grounding in the double jeopardy clause but i understand that that's why i went somewhere different with it did you hear the eleven i mean do you i mean that sounds fundamentally something wrong but i gree with you in wiley's i fully understand the double jeopardy i think if we walk that path fully and i'm not saying we're going to otherwise i'm just curious that's sure i mean the double jeopardy issue is the only one before the court and we don't think that there is any other constitutional impediment prosecuting other defendant when the venue started out claiming the breach the very i think the double jeopardy plane probably doesn't prevails but the government just has to mean it's all the clearance here you with the cons for to begin with is there a reason why the government i thought you were on the way to explaining why just charge conspiracy maybe you can explain that to me sure i mean i'll give you the explanation i want to preface it by i don't think that ultimately it has a bearing on how this case turns out understand what you're saying didn't to predicates talked about two separate robberies which would support the idea of there being a distinct predicates here but the key point is for purposes of on those charges which remain valid charges and the defendant has essentially the parties have been restored to their original plea replete positions with the defendant having gotten the benefit of now the you know what did i say the last the list that thing to fall there were these series of cases about conspiracy convictions right right and two thousand and nine i'd i think it was a possible argument whether somebody would have stood up  really we didn't challenge his decision to vacate the guilty plea in the st instance because of the factual admissions but we haven't pursued that appeal and so it is the case comes to this court it's a there is nothing that judge hudson has has done that we disagree with ok and you don't espouse an alternative theory that i haven't comprehend it i don't think so i'm not sure i mean if your mother had a specific judge hudson was adjudicating a series of claims that go well beyond double jeopardy and double jeopardy is the only thing before this court so there isn't a need to delve into the contract based theories in this case from  cannot resulting acquittal the definition of acquittal or a st time acquittal can only occur by a jury verdict or a judge's ruling and the definition of an acquittal depends upon whether the basis for that ruling is substantive or procedural so into tale one of the government's principal cases and the defense conviction was vacated on collateral review and so the court didn't say well this is a vacated conviction or collateral view therefore it can trigger double jeopardy no it looked to the basis for why the conviction was vacated and it said the conviction was vacated because the defendant was coerced into engaging in a guilty plea and they said there is no distinction there's no difference between procedural on fairness on the road to a jury conviction and a procedural unfairness in a judge twisting the defendant's arm to plead guilty those are procedural errors that don't have to do with the substance of the charge and so what happens versus michigan says is that an acquittal in compassed is rulings that relate to substance and this one clearly does we know that the predicate that was charged  the plea agreement and admitted to is an element of the mind th see this is not a case where the defendant has admitted to elements that the government can completely bring back again and seek the same proof so  tyo the government can bring back the exact same elements the exact same charge and try to prosecute the defendant again based on the same elements that is not possible here because the substantive elements must change and that's because there was a substantive ruling by that just record in september of two thousand and nineteen that the defendant could not be found guilty of the nine hundred and twenty dollars fourth's the convictions and the reason that isn't a quibble is because it is a substantive ruling on the merits once you recognize or once we ask that the court recognizes that distinction which is squarely southworth in evans versus michigan then it is clear that there is double jeopardy protection if they're not barred by the statute of limitations if they're not precluded by the political realm and double jeopardy has nothing to say about those other charges it has everything to say with respect to nine hundred and twenty four dollars c charges based on the same same brandishing for which was the absolute basis for the district court's ruling in september of two thousand and nineteen it is the same nine hundred and twenty four dollars c in the same sense as in the th case for example if mr ford had no other felony convictions simmons comes out and says that he is not a felon what could the government do could they bring back at nine hundred and twenty two dollars g and say well he may not be a felon but he's a drug user and we're going to prosecute him this time for nine  based on a different status no they could not because dunford says that those are the that unit of prosecution is based upon the firearm the possession of the farm and not the status well the exact same case is true that same you score brandishing because the defendant has been effectively found not guilty of those offenses you cannot say that that is a procedural ruling or about the procedural fairness it is because the government as a substantive