if both parties consent so why isn't that exactly like nevada if you hadn't consented severance would have been required correct so my understanding of nevada law and just  right so i'm just english in virginia law from a state like nevada or a state like arkansas and turner that just simply demand severance and it's i don't know why that's not the same oh i think it is you think it is the same your honor so what i'm trying to say is is that in a state where the demand severance all agree even my opponents agree that issue preclusion would be available that's turner that's turner arguing or says that why is this any different i don't say it is ok i don't think it is and so the only question in this case though is whether the fact that virginia law as you say just sort of mine or allows both parties to agree to have a joint trial instead of the default of severance whether that makes a difference well what and we think want to sort of bracket this problem what about the jurisdiction like the u s courts where some are and says not required with says nothing about sovereigns i think there's some variance your honor across the federal courts but to take your question i don't know of one like take the model of the jurisdiction that says nothing about sufferance of this claim of charges like these we think the answer there would be the same as well but i would concede it would be a slightly harder case but the point in there are two distinct reasons why consenting to severance in this situation or even just as we do in the hypothetical you describe should not waive the right issue preclusion first the issue preclusion is a distinct right from the right against multiple trials and simply consenting to this case depending on how the state would set out to prove the gun charges in the second trial and i think this is brought out most clearly in the widick opinion the judge of course which then judge of course it's wrote for the tenth circuit and that opinion makes it very clear that what issue  provides is the right as the court put it there to be tried in a particular way and so in some circumstances like the ass case itself that is functionally going to bar the second trial but in other cases like to win a case there will be the opportunity for the government to go forward in the second trial and that alone defeats the other side's waiver argument because inconsistency is required for a waiver by conduct and that's the holding of jefferson all the other double jeopardy cases that are there is no issue preclus clause in the constitution there's the double jeopardy provision of the fifth amendment which says that no person shall be subject for the same offense to be twice put in jeopardy of life or limb and so isn't doesn't simply provide one definition of the same offense yes that's what the court said in jaeger and i think to bring that out a little more fully what judge friendly said in the kramer opinion  which we think is correct is when somebody is tried for technically a second crime but one which depends upon proving allegations the first jury necessarily rejected because it rose from the same transaction and the jury decided those issues against the prosecution then you are functionally being tried for the same offense but in jeffers the court held that when the second trial involves the same offense under the block murder tast and the defendant consents the second trial can go forward so why should it not follow that when the disbandment consensus in fact that is done and the second trial involves the same offense under ash th will should be the same well for two reasons justice alito the first is because at that level of generality i see your point but if you look at the specific right involved in jeffers the defendant requested two trials and then tried to stop the second trial so that is fundamentally taking inconsistent positions here mr currier simply consented to separate trials he didn't object to the second trial as such he just said you cannot try me in the second case by reproving  to prove allegations that rejected in the first wouldn't be odd to say that the defendant in jeffers has a lesser double jeopardy right when what he is asserting is consistent with what the double jeopardy clause was originally understood to mean whereas in a situation like this what the defendant is asserting is something that was developed by our cases in the modern era but was not what the double jeopardy clause was originally intended to mean so when the defendant is asserting the coo or double jeopardy right and says i want to second trial there can be a second trial but when the defendant is asserting this new the elaboration of the right there can't be a second trial core of the double jeopardy clause the right not to be tried again for something of which you've been acquitted and so what the court said in asking what judge friendly said in kramer before it was the core of the double jeopardy clause does indeed preclude re trials following acquittals and to have that guarantee that historical guarantee have meaning in modern times it needs to apply to the circumstances here mr bush first you had a second point you wanted to make and then i have a question thank you i wanted to hear your sank you going i'll get it on the table the second this is the second point to justice alito as well which is the competing interests and in a case like this as compared to jeffers are dramatically different and if i can give one more sentence on that the reason why is because here we're dealing with an acqui opposed to a conviction or simply a mistrial and on the other hand because we're dealing with an acquittal and because we're just imposing is super collusion the prosecution has a full and fair opportunity to prove all of the charges and so that's what's being taken away from the prosecution in cases like where the court says it's not fair but here the prosecution by definition has an opportunity to prove all of its allegations in the second trial was precluded only to the extent that the prosecution would try to retread that ground here's my question suppose that in this case the court had made very clear to your client the consequences of agreeing to sever and they would suppose that there had been some kind of colloquy in the court had said you know if you agreed to this one of the things you're agreeing to is that be you you won't be able to get issued because of the fact would that be perfectly fine well first of all justice kagan it would not be ok under virginia law but setting that part aside i think that would be a very different question for two reasons one is you have expressed waiver in that hypothetical with mr currier agreed to that procedure and here i think all agree this is a waiver by conduct hard so what you would please consult so what you would have there is an unconstitutional conditions question and i think the court those are very hard questions and depend very much on the facts i mean i guess the reason i ask this is because it seems to me that maybe the problem in this case has to do with the fact that people just don't know what the back ground rule is and that we could establish a background rule almost whichever way we establish the background rule and people would then be aware of the consequences going forward when they agree to sever well as i said if you separate the background rule in our favor i think everything is fine if you were  severance procedure that's a j forty seven and forty eight is sufficient but isn't that isn't doesn't that really set up the whip isn't that something like a waiver he doesn't agree well we don't think we don't think simply agreeing to what the state wants to have in the first place both is a matter of state law and the prosecutor in this case should saddle the defendant with waiver by conduct but if you think that if you're still not persuaded by that i would give you two other reasons like the of justice alito which is to say waiver by conduct to be established only by inconsistency of positions and there's no inconsistency in mr currier his positions and the equities or the competing interests are completely different than all the double jeopardy cases in which they find waiver it's important to recognize just as kennedy all the other side that deal with waiver or waiver by conduct or whatever the court calls it in those cases all deal with the right to multiple trials they all deal with people who were convicted or there was a mistrial they don't have a single case in the court has never held that the right to the precludes of effect would issue preclusion apply there is were so there are no cases from this court doing it by four cation the indiana amicus brief describes the fact that some states actually handle this situation by bifurcation and we think the outcome there in the rules there would be the same possession would double jeopardy bar the trial of the gun once there's been a conviction on the first charge on the robbery or the breaking and entering not if there's a conviction your honor but if there is an acquit yeager by the way it was the government who went to the defendant and said consent to or agree to the separate trials so my understanding is that during pretrial proceedings the government or inside the state the commonwealth really reached out to the defense and said looks like we have to sever in this case do you agree the defense said yes and so that's reflected as i said of pages forty seven and forty and it was just so we state that the full group clearly to have to happen joint trial both parties have to agree otherwise law and the sentence correct and that's clearly in hackney but i can return to i thought that under policy you're convicted on a count that is inconsistent with counsel in which you've been inconsistent manner we accept that verdict in all of its forms you know and the reason why is because the acquittal cannot be taken to establish any facts against the prosecution but what jaeger holds is that even in a circumstance where the prosecution bring us the what why is that because it's out of respect for the jury your honor that's the thread that runs through these cases than in powell the court said the jury might have been exercising mercy as its right and so we're not going to upset the acquittal any more they're going to upset the conviction and the prosecution brought all of its charges at once the jury came back with acquittals on some counts and hung on the other counties so that so the government tried to prosecute everything at once was unable to get a verdict out of the jury and some counts what the court said there is that when we can look at do is we'll just try both both of them together and the jury will hear all the evidence about the felony don't do you are you happy with what you wish for here justice kennedy that's not been the experience in states that have our rules so as we lay out and pay and are at a our reply brief florida in iowa or two states that have had a rule for decades and there's been no change in the way severance why that's i mean that's the part that was a very practical point when i'm a judge on the first circuit i would see in multiple party multiple you know gang cases and so who are one of the most common things was a defendant would appeal either saying he should have been severed he should have been severed if he wasn't or he shouldn't have been if he was and so forth very very calm and so what was worrying me is that the prosecution if we if we adopt something like you say and  defendant comes in and says i want to be severed here at least as to some of the counts the prosecutor thinks if i agree to that i don't know what's going to happen you know we'll get some kind of a verdict in this first case and all i know in the second case is that his lawyer is going to argue that there are various aspects of it that are inconsistent with going ahead with this and we're not going to go ahead with that it worse they'll be some appeals it's going to be a nightmare and the best thing for me to do is just say no and that is exactly what is worrying me and you have an alternative you can say treat the severance as if it were a single trial and just as you say he waived the double jeopardy matter when he appeals so you could say he waived it when he has for the second trial you know when he asked for the separate draw i have a problem with there is two to saying that the this is the problem i had with yours so i said well it has worked out that way in florida well as i said to the extent we haven't evidence that it supports my but why wouldn't even let me tell you to reason out just as prior so the first is remember why severance is is the default rule here in the first place it's because of the confounding influence that prior convictions have on a jury to reach accurate verdicts and prosecutors just like defense lawyers have a very strong interest in accurate verdicts out of criminal trials and secondly even from a resource management standpoint which sounds to me more like what you're thinking about here the prosecution may well agree to severance for a couple of reasons one is because if the prosecution gets a conviction the prosecution can choose to try its stronger claim first if the prosecution gets a conviction the prosecution would do just what the state suggested it was going to do here which is just never win i mean the claim hardly ever wins it's really left to the trial judge and so i call that we don't have a problem leaving severance decisions to trial judges according to the various rules across the country all we're saying is no i'm not of that is not i'm just so worried about this prosecutor who now is going to take the government's position against and throw in a very big trial with nineteen defendants some guy who happened to be on the corner you know and the jury isn't going to distinguish among them and see where i'm rooting for the justice breyer i don't think prosecutors are going to necessarily act that way because they have an interest in justice just like the defense does and secondly i think if they play it out in their minds if they get a conviction in the first case they're very likely to just drop the second case or if the second case is also important defense at that point is likely to plead because he's already been to trial on roughly the same a selfish or do we have a case th problem but i think you're also asking about same defendants let me just continue to play that out for you so you can even when the conviction happens it's going to be very unlikely that there's going to be a drain on resources or a problem remember  case is going to be very very rare as they are in criminal cases and you think when this will happen i'm sorry that i'll just finish my sentence when an acquittal happens the prosecution then they will drop the second charges but if the prosecution pushes ahead that's exactly what the double jeopardy clause is concerned ultimate fact against the prosecution and so when we have an acquittal like that which is what we had an acre and which was distinguished from the situation and powell and later distinguished bravo fernandez then that acquittal has issued reclusive effect in the court has never held to the contrary on those facts and that are clearly our facts here and it's clearly turner as well a case where the prosecution is forced to wait for its second case to be for the second counts to be tried but as soon as the jury comes back with the acquittal the double jeopardy clause and indeed the in what happens if you prevail why wouldn't a prosecution have the option then to try the feminine possession charge person sure we don't have a display the prosecution is the is the plaintiff and so the prosecution presumably can choose which conviction out in front of the jury i think then you might have a you might have a problem under state law and dealing with the prior convictions but in general justice kennedy remember this question is going to come up in scenarios that don't deal with prior convictions and this brings me back to justice alito is a question i think you know the other side's position here is not just that in a case like this issue preclusion wouldn't be available the other side's position i think leads inevitably to the conclusion that if there were a greater or lesser offense and the first trial was for the lesser offense and the defendant was purposes of this case justice ginsburg as as the court wrote in bravo fernandez you have to be careful in criminal cases when you decide what issues of ultimate fact the first jury decided because of the nature of general verdicts in criminal cases but as to the scope of issue preclusion once you establish what issues of ultimate fact were decided against the prosecution in the first case it's exactly the same rule is to ensure we confident that civil issue preclusion would apply in circumstances like these even in the civil context and one party consents to two trials may or may not apply in law the case if it's the same jury in bifurcated that he very well might not so what we do about that so let me say two things just as course it's first we looked as hard as we could and were only able to scrape out a few cases on the other published new york district resided what we found out the other side i don't think disputes you can ask them but i didn't take them to dispute our our representation based on civil law the civil side of things and also i'd point you to judge friendly's opinion in kramer were on page nine seventeen he surveys older cases from this court that are civil in those cases the peel cook case is why you green civil cases maybe wouldn't tell me if i'm wrong but in civil cases it's not a foregone conclusion issue preclusion would apply in these circumstances might be law of the case and it might be subject to some consideration about the defendant's consent and we see it you'd agree that your research should not prove that this would be obviously precluded even in a civil matter i'll just say our research on company limited authority to that effect so there's not a era where answer but we think it should apply for all the same reasons we'd be saying here but t in the criminal context under blockers it would be in the civil context music transaction test in the civil context and elements test in the criminal context we should be concerned that it's anomalous to be creating an issue preclu n for the competing interests i've mentioned and because of the lack of a consistency i can reserve my time thank you mcguire mr chief justice it may please the court difficult question presented in this case can be answered by applying the logic of three principles this court has already embraced first wanted to fit in agreed to have multiple trials he gives up his right to argue that the later absolute right to sentence so with their agreeing to what the law gives them i have three responses justice sotomayor the first is that the question presented the court in this case doesn't take account of virginia's specific law it's just whether when a defendant consen that picks the question but if the court does go beyond sort of the question we're going to look at virginia law and here are the facts in this case you can see this in the november twentieth twenty thirteen brief in support motion ltd a and the record here isn't fulsome on the point but this is from the defend the question and can you agree to give something up because you're going to be damaged if you don't if you do i mean why are you conditioning a defendant's right to separate trials on him giving up the prejudice argument of the joint truck with just the sort of my word title to a separate child why does he need to give it up also what gene has done is confer an extra benefit on criminal defendants in cases like this where they can have the choices that observance it's not a benefit it's a right well if it comes from it's an interpretation of a state judicial role of procedure by the court of appeal produce records never said that this is actually what is required as a matter of virginia law is what sense it's unsettled but it's a extra been oh there's no right to an appeal but we have said in the constitutional right to repeal you're entitled to it statutorily but we've said it's unfair hopson choice to force a defendant to give up his right to appeal to retain his double jeopardy rights well that's so why is it not  hobson's choice to be forced to give up the prejudice of a joint trial in order to retain the double jeopardy rights i think your honor is talking about green case there and so if we look at green what the court there said w before the appeal the appeal doesn't waive the acquittal that predates the appeal but the appeal which the conviction piece of that case here we don't think there's a hobson's choice at all because the court has always looked at the prejudice associated with prior felony status as a matter of eviden rules and so there's not a constitutional due process argument on the other state the state has made a different determination the state has said that presumptively these charges are prejudicial if they're trying to gather and we won't permit it well what hackney says ultimately is that the virginia wants to give extra protections to criminal defendants in this context to allow them to have control over the proceedings which is what this court has generally speaking with that's not true because gives not just the defendant but the state has the right if the defendant can do it by himself or herself the state has to agree to it as well well there's no suggestion in this case that the state would not have wanted a joint trial prior status was coming in anyway he may very well prefer to have a single trial and he could have brought that for to come will turn his attention and there's no sign that they would have said no to that procedure and so what we think under hackneys you look at what the defendant himself did here the defendant consented in the case with the defendant wants to have a joint trial by the commonwealth forces separate trials we wouldn't argue waiver by conduct in that case well mr i'm sorry complet and i keep trying to simplify and tell me what's wrong with this simplification let's take two examples or three example one of the defendant is accused of two crimes a and b he is tried first on a and acquitted then a few months later the prosecution decides to be now nobody objects to the two totally separate trials no nothing that this issue preclusion thing applies in the however it applauds i mean however it applies it applies and be set right that's right just ok now let's take example to example two is they decide to try both a and b in the same trial now here if he's found guilty of one even if it's totally inconsistent the verdict stands right that's right and the reason it's right is because this is in a sense allowing a little bit of jury nullification it we think well the jury thinks that's a fair thing to do ok you know if those are the two examples we have here example three it is a different jury but it once was not so since it is a different jury are reason for allowing the inconsistent verdicts in my example  longer exists this was not a jury that's all the whole thing it was a jury that only saw this case and therefore let him assert the double jeopardy whatever it is because our reason for not doing it isn't the but the in these three my three examples i just say is the reason for example one there in our case answer no so treated like two separate trials and by the way if the prosecutor has a problem you can always insist on a written waiver if the defendant really wants to separate trial all right so what's wrong with my examples so just as far i think your the way you approach that hypothetical is to bracket this case with the issue preclusion cases pal brother fernandez jaeger what we think the right set of cases for the court to look at in deciding issue here or the multiple trial right cases where that what you don't necessary look at the quell that came up in the middle of the trial what you ask for in the split proceedings here what you ask is the defendant take an act before the quill rose that presupposed he would have two trials and so here under inconsistent all the president on mistrials or motions to dismiss you have a case where the defendant agreed to have the prosecute degreed have t trials ever before he was acquitted and he necessarily undertook the risk only could mr bertram acquire i mean it's one thing to say as we've said many times that when you say i want to trials that what you've given up is the right to object about two trials right that really is inconsistent of year insisting on multiple trials or prefer in multiple trials then you can't assert you're right against multiple trials but that's not this case somebody can say i want to trials and still have it in his view that in that second trial normal issue preclusion principles will apply so sometimes that will prevent the second trial but sometimes it won't prevent the second trial because the government can prove its case another way and so there's no inconsistency of the kind that exists in claim preclusion in this kind of case is there well there is justice kagan because issue preclusion has to be understood as part of the three core protections on a double jeopardy clause and so the hypothetical that you spun out there suggests that it should be clear and does serve to bar only evidence in some cases and not necessarily preclude a trial to point to note that in none of this court's cases addressing the issue preclusion has that ever been the result well i don't i don't understand what that means to the solicitor general says that as well and it's brief and i didn't understand that either because surely the government doesn't mean that if the government couldn't prove their case another way the government could try to do so right i mean if the government could prove their case another way then the trial isn't barred right the trial goes forward with the government proven its case another way or we would say justice kagan is that just means  issue preclusion doesn't apply at all now case because an issue preclusion applies in the criminal context it serves only to bar the trial in dowling really is a good example of this dealing with for a for b identification evidence in that case the defendant had been or whatever you call it the point still stands that the defendant is in a position where it's perfectly consistent to say two things yes i would like to trials and in that second trial i expect that issue preclusion principles will apply that's very different from the kind of inconsistency that we've pointed out in the past where the government can't that where the person can say on the one hand i want two trials and say on the other hand i don't want two trials we'll just say i think we're maybe status or just little to try again to be a little bit clearer which is our position is that once the defendant says in that second trial i want to argue issue preclusion issue preclusion principles that apply to limit the government's theories issue occlusion doesn't do that and that this court has never held that to be the case in fact in the briefing  ash the briefs disclaim that they were ever asking the court for rule on that fashion so what we would say is that when you raise an issue preclusion when you say i want to raise that bar the choice to do something related to double jeopardy clause the only thing you can be saying is that the second trial cannot go residence or the faffed of the safe they could have called would and they say where were you on such and such a date such and such a time i was by the river and what were you doing i had a safe with guns and money and was were you by yourself petitioner was with me and what did he do when he took up the guns and he was possessing the guns they could have done that but i bet you have if they had done i don't think mr fischer would say that that would be ok i think he would say that would still be barred by issue preclusion and if that is the case and the defense understood at the time when they agreed to the second trial that the prosecution would not be able to prove the second offense in that way then i don't see why they didn't understand the consequences of agreeing to the second trial with respect issue preclusion to exactly the same extent as they understood the consequences with respect to a second trial in the jefferson to ation we think that's exactly right justice alito and it's also important to explain why having an evidentiary rule here would be problematic in a number of ways for example here one piece of evidence that comes a lot of a lot from my from on the other side is the cigarette but with the d n a that was found in the car and they say well that didn't get in the evidence in the first trial and but it was introduced at the second so in some senses and you're seeing the dry run problem but it's not clear why that evidence wouldn't come in anyway in the second trial it's not linked necessarily to the burglary it's just a cigarette butt in the truck and so it's not clear how this would actually work and practice to a very real degree but we do think that the court should just link issue preclusion directly with the multiple trial right in to one of the questions earlier it is not been understood generally as normal civil issue preclusion in this context and if you look at the various opinions including the judge or such as opinion and wig or kramer what you see are really two different strands of issue preclusion analysis that go on in federal courts and particular one is under the double we're not suggesting that the defendant needs to prove prosecutorial overreaching in order to assert issue preclusion but we think the best way to look at the concept in this case generally is the way johnson framed it which is that issue preclusion really applies where the state has made an effort to siriano and so where the defendant has the choice to consent and in fact does consent you don't have that situation the state isn't the one imposing the second trial on you as much as you have agreed to add that procedure and say the state in the constitution says shall not be subject to so so i mean can we do this which is the more i'm trying to get my hands on this case which is filled with complexity just say  look justice course it's us is question we're not certain we don't have to decide the contours of issue preclusion but isn't there enough agreement among the lower courts and this court that there is something to it in some cases and then say whatever that is were leaving it to you know to the research and so forth but whatever that is the question here is whether the doctrine in some form or other applies when there is the second trial as a result of the virginia law or as a result of the waiver or as a result of whatever can we just do that that's a question the court granites are sure our eye on just which the second the second one about whether or not when a defendant consents to sequential trials does that forego their right so we just answer that question period i europe and that's the easiest way to resolve this case and we think that the best the clearest articulation of the rule that underlies a lot of this court's double jeopardy precedent is that what the court wants is for the defendant to have as much control as possible over the way the course of proceedings will play out and so here virginia has given him the right to for severance and just to sort of more is right there is a particulars scenario he would have to want to go to a joint trial and if he wanted to do that then the comma what in the comma forced him into multiple trials we would not or you any sort of waiver there is we put out on brief there's good reasons why defendant might want one trial in a case like this one if he intends to testify or if he has some awareness of the evidence might come in under real world for b for example the jury is going to learn anyway and context of that first trial that he is a prior felony arrest some prior criminal history and so there's no benefit to  of having two trials so the only reason in a sense it looks unfair in this case is because he's already made some litigation decisions that he's not going to testify or that he doesn't think the evidence is going to come in that way and so once he's made some choices he's going didn't either have one  working now and as allowed this to come in to prove the felon in possession charge or he goes to two trials in which case our position is he's given up his right to argue that the second trial should be barred and i want to come back to one thing justice byron justice kennedy raised earlier there this case does present an example of the state doing more than the constitution requires in some sense this court has not said that introducing evidence of prior felony status is a constitutional violation and where you have the court of appeal of virginia interpreting a state judicial rule to have this severance package it wouldn't be a stretch to think that if that necessarily takes away the tunnels right to try to defend it for all of the charges that they have brought forward that the state supreme court could revisit that judicial interpretation retracted if defendants can't be seen as having given up their rights or you that the second trial is barred here i would also just like to know for the court that we also brief the issue of if the court finds that there was no waiver of the court could it go ahead and address whether the petitioner carried his  mr chief justice and may it please the court the double jeopardy clause provides defendants with a right against multiple trials for the same offense but it does not protect a defendant from the consequences of his voluntary litigation choices whereas here a defendant agrees to multiple trials on different charges in order to obtain a benefit he cannot thereafter argue that his charges are in fact one offense for purposes of the double jeopardy clause runs why not make sure that it actually is the defendant's choice i mean if it were that would be one thing so why isn't the best rule rule that says we're going to insist that some kind of colloquy takes place where the judge says to the defendant you know if you want these two trials here's the result of that you lose the ability to argue occlusion why isn't that the best way to think about this kind of problem so i think that's not the best way to think about this kind of problem your honor because the this court's cases do not generally think about the double jeopardy right in those terms so in dennett's for example this court specifically held that i defendant's claim that he did not knowing and intelligently wave his right to have argument is all about voluntary choices on the part of the defendant and you're essentially arguing a kind of waiver by conduct and what i'm suggesting is if this is you know if this is the way to think about this case is what is the defendant giving up when he agrees to a severance then the obvious answer is tell the defendant what the consequences are and ask him whether he's willing to suffer them better that might be one way to deal with the problem i think as justice  kennedy and justice for there were suggesting earlier if that is the way that is adopted it is likely that many states would choose not to go through that process because again this court has made very clear that the introduction of evidence of a defendant's prior convictions is itself a due process violation so severance is not required as a matter of federal law here and so i think if states are required to go through a knowing involuntary weaver process that then may i mean we think those waivers would be completely enforce i take my friends argument to be that they might not be in fact and so some defendants would in fact challenge those waivers and the state would be opening itself up on the back and to at least litigation and inefficiency that it does not need to open itself up to i also think that in this case the most logical way to have looked at this agreement ex ante would have been for the defendant to know that he was giving up his right to challenge the fact that these were held in one perceiving so you can look at this a few different we as i think one of them is to think that this agreement was made so that the evidence of petitioners prior felony convictions would not come in at the first trial but aside from that nothing in this agreement was meant to or did by by its term say that the other options for potential outcomes that would have been possible in one trial would be off the table so as some of the discussion earlier suggested had this happened in one trial or could have been convicted on all offens offenses or some mix thereof and nothing about saying i want to have two trials so that this other evidence doesn't come in logically suggest that he's retaining the option to keep one of those from happening but maybe the defendant understands the double jeopardy again i don't don't understand why in the absence of a colloquy and given the backdrop of double jeopardy law that focuses so much on not doing anything that's inconsistent with acquittals the defendant would of course to invoke and what is he trying to invoke now and i think that what this agreement said was that i'm going to have multiple trials and so what the double jeopardy clause protects is multiple against is multiple trials for the same offense  when petitioner made that agreement he was essentially saying i'm not going to fight later about this is one of whether what this is one offense or multiple what then you're saying with the you when you say the double jeopardy clause protects multiple trials for the same offense that's one thing but the double jeopardy cla e protects and another thing that the double jeopardy clause protects and this is the difference between the claim preclusion aspect of it and the issue book luzhin aspect of it is the preservation of acquittals and that's what is involved in this case s particular claim he cannot the government cannot appeal there cannot be another trial everyone agrees that's being respected here the second way that this court's decisions and the double jeopardy clause protect acquittals is by modifying the definition of the same offense for purposes of the multiple analysis so what the way that we give finality to an acquittal is by saying that in fact that acquitted offense was the same offense as another offense that is technically distinct for charging purposes and in this case when try a person for robbing one person and then try the second crime which is not technically distinct is distinct completely there are different people involved you don't let you try that second person that second climb that you've been acquitted that's correct justice sotomayor and the reason why we don't allow you to try that second acquittal are that second offense is because for purposes of the double jeopardy clause and for purposes of how we define the same offense we say that in those circumstances just as in berger we say that sometimes things that are technically distinct meaning there in different code sections are the same offense because they have overlapping elements here we say were what he were arguing he could not go forward so what's the difference that is it's i misspoke it's issue preclusion that's how we prevent the government from prosecuting the second poker player robbery ok yes defense in the first case was i was in chicago at the cot the jury accepted it ok now we're into the second case and he was just as much in chicago right now you're saying he waived that when the only difference is that you separated the trial that's all they started trying both together and now it's separate that it ends up to separate trials and what i think i'm having trouble grasping is why you should treat that any differently and now your argument is because he's waived it by conduct so justice kagan says hey he's waived it by conduct let's just be sure he waived it let him waive it expressly if he wants to waive it because after all the constitution says no person shall be held you know for jeopardy twice or whatever it is and now we yeah ok you get the point yes you got to harry's waving a constitutional right and therefore why shouldn't  express and that's that was where i think i stop because i want to know your answer certainly just as prior so my answer is that the same argument could have been made and i think in fact was made in jeffers that essentially in je defendant said i want to be tried separately and then later he said well actually this is a lesser included offense and a greater offense and that under this court's precedent now means that i was actually charged with one offense and so i should have had one trial and this court said no when you made the agreement to have two separate trials you should have said at that point that these might be the same offense and actually i want to have one trial the court said if there is a right in the background under the double jeopardy clause it is the defendants to invoke and for that reason i think that the same logic would apply prosecutor answer so if the defendant says i will not leave and i want separate trials i think then the prosecution and the court would have to decide sort of what what happens going forward and the thank you i think i heard two separate ways to look at this case now we're on to respond to each of them so my friend from virginia in particular would just call it crude justice kagan says the only way issue preclusion works is that you invoke it at the outset of the second trial and if you cannot bar the second trial at that point it drops away and if the right is gone and if that is correct then judge then judge of course it is opinion for the tenth circuit and wittig and all other eight circuits we cite in footnote two of our reply brief across the federal court system that all understand issue preclusion to depend on what happens in the second trial and to only bar a particular way of trying the case and most importantly as judge gorsuch put it for the tenth circuit to we sometimes force courts to think perhaps yes justice alito and so i want to be clear about that all we're arguing is that they cannot try the second case any manner that would make mr currier an eight or a better or participant in the breaking entering of which the jury the jury convicted him and so that would be a question of virginia law whether the bad stuff down by the river would have satisfied that what i'm with you not why would it not it proves all the elements of the fans well the way the jury instructions were laid out in in the case that said participate in some way in the crimes of breaking and entering and the theft and so whether handling the guns down by the river later would be participating in some way and that would be an argument the parties could have but the crucial point justice alito in my crucial point to the whole court is that issue preclusion does not necessarily bar a second trial and the other side doesn't dispute that the test is inconsistency and it simply cannot be inconsistent if the government is right then when it goes wrong and all the other cases across the federal what you've just that i don't want to belabor the point but it does seem to me inconsistent with the second circuit's opinion in cramer that you rely on pretty heavily i'll just say not at all i just urge the court to reread that opinion where exactly on all fours with that and i did read it and if you add it down would have proven the  second offense without making any reference to what had happened in the other in the other offense which is why i judge friendly does not bar a second trial and send certain cases back for retrial with the government simply not being able to introduce certain evidence so as to push what's your second point thank you thank you m y second point is that the other thing to look at particular this is their general the argument they make is that the government has a right so to speak to try all of its counts it wants just like in powell and so my answer to that is that argument simply is exactly the same argument the court rejected in younger and younger the court said if the government comes forward and says we want to try all these counts of it then through no fault of its own is only able to reach a verdict on particular counts but a jury comes back in a quits in a manner that we can say resolve certain issues of ultimate fact against the prosecution the square holding of yegor which is rejects the exact argument you just heard because that issue preclusion applies in those circumstances and there's a good reason why it applies one way to think about the issue preclusion and the courts hold double jeopardy  that we've been talking about today is to let the defendant have a fair trial and not be tried twice to the same thing but also to allow the prosecution one full and fair opportunity to prove all of its allegations and so in all the jeffers style cases that's what the prosecution would be deprived of and why the court has not allowed the double jeopardy clause to be invoked in this case just like in the egg or the only thing that's being prevented is the prosecution having a second bite at the apple as to particular allegations you can even i just return to my colleague justice alito when i to clude it can even allow the second trial to go forward just simply in a manner that doesn't allow the prosecution functionally to try the defendant for the same offense twice and so if you believe the postulates to inconsistency is the test if there's any more questions i'm happy to answer them thank you counsel the case is submitted