please the court andrew parnes appearing on behalf of richard hoyle helen in this matter this case revolves around the verdict that was returned in this case and whether that was a verdict and a unanimous agreement on the jury's indication of not guilty or whether as the lower district court felt that there was a hung jury on the racketeering charge what what transpired in this case is that the jury that mr hoyle was charged with a number of predicate acts as the substance of it of a racketeering charge and the jury came back and indicated after a number of days of deliberation and several hours over those days that they were hung on a number of predicate acts they never said to the jury to the judge were hung on the racketeering charge it's simply said we could not reach one thing the trial court judge wanted to preserve or make sure happened was he wanted to preserve the jury's verdict on those counts where they agree is not right well he wanted to do that but that was he didn't he didn't want the whole fill out the verdict form is what he told the jurors and you don't really have to go through far behind this verdict form to see that the jury basically said we can't agree on these predicate af and their answer through for the first question one any seems to be consistent no absolutely there's no i don't disagree that there was not that there was there was no i why isn't this just why isn't  decided that we cannot agree on the predicate acts but we have to reach the other issues the other elements of racketeering racketeering is not defined simply as finding the defendant guilty of two predicate acts there are other elements and the jury may well have decided that the other elements are there but they were concerned that they had to answer and decide all of the predicate acts that they agreed upon or not and then they came back and said in count b they mark you know that they are not two incidents of of racketeering and they then went through with the judge instructed them to mark that but the judge didn't then at the time say ok if you are hung on the predicate acts then you are hung on the racketeering he said let's get the verdicts on all the counts when they came back the jury had written you know had basically checked not before the verdict forms completed the attorney asked for a mistrial the judge says no let's see what the verdict form says once the verdict form comes back the trial judge on on his own says i'm inclined to grant him not guilty enter into a judgment of not guilty on this form but i'll let the attorney general who's trying the case i'll let you do that it was late at night i'll let you come back and argue with some other time if you want and he asked for more time at that point enter the judgment that's what the court should have done and for double jeopardy purposes it doesn't matter whether the court entered the judgment or not if the verdict is not guilty so that what was happening and what transpired certainly ignore it i think it has it i think that's what you look at what happened in the proceedings and and while they were just on a lark i think that that what what has to happen is that the court has to ignore it basically and say there are other bases on which they could have returned a not guilty verdict as well but if you just look at the exchange that took place in the courtroom why would you do that will be because the exchange went over the predicate acts and the predi acts are not the only elements of the offense and so the jury could have returned a not guilty verdict well based on what element based on what element under your theory well on the element that it wasn't a continuing pattern on the element you know whether there was a pattern before those other seventy predicates were decided well because if the jury wasn't agreed on that then they wouldn't really be able to address whether there was a certainly that the verdict forms in to indicate that but we don't know and that's the the difficulty in terms of in trying to go back underneath what the verdict form says that's the real problem and and the cases extol versus merge o count one that was charged the jury didn't have to reach count counts three and five the other counts they were a subset of that and in fact they were instructed probably not to and they and they answered anyway not guilty at that point the judge didn't even in in court acknowledge that that was a verdict of the jury yet one on appeal when count one was reversed those those not guilty verdict stood and so i think that was a different i was on that panel that decided that case and there was no language by the jury at all applied actually there was no qualifying language and i think that there are no other cases where there qualifying language that affects the not in this case the real question is whether or not he was acquitted on those counts upon which he faced three trial and those are five of the seven predicate acts on which the jury clearly indicated on the verdict form that they could not agree instruction number thirteen and then instruction is and is not in the excerpts of record but it is in the district court lodging at age twelve and i do have copies of the court is interested in it but it says each remaining count in the indictment and each verdict form and why the verdict form is struck the way it is because it asks immediately preceding the predicate act check your proprium box reflect your verdict with respect to each of the following predicate acts and then they have a choice of guilty or not guilty so you're telling us that in the complaint or in the know whatever it was that initiated this criminal proceeding and in idaho district court that each one of these pre is charged is a separate count well it was not designated as a count but they were listed out separately and i and i'm not sure that it's constitutionally significant in this case that it was not you know it's no whether or not you can be nice to be on notice whether or not you were charged five transcript from proceedings i think on the motion for this trial and counsel says in their defense counsel says and if that page is sixty five starting at page sixty five forty lesser included offense and the jury kind of quit on the greater i thought the law was just cool so that that if the if you're acquitted of the man can and i think that's just in a general verdict where there is no other listing of other lesser included what you could  know i did not understand that to be the argument you presented in your brief well it's i don't think it's inconsistent with the argument that i present in my brief but it was something that occurred to me in the reply brief that the  was arguing that he was not charged but a different way of looking at this and there may be some is that you know some i don't want to say you know me some potential to that argument but i didn't understand your grief to be making the effort to cure argument and i the discussion that came about before the verdict was brought out by the jury is that the jury did not acquit him on the racketeering as indicated in their language because they could not reach an agreement as to predicate acts therefore they could not decide whether it was there was a two predicate predicate acts that would have to be found in order to convict on that and on the verdict form also they didn't respond to the incidents of racketeering con in question one c and then also that qualifying language and the fact that this is what the hang up was rather than some other elements in one deal where it says considering your answer to the foregoing questions under the heading county and considering all the other required elements of the crime of racketeering that language along with the other instructions that say and i think it's instruction number fifteen that say if you can't agree on all of the elements you have to find him not guilty in which case they could have just found him not guilty without having to write in the qualifying language as to the ok so why do you suppose they plead not guilty in there i think they put it in there because they and maybe that's this response of your question your honor which is on page eighty five the of the appellant excerpts of record which is and i don't know if you're reading from the actual instruction of the jury or the beginning i was reading from the transcript there's just there's actually two discussions one in the very beginning when the court's talking to issue of whether or not there i have not been able to find any precedent on a not guilty verdict there's a lot of precedent on when you find guilty and you write stuff and you may be able to interpret it mean you see doesn't matter sometimes it does the court maybe should have done different things in this case and asked a jury what did they mean but the bottom line is it's not guilty the sanctity of a not guilty plea is really what's at issue here going behind it to try and interpret what they did how they answered the question which was ignore everything that's not guilty do we def not let the law say as you well i think there are there are and there are i can plenty of cases that they are not guilty verdict i know my time over to answer that question i think looking at the state cases from california that i cited gives an insight into that inconsistent not guilty of murder but the finding that the that you read of murder with second degree that seems how do you do that and the it's not guilty of murder we don't hear that they found a second degree in special circumstances case not guilty of the murder but fealty of a finding that that the murder was committed in the in the commission of a robbery and  kidnapping inconsistent if you wanted to interpret that you'd say well wait a minute they found him guilty but they were reality and in the california cases which i've cited in my briefs and and coming from interpretations of supreme court cases