we'll hear argument first this morning in case fifteen five thirty seven bravo fernandez and martinez maldonado vs the united states is what thank you mr chief justice and may it please the court for three reasons acquittals should have full effect under the double jeopardy clause without regard to invalid vacated convictions first vacated convictions are legal including under the double jeopardy clause second vacated convictions are not relevant to what a jury necessarily decided and third the government should bear the consequences when overlapping charges convictions that assad government can retry the count that had been set aside on the ground that under versus when the verdict on the other count was just a real one that's right so we all of the defendant always has to meet the burden counts so closely intertwined with six six six so that you can't say the jury decided most likely on some issue that's irrelevant as the key to the right the only issue the only issue that was in dispute was whether there was a bribe there's no dispute that to get to las vegas from predator rico you have to travel there was no dispute that they agreed to go to a boxing match together so the only dispute at all was whether there was a bribe and so when the jury acquitted on conspiracy and travel to commit program section sixty six bribery they necessarily decided there was no bribery now the court of appeals did not hold that it was just but titian's argument throughout the case a point that the government has never and it's i think under gager and under the double jeopardy clause is this court for the first time in the history of its jurisprudence going to give any meaning to or relevance to invalid conviction you have never held an invalid conviction was relevant to our evidence of anything justice ginsburg and let me just suggest the last place that you should start is to double jeopardy clause where illegal invalid vacated convictions have always been legal knowledge he's missed but it does seem to me that that's what your argument rests on in the end the idea that we shouldn't give any weight or any influence to an invalid conviction is is that a double jeopardy principle or does it come from someplace else but of so we have our main i would call it our legal argument is just that vacated convictions are legal knowledge is void ab initio you pretend that they just don't exist yes why do we do that i mean i take it you have you know usually you do pretend that they don't exist there are not many instances that we can find where we do look to vacated convictions for something or other but in this case the vacated conviction surely does tell us something about what the jury did do or what the jury didn't do its part of the factual picture and so the question has to be notwithstanding that why shouldn't we look at it and i guess the why welp so again there's the legal argument which i do want to get back to but on the factual argument and jaeger it was never disputed and it was beyond obvious that a jury that is quids cannot rationally hang there is historical fact and the dissent was all up in arms that the jury decisions were completely inconsistent and it was at least relevant under for a while and that the jury if it was going to acquit it could not have hung and the court said i think three things but the most and i think as a factual matter you don't know what a jury decides when there's in a legal conviction just like a hung count which a jury doesn't decide anything in a hung count that's what the court said you know i think you're contesting the premise of my question because the premise of my question is that this vacated conviction does tell you something about what the jury did know what it tells you is that the jury did inconsistent things because the vacated conviction tells you that on the one hand valid convictions the jury said  there was not bribery on the other hand the vacated conviction the jury said that there was bribery and let's assume for the moment that that's true that that is exactly what the vacated convictions tell you that they tell you that the jury went into inconsistent ways right and now you're saying notwithstanding that the vacated conviction tells you something about what the jury did or didn't do about how the jury reasoned we shouldn't look at it and there's something very powerful in your statement but i guess what i'm trying to figure out is that anything more than rhetoric is there any legal principle here about why we shouldn't look to vacated convictions to tell us something about the facts when they can tell us something about the facts let me prove it to you i mean i'm happy to prove it that the only reason you vacate a conviction is because a conviction is a worthless piece of paper and unreliable and looking how an error inversely affects acquittals and convictions proves the point because whereas errors render the conviction completely worthless and unreliable an error in the face of a it all has the opposite effect of making the acquittal all that more meaningful reliable and worthy ever special that really answers the question because the vacated conviction may be worthless for a reason that is irrelevant to the point that justice kagan was making which seems to be the situation here it's it's a dispute this is the government's whole argument as jaeger all that mattered was there was no jury decision and the only reason why you care about jury decisions but the case was the jury didn't reach any decision here  position is if the court had directed a verdict and said you must find guilty and the jury both acquit and convict you still have a piece of relevant information that the jury acted in consistency and inconsistently and what i'm trying to say about a jury verdict is that it doesn't count in our legal system unless it's imbued with finale as a little bit true when you can have a set aside of a verdict that's independent of the jury charge you can have a situation like in the state of michigan nothing to do with the nature of the charge why would you say in that situation we should be ignoring so i think for areas like forever and gonzales lopez right to counsel and a few other kind of nutty structural errors where the court has never said that prejudicial but we're going to treat it as such because you can't unwind the apple cart but for all other errors including bias judge absence of counsel you know the brady violation a directed verdict a reasonable doubt instruction they are prejudicial and when a what do they have to do to impeach the consistent act of the ok so what exactly what they had to do in the agere because in the other reason that jaeger held that hung counts were not relevant is because they were  indecipherable and this part is key it is because their indecipherable the defendant can't be put to the impossible burden of reconciling him with the acquittal even though they may be reconcilable in ways that don't undermine the acquittal and vacation vacated convictions of the same and let me explain why the instructional error because of it no one knows and no one can know why the jury convicted and therefore the defendant should not be put in the impossible burn of explaining  that the consistency that the inconsistency is in on a point that's not relevant to the acquittals and so here's the example we gave in the brief is that all twelve jurors and this is a this is the point of the in can see the error itself causing the inconsistency all twelve jurors could have thought petitioners were not guilty of a crime of a quid pro quo exchange and the only inconsistency the only inconsistency is they were divided on whether there was a lawful gratuity and so in that case it's completely possible that the verdicts are consistent on the only relevant question is something we don't we don't know when the sat hope point i mean well exactly except you have the burden as i understand it under the law of  carrying the burden of indicating the double jeopardy violation and if you don't know you can't carry that burden so unlike when to quit on this is just gager all over again yeager said weak because you can't ask the jury what transpired in the courtroom the burden is not on the defendant to reconcile it you know when you have a final invalid jury verdict mr chief justice what the jury found and that's the only reason that final and valid jury verdicts had ever have ever counted under our system at all without an alibi i don't understand what you're saying we don't know why the jury convicted on six six six is convicted because evidence was over with well it convicted on a six six six on a charge that allowed it to convict based on completely lawful conduct so if the jury the evidence could have been overwhelming i understand there was an instructional honor but we know why the jury convicted no the jury could have conflict because under because of the erroneous instruction they've clearly found the facts of a violation or all of the factual elements of the government started were found to be true under the wrong under something that's not a crime if they had charged the jury that if the defendant were wearing glasses they committed a crime in the jury returns a guilty verdict you shouldn't care you can't just say well it would have had to find which would be inconsistent with finding so it's actually inverse to convict all the jury had to do was find one out of two possibilities the jury could have convicted either if they found a lawful gratuity or an unlawful bribe but to acquit just as the jury had to reject and consider all of the government's theories of criminal liability so you know the acquittals there's no way to wreck there's no way to read them other than the jury acquitted petitioners of a crime what about the question that i asked you before if we're trying to find out what this jury did isn't it a reasonable assumption that they convicted on the bribery for which they with much evidence they too want that having that compound crimes conspiracy in the travel was just laying it on to it so they were and can convict on those but i think i no conflict because there was no decision here it doesn't decide anything right is jury we know did this on them we know the jury decided something that is completely irrelevant we know the jury decided something that the law fin anathema we know the jury found that petitioners may have committed lawful conduct there is a reason why this court has never ever ever treated an invalid conviction of evidence or route are relevant to anything if the court had directed a verdict of guilty i would just be astonished if you were saying well we know they convicted we know they found him guilty under your argument the trial court good instructor the jury if you find guilt on six six six and if you find that there was travel you must find that there was guilt under the travel section as well that's which is that i'm actually that one i'm lost on what you're asking sorry well you're saying in answer to justice ginsburg question that the jury position works no matter what kind of area you have when you have an acquittal but i think that's an improper instruction it is an improper instruction and the question is is if the instruction is prejudicial in a way that renders the decision not final and valid it can't be any more relevant evidence than the jury's just refusal to find anything and it's kind of like give you an example if i say i need a car and you give me one without any brakes or steering wheel is not that helpful and here you just have something on its face that's invalid on its face it's a worthless piece of paper it's never been recognized of anything and i do think i'll get back to my legal argument because the factual argument doesn't seem to be moving you on the legal argument is the only reason i'm even here the only ways we're here and that these vacated convictions don't themselves bar retrial under the double jeopardy clause is because this court has over and over and over called them complete knowledge well maybe one way i can figure out the scope of your argument is just to ask do you think that the government is always able to use a vacated conviction that is for any purpose or do you think that the government is unable to use a vacated conviction only for double jeopardy purposes that this court has never used to vacate a conviction for any purpose period yeah yeah you have the history on your side most of it do you think that that's because the government you know cannot use a vacated conviction for any purpose yes i mean since blackstone no sixteen hundreds it was it's what it meant it's void ab initio it disappears isn't a double jeopardy argument this is a something else but what is it what is the something else why punished for a vacated conviction but the question is can we use what the vacated conviction tells us about a historical fact or can we use it for some other purpose that you know that i'm not thinking about right now but it but that's you know what's what part of the constitution and we're looking to tell us that just because i'm not going to let gager go like this i mean there is historical fact of the hung jury and the entire government brief and the entire dissent is there not reconcilable it's you just can't ignore reality that's  well except that i am saying gager does defeat what you're saying but on the void ab initio there's a reason that invalid convictions are void ab initio i don't want to leave the double jeopardy clause is if they're the government wants it's cake and eat it eat it too it wants to curs so surely they can be used to prove it historical fact for example suppose there's a case in which of the process in which there the question is whether a witness who testified for the prosecution was bribed surely the conviction could be used in that situation right i guarantee you if that testimony was struck from the record it's gone it disappeared and here that's what we're talking about no i that if there's a retrial in a vacated conviction that you can't use the testimony that was solicited during that conviction that was bribed and the court struck from the record and they say the government wants to introduce bribe prosecuted for perjury oh yes sorry yes absolutely our question is then and then his point that follow this conviction can be used for some things you're not using the conviction you're using the witnesses testimony you can use that's introduced in an invalid conviction for other purposes the question is are you the only thing we're talking about is the verdict on its face that's invalid the same way if you had said you can convict on proprietors of the evidence it's just the piece of paper that the government's relying on and saying the jury necessarily found guilt it's not guilt in a way that the law recognizes but i do think there is something quite unseemly about when the court and yegor said if you have the can to if hung counts are void and a nonevent under the continuing jeopardy principle they're also void and not events under ash and here the government has it well they've got a cabin at least converse on thing what it helps us and it's not only rendering the cla incoherent but kind of perverse well but the basic point that was made in yeager over and over again is that when the jury is hung the jury hasn't done anything so the defendant in that case was able to carry the burden that the jury hasn't done anything so we're right back to the typical ash case but this is very very different now what you're saying and the way you phrased it is i think significant you said well what do we know we know the jury might have done this well that means you don't know what the jury did and again it seems to me that i guess everybody agrees it's the defendant's burden and it's different than a hung jury hung jury the jury hasn't done anything when there's a conviction the jury has done something they may have done something under  or they may have done something under the correct understanding of the law but either way i don't know that you can put that much reliance on you i think i mean what argument does depend on as that that the reason why the court cares about jury verdicts is because they come with the stamp of finale invalidity and let me look at let's look at pau power as a case where you had a valid conviction and a valid acquittal it was basically apples and apples and this case is apples and rotten apples and if you can't use even a valid verdict to impeach another verdict you sure shouldn't be able to use an invalid verdict either it's just that is what jaeger said that power means acquittals can't be undermined by travel offense or or the conspiracy offense so it's not at the you're not right to say that equivalence don't count yes they do and that was a very argument made by you know the government and jaeger is who cares about the acquittals because they're going to count but the court said no to really count you have to have the full if it was not on the other side and if you say one hundred the jury says we can't decide right and i think a rotten apple is worse then you know the orange and yeager you basically had an apple and orange here you have something that is infected with reversible error and just the irony that it is never been counted by this court an error had nothing to do with the in can to guess that it could have it definitely could have it could have caused an inconsistency but it was precisely because we can't know the defendant could never meet the burden of reconciling the with the one counts and that was what your was saying is sure the defendant has the burden but we're not going to give them the impossible burden of explaining what the jury acquitted what were they doing hanging no one could ever reconcile that imponderable it was a complete inconsistency and the court said think an invalid verdict on a legally irrelevant question is worse than no decision at all to get the government's position is the jury can convict it sure was a course confession that withheld the crucial confession of the real killer they didn't have a lawyer but it's a  piece of paper they unanimously found him guilty oh and there was a preponderance of the evidence instruction to you but it sure says it has a lot of meaning to us because it's evidence of inconsistency and it's just in the jury acquits and you say oh well that's just an acquittal ok well they can't retry him acquittals i mean the acquittal has to mean something under ash more than just you know the jury you have to assume that the jury necessarily found him not guilty of the elements that is the supposition of this case and you're  yes yes yes yes and the point i'm making about once you have the acquittal is that and i do think this was going on and jaeger because the whole point the government's brief is we get one complete opportunity yeah i know it's a let's pretend it's not really an elegy here but at least we need one complete opportunity and there were a lot of questions about why should the principles of ash outweigh and the answer was because of sort of the special status acquittals have their sacrosanct the court has said they're on a saleability is the most fundamental rule in the history of double jeopardy law and the primary purpose of the clause is to protect their integrity and the court said the fact you've already got an acquittal after running the gauntlet and staring down the barrel of the government's gun and here was really a firing squad that should count for something it should count for barring retrial instead of permitting it and because acquittals are so special our position is the government should give you something pretty good if they're going to impeach it and if the hunk out non decisions weren't good enough in jaeger it's hard to see how you know the rotten infected apple with a worm should be good enough here and i reserve  mr chief justice and may it please the court the most essential prerequisites for applying collateral estoppel is that the jury must have actually decided an issue in the defendant's favor and that prerequisite isn't satisfied here petitioners jury returned inconsistent verdicts convicting them of the standalone bribery offense that they're seeking to preclude the litigation of now but also equating them of advances involving bribery as a predicate and it's understood that those verdicts cannot be reconciled the indisputably inconsistent because of that we know that error occurred and that the jurors must have neglected to follow their instructions with respect to that count because of that this case falls within powers recognition that when a jury issues know because in that situation there would be nothing in the record to indicate that the jury had done anything other than follow their instructions apply a lot of fact and make factual findings in the defendant's paper but the situation is different when the jury returns inconsistent burdick's because there we have conclusive evidence that something went wrong the jury erred it wasn't following its instructions and so when the charges are brought at the same time as they were here and the jury acts inconsistently we lack that confidence that the acquittal i actually a reflection of findings in the defendant's favor you agree with mr black's statement that the government has never before sought to gain a benefit from a vacated conviction well i think that it's important to separate out the use of the vacated conviction it's certainly the case that a vacated conviction can't be used to establish the defendant's guilt of that charge the fact that the conviction is vacated forecloses reliance on the conviction for that purpose but we're not relying on the conviction for that purpose here we're looking at it to establish only the jury's inconsistency that's a historical fact it's a matter on this historical record that actually occurred what other purpose could you use vacated conviction for is there anything else that the government can use a vacated conviction for or is this the only thing i think you can use it to to establish any kind of historical fact when that's the purpose to which the conviction is being put and we cite a number of lower court cases that look at vacated convictions to establish things like motive for a for a subsequent crime  establish the defendant's plan or intent so there are situations where it's really the existence of the conviction that tells us something about what actually happened with facts on the ground that i think the conviction is relevant for a party use it in a civil case to impose a civil liability so well you know the jury obviously found that you did this there was an instruction on the criminal aspect that didn't but you did this act and that's collateral think that actually points up petitioners primary argument here which is to focus on what the conviction necessarily established and that's not actually the correct focal point of this inquiry because we're not the ones trying to rely on the conviction to collaterally to stop petitioners from doing favor but you don't know based on the conviction you don't know that the verdicts are inconsistent but you know just it's the same problem i was raising with your friend on the other side which you know is they might be and so it seems to me that what we're being asked to decide if the possibility that they might be is enough to allow the government to we litigate the substantive the substantive count and it does seem to me that that's a little bit of a extension of what our presidents who said we do know though that these verdicts definitely were inconsistent it's not just a possibility because the jury was instructed on the same theories of liability for all of the counts involving section six six six the first circuit considered this issue well but if the jury if the jury relied on the part of the instruction that was legally invalid then you don't know that they reached  acquit on the other offenses out of lenity or mistake or confusion and when we're in this world where we just don't know when petitioners concede that we can't be certain what either verdict rested on that in that situation that the general collateral estoppel principle is that they cannot preclude that issue from further litigation because it's not just whether there's a possibility that the jury resolve issues in their favor there has to be a certainty that the jury did that and i think it's actually a something notable that it's not at all unusual for a fact when there's some ambiguity about what the jury had had actually decided ms but suggested that there is something i think you used the word unseemly about using a vacated conviction for this or indeed for any other purpose given the traditions of our legal system where it's just very hard to find instances in which we have done so so you know i'm not sure i understand where the unseemliness prohibition comes from but it does seem you know quite  of kilter with the traditions of our legal system to use vacated convictions in a manner that affects individual's constitutional rights so i guess tell me why we shouldn't be concerned about that you shouldn't be concerned about because the tradition is limited to looking at convictions to stand in for the dependance guilt and we acknowledge here that we are we can't rely on the convictions to establish that within the tradition goes further i mean you have a tough time in your brief coming up with any instances and the only times you do or are some of a couple of scattered lower court decisions but you have a other than that a really tough time coming up with any instances in which courts have used vacated convictions for any purpose examples though i think are particularly relevant because what a number of them are doing are using the vacated conviction to answer precisely the question that we have at issue here which is to try to ascertain the basis for a jury's other verdict and when the whole question is what did the jury actually necessarily decide the jury's verdict or quite obvious relevance in answering that question and in fact it's also the case that the conviction can be relevant to help the defendant not just harm the defendant by actually clarifying the basis of an accompany verdict that might otherwise be ambiguous and we cite a case that does this case from the third circuit the way that that situation works is that if the defendant for example has defended on multiple theories let's say it's a conspiracy case and he said there was no agreement and no overt act he won't be able to establish which basis the jury accepted him returning that verdict but if there's a separate conviction in the case maybe overlapping with the overt act even if that conviction is set aside the defendant could point to it and say this shows that the jury must have resolved the agreement issue in my favor on that separate verdict of acquittal so this isn't an argument that that convictions are relevant only when they benefit the government or that we're able to use them to the defend disadvantage it's an argument about the nature of the inquiry and i think that when you're looking at the question of of what that jury necessarily decided its verdicts are of white's elegant relevance in answering that question petitioner's primary argument is based petitioners contend that because there the court didn't consider the hung count the same result has to obtain here but yeager is fundamentally different because there there wasn't a jury decision at all through the hung count and so there wasn't anything that could actually create a inconsistency with the one word it in that case that the jurors had returned the verdict of acquittal i think yeager is a manifestation of this court's longstanding presumption that jurors follow their instructions were their presumed to act rationally and y ultimately concluded that the hung count was just too thin to read to an attribute irrationality to the jury as a whole because by definition the jury as a whole and that one count hadn't done anything they hadn't agreed on anything verdicts are differently situated as eager itself recognized distinguished powell and said that when you have inconsistent verdicts there the jury has spoken through its verdict and if it's reached contradictory results then what we know is that that inconsistency exists as a matter of the record of the case says that in a situation presenting that kind of inconsistency it wouldn't be appropriate to assume that the verdict of acquittal is the proper verdicts the one that the jury really meant in fact how so that the most obvious explanation for that kind of inconsistency is that jurors were convinced of guilt and decided to acquit out of money and it would be particularly inappropriate i think to a court produce of effect to that kind of verdict based on lenity because it would essentially magnify the effects of the jury's nullification and extend it far beyond the compromise the jury itself struck and in effect other counts beyond what the jury ever intended and so i think powell rightly recognized that when we're in a situation where we can't know that the jury was following its instructions and applying lot of fact in a rational manner then the defendants not able to carry the burden to show that the acquittal is is the verdict that the that the jury truly meant and intended to resolve the factual disputes in the case i think  a number of examples as well where or it's clear that there are a number of examples where there will be ambiguity and what acquittal resolved even separate and apart from any inconsistent verdict and so petitioner suggestion that this fails to a co verdicts i think is out of sync with how general preclusion principles operate imagine it in my conspiracy example where the defendant offers to defenses and says there was no agreement and no overt act in that situation if the jury acquits and we have a general verdict acquittal we won't be able to ascertain the exact argument that the jury adopted in that situation we know they must have decided something in his favor but the inability to identify which issue was resolved in the defendant's favor provides a basis to  collateral estoppel and i think this is just a recognition that collateral estoppel is something of an extraordinary remedy here and what we need to be satisfied that it's most a fundamental prerequisite is satisfied that something was actually resolved in the defendant's favor two jury on the certainly you can't use it to establish that the jury found the defendant guilty because in that situation that kind of error would establish that the jury wasn't basing that conviction on on any relevan circumstance and to the extent that that error itself results in apparent inconsistency and verdicts in establishes that what seems to be an inconsistency was actually based on the error itself then of course collateral estoppel wouldn't apply because that would restore our presumption that the jury did act rationally and find facts in reaching its verdict of acquittal but to the extent that the error doesn't explain the inconsistency doesn't resolve the verdicts then we'd still be in a world where is recognized we was that if there was a particular kind of error that resulted in the reversal the conviction could not be used to show inconsistency in the verdict to clarify i was trying to distinguish between those errors that are actually confined to the count of conviction and those errors that would apply across the board to all counts so if there's a particular error in the case see an instructional error that that only affects the count of conviction then that might actually resolve the apparent inconsistency because if the jury received two different instructions on the overlapping charges then we might think by looking at the instructions that we can actually clear up the inconsistency that would otherwise exist so to that extent of that type of error coup would resolve the inconsistency and provide that the predicate for collateral estoppel is satisfied but putting aside that class of errors and we're not in that world here then i don't think that type of error at all affects the analysis because so long as it's disconnected from the inconsistency itself then it doesn't do anything to clarify what that jury that we know must have disregarded its instructions what that jury was doing and i think there's actually that the sole reason the petition say that the court should disregard the inconsistency here is because of the legal error in this case but it bears emphasis that they have a remedy for that legal error that the remedy is a new trial it's the ordinary remedy in this circumstance and justice  there to the defendant would be entitled to a new trial but what petitioners are attempting to do in this case is actually going complete immunity from further prosecution on these charges they want to extend the effects of the acquittal on those independent counts to this situation and prevent retrial of the very count that the jury itself convicted them on and they're not entitled to that much greater remedy and less they can satisfy the prerequisites for collateral estoppel but that is the greater remedy that you gave and i understand your  conviction you know where a court has said this has got to be east this is this is got to be reversed and then no longer exists in that case the person comes sense in terms of part of yeager's reasoning but not in terms of other parts of your groceries in another part of your groceries and then just said hung counts of never been accorded respect as a matter of law or history and similarly one could say vacated convictions have they don't represent decisions at all a jury doesn't speak through it's for a jury speaks only through its verdict and so something that signals just disagreement or a failure to agree or even extraneous belugas i see when i read these two different rationales and on one you're exactly right there's a real distinction with this case on the other seems you're exactly wrong there's no distinction in this case at all because both have never been accorded respect as a matter of law or history but i think that itself signaled that the issue on which the case turned is that we didn't have the kind of true inconsistency that existed in a case like powell and the finality of the conviction its validity doesn't erase the inconsistency that existed in paolo or provide any greater clue about what that jury was actually thinking and what it actually decided through its verdicts and so i think gager itself emphasized that although we do have these finality concerns a verdict of acquittal is final only with those issues that it actually decided and neither was able to conclude that the jury in that case through the acquittal did decide issues in the defendant's favor as opposed to for example deciding to acquit out of compassion exercise lenity or neglect to follow instructions through the count of a and that's not the case here where we have conclusive evidence we know for sure at this jury didn't follow its instructions and that brings the case in line with powell not withstanding the fact that the convictions had to be vacated for unrelated reasons i think it's it's important to emphasize to the weedy interests that lands on the side of reach trial in the circumstance that's the ordinary remedy here and it's for good reason because when there is a legal error in a trial that doesn't signal that the government necessarily failed to prove its case and there still is a strong societal interest in ensuring that the government has an opportunity to enforce the criminal laws against that person and if it can prove its case under proper instructions obtain a guilty verdict to punish the criminal misconduct if it were based on proper theory would not be unconstitutional and so we don't necessarily know that was the reason why the conviction had to be vacated was because it wasn't clear what basis the jury had resolved the verdict on well was and it was  instructions it was instructional error is that a constitutional error it says i think it rises to the level of a constitutional error in so far as the first circuit held that the defendant that the instructional error would have permitted a criminal conviction based on conduct that doesn't constitute a crime putting of course to one side as justice ginsburg noted the circuit split on that issue it's by no means an issue that's been fully resolved in the majority of circuits have found that the gratuity theory that the jury was instructed on here is a proper interpretation of section six six six so there is every instructional there are constitutional i don't think that all of them would necessarily rise to the level of a constitutional error i guess any error that ultimately  prejudicial and where we can't know for certain whether the defendant was properly convicted based on that charge i think it at the very least would of course warrant setting aside the conviction and vacating it so if there were harmless  standard if there were a harmless issue enough to be harmless beyond a reasonable doubt to prostitution i'm not sure whether the lower court applied a chapman standard here and i think ultimately that potential difference in standards wouldn't have affected the analysis because the court concluded that there was that there was sufficient evidence on the proper quid pro quo theory also evidence that would have supported the bribery theory and so the court just couldn't tell either way on what ground the jury would have possibly ground at this verdict ultimately though i think in light of that error the appropriate result is the ordinary remedy here a retrial petitioners are only entitled to avoid that remedy if they can carry their burden and it's a stringent one of showing that the jury actually resolved issues in their favor in this litigation they haven't carried that burden here as they seek to be excused from it based on the legal error but they haven't actually carried the error carried the burden of showing that that jury that returned those inconsistent verdicts necessarily thought they were not guilty of committ mr chief justice justice alito any instructional error that allows a jury to convict on something that's not a crime it violates the due process clause but not all instructional errors violate the due process clause i would want to be convicted for something that wasn't a crime so i don't that doesn't surprise me i'm going to start sort of backwards justice ginsburg on your question about an all white jury were blacks were excluded i'd go back and look at the transcript as she said all of that might that might resolve the inconsistency and there's a real discomfort that she had there because she didn't want to say well they acquitted him of murder but because they also convicted of a murder maybe it was because they were there all white it's the same argument here is she's saying well maybe that did cause the inconsistency and it's our same argument to nobody knows if the inconsistency is because they were erik inside will be divided on whether he was not guilty of a crime or maybe it was purely a result of the instructional error and it's because  impossible we could never meet that burden and neither could that the poor african american her example he could never show that burden either which is why the burden should be on us justice kagan your bit about unseemly and as i'll take  every single government brief on don't you dare reverse a conviction convictions or final that they bring closure to our community unless unless the error is so foul that it makes our country not have fairness and integrity in our criminal justice system you just we can't we can't have any confidence in the verdict that is the whole supposition behind the prejudicial era doctrine is we take a jury's decision is sacrosanct unless it's just it's that bad and that's that th premise of your structural error doctrine so unseemliness is written into your structural area prejudicial air you're playing air it's written into all of your case law and the criminal law on the third point about civil i think it's fascinating there are no cases the government doesn't side any the two thousand nine briefing jaegers identical to this for if there are no civil cases we're saying you have to inconsistent verdicts but one is invalidated and somehow that cancels that out and there's no settled common law if you have something invalid you still get to look at it in nice but we know since pal that overlapping charges skyrockets to conviction rate with each additional charge a conviction rate starts out at sixty eight percent and it jumps to eighty eight percent so the opposite isn't true in reality is the more charges the government convict the compound offenses right now but i just that's not a basis to dismiss the otherwise collateral estoppel effect of the ash i mean the question is are we going to count illegal invalid verdicts as relevant evidence of inconsistency and almost the entirety of the government's argument least the last ten minutes were just complete verbatim recounts of the oral argument and yeager and the brief in younger is that we have to have one for each chance the defendant didn't meet her burden after all collateral estop got to meet her burden there was no way you could reconcile the verdicts the jury obviously didn't follow the law and you should presume they follow the law if they follow the law they had to acquit it was just this is definitely a broken record and yes they have a formalistic distinction that there is no jury decision but it's worse when what you have is a jury decision that on its face is offensive to our legal system on the historical record the only thing they came up with i don't know how many thirty thousand volumes were just two cases in the lower courts but the majority of the cases they were talking about are more like for civil you can't get civil damages if there was an illegal conviction it disputes probable cause in the courts are split but this court and this court's been around for a while and i think it counts more than the two lower court decisions they have said it is in ph full stop it's void ab initio it's not it's a legal fiction for a reason it's not something that prosecutors get to dig up from the grave and visit from time to time even though it was invalid it's cremated it's gone and it i get it is something astonishing to say well we're going to treat it even though it's unconstitutional under the due process clause it's a legal knowledge and of the double jeopardy clause and even though we're not letting the government use it to prove our conviction i mean our  guilt or innocence it's just that if we otherwise had a double jeopardy right because we were found not guilty they can degrade it and take it away you are you really arguing that they can't be used to prove a historical fact that it's not a wrongful cannot be a role of an historical in the same way that gager the relevant historical fact is a finding of guilt that's why they couldn't get through their brief without finishing up with historical fact on what the jury thought about the defendant's guilt and i notice she didn't want to say that legal conviction if she had to give her argument saying the jury legally convicted it was an invalid verdict it was an unconstitutional verdict her argument doesn't sound so attractive thank you counsel the case is submitted