United States of America v. ANNE PRAMAGGIORE and MICHAEL F. MCC LAIN

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 25-2349 & 25-2350
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
A NNE P RAMAGGIORE and MICHAEL F. MCC LAIN,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 20 CR 812-1 & -2 — Manish S. Shah, Judge.†
____________________
A RGUED A PRIL 14, 2026 — D ECIDED J UNE 15, 2026
____________________
Before HAMILTON, KIRSCH , and KOLAR , Circuit Judges.
KIRSCH, Circuit Judge. Anne Pramaggiore and Michael F.
McClain—the Chief Executive Officer and a lobbyist for the
Commonwealth Edison Company, respectively—along with
† Judge Harry D. Leinenweber had responsibility for these cases, in-
cluding presiding over the 2023 trial, until his passing in 2024.

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2 Nos. 25-2349 & 25-2350
two others, were convicted by a jury of a series of crimes in-
volving transactions with the Speaker of the Illinois House of
Representatives, Michael Madigan, and his associates. The
crimes included criminal conspiracy in violation of 18 U.S.C.
§§ 371 & 2; offering and agreeing to give things of value, and
causing ComEd to do the same, for the benefit of Madigan in
violation of 18 U.S.C. §§ 666 & 2; and falsifying books and rec-
ords to conceal payments made for Madigan’s benefit in vio-
lation of the Foreign Corrupt Practices Act, 15 U.S.C.
§§ 78m(b)(5) & 78ff(a), as well as 18 U.S.C. § 2. As charged, the
conspiracy had four objects: the indictment alleged that
Pramaggiore and McClain conspired to corruptly solicit and
demand things of value; corruptly give and offer to give
things of value; falsify books, records, or accounts; and cir-
cumvent a system of internal accounting controls. In line with
our case law at the time of trial, the government proceeded on
a theory that § 666 extended beyond quid pro quo bribery of
state officials to include giving or receiving illegal gratuities,
and the jury was instructed accordingly. Pramaggiore and
McClain were convicted on all counts.
Afterward, the Supreme Court decided Snyder v. United
States, 603 U.S. 1 (2024), which resolved a circuit split and lim-
ited the application of § 666 to quid pro quo bribery by hold-
ing that the statute did not prohibit gratuities paid to state or
local officials. Id. at 19–20. Based on that decision, the district
court correctly vacated the substantive § 666 convictions. The
government then dismissed those charges, so they are not be-
fore us.
As to the conspiracy, the district court correctly concluded
there was error under Snyder, as the objects relating to § 666
were no longer a valid basis for the conspiracy convictions

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Nos. 25-2349 & 25-2350 3
without a finding of an agreement for quid pro quo bribery.
But it then held that the error was harmless because there was
sufficient evidence for the jury to have found an illegal con-
spiracy based on either of the two remaining objects—that
Pramaggiore and McClain conspired to falsify books, records,
or accounts or circumvent a system of internal accounting
controls.
Although the government presented significant and com-
pelling evidence, the pre-Snyder jury instructions mean the
conspiracy convictions cannot survive Snyder. Everyone
agrees that two of the four objects of the conspiracy are legally
invalid. The question we are called upon to answer is whether
the other two remaining objects are enough to sustain the con-
spiracy convictions. They are not. As in Skilling v. United
States, 561 U.S. 358 (2010), the legally invalid objects presented
to the jury created legal error. And that error was not harm-
less. We do not know on which of the four objects of the con-
spiracy the jury convicted Pramaggiore and McClain, and it
is not beyond a reasonable doubt that the jury convicted them
on one of the valid grounds. In that way, the invalid objects
infected the conspiracy convictions, so we are compelled to
vacate them.
The Foreign Corrupt Practices Act convictions fail for a
similar reason. The government presented its case in part un-
der a theory of liability through which a defendant can be
found guilty of the substantive crimes his co-conspirators
committed that were reasonably foreseeable to him and taken
in furtherance of the conspiracy. See Pinkerton v. United States,
328 U.S. 640 (1946). As a result, the jury might have convicted
Pramaggiore or McClain of the books and records charges by
finding that a co-conspirator committed the crimes, which

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4 Nos. 25-2349 & 25-2350
were reasonably foreseeable to Pramaggiore and McClain and
in furtherance of the conspiracy. Since we don’t know that the
jury found that the defendants entered into an illegal conspir-
acy, we must vacate the FCPA convictions as well.
Pramaggiore and McClain, however, are not entitled to
judgments of acquittal. And, as we explain below, we disagree
with their contention that no one could say that their docu-
ments were falsified. So, the government is entitled to retry
them at its discretion on the conspiracy and FCPA charges
without the invalid legal theories.
I
Because the defendants were convicted at trial, we sum-
marize the facts in the light most favorable to the government.
See Cavazos v. Smith, 565 U.S. 1, 7 (2011). A short summary
will do, and, of course, the government will need to establish
the facts anew should it choose to try this case again. See Burks
v. United States, 437 U.S. 1, 15 (1978).
In 2012, Anne Pramaggiore became the Chief Executive
Officer of Commonwealth Edison Company (ComEd).
ComEd supplies electricity to customers in Illinois. In 2018,
Pramaggiore was promoted to CEO of Exelon Corporation
(Exelon), ComEd’s parent company and a multi-state utility
services holding company. Michael F. McClain served as an
Illinois state representative from 1973 to 1983 and was later
employed by ComEd as a lobbyist between 1985 and 2019.
McClain was the connection between ComEd and Madigan,
with Madigan assigning McClain tasks and sending messages
through him. Witnesses called McClain a puppet master serv-
ing on Madigan’s behalf, as well as a double agent, because it

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Nos. 25-2349 & 25-2350 5
was unclear whether he was representing the interests of
ComEd or Madigan.
Over the years, Pramaggiore and McClain engaged in a
series of transactions involving Madigan and his associates.
For instance, they set up a subcontractor scheme where they
added Madigan’s associates to ComEd’s existing consulting
and lobbying contracts without reporting the changes to the
contracts. Many of the contracts were no-show contracts,
meaning they were for services that were not actually ren-
dered. Indeed, when one contractor told Madigan that he
hadn’t been given any work from ComEd, Madigan told the
contractor that the structure was what he and ComEd sought.
Over eight years, ComEd and Exelon paid over $1.3 million
to Madigan’s associates. At the same time, Pramaggiore and
McClain sought the passage of legislation favorable to
ComEd and the defeat of legislation unfavorable to it. At one
point, McClain, while worrying that Pramaggiore’s replace-
ment as ComEd’s CEO would think that there was “a quid
pro quo” arrangement between the company and Madigan,
said that “if you want to pass this bill, this is what it requires.”
Exelon and ComEd were required by law to maintain a
system of internal controls, including controls for financial re-
porting and legal and regulatory compliance. And Exelon’s
Code of Business Conduct mandated employees and contrac-
tors to make accurate and complete financial records. Exelon
also required that a manager, supervisor, or executive, such
as Pramaggiore, approve consulting or lobbying contracts.
The government argues that Pramaggiore and McClain falsi-
fied books and records in violation of these requirements and
the FCPA. Some of the books and records at issue are the con-
tracts with Jay D. Doherty and his firm, Jay D. Doherty &

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6 Nos. 25-2349 & 25-2350
Associates (JDDA), which ComEd used to manage lobbyists.
The government maintains that the contracts with JDDA were
falsified because they provided only single-source justifica-
tions that left out who was doing the work and what work
was being done, or otherwise simply lied about the work be-
ing done. For instance, an amendment to a contract with
JDDA called for the payment of an additional $5,000 to a con-
tractor supposedly based on an “expanded role with [the]
Cook County Board President’s office and Cook County
Commissioners and Department Heads,” but the contractor
didn’t do any work at all. And where JDDA invoice amounts
increased because the contract added new subcontractors to
it, the invoices didn’t mention those subcontractors. Further,
with Doherty, the contracts (and their amendments) were
supposedly falsified because, though they were entered so
that ComEd could benefit from Doherty’s “unique insight &
perspective” and to obtain him as an advisor, many of the
payments went to subcontractors that were not listed on the
contracts and were for work not described in the contracts or
not actually performed at all.
The jury convicted Pramaggiore and McClain on all nine
counts: one count of conspiracy in violation of 18 U.S.C.
§§ 371 & 2; four counts of corruptly offering and agreeing to
give a thing of value—and causing ComEd to do the same—
for the benefit of Madigan in violation of 18 U.S.C. §§ 666(a)(2)
& 2; and four counts of knowingly and willfully causing cer-
tain books, records, and accounts to be falsified in violation of
15 U.S.C. §§ 78m(b)(5) & 78ff(a), as well as of 18 U.S.C. § 2.
Each conviction was based on a general, rather than a special,
verdict. After the verdict, Pramaggiore and McClain moved
for a judgment of acquittal under Federal Rule of Criminal

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Nos. 25-2349 & 25-2350 7
Procedure 29 and a new trial under Federal Rule of Criminal
Procedure 33. The district court denied both motions.
After the denial of these motions, the Supreme Court de-
cided Snyder v. United States and then Thompson v. United
States, 604 U.S. 408 (2025). In Snyder, the Court resolved a cir-
cuit split and overturned our precedent that § 666 criminal-
ized illegal gratuities as well as quid pro quo bribery, ruling
that § 666 only punished quid pro quo bribery. See 603 U.S. at
19. Because the jury instructions did not require the jury to
find quid pro quo bribery to convict Pramaggiore and
McClain on the § 666 charges, Pramaggiore and McClain filed
a joint motion asking the district court to reconsider the denial
of their post-trial motions. The district court held a hearing
and vacated their § 666 convictions.
In Thompson, the Court held that in the context of 18 U.S.C.
§ 1014 (a statute not at issue here), false did not include mis-
leading. 604 U.S. at 417. Because Pramaggiore and McClain
had been convicted of falsifying books and records in the con-
text of 15 U.S.C. § 78m(b)(5), they argued in another joint mo-
tion for reconsideration that Thompson changed the meaning
of falsifying to exclude misleading statements. They then said
that the books were at best made misleading, not false. But the
district court denied their motion. Pramaggiore and McClain
now appeal what is left of their conspiracy convictions and
their FCPA convictions, seeking judgments of acquittal, or, in
the alternative, a new trial.
II
We first consider Pramaggiore and McClain’s challenge to
the conspiracy convictions. Pramaggiore and McClain con-
tend that Snyder gave rise to a legal error that requires us to

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8 Nos. 25-2349 & 25-2350
vacate their conspiracy convictions. We review questions of
law de novo. Shango v. Jurich, 965 F.2d 289, 291 (7th Cir. 1992).
A
A conviction must be set aside when the jury may have
relied on an invalid legal theory in reaching its verdict unless
we can determine that the jury’s potential reliance on the in-
valid legal theory was harmless. This rule is derived from a
series of Supreme Court decisions beginning with Stromberg
v. California, 283 U.S. 359 (1931). In that case, an individual
was convicted of displaying a communist flag in a public
space in violation of a California statute that prohibited doing
so “as a sign, symbol or emblem of opposition to organized
government or as an invitation or stimulus to anarchistic ac-
tion or as an aid to propaganda that is of a seditious charac-
ter.” Id. at 361. Thus, the statute had three provisions, but be-
cause the verdict was general, the trial court couldn’t know of
which provision the jury had convicted the defendant. Id. at
367–69. The state appellate court doubted the constitutional-
ity of the first part of the law but nonetheless upheld the con-
viction. Id. at 367. It separated the two valid clauses from the
third arguably unconstitutional one and found that those
valid clauses could justify the conviction. Id. The Supreme
Court reversed, clarifying that if any of the clauses that could
have been used by the jury in issuing its guilty verdict were
“invalid under the Federal Constitution, the conviction can-
not be upheld.” Id. at 368. The Court then found the part of
the state statute that prohibited flying flags as a sign, symbol,
or emblem of opposition to organized government to be un-
constitutional and set aside the conviction. Id. at 369–70. The
Court did not consider whether the error was harmless be-
cause constitutional errors were not reviewed for

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Nos. 25-2349 & 25-2350 9
harmlessness until 1967. See Chapman v. California, 386 U.S. 18,
22–24 (1967) (holding that constitutional errors can be harm-
less).
In Yates v. United States, 354 U.S. 298 (1957), the Supreme
Court extended Stromberg’s reasoning to legally flawed, but
not otherwise unconstitutional, theories of guilt. Id. at 312; see
Hedgpeth v. Pulido, 555 U.S. 57, 60 (2008) (per curiam) (explain-
ing that Yates extended Stromberg). The Court wrote that a
conviction must “be set aside,” when it “is supportable on one
ground, but not on another, and it is impossible to tell which
ground the jury selected.” Yates, 354 U.S. at 312.
As the Supreme Court explained in Skilling v. United States,
561 U.S. 358 (2010), the Yates rule flows from constitutional
guarantees. Id. at 414. These guarantees center on and are de-
rived from the right to a jury determination of guilt beyond a
reasonable doubt. “The Sixth Amendment requires more than
appellate speculation about a hypothetical jury’s action … it
requires an actual jury finding of guilty.” Sullivan v. Louisiana,
508 U.S. 275, 280 (1993). And jury instructions relieving the
government of the burden to prove beyond a reasonable
doubt every element of the charged offense violate Due Pro-
cess rights. See Carella v. California, 491 U.S. 263, 265 (1989)
(per curiam) (citation modified). So, when the verdict may
have rested on a legally insufficient ground, there is constitu-
tional error. See Skilling, 561 U.S. at 414.
In Hedgpeth, the Court applied the harmless error analysis
from Chapman to Yates errors. 555 U.S. at 62; see Skilling, 561
U.S. at 414 & n.46 (clarifying that Hedgpeth applies to cases on
direct appeal in addition to those on collateral review). An er-
ror is harmless “if the prosecution can prove beyond a

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10 Nos. 25-2349 & 25-2350
reasonable doubt that a constitutional error did not contribute
to the verdict.” Satterwhite v. Texas, 486 U.S. 249, 256 (1988).
B
With this history in mind, we agree with the district court
that there was legal error. The indictment charged four objects
of the conspiracy: corruptly soliciting and demanding things
of value in violation of § 666(a)(1)(B); corruptly giving and of-
fering to give things of value in violation of § 666(a)(2); falsi-
fying books, records, or accounts in violation of §§ 78m(b)(5)
& 78ff(a); and circumventing a system of internal accounting
controls in violation of those same statutes. There is no ques-
tion that after Snyder, the two § 666 objects are legally invalid
given the way the jury was instructed. Those legally invalid
objects of the conspiracy resulted in legal error, just like in
Skilling.
In Skilling, the defendants were charged with a multi-ob-
ject conspiracy in violation of § 371: honest-services wire
fraud in violation of 18 U.S.C. §§ 1343 & 1346, money or prop-
erty wire fraud in violation of 18 U.S.C. § 1343, and securities
fraud. 561 U.S. at 367, 414. The jury returned a general verdict
finding the defendants guilty of conspiracy with no indication
as to which object or objects the jury unanimously agreed. Id.
at 375, 414. On appeal, the Supreme Court determined that
the § 1346 honest services fraud theory was legally invalid. Id.
at 411–13. This created a type of Yates error we sometimes call
a Skilling error: the jury convicted a defendant of a conspiracy
that had both valid and invalid objects. Id. at 414. Therefore,
the convictions could not survive unless the error was harm-
less. Id. The Court did not reach the question of harmless error
and instead remanded for resolution of that question. Id. On
remand, the Fifth Circuit found that the error was harmless

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Nos. 25-2349 & 25-2350 11
beyond a reasonable doubt and affirmed the convictions.
United States v. Skilling, 638 F.3d 480, 488 (5th Cir. 2011).
Here, the jury had the option of convicting Pramaggiore
and McClain for conspiring to violate §§ 666(a)(1)(B) and/or
(a)(2), and perhaps it did. But the § 666 objects were invali-
dated by Snyder, so Pramaggiore and McClain’s conspiracy
convictions are flawed, because with only a general verdict,
we are unsure what the jury’s determination rested upon.
Having found error, we now consider whether the error
was harmless. It was not. The test is “whether it appears be-
yond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Neder v. United States, 527
U.S. 1, 15 (1999) (citation modified). The application of that
test has created some uncertainty among the circuits. See
United States v. McKye, 734 F.3d 1104, 1113 (10th Cir. 2013)
(Briscoe, J., concurring) (circuits hold the government to dif-
ferent burdens); see also Skilling, 638 F.3d at 481 (noting on
remand that the Supreme Court “did not specifically identify
the harmless-error standard that is applicable to alternative-
theory errors”).
In this context, our circuit precedent states that the inquiry
to establish harmlessness is “whether the trial evidence was
such that the jury must have convicted the petitioners on both
[the valid and invalid] theories.” Sorich v. United States, 709
F.3d 670, 674 (7th Cir. 2013). Otherwise, as we said in United
States v. Borrero, 771 F.3d 973 (7th Cir. 2014), “when the in-
structions allow a jury to convict on two theories, one of
which is legally insufficient, then the court must remand for a
new trial, because a jury that followed its instructions might
have convicted on the invalid ground while disdaining the
proper one.” Id. at 976–77.

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12 Nos. 25-2349 & 25-2350
In Turner v. United States, 693 F.3d 756 (7th Cir. 2012), we
explained one way in which such an error might be harmless.
There, the jury considered two theories of fraud: honest-ser-
vices fraud and pecuniary fraud. Id. at 757. We held that the
evidence supporting the valid and invalid theories was “so
thoroughly coextensive,” that the convictions were “all or
nothing.” Id. at 759. So, when the honest-services fraud theory
was declared invalid, the court found the error was harmless,
because the jury must have convicted on the valid pecuniary
theory as well. Id. at 757, 759–60. In other words, we knew that
the error was harmless because the jury’s guilty finding of the
first crime necessarily meant that it made the factual findings
sufficient to convict the defendants of the second. See also
United States v. Segal, 644 F.3d 364, 366–67 (7th Cir. 2011) (find-
ing a Skilling error to be harmless because even if the jury con-
victed based on an invalid theory, the conviction could stand
because it must have been “premised on” another valid the-
ory of fraud).
These cases show that our inquiry is not about weighing
the evidence; it is about determining what the jury did. And
if we “just don’t know” what the jury relied upon, “that
makes it impossible for us to evaluate the sufficiency of the
evidence, because the jury rather than the judge decides
which evidence to believe.” Borrero, 771 F.3d at 976; see Sulli-
van, 508 U.S. at 279 (“[T]o hypothesize a guilty verdict that
was never in fact rendered—no matter how inescapable the
findings to support that verdict might be—would violate the
jury-trial guarantee.”).
Not all circuits agree with our approach to determining
harmless error. For instance, in the Fifth Circuit, the inquiry
is “whether the record contains evidence that could rationally

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Nos. 25-2349 & 25-2350 13
lead to an acquittal with respect to the valid theory of guilt.”
Skilling, 638 F.3d at 482 (citation modified). And in the Third
Circuit, if there is “overwhelming” evidence for the remain-
ing valid theory of conviction, an error can still be considered
harmless. United States v. Wright, 665 F.3d 560, 571 (3d Cir.
2012).
But we are not alone. The Tenth Circuit has decided that
an alternative theory cannot sustain a verdict that could have
rested on a legally invalid ground “unless it is possible to de-
termine the verdict rested on the valid ground.” McKye, 734
F.3d at 1110 & n.6 (citing United States v. Holly, 488 F.3d 1298,
1305 (10th Cir. 2007)). And in the Fourth Circuit, only “if the
evidence that the jury necessarily credited in order to convict
the defendant under the instructions given is such that the
jury must have convicted the defendant on the legally ade-
quate ground in addition to or instead of the legally inade-
quate ground,” may the conviction be affirmed. Bereano v.
United States, 706 F.3d 568, 578 (4th Cir. 2013) (quoting United
States v. Jefferson, 674 F.3d 332, 361 (4th Cir. 2012)) (citation
modified).
The government did not ask us to reconsider our ap-
proach, so we have no reason to do so. See Margolin v. Nat'l
Ass'n of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026) (per cu-
riam) (“[T]he rule that points not argued will not be consid-
ered distinguishes our adversarial system of justice from an
inquisitorial one.”) (citation modified). And this case is unlike
Turner, because the evidence to prove a conspiracy to bribe is
not coextensive with that required to prove a conspiracy to
violate the FCPA. See 693 F.3d at 759. The government’s
harmlessness arguments, at bottom, amount only to a weak
attempt to say that out-of-circuit case law compels another

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14 Nos. 25-2349 & 25-2350
result. Even if the other circuits are correct, the government
never asked us to take the necessary step of overturning our
own law to align ourselves with some of our sister circuits, so
we will not do so.
On this record, we are compelled to vacate. The jury gave
only a general verdict, the objects of the conspiracy were not
overlapping, and the evidence was not coextensive. The jury
could have reasonably agreed that there was a conspiracy to
pay gratuities and then ended its discussion without ever con-
sidering whether there was an agreement to violate the FCPA.
Perhaps the district court was correct that “no jury on this rec-
ord would have or could have concluded otherwise.” We
need not comment on that determination, because Pramaggi-
ore and McClain have the right to a jury verdict, and we do
not know what the jury did.
III
The analysis for the FCPA convictions yields the same re-
sult: vacatur, with the possibility for a new trial. Pramaggiore
and McClain make two arguments: first, that the Snyder prob-
lem infected the FCPA convictions; and second, that Thompson
entitled them to acquittal.
A
We first consider whether we must vacate the substantive
FCPA convictions because the government sought and re-
ceived a Pinkerton instruction that permitted the jury to con-
vict Pramaggiore and McClain of those violations so long as
they were co-conspirators in furtherance of a valid conspir-
acy. See 328 U.S. at 646–80. The problem with these convic-
tions is that to succeed on a Pinkerton theory of liability, “it is
of course necessary to show that a conspiracy existed.” United

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Nos. 25-2349 & 25-2350 15
States v. Smith, 223 F.3d 554, 573 (7th Cir. 2000). But as we ex-
plained, the government did not necessarily prove a valid
conspiracy. Therefore, the jury was presented with legal alter-
natives for FCPA convictions (either Pramaggiore and
McClain violated the FCPA or their co-conspirators did so in
furtherance of a conspiracy), one of which was invalid. That
constitutes error. See Yates, 354 U.S. at 312.
The error was not harmless. As the government conceded
at oral argument, we do not know what the jury did. Even if
it is unlikely that the jury convicted Pramaggiore and
McClain of the FCPA records violations only on a Pinkerton
theory that rested on a conspiracy grounded only on an inva-
lid object, it is still possible that it did. We are compelled to
vacate the FCPA convictions. Borrero, 771 F.3d at 977.
B
Pramaggiore and McClain next argue that vacatur does
not go far enough, because after Thompson, they are entitled
to acquittal on the conspiracy and FCPA counts since the
books and records are not false. In Thompson, the Supreme
Court dealt with 18 U.S.C. § 1014, which in relevant part
“criminalizes knowingly making any false statement or re-
port” for the purpose of influencing certain loan decisions.
604 U.S. at 413 (citation modified); 18 U.S.C. § 1014. The Court
concluded that the statute “does not criminalize statements
that are misleading but true.” Thompson, 604 U.S. at 418. Ra-
ther, the statements “must be false.” Id. (citation modified).
Pramaggiore and McClain say that after Thompson, the books
and records are not false because “falsify” under § 78m(b)(5)
cannot include creating misleading documents or those with
omissions, and the documents were not otherwise false.

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16 Nos. 25-2349 & 25-2350
Even if Pramaggiore and McClain are correct about the
meaning of falsify after Thompson, the jury instructions—to
which the parties agreed—required the jury to find that
Pramaggiore and McClain falsified books, records, or ac-
counts. Nowhere did the instructions suggest that the books
and records could be misleading, rather than false. And in-
deed, Pramaggiore and McClain do not argue that the jury
was improperly instructed, and we presume that juries follow
instructions. United States v. Marchan, 935 F.3d 540, 548 (7th
Cir. 2019). So, we only look at whether the record lacks evi-
dence to have found them guilty beyond a reasonable doubt.
United States v. Corrigan, 912 F.3d 422, 429 (7th Cir. 2019).
There was more than sufficient evidence for the jury to have
determined that the defendants made false records regarding
these contracts. Therefore, Pramaggiore and McClain are not
entitled to a judgment of acquittal.
Do not misread our opinion. We are not suggesting that
Pramaggiore and McClain are innocent, only that their con-
victions were flawed and that they have a right to see their
sentences vacated. Yet because “[a] properly instructed jury
could have convicted the defendants on this record,” a new
trial is not foreclosed, “if the prosecutor chooses to press on.”
Borrero, 771 F.3d at 977; see Burks v. United States, 437 U.S. 1,
14 (1978).
VACATED AND R EMANDED

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