It was the government which submitted the duplicitous indictment to the jury, and which decided not to seek a special verdict. By these actions, the government has effectively conceded that the indictment is not im-permissibly duplicitous, ie., that the defendant will not be prejudiced by the harms caused by duplicity, including the harm arising from a jury verdict that does not definitively communicate the jury’s findings with respect to the two crimes charged in Count II. For double jeopardy purposes, therefore, defendant is not prejudiced by the duplicitous indictment because the government is estopped from acting on any interpretation of the jury’s verdict that would prejudice defendant’s double jeopardy rights. Cf. Maharaj v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir.1997) (<HOLDING>); Helfand v. Gerson, 105 F.3d 530, 535 (9th
recognizing that an employers decision to eliminate a position is a legitimate nondiscriminatory reason for terminating a position or employee holding that defendant would derive an unfair advantage by taking a factual position inconsistent with one taken in an earlier action in which defendant prevailed holding governments position unreasonable where government advanced no legal authority for its position and applicable principle of law was long settled holding that estoppel prevents a party who secured a judgment in his favor by virtue of assuming a given position in a prior legal proceeding from assuming an inconsistent position in a later action recognizing principle that as between common parties a position taken in an earlier judicial proceeding estops a litigant from adopting an inconsistent position in a later proceeding