371. The conspiracy to defraud offense, as advocated by the government on appeal, would allow, for example, the prosecution of bank robbers on a conspiracy to defraud theory if the robbers, by wearing disguises, impeded the FBI’s efforts to identify the culprits, or if they proceeded at night and without prior announcement so as to avoid detection. We think that imparting such infinite elasticity to the second branch of section 371 flies in the face of rules governing the construction of penal statutes. 18 . We view the district court’s rejection of the section 333(b) felony theory argued by the government at trial as an implied acquittal of charges based on that theory. An implied acquittal bars reprosecution. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (<HOLDING>); see also Burks v. United States, 437 U.S. 1,
holding that because a mutual combat charge authorizes a jury to find the defendant guilty of voluntary manslaughter in lieu of murder it is a charge that benefits a defendant and as such a convicted defendants complaint that it was improper to give the charge is without merit holding that the jurys guilty verdict for the offense of operating a vehicle while intoxicated as a class a misdemeanor was not wholly inconsistent with its acquittal of the defendant on the charge of public intoxication holding that a charge not taken under oath or affirmation is not a valid charge holding that jurys failure to address first degree murder charge amounted to a verdict of not guilty on that charge holding that where the writings on file were insufficient to constitute an effective charge a charge had not been effectively filed despite the fact that the eeoc had assigned the case a charge number