When an appellate court vacates some, but not all, counts of conviction on appeal, what standard or test should the appellate court apply to determine whether there is 'spillover' prejudice from the vacated count, such that a new trial should be ordered on the remaining counts?

QUESTION PRESENTED When an appellate court vacates some, but not all, counts of conviction on appeal, what standard or test should the appellate court apply to determine whether there is “spillover” prejudice from the vacated count, such that a new trial should be ordered on the remaining counts? The circuits have diverged and adopted different tests in this situation. For example, the First, Second, and Ninth Circuits have adopted a clear three-part test looking at the inflammatory nature of the evidence on the vacated count(s), the similarity of the counts, and the strength of the evidence on the remaining count(s). The Third Circuit has a similar test but that also considers whether the elimination of the invalid count would significantly alter the strategy of the trial and weighs the factors in favor of the defendant. But the Fifth Circuit below adhered to its precedent relying on whether the vacated and remaining counts were “inextricably bound up” or “inextricably intertwined” an amorphous test lacking the rigor or protections of the tests from other circuits. This Court should grant certiorari in this case and establish a clear test for “spillover” prejudice when a count of conviction is vacated on appeal. 2