author: Mr. Justice Blackmun Mr. Justice White, Mr. Justice Stevens,

text:
    JEFFERS v. UNITED STATES
    No. 75-1805.
    Argued March 21, 1977
    Decided June 16, 1977

      Blackmun, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined. White, J., filed an opinion concurringin part in the judgment and dissenting in part, post, p. 158. Stevens, J., filed an opinion dissenting in part and concurring in the judgment in part, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 158.

      Stephen C. Bower, by appointment of the Court, 429 U. S. 916, argued the cause and filed briefs for petitioner.

      William F. Sheehan III argued the cause for the United States. With him on the brief were Acting Solicitor General Friedman and Assistant Attorney General Thornburgh.

   Mr. Justice Blackmun

announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist join.

This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government’s efforts to try charges under 21 U. S. C. §§ 846 and 848 in one proceeding. It also raises the question whether § 846 is a lesser included offense of § 848. Finally, it requires further explication of the Court’s decision in Iannelli v. United States, 420 U. S. 770 (1975).

I

A. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January 1972 to March 1974. The “Family,” as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family’s drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was “an extremely conservative estimate,” petitioner’s personal share from the operations exceeded a million dollars over the two-year period.

On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family’s operations. The first, No. H-CR-74-56, charged petitioner and nine others with an offense under 21 U. S. C. § 846, by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U. S. C. §841 (a)(1). App. 5-11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner’s assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id., at 6. The second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U. S. C. § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws. Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of §841 (a)(1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution “in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and manager,” and that as a result of the distribution and other activity he had obtained substantial income. App. 3-4.

Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the continuing-criminal-enterprise charge be tried with the general conspiracy charges against petitioner and his nine codefend-ants. Id., at 12-14. The motion alleged that joinder would be proper under Fed. Rule Crim. Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the § 848 trial was based on the same transactions as those involved in the § 846 case. Consequently, it argued that joinder was appropriate and within the court’s power pursuant to Fed. Rule Crim. Proc. 13.

The defendants in the § 846 case filed a joint objection to the Government’s motion. App. 16-24. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed. Rules Crim. Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing-criminal-enterprise charge and about the jury’s ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner. It noted that the § 846 indictment charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner and would therefore be inadmissible against him in the continuing-criminal-enterprise trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government’s motion for trial together and thereby set the stage for petitioner’s first trial on the conspiracy charges.

B. The trial on the § 846 indictment took place in June 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute — 15 years in prison, a fine of $25,000, and a 3-year special parole term. The Court of Appeals affirmed the conviction, 520 F. 2d 1256 (CA7 1975), and this Court denied certiorari, 423 U. S. 1066 (1976).

While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal-enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore the second trial should be barred under that theory of double jeopardy, and that the “same evidence” rule of Blockburger v. United States, 284 U. S. 299 (1932), should bar the second prosecution, since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. To forestall the Government’s anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the § 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 25-27.

The Government, in its response to the motion to dismiss, asserted that §§ 846 and 848 were separate offenses, and for this reason petitioner would not be placed twice in jeopardy by the second trial. The District Court agreed with this analysis and denied petitioner’s motion shortly before the second trial began.

At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender: life imprisonment and a fine of $100,000. See n. 4, supra. The judgment specified that the prison sentence and the fine were “to run consecutive with sentence imposed in H-CR-74-56 [the conspiracy case].” Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000.

On appeal, the conviction and sentence were upheld. 532 F. 2d 1101 (CA7 1976). The Court of Appeals concluded that § 846 was a lesser included offense of § 848, since the continuing-criminal-enterprise statute expressly required proof that the accused had acted in concert with five or more other persons. In the court’s view, this requirement was tantamount to a proof of conspiracy requirement. Construing § 848 to require proof of agreement meant that all the elements of the § 846 offense had to be proved for § 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources; thus, §§ 846 and 848 satisfied the general test for lesser included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States, 220 U. S. 338 (1911); Blockburger v. United States, supra; and Waller v. Florida, 397 U. S. 387 (1970), it read Iannelli v. United States, 420 U. S. 770 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes.

The two statutes at issue in Iannelli were 18 U. S. C. § 371, the general federal conspiracy statute, and 18 U. S. C. § 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in Iannelli seemingly to the contrary, 420 U. S., at 785 n. 17, the Court of Appeals stated that § 371 is a lesser included offense of § 1955. 532 F. 2d, at 1109. The court attached no significance to the fact that § 1955 contains no requirement of action “in concert.” It believed that Iannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple-prosecution question before it. Finding that Congress, in enacting § 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make § 848 an independent crime, the court concluded that §§ 846 and 848 were not the “same offense” for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second.

In his petition for certiorari, petitioner challenged the Court of Appeals’ reading of Iannelli and suggested again that § 846 was a lesser included offense of § 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiple-punishment problem. We granted certiorari. 429 U. S. 815 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple-punishment problem.

II

A. The Government’s principal argument for affirming the judgment of the Court of Appeals is that Iannelli controls this case. Like the conspiracy and gambling statutes at issue in Iannelli, the conspiracy and continuing-criminal-enterprise statutes at issue here, in the Government’s view, create two separate offenses under the “same evidence” test of Block-burger. The Government’s position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848 (b) (2) (A) of the phrase “in concert with.” If five “innocent dupes” each separately acted “in concert with” the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.

If the Government’s position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the Iannelli result, reached in the context of two other and different statutes, to this case. In Iannelli, the Court specifically noted: “Wharton’s Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents.” 420 U. S., at 785 (emphasis in original). Elaborating on that point, the Court stated: “The essence of the crime of conspiracy is agreement, ... an element not contained in the statutory definition of the § 1955 offense.” Id., at 785 n. 17. Because of the silence of § 1955 with regard to the necessity of concerted activity, the Court felt constrained to construe the statute to permit the possibility that the five persons “involved” in the gambling operation might not be acting together. See also Pinkerton v. United States, 328 U. S. 640, 643 (1946).

The same flexibility does not exist with respect to the continuing-criminal-enterprise statute. Section 848 (b) (2) (A) restricts the definition of the crime to a continuing series of violations undertaken by the accused “in concert with five or more other persons.” Clearly, then, a conviction would be impossible unless concerted activity were present. The express “in concert” language in the statutory definition quite plausibly may be read to provide the necessary element of “agreement” found wanting in § 1955. Even if § 848 were read to require individual agreements between the leader of the enterprise and each of the other five necessary participants, enough would be shown to prove a conspiracy. It would be unreasonable to assume that Congress did not mean anything at all when it inserted these critical words in § 848. In the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word “concert” to have its common meaning of agreement in a design or plan. For the purposes of this case, therefore, we assume, arguendo, that § 848 does require proof of an agreement among the persons involved in the continuing criminal enterprise. So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements.

B. Brown v. Ohio, post, p. 161, decided today, establishes the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. Post, at 168-169. What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for “the same offense.” See United States v. Wilson, 420 U. S. 332, 343 (1975). Brown reaffirms the rule that one convicted of the greater offense may not be subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for “the same offense.” Post, at 168. See In re Nielsen, 131 U. S. 176, 187 (1889). Because two offenses are “the same” for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post, at 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. Cf. Waller v. Florida, 397 U. S., at 390. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes.

The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post, at 169 n. 7; Blackledge v. Perry, 417 U. S. 21, 28-29, and n. 7 (1974); Diaz v. United States, 223 U. S. 442 (1912). See also Ashe v. Swenson, 397 U. S. 436, 453 n. 7 (1970) (Brennan, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.

If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing jeopardy on the offense for which the defendant was convicted applies, thereby making retrial on that offense permissible. See Price v. Georgia, 398 U. S. 323 (1970); Green v. United States, 355 U. S. 184 (1957); United States v. Ball, 163 U. S. 662 (1896). In a slightly different context, the defendant’s right to have the need for a retrial measured by the strict “manifest necessity” standard of United States v. Perez, 9 Wheat. 579 (1824), does not exist if the mistrial was granted at the defendant’s request. United States v. Dinitz, 424 U. S. 600 (1976). Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.

C. In this case, trial together of the conspiracy and continuing-criminal-enterprise charges could have taken place without undue prejudice to petitioner’s Sixth Amendment right to a fair trial. If the two charges had been tried in One proceeding, it appears that petitioner would have been entitled to a lesser-included-offense instruction. See Fed. Rule Crim. Proc. 31 (c); Keeble v. United States, 412 U. S. 205 (1973); cf. Sansone v. United States, 380 U. S. 343, 349-350 (1965). If such an instruction had been denied on the ground that § 846 was not a lesser included offense of § 848, petitioner could have preserved his point by proper objection. Nevertheless, petitioner did not adopt that course. Instead, he was solely responsible for the successive prosecutions for the conspiracy offense and the continuing-criminal-enterprise offense. Under the circumstances, we hold that his action deprived him of any right that he might have had against consecutive trials. It follows, therefore, that the Government was entitled to prosecute petitioner for the § 848 offense, and the only issue remaining is that of cumulative punishments upon such prosecution and conviction.

Ill

Although both parties, throughout the proceedings, appear to have assumed that no cumulative-punishment problem is present in this case, the imposition of the separate fines seems squarely to contradict that assumption. Fines, of course, are treated in the same way as prison sentences for purposes of double jeopardy and multiple-punishment analysis. See North Carolina v. Pearce, 395 U. S. 711, 718 n. 12 (1969). In this case, since petitioner received the maximum fine applicable to him under § 848, it is necessary to decide whether cumulative punishments are permissible for violations of §§ 846 and 848.

The critical inquiry is whether Congress intended to punish each statutory violation separately. See, e. g., Prince v. United States, 352 U. S. 322, 327 (1957); Callanan v. United States, 364 U. S. 587, 594 (1961); Milanovich v. United States, 365 U. S. 551, 554 (1961). Cf. Bell v. United States, 349 U. S. 81, 82 (1955). In Iannelli v. United States, the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U. S., at 785-786, nn. 17-18. See also Gore v. United States, 357 U. S. 386 (1958). If some possibility exists that the two statutory offenses are the “same offense” for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. See North Carolina v. Pearce, 395 U. S., at 717; United States v. Wilson, 420 U. S., at 343.

As petitioner concedes, Reply Brief for Petitioner 3, the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of §§ 846 and 848. We have concluded that it did not, and this again makes it unnecessary to reach the lesser-included-offense issue.

Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention' and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence •over, the enterprise. §§ 848 (a)(1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. § 848 (c). In addition, § 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years.

§ 848 (a)(1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every § 848 violation by definition also will involve a series of other felony violations of the Act, see §§ 848 (b)(1), (2), there would have been no point in specifying maximum fines for the § 848 violation if cumulative punishment was to be permitted.

The legislative history of § 848 is inconclusive on the question of cumulative punishment. The policy reasons usually offered to justify separate punishment of conspiracies and underlying substantive offenses, however, are inapplicable to §§ 846 and 848. In Callanan v. United States, 364 U. S., at 693-594, the Court summarized these reasons:

“[Collective criminal agreement — partnership in crime— presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”

Accord, Iannelli v. United States, 420 U. S., at 778.

As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute.

Our conclusion that Congress did not intend to impose cumulative penalties under §§ 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the § 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by § 848. Thus, if petitioner received a total of $125,000 in fines on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000.

The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice White,

concurring in the judgment in part and dissenting in part.

Because I agree with the United States that Iannelli v. United States, 420 U. S. 770 (1975), controls this case, I for that reason concur in the judgment of the Court with respect to petitioner’s conviction. For the same reason and because the conspiracy proved was not used to establish the continuing criminal enterprise charged, I dissent from the Court’s judgment with respect to the fines and from Part III of the plurality’s opinion.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting in part, and concurring in the judgment in part.

There is nothing novel about the rule that a defendant may not be tried for a greater offense after conviction of a lesser included offense. It can be traced back to Blackstone, and “has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen[, 131 U. S. 176,] was decided in 1889,” Brown v. Ohio, post, at 168. I would not permit the prosecutor to claim ignorance of this ancient rule, or to evade it by arguing that the defendant failed to advise him of its existence or its applicability.

The defendant surely cannot be held responsible for the fact that two separate indictments were returned, or for the fact that other defendants were named in the earlier indictment, or for the fact that the Government elected to proceed to trial first on the lesser charge. The other defendants had valid objections to the Government’s motion to consolidate the two cases for trial. Most trial lawyers will be startled to learn that a rather routine joint opposition to that motion to consolidate has resulted in the loss of what this Court used to regard as “a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued,” Green v. United States, 355 U. S. 184, 198. See United States v. Alford, 516 F. 2d 941, 945 n. 1 (CA5 1975).

It is ironic that, while the State's duty to give advice to an accused is contracting, see, e. g., Oregon v. Mathiason, 429 U. S. 492, a new requirement is emerging that the accused, in order to preserve a constitutional right, must inform the prosecution about the legal consequences of its acts. Even the desirability of extending Mr. Jeffers' incarceration does not justify this unique decision.

While I concur in the judgment to the extent that it vacates the cumulative fines, I respectfully dissent from the affirmance of the conviction.

       532 F. 2d 1101, 1105 (CA7 1976).

       Section 846 provides:
      “Any person who attempts or conspires to commit any offense defined in this subchapter [Control and Enforcement] is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

       Section 841 (a)(1) provides:
      “(a) . . . Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
      Heroin is classified as a Schedule I narcotic drug controlled substance. 21 U. S. C. § 812 (c) (Sch. I) (b) (10); 21 CFR § 1308.11 (c) (11) (1976). Cocaine is a Schedule II narcotic drug controlled substance. 21 U. S. C. § 812 (c) (Sch. II) (a) (4); 21 CFR § 1308.12 (b) (4) (1976).

       Section 848 provides, in relevant part:
      “(a) . . . (1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2) ....
      “(2) Any person who is convicted under paragraph (1) of engaging in a continuing criminal enterprise shall forfeit to the United States—
      “(A) the profits obtained by him in such enterprise, and
      “(B) any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise.
      “(b) . . .For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—
      “(1) he violates any provision of this subchapter or subchapter II of this chapter [Import and Export] the punishment for which is a felony, and
      “(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
      “(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and,
      “(B) from which such person obtains substantial income or resources.
      “(c) ... In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 [repealed March 15, 1976, by Pub. L. 94r-233, 90 Stat. 219, and replaced by a new § 4205, each relating to eligibility of prisoners for parole] . . . shall not apply.”

       The dissenters attempt to undercut the force of petitioner’s opposition to trial together by asserting that the motion “gave relatively little emphasis to arguments relating to petitioner alone.” Post, at 159 n. 4. On the contrary, the memorandum supporting the defendants’ motion took pains to point out which objections to trial together were relevant to Jeffers alone. See App. 18, 22-23. Indeed, the last argument before the conclusion stated:
      “[I]t is likely that much of the evidence which will be presented in the conspiracy trial does not ‘directly’ inculpate the defendant, GAR-LAN!) JEFFERS, and would, therefore, be inadmissible against him in the 'continuing criminal enterprise’ indictment unless a direct link could be established. All of the said overt acts would, however, be admissible, or at least arguably so, in the conspiracy trial. The prejudice to the defendant, JEFFERS, is therefore, imminent and clear.” Id., at 22.
      In addition to the arguments relating specifically to Jeffers, the memorandum contained a number of points designed to apply equally to all defendants. We see no reason to read it as implicitly excluding Jeffers.

       As indicated in n. 2, supra, § 846 provides that the sentence for the conspiracy offense shall not exceed the maximum punishment prescribed for the substantive offense the commission of which was the object of the conspiracy. The maximum punishment for a first offender for a violation of § 841 (a) (1), in which a Schedule I or II narcotic drug is the controlled substance in question, is a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. § 841 (b)(1)(A).

       After this Court's refusal to review the decision on certiorari, petitioner filed a motion under 28 U. S. C. § 2255 for postconviction relief. The District Court denied the motion, the Court of Appeals affirmed, 544 F. 2d 523, and this Court again denied certiorari. 430 U. S. 935 (1977).

       In his opposition to the Government’s motion for trial together, however, when he joined the argument that the jury would be confused by consolidation, petitioner apparently had argued in favor of construing the statutes to create separate offenses. App. 19. He also joined the argument that “identity of charges” was lacking. Id., at 15.

       Language in the Government’s memorandum appears to concede that §846 is a lesser included offense: “Title 21, United States Code, Section 848, requires proof of the elements previously set out in Section 846 but additional elements are required.” App. 34. It is unnecessary for present purposes to rely on any such concession.

       Nothing in the record of Case No. H-CR-74-56 suggests that the $25,000 fine was credited against the $100,000 fine. The record of Case No. H-CR-74^57 expressly indficates that the contrary was true, and we proceed on that assumption.

       The District Court actually instructed the jury that the Government might prove that the object of the continuing criminal enterprise was to commit a violation under § 846, the conspiracy statute, rather than to violate § 841 (a) (1). App. 45. The court therefore gave a complete conspiracy charge to the jury. Id., at 46-48. The Government argues that this instruction was erroneous. Without resolving that issue or exploring the implications of the Government’s position, we merely note that the District Court’s decision to give the instruction reflects, the conceptual closeness of the two statutes.

       Section 848 by its terms covers violations of both subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and subchapter II of the Act, while § 846 deals only with subchapter I. The exact counterpart to § 846, however, is § 963 in subchapter II. In this case, no one disputes the fact that only subehapter I is involved.

       The Court’s use of the term “concerted activity” to describe § 1955’s requirement that five or more persons must be involved in the gambling business, 420 U. S., at 790, does not indicate a contrary understanding. At that point in the opinion the Court simply was addressing its attention to the reason why § 1955 requires the participation of a significant number of persons in the business. As a practical matter, the group involved often will act in concert. This, however, is not necessarily the case — a fact the Court acknowledged in its Blockburger analysis, 420 U. S., at 785 n. 17.

       The legislative history, the use that Congress has made of the phrase “in concert” in other statutes, and the plain meaning of that term all support the interpretation suggested for § 848. The House Report on H. R. 18583, which eventually became Pub. L. 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970, assumed that the meaning of “in concert” was clear, since it never defined the phrase further. See, e. g., H. R. Rep. No. 91-1444, Pt. 1, p. 50 (1970). Even the writers of additional views did not include an objection to the nondefinition of the term in their criticisms of other-aspects of the continuing-criminal-enterprise section of the law. The Senate Report on S. 3246, the Senate version of the same law, did shed some light on the problem. See S. Rep. No. 91-613 (1969). In the Section-by-Section Analysis of the bill, the report states:
      “Subsection (f) of this section sets out the criteria which must be met before a defendant can. be deemed involved in a continuing criminal enterprise. The court must find by a preponderance of evidence that the defendant acted in concert with or conspired with at least five other persons engaged in a continuing criminal enterprise involving violations of the act.” Id., at 28 (emphasis added).
      The actual language of the bill, however, used the words “in concert with” to cover both concerted action and conspiracy. Id., at 121. Thus, it is apparent that the Senate understood the term “in concert” to encompass the concept of agreement.
      The debates reveal that Congress was concerned with providing severe penalties for professional criminals when it included the continuing-criminal-enterprise section in the statute. See, e. g., 116 Cong. Rec. 995 (1970) (remarks of Sen. Dodd); id., at 1181 (remarks of Sen. Thurmond); id., at 33631 (remarks of Cong. Weicker); id., at 33314 (remarks of Cong. Bush). This concern undercuts the Government’s argument that one professional criminal might have “conned” five innocent dupes into working for him, all of them being unaware that the purpose of the work was to conduct an illegal drug business, and none agreeing to do so.
      When the phrase “in concert” has been used in other statutes, it has generally connoted cooperative action and agreement. See, e. g., 2 U. S. C. §§434 (b) (13), 441a (a) (7) (B) (i) (1976 ed.) (Federal Election Campaign Act Amendments of 1976); 7 U. S. C. § 13c (a) (1970 ed., Supp. V) (Commodity Futures Trading Commission Act of 1974 — liability as principal) ; 10 U. S. C. § 894 (a) (Code of Military Justice — mutiny or sedition) ; 29 U. S. C. §§ 52, 104, 105 (Norris-LaGuardia Act); 46 U. S. C. § 1227 (Merchant Marine Act — agreements with other carriers forbidden) ; 49 U. S. C. § 322 (b) (1) (Interstate Commerce Act, Part II — unlawful operation of motor carriers). This suggests that Congress intended the same words to have the same meaning in § 848. Even Iannelli did not require the word “conspiracy” to be spelled out in the statutory definition, as long as the concept of agreement was included therein. 420 U. S., at 785 n. 17. Since the word “concert” commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned.

       In connection with this assumption, we note that until the Court of Appeals in this case found that § 846 was a lesser included offense of § 848, no other appellate court had considered the issue. Indeed, after Iannelli it would have been fair to assume that the question was open. The dissenting opinion here is based on the premise that it was beyond dispute that §§ 846 and 848 were so related. From there, it is easy to reason that the prosecutor should be held accountable for the presumed error that occurred. Because the premise fails, however, this case cannot be fit so neatly into the niche that would be fashioned by the dissent. Unless it is plain that two offenses are “the same” for double jeopardy purposes, the parties and the court should be entitled to assume that successive prosecutions are an available option. This assumption would only be reinforced if the defendant affirmatively asked the court to require two proceedings, and in connection with his request he actively sought postponement of the second trial, as Jeffers did. Under the circumstances, it is hardly accurate to say, as the dissent does, that Jeffers was being required to give legal advice to the prosecution. On the contrary, he was simply under an obligation to preserve his double jeopardy point properly, by alerting both court and prosecution to the existence of a complex, unsettled issue.

       The two indictments in this case are remarkably similar in detail. It is clear that the identical agreement and transactions over the identical time period were involved in the two cases. It is also quite clear that none of the participants were “innocent dupes.”

       It is also possible to argue that a second trial on a greater ofíense is prohibited by the Double Jeopardy Clause because the defendant is necessarily placed twice in jeopardy on the lesser offense. The risk of conviction on the greater means nothing more than a risk of conviction upon proof of all the elements of the lesser plus proof of the additional elements needed for the greater. Brown v. Ohio, post, at 167 n. 6, leaves consideration of the implications of this theory for another day.

       Any adjustment in punishment for the fact that the defendant already has been punished for the lesser offense is not adequate to cure the injury suffered because of multiple prosecutions, since the double jeopardy problem inheres in the very fact of a second trial for the “same” offense. See Blackledge v. Perry, 417 U. S. 21, 30-31 (1974); Price v. Georgia, 398 U. S. 323, 329 (1970).

       The Government makes no attempt to defend the Court of Appeals’ reading of Iannelli; indeed, it states that that court misconstrued lan-nelli. Brief for United States 22 n. 10.

       The considerations relating to the propriety of a second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint of that is present in the case before us, since the Government affirmatively sought, trial on the two indictments together.
      Unlike the dissenters, we are unwilling to attach any significance to the fact that the grand jury elected to return two indictments against petitioner for the two statutory offenses. As the Court of Appeals’ opinion made clear, before this case it was by no means settled law that § 846 was a lesser included offense of § 848. See 532 F. 2d, at 1106-1111. See also Brief for United States 18-32; n. 15, supra. Even now, it has not been necessary to settle that issue definitively. See supra, at 149-150. If the position reasonably could have been taken that the two statutes described different offenses, it is difficult to ascribe any improper motive to the act of requesting two separate indictments. Furthermore, as noted supra, at 142, it was the Government itself that requested a joint trial on the two indictments, which also indicates that no sinister purpose was behind the formal method of proceeding.

       Petitioner argues that a finding of waiver is inconsistent with the decision in Simmons v. United States, 390 U. S. 377, 389-394 (1968), where the Court held that a defendant could not be required to surrender his Fifth Amendment privilege against compulsory self-incrimination in order to assert an arguably valid Fourth Amendment claim. In petitioner’s case, however, the alleged Hobson’s choice between asserting the Sixth Amendment fair trial right and asserting the Fifth Amendment double jeopardy claim is illusory. Had petitioner asked for a Rule 14 severance from the other defendants, the case might be different. In that event, he would have given the court an opportunity to ensure that prejudicial evidence relating only to other defendants would not have been introduced in his trial. Assuming that a valid Fifth Amendment point was in the background, due to the relationship between §§ 846 and 848, petitioner could have had no complaint about a trial of the two charges together. No such motion, however, was made. Under the circumstances of this case, therefore, no dilemma akin to that in Simmons arose.

       Petitioner’s position is not strengthened merely because no one raised the multiple-prosecution point during the first proceeding. Since the Government’s posture throughout this case has been that §§ 846 and 848 are separate offenses, it could not have been expected on its own to elect between them when its motion for trial together was denied. The right to have both charges resolved in one proceeding, if it exists, was petitioner’s; it was therefore his responsibility to bring the issue to the District Court’s attention.

       Brief for Petitioner 21; Brief for United States 9. See, however, the Government’s statement, Tr. of Oral Arg. 36: “[W]e submit, the Double Jeopardy Clause does not bar prosecution for the greater offense, provided, of course, that there was a conviction on the lesser included offense and provided that any punishment that he has suffered on the lesser offense be credited.” Different considerations govern the propriety of addressing the cumulative-punishment issue, since petitioner, for obvious reasons, never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments, and he did argue implicitly that separate trials would be permissible. Even if the two indictments had been tried together, the cumulative-punishment issue would remain.

       For present purposes, since petitioner is not eligible for parole at any time, there is no need to examine the Government’s argument that the prison sentences do not present any possibility of cumulative punishment.

       Cf. United States v. Gaddis, 424 U. S. 544, 549 n. 12 (1976) (vacating convictions and sentences under 18 U. S. C. § 2113 (a) in light of conviction under §2113 (d)).

       The Congress was plainly interested in punishing the professional criminal severely when it passed § 848. See, e. g., S. Rep. No. 91-613, pp. 2, 7 (1969); 116 Cong. Rec. 995, 1181, 1664 (1970) (remarks in Senate debate); id., at 33300-33301, 33304, 33314 (remarks in House debate). Taken alone, this might support an argument for cumulative penalties. The House Report, however, indicates that the penalty scheme of the continuing-criminal-enterprise section was to be separate from the rest of the penalties. H. R. Rep. No. 91-1444, pt. 1, pp. 10-11 (1970). In light of these arguably conflicting conclusions from the legislative history, we see no reason to deviate from the result suggested by the structure of the statute itself.

       As the Court notes in Brown, Nielsen cites an 1833 New Jersey case; that case in turn quotes Blackstone. State v. Cooper, 13 N. J. L. 361, 375. See 4 W. Blackstone, Commentaries *336.

       The plurality implies that the result in this case would be different “if any action by the Government contributed to the separate prosecutions on the lesser and greater charges.” Ante, at 152 n. 20. I wonder how the grand jury happened to return two separate indictments.

       The Government retained the alternative of trying petitioner on both charges at once, while trying the other defendants separately for conspiracy. The prosecutor never attempted this course, and defense counsel — not • having had an opportunity to read today’s plurality opinion — had no reason to believe he had a duty to suggest it. Until today it has never been the function of the defense to give legal advice to the prosecutor.

       When the Government attempted to obtain a joint trial on all the charges against all the defendants, the attorney representing all the defendants resisted the Government motion. He did so largely because of the possible prejudice to petitioner’s codefendants, and gave relatively little emphasis to arguments relating to petitioner alone. See ante, at 142-143, n. 5.

       It is quite clear from the plurality opinion that petitioner has been denied his constitutional rights. As that opinion states, it is “the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense.” Ante, at 150. And, as the plurality also demonstrates, that is precisely what happened here. Ante, at 147-150. Two additional facts, also noted by the plurality, clinch the double jeopardy claim: (1) petitioner was' not only twice tried, but also twice punished for the same offense, ante, at 154^158; and (2) the instructions at the second trial required petitioner to defend against the lesser charge for a second time, ante, at 145 n. 11.

       The following sentence by Mr. Justice Black is also worth remembering: “If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance.” Green, 355 U. S., at 198.

       The Court's disposition is especially troubling because eight Justices agree that petitioner’s constitutional right was violated and only four are persuaded that he waived his double jeopardy objection.


source: Caselaw Access Project

author: MR. Justice Powusll Mr. Justice Brennan, Mr. Justice Blackmun,

license: Public Domain

text:
    BROWN v. OHIO
    No. 75-6933.
    Argued March 21, 1977
    Decided June 16, 1977
    Powell, J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 170. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 170.

      Robert Plautz, by appointment of the Court, 429 U. S. 997, argued the cause for petitioner. With him on the briefs was Glenn Billington.

      George J. Sadd argued the cause for respondent. With him on the briefs was John T. Corrigan.

   MR. Justice Powusll

delivered the opinion of the Court.

The question in this case is whether the Double Jeopardy-Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner’s consent.

I

On November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with “joyriding”- — taking or operating the car without the owner’s consent — in violation of Ohio Rev. Code Ann. § 4549.04 (D) (1973, App. 342). The complaint charged that “on or about December 8, 1973, . . . Nathaniel H. Brown did unlawfully and purposely take, drive or operate a certain motor vehicle to wit; a 1965 Chevrolet . . . without the consent of the owner one Gloria Ingram . . . .” App. 3. Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine.

Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and on February 5 he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging the theft of the car “on or about the 29th day of November 1973/’ in violation of Ohio Rev. Code Ann. § 4549.04 (A) (1973, App. 342), and the second charging joyriding on the same date in violation of § 4549.04 (D). A bill of particulars filed by the prosecuting attorney specified that

“on or about the 29th day of November, 1973, . . . Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle, and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram . . . .” App. 10.

Brown objected to both counts of the indictment on the basis of former jeopardy.

On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea. Upon submission of the motion, the court overruled Brown’s double jeopardy objections. The court sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year.

The Ohio Court of Appeals affirmed. It held that under Ohio law the misdemeanor of joyriding was included in the felony of auto theft:

“Every element of the crime of operating a motor vehicle without the consent of the owner is also an element of the crime of auto theft. ‘The difference between the crime of stealing a motor vehicle, and operating a motor vehicle without the consent of the owner is that conviction for stealing requires proof of an intent on the part of the thief to permanently deprive the owner of possession.’ . . . [T]he crime of operating a motor vehicle without the consent of the owner is a lesser included offense of auto theft. . . .” Id., at 22.

Although this analysis led the court to agree with Brown that “for purposes of double jeopardy the two prosecutions involve the same statutory offense,” id., at 23, it nonetheless held the second prosecution permissible:

“The two prosecutions are based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant has not shown that both prosecutions are based on the same act or transaction, the second prosecution is not barred by the double jeopardy clause.” Ibid.

The Ohio Supreme Court denied leave to appeal.

We granted certiorari to consider Brown's double jeopardy claim, 429 U. S. 893 (1976), and we now reverse.

II

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1061 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the “same offence” under the Double Jeopardy Clause.

Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U. S. 332, 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.

The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U. S. 386 (1958); Bell v. United States, 349 U. S. 81 (1955); Ex parte Lange, 18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jorn, 400 U. S. 470, 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U. S. 436 (1970); cf. United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U. S. 184, 187-188 (1957); cf. North Carolina v. Pearce, supra.

The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U. S. 299, 304 (1932):

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .”

This test emphasizes the elements of the two crimes. “If each requires proof of a fact that the other does not, the Block-burger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .” Iannelli v. United States, 420 U. S. 770, 785 n. 17 (1975).

If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U. S. 176, 187-188 (1889); cf. Gavieres v. United States, 220 U. S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless “each statute requires proof of an additional fact which the other does not,” Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.

We are mindful that the Ohio courts “have the final authority to interpret . . . that State’s legislation.” Garner v. Louisiana, 368 U. S. 157, 169 (1961). Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: Joyriding consists of taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.

Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that “each [statute] requires proof of a fact which the other does not.” ■ 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it.

This conclusion merely restates what has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that

“where ... a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” 131 U. S., at 188.

Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id., at 188,190, citing Morey v. Commonwealth, supra, at 434. And as another application of the same rule, the Court cited, 131 U. S., at 190, with approval the decision of State v. Cooper, 13 N. J. L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony-murder indictment based on the death of a man killed in the fire. Cf. Waller v. Florida, 397 U. S. 387, 390 (1970). Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.

Ill

After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. App. 23. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. Cf. Braverman v. United States, 317 U. S. 49, 52 (1942). The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown’s offense, it was still only one offense under Ohio law. Accordingly, the specification of different dates in the two changes on which Brown was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments.

Reversed.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, concurring.

I join the Court’s opinion, but in any event would reverse on the ground, not addressed by the Court, that the State did not prosecute petitioner in a single proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454, and n. 7 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting from denial of certiorari), and cases collected therein. In my view the Court’s suggestion, ante, at 169 n. 8, that the Ohio Legislature might be free to make joyriding a separate and distinct offense for each day a motor vehicle is operated without the owner’s consent would not affect the applicability of the single-transaction test. Though under some circumstances a legislature may divide a continuing course of conduct into discrete offenses, I would nevertheless hold that all charges growing out of conduct constituting a “single criminal act, occurrence, episode, or transaction” must be tried in a single proceeding.

Mr. Justice Blackmun,

with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.

The Court reverses the judgment of the Ohio Court of Appeals because the Court does not wish this case to slip by without taking advantage of the opportunity to pronounce some acceptable but hitherto unenunciated (at this level) double jeopardy law. I dissent because, in my view, this case does not deserve that treatment.

I, of course, have no quarrel with the Court’s general double jeopardy analysis. See Jeffers v. United States, ante, p. 137. I am unable to ignore as easily as the Court does, however, the specific finding of the Ohio Court of Appeals that the two prosecutions at issue here were based on petitioner’s separate and distinct acts committed, respectively, on November 29 and on December 8,1973.

Petitioner was convicted of operating a motor vehicle on December 8 without the owner’s consent. He subsequently was convicted of taking and operating the same motor vehicle on November 29 without the owner’s consent and with the intent permanently to deprive the owner of possession. It is possible, of course, that at some point the two acts would be so closely connected in time that the Double Jeopardy Clause would require treating them as one offense. This surely would be so with respect to the theft and any simultaneous unlawful operation. Furthermore, as a matter of statutory construction, the allowable unit of prosecution may be a course of conduct rather than the separate segments of such a course. See, e. g., United States v. Universal C. I. T. Credit Corp., 344 U. S. 218 (1952). I feel that neither of these approaches justifies the Court’s result in the present case.

Nine days elapsed between the two incidents that are the basis of petitioner’s convictions. During that time the automobile moved from East Cleveland to Wickliffe. It strains credulity to believe that petitioner was operating the vehicle every minute of those nine days. A time must have come when he stopped driving, the car. When he operated it again nine days later in a different community, the Ohio courts could properly find, consistently with the Double Jeopardy Clause, that the acts were sufficiently distinct to justify a second prosecution. Only if the Clause requires the Ohio courts to hold that the allowable unit of prosecution is the course of conduct would the Court’s result here be correct. On the facts of this case, no such requirement should be inferred, and the state courts should be free to construe Ohio’s statute as they did.

This Court, I fear, gives undeserved emphasis, ante, at 163-164, to the Ohio Court of Appeals’ passing observation that the Ohio misdemeanor of joyriding is an element of the Ohio felony of auto theft. That observation was merely a preliminary statement, indicating that the theft and any simultaneous unlawful operation were one and the same. But the Ohio Court of Appeals then went on flatly to hold that such simultaneity was not present here. Thus, it seems to me, the Ohio courts did precisely what this Court, ante, at 169 n. 8, professes to say they did not do.

In my view, we should not so willingly circumvent an authoritative Ohio holding as to Ohio law. I would affirm the judgment of the Court of Appeals.

       Section 4549.04 (D) provided at the time: “No person shall purposely take, operate, or keep any motor vehicle without the consent of its owner.” A violation was punishable as a misdemeanor. Section 4549.04 was repealed effective January 1, 1974.

       Section 4549.04 (A) provided: “No person shall steal any motor vehicle.” A violation was punishable as a felony.

       The joyriding count of the indictment was nol pressed.

       As the Ohio Court of Appeals recognized, the Wicldiffe and Cuyahoga County prosecutions must be viewed as the acts of a single sovereign under the Double Jeopardy Clause. Waller v. Florida, 397 U. S. 387 (1970).

       We are not concerned here with the double jeopardy questions that may arise when a defendant is retried on the same charge after a mistrial, e. g., United States v. Jorn, 400 U. S. 470 (1971), or dismissal of the indictment or information, e. g., United States v. Jenkins, 420 U. S. 358 (1975), or after a conviction is reversed on appeal, e. g., United States v. Ball, 163 U. S. 662 (1896). Nor are we concerned with the permissibility of separate prosecutions on closely related criminal charges when the accused opposes a consolidated trial, e. g., Jeffers v. United States, ante, p. 137.

        . The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Thus in Ashe v. Swenson, 397 U. S. 436 (1970), where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in In re Nielsen, 131 U. S. 176 (1889), the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a 2%-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period.
      In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. See Ebeling v. Morgan, 237 U. S. 625 (1915). In Nielsen, conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court in both cases held the separate offenses to be the “same” for purposes of protecting the accused from having to “ 'run the gantlet’ a second time.” Ashe, supra, at 446, quoting from Green v. United States, 355 U. S. 184, 190 (1957).
      Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe and Nielsen.

       An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 U. S. 442, 448-449 (1912); Ashe v. Swenson, supra, at 453 n. 7 (Brennan, J., concurring).

       We would have a different case if the Ohio Legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner’s consent. Cf. Blockburger v. United States, 284 U. S., at 302. We also would have a different case if in sustaining Brown’s second conviction the Ohio courts had construed the joyriding statute to have that effect. We then would have to decide whether the state courts’ construction, applied retroactively in this case, was such “an unforeseeable judicial enlargement of a criminal statute” as to violate due process. See Bouie v. City of Columbia, 378 U. S. 347, 353 (1964); cf. In re Snow, 120 U. S. 274, 283-286 (1887); Crepps v. Durden, 2 Cowper 640 (K. B. 1777).


author: Per Curiam. Mr. Justice Brennan, Mr. Justice White, Mr. Justice Stevens,

text:
    MANDEL, GOVERNOR OF MARYLAND, et al. v. BRADLEY et al.
    No. 76-128.
    Argued February 23, 1977
    Decided June 16, 1977

      George A. Nilson, Deputy Attorney General of Maryland, argued the cause for appellants. With him on the briefs were Francis B. Burch, Attorney General, and Robert A. Zarnoch, Assistant Attorney General.

      Jon T. Brown argued the cause and filed a brief for appellees.
   Per Curiam.

Candidates for statewide or federal office in Maryland may obtain a place on the general election ballot by filing with the State Administrative Board of Election Laws a certificate of candidacy 70 days before a political party’s primary election and then by winning the primary. Alternatively, under provisions of the Maryland Election Code, a candidate for statewide or federal office may qualify for a position on the general election ballot as an independent by filing, 70 days before the date on which party primaries are held, nominating petitions signed by at least 3% oí the State’s registered voters and a certificate of candidacy. Md. Elec. Code Ann. §7-1 (1976 and Supp. 1976). In Presidential election years this filing date occurs approximately 230 to 240 days before the general election. In other years it occurs about 120 days before the general election. §§1-1 (a)(8), 5-2, 7-1.

Appellee Bruce Bradley decided in the spring of 1975 to run as an independent candidate for the United States Senate in 1976, a Presidential election year. Starting in the fall of 1975 Bradley collected signatures on nominating petitions. The requisite number was 51,155. On March 8, 1976, the deadline for filing, Bradley submitted 53,239 signatures and filed a certificate of candidacy for the Senate seat. However, on April 15, 1976, the State Administrative Board of Election Laws determined that only 42,049 of the signatures were valid and denied him a place on the ballot.

Two weeks later, Bradley and the other appellees — petition signers and other voter supporters of Bradley — filed the instant suit, alleging that the procedures mandated by § 7-1 of the Md. Elec. Code (1976 and Supp. 1976) constitute an unconstitutional infringement of their associational and voting rights under the First and Fourteenth Amendments. They complained that Maryland’s early filing date made it more difficult for Bradley to obtain the requisite number of signatures than for a party member to win a primary and sought, inter alia, an injunction against future enforcement of the offending provision of Maryland’s election procedures. A three-judge District Court agreed with the appellees that the early filing deadline of § 7-1 (i) (Supp. 1976) was an unconstitutional burden on an independent candidate’s access to the ballot and ordered the appellants to give Bradley 53 days after the party primaries to gather the requisite number of signatures.

The court based its holding on our summary affirmance in Tucker v. Salera, 424 U. S. 959 (1976), aff’g 399 F. Supp. 1258 (ED Pa. 1975). In Salera, a three-judge court declared unconstitutional a Pennsylvania law setting the deadline for an independent candidate to gather signatures to obtain a place on the ballot 244 days before the general election in a Presidential election year. Under the Pennsylvania law, independents had to submit signatures of only 2% of the largest vote cast for any candidate in the preceding statewide general election, but they had to gather the required signatures within a 21-day period prior to the filing deadline. In declaring the Pennsylvania statute invalid, the three-judge court relied, not on the short period for signature gathering (which it thought was valid under Storer v. Brown, 415 U. S. 724 (1974)), but solely on the early deadline for submission of the necessary signatures. The court. found that the deadline substantially burdened ballot access of independents by requiring them to obtain the necessary signatures at a time when the election issues were undefined and the voters were apathetic. It also rejected various countervailing state interests that had been urged. This Court summarily affirmed the judgment of the three-judge court in Salera.

The three-judge court in this case viewed this Court’s summary affirmance in Salera as controlling precedent for the proposition that early filing dates, such as that employed in Maryland, are unconstitutionally burdensome on the independent candidate’s access to the ballot, and therefore decided in favor of the appellees. We noted probable jurisdiction, 429 U. S. 813 (1976).

The District Court erred in believing that our affirmance in Salera adopted the reasoning as well as the judgment of the three-judge court in that case and thus required the District Court to conclude that the early filing date is impermissibly burdensome. Hicks v. Miranda, 422 U. S. 332 (1975), held that lower courts are bound by summary actions on the merits by this Court, but we noted that “[a]scertaining the reach and content of summary actions may itself present issues of real substance.” Id., at 345 n. 14. Because a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below.

“When we summarily affirm, without opinion, ... we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.” (Footnote omitted.) Fusari v. Steinberg, 419 U. S. 379, 391-392 (1975) (Burger, C. J., concurring).

Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. After Salera, for example, other courts were not free to conclude that the Pennsylvania provision invalidated was nevertheless constitutional. Summary actions, however, including Salera, should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.

Here, the District Court ruled that legally “Salera decides the issue before us, and as the latest expression of the Supreme Court, we are bound to follow it.” App. to Jurisdictional Statement 12a. The precedential significance of the summary action in Salera, however, is to be assessed in the light of all of the facts in that case; and it is immediately apparent that those facts are very different from the facts of this case. There, in addition to the early filing date, signatures had to be gathered within a 21-day period. This limited time enormously increased the difficulty of obtaining the number of signatures necessary to qualify as an independent candidate.

This combination of an early filing deadline and the 21-day limitation on signature gathering is sufficient to distinguish Salera from the case now before us, where there is no limitation on the period within which such signatures must be gathered. In short, Salera did not mandate the result reached by the District Court in this case.

Because of its preoccupation with Salera, the District Court failed to undertake an independent examination of the merits. The’ appropriate inquiry was set out in Storer v. Brown, supra, at 742:

“[I]n the context of [Maryland] politics, could a reasonably diligent independent candidate be expected to satisfy the [ballot access] requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not. We note here that the State mentions only one instance of an independent candidate’s qualifying . . . but disclaims having made any comprehensive survey of the official records that would perhaps reveal the truth of the matter.”

In Btorer itself, because the District Court had not applied these standards in adjudicating the constitutional issues before it, we remanded the case “to permit further findings with respect to the extent of the burden imposed on independent candidates.” 415 U. S., at 740. There is no reason here for doing any less. The District Court did not sift through the conflicting evidence and make findings of fact as to the difficulty of obtaining signatures in time to meet the early filing deadline. It did not consider the extent to which other features of the Maryland electoral system — such as the unlimited period during which signatures may be collected, or the unrestricted pool of potential petition signers — moderate whatever burden the deadline creates. See Developments in the Law— Elections, 88 Harv. L. Rev. 1111,1142-1143 (1975). It did not analyze what the past experience of independent candidates for statewide office might indicate about the burden imposed on those seeking ballot access. Instead, the District Court’s assumption that the filing deadline by itself was per se illegal- — as well as the expedited basis upon which the case necessarily was decided — resulted in a failure to apply the constitutional standards announced in Storer to the statutory provisions here at issue.

The application of those standards to the evidence in the record is, in the first instance, a task for the District Court. We therefore vacate the judgment, and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Brennan,

concurring.

I join the opinion of the Court but write to emphasize the Court’s treatment of the rule announced in Hicks v. Miranda, 422 U. S. 332 (1975).

In a dissent from the denial of certiorari in Colorado Springs Amusements, Ltd. v. Rizzo, 428 U. S. 913 (1976), I stated why, in my view, the federal and state courts should give “appropriate, but not necessarily conclusive, weight to our summary dispositions,” id., at 923, rather than be required, as the Court held in Hicks, “to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.” 428 U. S., at 913.

The Court by not relying on our summary affirmance in Tucker v. Salera, 424 U. S. 959 (1976), and Auerbach v. Mandel, 409 U. S. 808 (1972), effectively embraces that view, and vividly exposes the ambiguity inherent in summary dispositions and the nature of the detailed analysis that is essential before a decision can be made whether it is appropriate to accord a particular summary disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a summary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, “appropriate, but not necessarily conclusive, weight” is to be given this Court’s summary dispositions.

Mr. Justice White,

with whom Mr. Justice Powell joins, concurring.

Although there are many indications in the District Court’s opinion that it not only considered Tucker v. Salera, 424 U. S. 959 (1976), controlling, but also independently invalidated the Maryland law on grounds similar to or the same as those employed in Salera — in which event, a remand would be inappropriate — -it is fairly arguable that the District Court should unmistakably record its opinion as to the validity of the Maryland law. A number of my Brethren are of this view, and I defer to their judgment.

Mr. Justice Stevens,

dissenting.

In my judgment the Maryland statute unfairly discriminates against independent candidates in one respect. It requires the independent to make his decision to become a candidate much sooner than a member of a national political party.

A party member is merely required to file a certificate of candidacy 70 days before the primary election. That procedure is so simple that he may postpone his decision until that very day and still satisfy all legal requirements for candidacy. In contrast, the independent must complete the signature gathering process by the 70th day preceding the primary election. Since the task of obtaining the signatures of 3% of the registered voters inevitably will require a significant amount of time, the independent must make his decision to run well in advance of the filing deadline.

In my opinion, the State has not put forward any justification for this disparate treatment. Moreover, it is potentially a matter of great significance. The decision to become a candidate may be prompted by a sudden, unanticipated event of great national or local importance. If such an event should occur on the 71st day before a primary, national party members could make a timely decision to run but independents could not.

The statute should be evenhanded in its impact on the timing of the most important decision any candidate must make. The burdens that an independent must shoulder are heavy enough without requiring him to make that decision before his most formidable opponents must do so.

On the basis of the record developed in the District Court, and the full argument on the merits in this Court, I would therefore affirm the judgment.

       Bradley successfully gathered the requisite number of signatures, obtained a place on the ballot, ran, and lost. This case is nonetheless not moot. Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974).

       In Storer v. Brown, supra, as the District Court noted, the 24-day limitation was not by itself enough to invalidate the statute, but we clearly recognized that the limitation, when combined with other provisions of the election law, might invalidate the statutory scheme. 415 U. S., at 742-743. The District Court in this case erred in reading Storer v. Brown as holding irrelevant the limited period of time in which signatures must be gathered.

       The appellees filed this action on April 30, 1976. The three-judge court was convened and heard argument on May 12, and it announced its decision on May 17.

       There is evidence in the record that in both 1972 and 1976 — the only years in which the early deadline was effective — no candidate for statewide office succeeded in qualifying for the ballot. There is also evidence tending to substantiate the appellees’ contention that there existed a variety of obstacles in the way of obtaining support for an independent candidate far in advance of the general election. Without intimating any ultimate view on the merits of the appellees’ challenge, we have no doubt that it has sufficient substance to warrant a remand for further proceedings.

       The District Court will be free on remand to- consider the appellees’ argument that the “technical and administrative requirements of the petition signing process” are an unconstitutional burden on ballot access — a question never reached in view of the decision for the appellees and Bradley’s ultimate success in qualifying for the ballot.

      In Jenness v. Fortson, 403 U. S. 431, this Court upheld the Georgia filing procedures applicable to independent candidates seeking a place on the general election ballot. These procedures required the independent candidate to collect signatures of at least 5% of the number of registered voters at the last general election for the office in question. Id., at 432. The independent candidate had 180 days in which to accomplish this task and had to file the completed petitions by the same deadline which a party candidate had to meet. Id., at 433-434. Thus, the procedures for filing by independents under the Georgia statute are similar to those aspects of the Maryland procedures in issue here which I find place such a handicap on independent candidates. However, the question I find decisive in this case was neither raised nor decided by the Court in Jenness, see id., at 434. Thus, that decision is not controlling on this point, KVOS, Inc. v. Associated Press, 299 U. S. 269, 279, quoting Webster v. Fall, 266 U. S. 507, 511 (“ 'Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents’ ”).
      For the reasons stated in Edelman v. Jordan, 416 U. S. 651, 670-671, I do not regard the summary affirmance in Auerbach v. Mandel, 409 U. S. 808, as controlling.