The government, in addition to arguing that conspiracy is not "conduct that is a necessary element of the more serious crime [of CCE]," Vitale, 447 U.S. at 420, 100 S.Ct. at 2267, maintains that Brown's double jeopardy analysis of greater and lesser included offenses does not apply where the greater offense is a complex statutory crime such as CCE. This argument relies primarily upon Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), where the Supreme Court held that a CCE prosecution, which occurred after a defendant had already been convicted for one of the predicate offenses to the CCE, did not violate the double jeopardy clause. We conclude that Garrett does not support the government's argument.
We have continued to recognize this principle over the years. See Iannelli v. United States, 420 U.S. 770, 777-779 (1975); Garrett v. United States, 471 U.S. 773, 778 (1985) ("[C]onspiracy is a distinct offense from the completed object of the conspiracy"); cf. id., at 793 ("[I]t does not violate the Double Jeopardy Clause . . . to prosecute [a continuing criminal enterprise] offense after a prior conviction for one of the predicate offenses"). In a related context, we recently cautioned against "ready transposition of the "lesser included offense" principles of double jeopardy from the classically simple situation presented in Brown [v. Ohio] to the multilayered conduct, both as to time and to place, involved in [continuing criminal enterprise (CCE) prosecutions]."
See Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977) (plurality opinion). Indeed, we recognize at the outset that Esposito's prosecution on the substantive narcotics offenses which were listed as predicate acts in the earlier RICO indictment against him could implicate some of the concerns underlying the Double Jeopardy Clause, such as, for example, the need to protect a defendant from prosecutorial overreaching, see Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); Garrett v. United States, 471 U.S. 773, 795-96, 105 S.Ct. 2407, 2419-20, 85 L.Ed.2d 764 (1985) (O'Connor, J., concurring), or providing the state an opportunity to rehearse its presentation of proof, see Grady v. Corbin, ___ U.S. ___, 110 S.Ct. 2084, 2091-92, 109 L.Ed.2d 548 (1990). Moreover, this is not a case where all the events necessary to the second prosecution had not taken place at the time of the first prosecution, see Garrett, 471 U.S. at 798, 105 S.Ct. at 2421 (O'Connor, J., concurring) (double jeopardy does not bar subsequent prosecution for CCE offense "[w]here the defendant continues unlawful conduct after the time the Government prosecutes him for a predicate offense"); see also Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912) (earlier conviction of assault and battery does not bar prosecution for homicide when victim died after the first prosecution), nor a case where the facts underlying the second prosecution were unknown or unavailable at the time of the first, see Jeffers, 432 U.S. at 152, 97 S.Ct. at 2216 (double jeopardy ma
For similar reasons, we hold in this case that the Double Jeopardy Clause does not bar prosecution of McHan under 21 U.S.C. § 848 for conducting a continuing criminal enterprise, even though a 1988 conspiracy, to which he pled guilty, is alleged to form one of the predicate acts for the CCE charge. The double jeopardy analysis for multilayered conduct, as developed in Arnoldt, has its most significant roots in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In Garrett, the Supreme Court considered a double jeopardy argument very similar to McHan's.
Before analyzing Roundy's double jeopardy arguments based on Grady, it is important to note that his challenge is solely based on any change in the law of double jeopardy as a result of Grady. It is useful to examine prior, and still controlling, case law on this point. The Supreme Court's opinion in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), which upheld this Court's ruling in United States v. Garrett, 727 F.2d 1003 (11th Cir. 1984), calls for a two-step analysis to determine whether successive prosecutions run afoul of double jeopardy constraints. The first step is to determine whether Congress intended that each violation be a separate offense. If such was not Congress' intent, there is no statutory grounds for two prosecutions and the double jeopardy analysis is complete.
In this context, "`the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.'" Garrett v. United States, 471 U.S. 773, 793 (1985) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983); see also Albernaz v. United States, 450 U.S. 333, 344 (1981). "Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature — in this case Congress — intended that each violation be a separate offense."
The Supreme Court affirmed the judgment of the New York Court of Appeals that prosecution of Corbin for these charges was prohibited by the double jeopardy clause. Observing that the Blockburger test was conceived "`in the context of multiple punishments imposed in a single prosecution,'" Grady, 110 S.Ct. at 2090-91 (quoting Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985)), the Court reasoned that Blockburger was forged without appreciation of the hazards and concerns raised by successive prosecutions. Id.
Congress intended CCE to be a separate offense. Garrett v. United States, 471 U.S. 773, 784, 105 S.Ct. 2407, 2414, 85 L.Ed.2d 764 (1985). Moreover, the double jeopardy clause does not preclude prosecution for both the predicate offenses and the CCE offense, even when prosecution for a CCE offense follows conviction for one of the predicate offenses.
(4th Cir. 1984), and United States v. Gomberg, 715 F.2d 843, 851 (3d Cir. 1983), cert. denied sub nom. Spielvogel v. United States, ___ U.S. ___, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), and United States v. Jefferson, 714 F.2d 689, 703 (7th Cir. 1983), and United States v. Samuelson, 697 F.2d 255, 260 (8th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984), and United States v. Middleton, 673 F.2d 31, 33 (1st Cir. 1982), and United States v. Chagra, 669 F.2d 241, 261-62 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982) (finding double jeopardy violation), with United States v. Brantley, 733 F.2d 1429, 1437 (11th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), and United States v. Mourad, 729 F.2d 195, 203 (2d Cir.) (finding no double jeopardy violation), cert. denied sub nom. Hargrave v. United States, ___ U.S. ___, 105 S.Ct. 180, 83 L.Ed.2d 144 (1984). The Supreme Court recently resolved the issue in Garrett v. United States, ___ U.S. ___, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The Court found that "[t]he language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses."
The Blockburger test was developed "in the context of multiple punishments imposed in a single prosecution." Garrett v. United States, 471 U.S. 773, 778 (1985). In that context, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."