Opinion · Supreme Court of the United States

United States v. Felix

503 U.S. 378

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1992-03-25
Topic
general

How later courts describe this case

  • concluding that “a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes”
  • holding that the Double Jeopardy Clause does not bar successive prosecutions for a conspiracy and a substantive offense alleged as an overt act of the conspiracy
  • recognizing that “a substantive crime and a conspiracy to commit that crime are not the ‘same offence’ for double jeopardy purposes”
  • concluding that a substantive crime and a conspiracy to commit that crime are separate offenses for double jeopardy purposes
  • holding that “the agreement to do the act is distinct from the act itself.”
  • holding that the Government was not foreclosed from prosecuting substantive drug offenses although it had presented evidence of the drug transactions as evidence of another crime
  • holding that the introduction of evidence of an earlier robbery, of which the defendant was acquitted, at a trial for a subsequent bank robbery did not violate the double jeopardy clause
  • holding that defendant’s earlier conviction for attempt to manufacture drugs did not bar subsequent conviction for conspiracy to manufacture even though based, in part, upon same conduct charged in earlier attempt conviction

Citator

United States v. Felix has been questioned or limited by later authorities: relies on overruled authority: 109 L. Ed. 2d 548 (overruled by Adarand Constructors, Inc. v. Pena). Read them before relying on it. 536 later decisions cite it.

Authority status
caution
Cited by
536 opinions
UNITED STATES v. FELIX,503 U.S. 378(1992)
112 S.Ct. 1377
UNITED STATESv. FELIX
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 90-1599
Argued January 14, 1992
Decided March 25, 1992
During the summer of 1987, respondent Felix manufactured methamphetamine at an Oklahoma facility. After Drug Enforcement Administration (DEA) agents shut down that facility, Felix ordered additional chemicals and equipment from a DEA informant for delivery in Missouri. Federal Government officials observed the delivery, arrested him, and charged him with the offense of attempting to manufacture an illegal drug. At his trial in Missouri, the Government, in order to establish Felix's criminal intent, introduced evidence that he had manufactured methamphetamine in Oklahoma, and he was convicted. Subsequently, he was named in,inter alia, six counts of an indictment filed in a Federal District Court in Oklahoma. Count 1 charged him with conspiracy to manufacture, possess, and distribute methamphetamine. Two of the overt acts supporting this charge were based on the same conduct that had been the subject of the Missouri prosecution. The other counts charged him with substantive drug offenses, and at trial the Government introduced much of the same evidence of the Missouri and Oklahoma transactions that had been introduced at the Missouri trial. Felix was convicted, but the Court of Appeals reversed, relying on language inGrady v. Corbin,495 U.S. 508,521, that the Double Jeopardy Clause bars a subsequent prosecution where the government, "to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." With respect to the conspiracy count, the court observed that, in both trials, the Government proved that Felix had learned to make, and had manufactured, methamphetamine in Oklahoma, and had sought to purchase more chemicals and equipment in Missouri. The court also noted that the direct evidence supporting the substantive offenses — that Felix had purchased chemicals and equipment during the spring of 1987 and had manufactured methamphetamine in Oklahoma — had been introduced at the Missouri trial to show intent.Held:The Double Jeopardy Clause does not bar Felix's prosecution on either the substantive drug offenses or the conspiracy charge. Pp. 384-392.Page 379
(a) None of the substantive offenses for which Felix was prosecuted in Oklahoma is in any sense the same offense for which he was prosecuted in Missouri. The actual crimes charged in each case were different in both time and place, and no common conduct links them. In addition, mere overlap in proof between two prosecutions does not establish a double jeopardy violation.Dowling v. United States,493 U.S. 342. Thus, the Court of Appeals erred to the extent that it assumed that, if the Government offers in evidence in one prosecution acts of misconduct that might ultimately be charged as criminal offenses in a second prosecution, the latter prosecution is barred. And it gave an extravagant reading toGrady, supra, which disclaimed any intention of adopting a "`same evidence'" test,id., at 521, and n. 12. Pp. 384-387.
(b) A substantive crime and a conspiracy to commit that crime are not the "same offense" for double jeopardy purposes,see, e.g., UnitedStates v. Bayer,331 U.S. 532;Pinkerton v. United States,328 U.S. 640,643, even if they are based on the same underlying incidents, because the "essence" of a conspiracy offense "is in the agreement or confederation to commit a crime,"Bayer, supra, at 542. This established doctrine predates, and was not questioned in,Grady, supra. In addition, whileGrady— which involved a State's reliance on a defendant's two traffic offense convictions to sustain later-filed homicide and assault charges arising from the same accident — may be useful in cases arising from a "single course of conduct," it is much less helpful in analyzing prosecutions involving multilayered conduct, such as the conspiracy prosecution here. Thus, the Court of Appeals erred in essentially readingGradyas substituting for the "same offence" language of the Double Jeopardy Clause a test based on whether the two prosecutions involve the same conduct. Pp. 387-391.
926 F.2d 1522reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined, and in Parts I and II of which BLACKMUN and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined,post, p. 392.
Deputy Solicitor General Brysonargued the cause for the United States. With him on the briefs wereSolicitor General Starr,Assistant Attorney General Mueller, andJames A. Feldman.Page 380Scott M. Andersonargued the cause and filed a brief for respondent.fn*
CHIEF JUSTICE REHNQUIST, delivered the opinion of the Court.
The Double Jeopardy Clause of theFifth Amendment to the United States Constitutionprovides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb."

During the summer of 1987, respondent Frank Dennis Felix operated a facility in Beggs, Oklahoma, at which he manufactured methamphetamine in violation of applicable federal statutes. In July, this facility was raided and shut down by (Drug Enforcement Administration) agents. Felix thereupon ordered precursor chemicals and equipment for the manufacture of methamphetamine to be delivered to him at Joplin, Missouri. DEA agents observed the transfer of these items and arrested Felix shortly afterwards. He was charged and tried in the Western District of Missouri for the offense of attempting to manufacture the illegal drug between August 26 and August 31, 1987. This charge was based upon the delivery of the materials to him at Joplin. He was tried, found guilty, and his conviction and sentence were affirmed by the Court of Appeals for the Eighth Circuit.

In February, 1989, Felix was charged in the Eastern District of Oklahoma with both conspiracy and substantive counts in connection with the operation of the facility at Beggs. He was tried and convicted, but the Court of Appeals for the Tenth Circuit reversed most of the counts on which he had been found guilty because of its view that trial on these counts constituted double jeopardy in violation of theFifth Amendment. We hold that prosecution of a defendant for conspiracy, where certain of the overt acts reliedPage 381upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.
I
At Felix's trial for attempting to manufacture methamphetamine in Missouri, the Government showed that, on August 26, 1987, Felix asked to purchase chemicals and equipment needed for the manufacture of methamphetamine from George Dwinnells, a DEA informant. Felix made a down-payment of $7,500 toward the purchase, and in later telephone conversations instructed Dwinnells to deliver the items to a Joplin, Missouri, hotel on August 31, 1987. Dwinnells met Felix at the hotel on that date with the merchandise. After Felix inspected the items and hitched his car to the trailer in which the items had been transported, Government officials arrested him.

Felix's defense in the Missouri case was that "he never had criminal intent, but had been acting under the mistaken belief that he was working in a covert DEA operation."United States v. Felix,867 F.2d 1068,1074(CA8 1989). In order to establish Felix's criminal intent with respect to the items delivered in Missouri, the Government introduced evidence that Felix had manufactured methamphetamine in Oklahoma earlier in 1987. See Fed. Rule Evid.404(b) (evidence of prior acts is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). The evidence showed that, during the spring of 1987, Felix had purchased precursor materials from Dwinnells and had furnished those items to Paul Roach in exchange for lessons on how to manufacture methamphetamine. Roach, who testified for the Government at Felix's Missouri trial, stated that he and Felix had produced methamphetamine in a trailer near Beggs, Oklahoma. Government agents had seized the trailer, which was indeed being used as a methamphetamine lab, on July 13, 1987. The agents did not arrest FelixPage 382at that time, however; he later told Dwinnells that he had avoided arrest by hiding in the nearby woods. In accordance with Rule 404(b), the District Court instructed the jury that the evidence of the Oklahoma transactions was admissible only to show Felix's state of mind with respect to the chemicals and equipment he attempted to purchase in Missouri. The jury convicted Felix, and the Eighth Circuit affirmed.867 F.2d, at 1070-1076.

The Government subsequently named Felix in 8 counts of an 11-count indictment filed in the United States District Court for the Eastern District of Oklahoma. Count 1 charged that Felix and five others conspired, between May 1, 1987, and August 31, 1987, to manufacture, possess, and distribute methamphetamine. Felix was named in nine of the overt acts supporting the conspiracy charge; two of those nine overt acts were based on conduct that had been the subject of the earlier Missouri prosecution. Overt act 17 charged that, "[o]n August 26, 1987, Frank Dennis Felix, while in Tulsa, Oklahoma, provided money for the purchase of chemicals and equipment necessary in the manufacture of methamphetamine." Overt act 18 charged that, "[o]n August 31, 1987, Frank Dennis Felix, while at a location in Missouri, possessed chemicals and equipment necessary in the manufacture of methamphetamine." Along with the conspiracy charge, Felix was named in seven substantive counts. Counts 2 through alleged that, on or about July 13, 1987, in the Eastern District of Oklahoma, Felix had manufactured methamphetamine, possessed methamphetamine with intent to distribute it, possessed methamphetamine oil with intent to manufacture methamphetamine, and manufactured phenylacetone, a methamphetamine precursor. Count 6 charged that, between June 1, 1987, and July 13, 1987, in the Eastern District of Oklahoma, Felix and a codefendant had maintained a methamphetamine manufacturing lab. Counts 9 and 10 charged that, on or about June 21, 1987, and July 13, 1987,Page 383Felix had traveled from Texas to the Eastern District of Oklahoma with the intent to promote the manufacture of methamphetamine, and had thereafter attempted to promote that activity. At trial, the Government introduced much of the same evidence of the Missouri and Oklahoma transactions that had been introduced in the Missouri trial. The jury convicted Felix of all the crimes with which he was charged.

A divided panel of the Court of Appeals for the Tenth Circuit reversed Felix's convictions on counts 1 through 6 of the Oklahoma indictment. The court began by quoting our statement inGrady v. Corbin,495 U.S. 508(1990), that the Double Jeopardy Clause bars a subsequent prosecution where the government, "to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted."926 F.2d 1522,1527(1991) (quotingGrady v. Corbin, supra, at 521). With respect to Count 1, the conspiracy charge, the court observed that, in both the Missouri and Oklahoma trials, the Government proved that Felix had learned to make methamphetamine in Oklahoma, had thereafter manufactured the drug at the lab near Beggs, Oklahoma, and had sought to purchase more chemicals and equipment in Missouri after the raid on the Oklahoma lab. Based on the significant duplication of conduct proved in each trial, the court concluded that the Oklahoma conspiracy count was barred under the Double Jeopardy Clause because it charged "the same conduct for which he was previously convicted in Missouri."926 F.2d, at 1530. With respect to the substantive offenses charged in counts 2 through 6, the court noted that the direct evidence supporting these charges — the fact that Felix had purchased chemicals and equipment during the spring of 1987 and had subsequently manufactured methamphetamine at the Beggs, Oklahoma, trailer — had been introduced at the previous Missouri trial to show intent. The court concluded thatPage 384this duplication "subjected Felix to a successive trial for the same conduct," and therefore reversed Felix's convictions on counts 2 through 6.Id., at 1530-1531.1

We granted certiorari,502 U.S. 806(1991), to consider whether the Double Jeopardy Clause bars the prosecution of Felix for these crimes.2We hold that it does not, and so reverse.
II
We first consider whether the Double Jeopardy Clause bars Felix' prosecution on the substantive drug offenses contained in Counts 2 through 6 of the Oklahoma indictment. The Court of Appeals held thatPage 385the Government was foreclosed from prosecuting these charges, because it had presented evidence of the Oklahoma drug operation at the prior trial in order to help demonstrate Felix' criminal intent with respect to the Missouri transaction.

At its root, the Double Jeopardy Clause forbids the duplicative prosecution of a defendant for the "same offence."U.S. Const., Amdt. 5;see Blockburger v. United States,284 U.S. 299(1932). An examination of the indictments below shows that Felix was charged in the Missouri case only with attempting to manufacture methamphetamine in Missouri, in late August 1987. App. to Pet. for Cert. 62a-63a. In the five substantive drug counts of the Oklahoma indictment that are at issue here, Felix was charged with various drug offenses that took place in Oklahoma in June and July, 1987.Id., at 55a-57a. The crimes charged in the Oklahoma indictment were related to the operation of the methamphetamine lab near Beggs, Oklahoma, in the summer of 1987, while the crime charged in the Missouri indictment dealt solely with Felix' attempt to purchase chemicals and equipment from Dwinnells in order to continue methamphetamine operations after the Beggs lab was raided. The actual crimes charged in each case were different in both time and place; there was absolutely no common conduct linking the alleged offenses. In short, none of the offenses for which Felix was prosecuted in the Oklahoma indictment is in any sense the "same offence" as the offense for which he was prosecuted in Missouri.

The Court of Appeals appears to have acknowledged as much, as it concentrated not on the actual crimes prosecuted in the separate trials, but instead on the type of evidence presented by the Government during the two trials. The court found it decisive that the Government had introduced evidence of Felix' involvement in the Oklahoma lab to help show criminal intent for purposes of the Missouri trial. But it is clear that, no matter how much evidence of the Oklahoma transactions was introduced by thePage 386Government to help show Felix' state of mind, he was notprosecutedin the Missouri trial for any offense other than the Missouri attempt offense with which he was charged. Thus, the Court of Appeals holding must rest on an assumption that, if the Government offers in evidence in one prosecution acts of misconduct that might ultimately be charged as criminal offenses in a second prosecution, the latter prosecution is barred under the Double Jeopardy Clause.

But such an assumption is not supportable; our precedents hold that a mere overlap in proof between two prosecutions does not establish a double jeopardy violation. The Court of Appeals relied on the above-quoted language from our opinion inGrady v. Corbin,495 U.S., at 521, in reaching its result. But we think that this is an extravagant reading ofGrady, which disclaimed any intention of adopting a "`same evidence'" test.Id., at 521, and n. 12;accord, Gavieresv. United States,220 U.S. 338(1911). Our decision two Terms ago inDowling v.United States,493 U.S. 342(1990), drives home this point.

In that case, Dowling was charged with bank robbery. To help prove his identity at trial, the Government introduced evidence under Federal Rule of Evidence404(b) concerning the unrelated robbery of a woman named Vena Henry. She testified that she had been robbed by a man wearing a knitted mask similar to the one used by the bank robber, and that she had been able to identify the intruder as Dowling after unmasking him during a struggle. We upheld the introduction of Henry's testimony at the bank robbery trial, despite the fact that Dowling had previously been acquitted of the Henry charges. The primary ruling of that case was our conclusion that the collateral estoppel component of the Double Jeopardy Clause offered Dowling no protection, despite his earlier acquittal, because the relevance of evidence offered under Rule 404(b) was governed by a lower standard of proof than that required for a conviction.493 U.S., at 348-349(citingHuddleston v. United States,Page 387485 U.S. 681,689(1988)). But it is clear that we would not have had to reach the collateral estoppel question if the mere introduction, pursuant to Rule 404(b), of evidence concerning the Henry robbery constituted a second prosecution of that crime for purposes of the Double Jeopardy Clause. Underlying our approval of the Henry evidence inDowlingis an endorsement of the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.3

That principle is clearly applicable here. At the Missouri trial, the Government did not in any wayprosecuteFelix for the Oklahoma methamphetamine transactions; it simply introduced those transactions as prior acts evidence under Rule 404(b). The Government was therefore free to prosecute Felix in the trial below for the substantive drug crimes detailed in Counts 2 through 6.
III
We next examine whether the Court of Appeals erred in holding that the Double Jeopardy Clause bars the prosecution of Felix for the conspiracy charge contained in Count 1 of the indictment. Here, too, that courtPage 388— with considerable justification — relied upon language from ourGradyopinion to support its conclusion. There is no doubt that the conspiracy charge presents a more difficult question than the substantive drug offenses dealt with in Part II above, because with respect to it there exists more than a mere overlap in evidence. Of the nine overt acts supporting the conspiracy charge against Felix, two were based on the conduct for which he had been previously prosecuted in Missouri. But we hold that, because of long-established precedent in this area, which was not questioned inGrady, Felix' claim of double jeopardy fails.

Felix contends, and the Court of Appeals agreed, that language fromGradybars the conspiracy prosecution. There we said that the Double Jeopardy Clause bars a prosecution where the Government, "to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted."495 U.S., at 521. Taken out of context, and read literally, this language supports the defense of double jeopardy. But we decline to read the language so expansively, because of the context in whichGradyarose and because of difficulties which have already arisen in its interpretation.Gradyinvolved a defendant who had driven his car across the median line of a two-way highway and struck an oncoming car, killing one of the occupants. The State charged the defendant with driving while intoxicated and with failing to keep right of the median, and the defendant pleaded guilty to those two traffic violations. Two months later, the State prosecuted the defendant on homicide and assault charges arising from the accident, and the defendant argued that this was a violation of his rights under the Double Jeopardy Clause. In our decision, we recognized our previous holdings that the traditionalBlockburgertest governing double jeopardy claims bars a subsequent prosecution if one of the two offenses is a lesser included offense of thePage 389other.See Grady v. Corbin, supra, at 519 (citingBrown v. Ohio,432 U.S. 161(1977);Harris v. Oklahoma,433 U.S. 682(1977)). Although the traffic offenses involved inGradywere not technically lesser included offenses of the homicide and assault charges, we analogized the case to the situation we had previously confronted inIllinois v. Vitale,447 U.S. 410(1980). There, the State sought to prosecute the defendant for involuntary manslaughter after a car accident. We stated, in dicta, that, if the State found it necessary to rely on a previous failure to reduce speed conviction to sustain the manslaughter charge, the Double Jeopardy Clause might protect the defendant.See id., at 420. Despite the fact that neither offense was technically a lesser included offense of the other, we observed that, in such a circumstance, the failure to slow offense might be viewed as a "species of lesser-included offense."Ibid. InGrady, the State sought to rely on the two previous traffic offense convictions to sustain the homicide and assault charges, presenting the situation about which we had speculated inVitale. In concluding that the Double Jeopardy Clause barred the subsequent homicide and assault prosecutions, we simply adopted the suggestion we had previously made in dicta inVitale.Grady v. Corbin, supra, at 521.

But long antedating any of these cases, and not questioned in any of them, is the rule that a substantive crime and a conspiracy to commit that crime are not the "same offence" for double jeopardy purposes.

For example, inUnited States v. Bayer,331 U.S. 532(1947), a military officer had been convicted in court-martial proceedings of discrediting the military service by accepting payments in return for transferring soldiers to noncombat units. We held that his subsequent prosecution in federal court on charges of conspiring to defraud the Government of his faithful services was not barred by the Double Jeopardy Clause, despite the fact that it was based on the same underlying incidents, because the "essence" of a conspiracy offense "is in the agreement orPage 390confederation to commit a crime."Id., at 542. In language applicable here, we pointedly stated that "the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself."Ibid.; see also Pinkerton v. United States,328 U.S. 640,643(1946) ("[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses, . . . [a]nd the plea of double jeopardy is no defense to a conviction for both offenses"). We have continued to recognize this principle over the years. SeeIannelli 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 inBrown[v. Ohio]to the multilayered conduct, both as to time and to place, involved in [continuing criminal enterprise (CCE) prosecutions]."Id., at 789. The great majority of conspiracy prosecutions involve similar allegations of multilayered conduct as to time and place; the conspiracy charge against Felix is a perfect example. Reliance on the lesser included offense analysis, however useful in the context of a "single course of conduct," is therefore much less helpful in analyzing subsequent conspiracy prosecutions that are supported by previously prosecuted overt acts, just as it falls short in examining CCE offenses that are based on previously prosecuted predicate acts.Id., at 788-789.

Faced with the necessity of reconciling this longstanding authority with our language inGrady, we choose to adhere to theBayer-Pinkertonline of cases dealing with the distinction between conspiracy to commitPage 391an offense and the offense itself. These are separate offenses for double jeopardy purposes. The majority in the Court of Appeals below essentially readGradyas substituting for the "same offence" language of the Double Jeopardy Clause a test based on whether the two prosecutions involve the "same conduct." The dissenting judge in the Court of Appeals thought that this was an oversimplification, pointing to the fact that the word "conduct" in the previously quoted sentence fromGradyis modified by the phrase "`that constitutes an offense for which the defendant has already been prosecuted.'"926 F.2d, at 1532(Anderson, J., dissenting) (quotingGrady v. Corbin,495 U.S., at 521). The Court of Appeals for the Second Circuit, inUnited States v.Calderone,917 F.2d 717(1990), upheld a claim of double jeopardy by a divided vote, with each judge on the panel writing an opinion interpreting the crucial language fromGradydifferently. That court decided that the "conduct" at issue in a conspiracy prosecution is not the agreement itself, but the conduct from which the Government asks the jury to infer that there was an agreement.917 F.2d, at 721. Judge Newman filed a concurring opinion, concluding thatGradybars a subsequent prosecution only when previously prosecuted conduct will be used to establish the entirety of an element of the second crime. See917 F.2d, at 723-725(Newman, J., concurring). Other Courts of Appeals, as described in more detail in n. supra, 2, have rejected double jeopardy claims in similar situations. It appears that, whileGradyeschewed a "same evidence" test andGarrettrejected a "`single transaction'" test,Garrett v. United States,supra, at 790, the line between those tests and the "same conduct" language ofGradyis not easy to discern.

We think it best not to enmesh in such subtleties the established doctrine that a conspiracy to commit a crime is a separate offense from the crime itself. Thus, in this case, the conspiracy charge against Felix was an offense distinct from any crime for which he had been previously prosecuted, andPage 392the Double Jeopardy Clause did not bar his prosecution on that charge.

The judgment of the Court of Appeals is accordinglyReversed.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, concurring in part and concurring in the judgment.
While I join Parts I and II of the Court's opinion, I do not join Part III, because I do not think there is "considerable justification,"anteat 387-388, for the Court of Appeals' conclusion that the Double Jeopardy Clause, as interpreted inGrady v. Corbin,495 U.S. 508(1990), bars prosecution of Felix for the conspiracy charge contained in count 1 of the indictment. InGrady, we held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted."495 U.S., at 510. But as the dissenting opinion of the Court of Appeals explained, "the overt acts at issue here did not meaningfully `establish' an essential element of the conspiracy," because there is no overt act requirement in the federal drug conspiracy statute and the overt acts did not establish an agreement between Felix and his coconspirators.926 F.2d 1522,1536(CA10 1991) (Anderson, J., dissenting). I would thus reverse for the reasons explained in Parts I and II of the Court's opinion,ante, at 381-387, and Part III-B of the dissenting opinion of the Court of Appeals,926 F.2d, at 1536-1539.Page 393
  1. Page 380Edward T. M. GarlandandDonald F. Samuelfiled a brief for the National Association of Criminal Defense Lawyers asamicus curiae. ↩
  2. Page 384 The Court of Appeals affirmed Felix' convictions on counts 9 and 10 of the indictment, which charged unlawful interstate travel. The court concluded that the conduct alleged in those counts was not sufficiently related to the conduct proved in the earlier Missouri trial to require their dismissal under the Double Jeopardy Clause.926 F.2d, at 1531. ↩
  3. Page 384 The Courts of Appeals have differed in applyingGradyto successive prosecutions for offenses arising out of a continuing course of conduct, such as the conspiracy prosecution in this case. InUnitedStates v. Calderone,917 F.2d 717(1990), the Second Circuit held that the Double Jeopardy Clause barred a conspiracy prosecution where the defendant had been previously prosecuted for a "broader" conspiracy that entirely encompassed the actions alleged in the second, "narrower" conspiracy. The court based its decision on our language inGrady, concluding that the "conduct" at issue in a conspiracy prosecution is not the agreement itself, but the conduct from which the Government asks the jury to infer an agreement.See id., at 721-722. The Second Circuit later followed that reasoning in holding that a conspiracy prosecution is barred if certain overt acts supporting the conspiracy charge involve substantive offenses for which the defendant has been previously prosecuted.United States v. Gambino,920 F.2d 1108(1990). The Tenth Circuit agreed with that position in upholding Felix' double jeopardy claim below.926 F.2d 1522(1991).

    On the other hand, two Courts of Appeals have concluded that the Government is not barred from bringing a successive conspiracy prosecution, even where it seeks to base the conspiracy offense on previously prosecuted conduct.United States v. Rivera-Feliciano,930 F.2d 951(CA1 1991);United Stares v. Clark,928 F.2d 639(CA4 1991). ↩
  4. Page 387 There is an obvious distinction betweenDowlingand this case, but one that makes no difference for purposes of our analysis here. InDowling, the defendant was first prosecuted for the Henry robbery, and evidence concerning that robbery was subsequently admitted for Rule 404(b) purposes at a second prosecution. In this case, evidence of the Oklahoma drug transactions was first admitted for Rule 404(b) purposes at the Missouri trial, and Felix was subsequently prosecuted for the Oklahoma drug transactions. The first situation might raise collateral estoppel concerns as a result of an initial acquittal, concerns we confronted inDowling, while the latter situation would not. But both situations would be equally affected by a rule that the admission of evidence concerning a crime under Rule 404(b) constitutes prosecution for that crime; under such a rule, the Double Jeopardy Clause would have barred the subsequent admission of the Henry evidence inDowling, and it would bar the subsequent prosecution of the Oklahoma drug crimes in this case. We decline to adopt such a rule. ↩