In The

Supreme Court of the United States




Decided June 3, 1985

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 5–3
Note: No other Justices joined this opinion.
Citation: 471 U.S. 773 Docket: 83–1842Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring.

I agree that, on the facts of this case, the Double Jeopardy Clause does not bar prosecution and sentencing under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise even though Garrett pleaded guilty to one of the predicate offenses in an earlier prosecution. This conclusion is admittedly in tension with certain language in prior opinions of the Court. E.g., Brown v. Ohio, 432 U. S. 161, 432 U. S. 166 (1977). I write separately to explain why I believe that today's holding comports with the fundamental purpose of the Double Jeopardy Clause and with the method of analysis used in our more recent decisions.

The Double Jeopardy Clause declares: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." U.S.Const., Amdt. 5. This constitutional proscription serves primarily to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. See, e.g., Ohio v. Johnson, 467 U. S. 493, 467 U. S. 498 -499 (1984); United States v. DiFrancesco, 449 U. S. 117, 449 U. S. 128, 449 U. S. 136 (1980). In Green v. United States, 355 U. S. 184 (1957), the Court explained:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.

Id. at 355 U. S. 187 -188.

Decisions by this Court have consistently recognized that the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law. Tibbs v. Florida, 457 U. S. 31, 457 U. S. 40 (1982); United States v. Tateo, 377 U. S. 463, 377 U. S. 466 (1964). The Court accordingly has held that a defendant who successfully appeals a conviction generally is subject to retrial. Tibbs, supra, at 457 U. S. 40. Similarly, double jeopardy poses no bar to another trial where a judge declares a mistrial because of "manifest necessity." Illinois v. Somerville, 410 U. S. 458 (1973). Such decisions indicate that, absent "governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect," United States v. Scott, 437 U. S. 82, 437 U. S. 91 (1978), the compelling public interest in punishing crimes can outweigh the interest of the defendant in having his culpability conclusively resolved in one proceeding. Tibbs, supra, at 457 U. S. 41 -44.

Brown v. Ohio, supra, held that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on a lesser included offense. Id. at 457 U. S. 168 -169. The concerns for finality that support this conclusion, however, are no more absolute than those involved in other contexts. See Jeffers v. United States, 432 U. S. 137, 432 U. S. 152 (1977) (plurality opinion). Instead, successive prosecution on a greater offense may be permitted where justified by the public interest in law enforcement and the absence of prosecutorial overreaching. For example, in Diaz v. United States, 223 U. S. 442, 223 U. S. 449 (1912), the Court found no double jeopardy bar to a prosecution for murder where the victim of an assault died after the defendant's trial for assault and battery. Diaz implies that prosecution for a lesser offense does not prevent subsequent prosecution for a greater offense where the latter depends on facts occurring after the first trial. Dicta in Brown v. Ohio suggested that the same conclusion would apply where the later prosecution rests on facts that the government could not have discovered earlier through due diligence. 432 U.S. at 432 U. S. 169, n. 7. See also Jeffers v. United States, supra, at 432 U. S. 151 -152.

Application of the rule of Brown v. Ohio is also affected by the actions of the defendant himself. In Jeffers v. United States, supra, the plurality opinion rejected a claim of double jeopardy where prosecution for a greater offense followed a guilty verdict for a lesser offense, and the successive prosecution resulted from the defendant's opposition to consolidated trials. Id. at 432 U. S. 152 -154. Last Term, the Court relied on Jeffers to hold that, where a court accepts, over the prosecution's objection, a defendant's guilty plea to lesser included offenses, double jeopardy does not prevent further prosecution on remaining, greater offenses. Ohio v. Johnson, supra, at 467 U. S. 501 -502. After noting the State's interest in convicting those who have violated its laws and the absence of governmental overreaching, Johnson observed that the defendant

should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

467 U.S. at 467 U. S. 502.

Turning to the circumstances of this case, I conclude that Garrett cannot validly argue that the Government is prevented from using evidence relating to his May, 1981, conviction to prove his participation in a continuing criminal enterprise from January, 1976, through July, 1981. I am willing to assume, arguendo, that the 1981 conviction for importation of marihuana is a lesser included offense of the charges for violating 18 U.S.C. § 848. As noted ante at 471 U. S. 788, 471 U. S. 791 -793, the Government both alleged and presented evidence that Garrett's violation of § 848 continued after the conviction on the lesser included offense. Although the Government alleged participation in the unlawful continuing enterprise through July, 1981, none of the events occurring after the date of the earlier prosecution were essential elements to prove a violation of § 848. Thus, this case falls somewhere between Diaz and Brown v. Ohio. The dissent reads the latter decision as limiting application of Diaz to circumstances where the facts necessary to the greater offense occur or are discovered after the first prosecution. Post at 471 U. S. 806 -807. Although I find merit to this position, I reach a different conclusion upon balancing the interests protected by the Double Jeopardy Clause.

The approach advocated by the dissent would effectively force the Government's hand with respect to prosecution under § 848. Under that approach, once the Government believes that facts sufficient to prove a continuing criminal enterprise exist, it can either bring charges under § 848 or seek conviction only for a predicate offense while forgoing its later use to prove a continuing violation of § 848. The decision to bring charges under § 848, however, will necessarily and appropriately depend on prosecutorial judgments concerning the adequacy of the evidence, the efficient allocation of enforcement resources, and the desirability of seeking the statute's severe sanctions. These considerations may be affected by events occurring after the last necessary predicate offense. Where the defendant continues unlawful conduct after the time the Government prosecutes him for a predicate offense, I do not think he can later contend that the Government is foreclosed from using that offense in another prosecution to prove the continuing violation of § 848. Cf. Jeffers, supra, at 432 U. S. 154. As the Court noted in another context,

the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.

United States v. Scott, supra, at 437 U. S. 99.

The Court's holding does not leave the defendant unduly exposed to oppressive tactics by the Government. Any acquittal on a predicate offense would of course bar the Government from later attempting to relitigate issues in a prosecution under § 848. Ashe v. Swenson, 397 U. S. 436 (1970). This fact will prevent the Government from "treat[ing] the first trial as no more than a dry run for the second prosecution," id. at 397 U. S. 447. Moreover, I note that we do not decide in this case whether a defendant would have a valid double jeopardy claim if the Government failed in a later prosecution to allege and to present evidence of a continuing violation of § 848 after an earlier conviction for a predicate offense. Certainly the defendant's interest in finality would be more compelling where there is no indication of continuing wrongdoing after the first prosecution.

For the reasons stated, I agree that, under the circumstances of this case, the Double Jeopardy Clause does not bar Garrett's prosecution under § 848. Because I also agree that Congress intended to authorize separate punishment for the underlying predicate offenses and the violation of § 848, I join the opinion of the Court.

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