Rutledge v. US - US Supreme Court, March 27, 1996

SUPREME COURT OF THE UNITED STATES
Syllabus
RUTLEDGE v. UNITED STATES

Certiorari to the United States Court of Appeals for the Seventh
Circuit.
No. 94-8769.
Argued November 27, 1995
Decided March 27, 1996
A jury found petitioner guilty of one count of participating in a
conspiracy to distribute controlled substances in violation of 21 U. S.
C. Section(s) 846 and one count of conducting a continuing criminal
enterprise (CCE) ``in concert'' with others in violation of Section(s)
848. The "in concert" element of his CCE offense was based on the same
agreement as the Section(s) 846 conspiracy. The District Court entered
judgment of conviction on both counts and imposed a sentence of life
imprisonment without possible release on each, the sentences to be
served concurrently. Pursuant to 18 U. S. C. Section(s) 3013, it also
ordered petitioner to pay a special assessment of $50 on each count.
The Seventh Circuit affirmed, relying on Jeffers v. United States, 432
U. S. 137, to reject petitioner's contention that his convictions and
concurrent life sentences impermissibly punished him twice for the same
offense.
Held: The District Court erred in sentencing petitioner to concurrent
life sentences on the Section(s) 846 and Section(s) 848 counts. Pp.
4-15.
(a) It is presumed that a legislature does not intend to impose two
punishments where two statutory provisions proscribe the "same offense."
The test for determining whether there are two offenses is whether each
of the statutory provisions requires proof of a fact which the other
does not. Blockburger v. United States, 284 U. S. 299, 304. This Court
has often concluded that two statutes define the "same offense" where
one is a lesser included offense of the other. For the reasons set
forth in Jeffers, 432 U. S., at 149-150 (plurality opinion); id., at
158, and 159, n. 5 (dissenting opinion), and particularly because the
plain meaning of Section(s) 848's "in concert" phrase signifies mutual
agreement in a common plan or enterprise, the Court now resolves
definitively that a guilty verdict on a Section(s) 848 charge
necessarily includes a finding that the defendant also participated in a
conspiracy violative of Section(s) 846. Conspiracy is therefore a lesser
included offense of CCE. Pp. 4-8.
(b) The Court rejects the Government's contention that the presumption
against multiple punishments does not invalidate either of petitioner's
convictions because the sentence on the second one was concurrent. That
conviction amounts to a second punishment because a $50 special
assessment was imposed on it. Cf. Ray v. United States, 481 U. S. 736
(1987) (per curiam). Even if the assessment were ignored, the force of
the Government's argument would be limited by Ball v. United States, 470
U. S. 856, 861-865, in which the Court concluded that Congress did not
intend to allow punishment for both illegally "receiving" and illegally
"possessing" a firearm; held that the only remedy consistent with the
congressional intent was to vacate one of the underlying convictions as
well as the concurrent sentence based upon it; and explained that the
second conviction does not evaporate simply because of its sentence's
concurrence, since it has potential adverse collateral
consequences-e.g., delay of parole eligibility or an increased sentence
under a recidivist statute for a future offense-that make it
presumptively impermissible to impose. Although petitioner did not
challenge the $50 assessment below, the fact that Section(s) 3013
required its imposition renders it as much a collateral consequence of
the conspiracy conviction as the consequences recognized by Ball. Pp.
8-10.
(c) Also rejected is the Government's argument that the presumption
against multiple punishments is overcome here because Congress has
clearly indicated its intent to allow courts to impose them. Support
for that view cannot be inferred from the fact that this Court's Jeffers
judgment allowed convictions under both Section(s) 846 and 848 to stand,
since those convictions were entered in separate trials, the Court's
review addressed only the Section(s) 848 conviction, and that conviction
was affirmed because the four-Justice plurality decided that Jeffers had
waived any right to object, see 432 U. S., at 152-154, and because
Justice White took the hereinbefore-rejected position that conspiracy
was not a lesser included offense of CCE, see id., at 158 (opinion
concurring in judgement in part and dissenting in part). As to this
issue, then, the judgement is not entitled to precedential weight because
it amounts at best to an unexplained affirmance by an equally divided
court. Pp. 10-12.
(d) The Government's argument that Congress intended to allow multiple
convictions here to provide a "back up" conviction, preventing a
defendant who later successfully challenges his greater offense from
escaping punishment altogether, is unpersuasive. There is no reason why
this particular pair of greater and lesser offenses should present any
novel problem not already addressed by the federal appellate courts,
which have uniformly concluded-with this Court's approval, see, e.g.,
Morris v. Mathews, 475 U. S. 237, 246-247-that they may direct the entry
of judgement for a lesser included offense when a conviction for a
greater offense is reversed on grounds affecting only the greater
offense. Pp. 12-14.
(e) Because the Court here adheres to the presumption that Congress
intended to authorize only one punishment, one of petitioner's
convictions, as well as its concurrent sentence, is unauthorized
punishment for a separate offense and must be vacated under Ball, 470 U.
S., at 864. P. 15. 40 F. 3d 879, reversed and remanded.
Stevens, J., delivered the opinion for a unanimous Court.
NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D.C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 94-8769
TOMMY L. RUTLEDGE, PETITIONER
v.
UNITED STATES
On Writ of Certiorari to the United States Court of Appeals for
the Seventh Circuit.
[March 27, 1996]
Justice Stevens delivered the opinion of the Court.
A jury found petitioner guilty of participating in a conspiracy
to distribute controlled substances in violation of 84 Stat. 1265, as
amended, 21 U. S. C. Section(s) 846 and of conducting a continuing
criminal enterprise (CCE) in violation of Section(s) 848. The "in
concert" element of his CCE offense was based on the same agreement as
the Section(s) 846 conspiracy. The question presented is whether it was
therefore improper for the District Court to sentence him to concurrent
life sentences on the two counts.
I.
Petitioner organized and supervised a criminal enterprise that
distributed cocaine in Warren County, Illinois, from 1988 until December
1990, when he was arrested by federal agents. He was charged with
several offenses, of which only Count One, the CCE charge, and Count
Two, the conspiracy charge, are relevant to the issue before us.
Count One alleged that during the period between early 1988 and
late 1990, petitioner violated Section(s) 848*fn1 by engaging in a
continuing criminal enterprise that consisted of a series of unlawful
acts involving the distribution of cocaine.*fn2 The count alleged that
these actions were undertaken "in concert with at least five (5) other
persons," that petitioner supervised those other persons, and that he
obtained substantial income from the continuing series of violations.
App. 2-3.
Count Two separately alleged that during the same period,
petitioner violated 21 U. S. C. Section(s) 846*fn3 by conspiring with
four co-defendants and others to engage in the unlawful distribution of
cocaine. The count alleged that each of the conspirators had furthered
the conspiracy by performing an overt act involving the delivery,
purchase, or distribution of cocaine. App. 3-5.
After a 9-day trial, a jury found petitioner guilty on all
counts. The trial court entered judgement of conviction on both Count One
and Count Two and imposed a sentence of life imprisonment without
possible release on each count, the sentences to be served concurrently.
Id., at 8-10. Pursuant to 18 U. S. C. Section(s) 3013, petitioner was
also ordered to pay a special assessment of $50 on each count.
[13] On appeal, petitioner contended in a pro se supplemental brief
that even though the life sentences were concurrent, entering both
convictions and sentences impermissibly punished him twice for the same
offense. The Court of Appeals for the Seventh Circuit accepted the
premise of his argument, namely that the conspiracy charge was a lesser
included offense of the CCE charge. 40 F. 3d 879, 886 (1994). The
Court of Appeals nonetheless affirmed his convictions and sentences.
Relying on its earlier decision in United States v. Bond, 847 F. 2d
1233, 1238 (CA7 1988), and our decision in Jeffers v. United States, 432
U. S. 137 (1977), it held that convictions and concurrent sentences may
be imposed for conspiracy and CCE, "provided the cumulative punishment
does not exceed the maximum under the CCE act." 40 F. 3d, at 886.
[14] The decision of the Seventh Circuit is at odds with the practice
of other Circuits. Most federal courts that have confronted the
question hold that only one judgement should be entered when a defendant
is found guilty on both a CCE count and a conspiracy count based on the
same agreements.*fn4 The Second and Third Circuits have adopted an
intermediate position, allowing judgement to be entered on both counts
but permitting only one sentence rather than the concurrent sentences
allowed in the Seventh Circuit.*fn5 We granted certiorari to resolve
the conflict. 515 U. S. ___ (1995).
II.
[15] Courts may not "prescrib[e] greater punishment than the
legislature intended." Missouri v. Hunter, 459 U. S. 359, 366 (1983);
Brown v. Ohio, 432 U. S. 161, 165 (1977). In accord with principles
rooted in common law and constitutional jurisprudence, see Ex parte
Lange, 18 Wall. 163, 168-170 (1874), we presume that "where two
statutory provisions proscribe the `same offense,'" a legislature does
not intend to impose two punishments for that offense. Whalen v. United
States, 445 U. S. 684, 691-692 (1980); Ball v. United States, 470 U. S.
856, 861 (1985).
[16] For over half a century we have determined whether a defendant
has been punished twice for the "same offense" by applying the rule set
forth in Blockburger v. United States, 284 U. S. 299, 304 (1932). If
"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." Ibid. In subsequent applications of
the test, we have often concluded that two different statutes define the
"same offense," typically because one is a lesser included offense of
the other.*fn6
[17] In this case it is perfectly clear that the CCE offense requires
proof of a number of elements that need not be established in a
conspiracy case.*fn7 The Blockburger test requires us to consider
whether the converse is also true-whether the Section(s) 846 conspiracy
offense requires proof of any element that is not a part of the CCE
offense. That question could be answered affirmatively only by assuming
that while the Section(s) 846 conspiracy requires proof of an actual
agreement among the parties, the "in concert" element of the CCE offense
might be satisfied by something less.
[18] The Government advanced this precise argument in Jeffers v.
United States, 432 U. S. 137 (1977),*fn8 but it managed to persuade only
one Justice. Id., at 158 (White, J., concurring). The position was
rejected, to varying degrees, by the other eight. The four dissenters
adopted, without comment, the proposition that conspiracy was a lesser
included offense of CCE. See id., at 158, and 159, n. 5. The remaining
Justices joined Justice Blackmun's plurality opinion which, while
declining to hold that conspiracy was a lesser included offense,*fn9
nonetheless explained why the Government's argument was inconsistent
with the statute's text, with the way the words "in concert" have been
used in other statutes, and with the legislative history of this
statute.*fn10 Based on its understanding of the "more likely"
interpretation of Section(s) 848, the plurality assumed, arguendo, "that
Section(s) 848 does require proof of an agreement among the persons
involved in the continuing criminal enterprise. So construed,
Section(s) 846 is a lesser included offense of Section(s) 848, because
Section(s) 848 requires proof of every fact necessary to show a
violation under Section(s) 846 as well as proof of several additional
elements." Id., at 149-150.
[19] In the years since Jeffers was decided, the Courts of Appeals
have also consistently rejected the Government's interpretation of the
"in concert" language of Section(s) 848; they have concluded, without
exception, that conspiracy is a lesser included offense of CCE.*fn11 We
think it is appropriate now to resolve the point definitively: For the
reasons set forth in Jeffers, and particularly because the plain meaning
of the phrase "in concert" signifies mutual agreement in a common plan
or enterprise, we hold that this element of the CCE offense requires
proof of a conspiracy that would also violate Section(s) 846. Because
Section(s) 846 does not require proof of any fact that is not also a
part of the CCE offense, a straightforward application of the
Blockburger test leads to the conclusion that conspiracy as defined in
Section(s) 846 does not define a different offense from the CCE offense
defined in Section(s) 848. Furthermore, since the latter offense is the
more serious of the two, and because only one of its elements is
necessary to prove a Section(s) 846 conspiracy, it is appropriate to
characterize Section(s) 846 as a lesser included offense of Section(s)
848.*fn12
III.
[20] The Government contends that even if conspiracy is a lesser
included offense of CCE, the resulting presumption against multiple
punishments does not invalidate either of petitioner's convictions. The
second conviction, the Government first argues, may not amount to a
punishment at all.
[21] We begin by noting that 18 U. S. C. Section(s) 3013 requires a
federal district court to impose a $50 special assessment for every
conviction, and that such an assessment was imposed on both convictions
in this case. As long as Section(s) 3013 stands, a second conviction
will amount to a second punishment. Cf. Ray v. United States, 481 U. S.
736, 737 (1987) (per curiam) (presence of $50 assessment precludes
application of "concurrent sentence doctrine"). The Government urges us
not to rely on the assessment, however, pointing out that petitioner did
not challenge it below, and noting that the question presented
"presupposes" fully concurrent sentences. Brief for United States 7, n.
1.
[22] If we ignore the assessment as the Government requests, the
force of its argument would nonetheless be limited by our decision in
Ball v. United States, 470 U. S. 856 (1985). There, we concluded that
Congress did not intend to allow punishment for both illegally
"receiving" and illegally "possessing" a firearm. Id., at 861-864. In
light of that conclusion, we held that "the only remedy consistent with
the congressional intent is for the District Court . . . to exercise its
discretion to vacate one of the underlying convictions" as well as the
concurrent sentence based upon it. Id., at 864 (emphasis added). We
explained further:
[23] "The second conviction, whose concomitant sentence is served
concurrently, does not evaporate simply because of the concurrence of
the sentence. The separate conviction, apart from the concurrent
sentence, has potential adverse collateral consequences that may not be
ignored. For example, the presence of two convictions on the record may
delay the defendant's eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense. Moreover, the
second conviction may be used to impeach the defendant's credibility and
certainly carries the societal stigma accompanying any criminal
conviction. See Benton v. Maryland, 395 U. S. 784, 790-791 (1969);
Sibron v. New York, 392 U. S. 40, 54-56 (1968). Thus, the second
conviction, even if it results in no greater sentence, is an
impermissible punishment." Id., at 864-865.
[24] Under Ball, the collateral consequences of a second conviction
make it as presumptively impermissible to impose as it would be to
impose any other unauthorized cumulative sentence.
[25] The Government suggests, however, that petitioner will never be
exposed to collateral consequences like those described in Ball because
he is subject to multiple life sentences without possibility of release.
We need not conclusively resolve the matter, for there is no doubt that
the second conviction carried with it, at very least, a $50 assessment.
Although the petitioner did not challenge the assessment below, 18 U. S.
C. Section(s) 3013 required the District Court to impose it, and the
assessment was therefore as much a collateral consequence of the
conspiracy conviction as the consequences recognized by Ball would be.
As a result, the conviction amounts to cumulative punishment not
authorized by Congress.
IV.
[26] The Government further argues that even if the second conviction
amounts to punishment, the presumption against allowing multiple
punishments for the same crime may be overcome if Congress clearly
indicates that it intended to allow courts to impose them. Hunter, 459
U. S., at 366 (citing Whalen, 445 U. S., at 691-692); Garrett, 471 U.
S., at 779 (allowing multiple punishment in light of Congress' "plainly
expressed" view). The Government submits that such clear intent can be
found here.
[27] The Government finds support for its position in this Court's
judgment in Jeffers because that judgement allowed convictions under both
Section(s) 846 and 848 to stand. Those convictions, however, had been
entered in separate trials and our review only addressed the conviction
under Section(s) 848. The Court affirmed that conviction not because
anyone on the Court suggested that Congress had intended to authorize
dual convictions for the same offense,*fn13 but rather because the
four-Justice plurality decided that Jeffers had waived any right to
object to Jeffers' prosecution for that conviction, see Jeffers, 432 U.
S., at 152-154, and because Justice White believed that the two
prosecutions were for different offenses.
[28] The sole ground for Justice White's critical fifth vote to
affirm the judgement was his belief, set forth in a single short
paragraph, that conspiracy was not a lesser included offense of CCE.
Id., at 158 (opinion concurring in judgement in part and dissenting in
part). In Part II of this opinion we have rejected that view.
Accordingly, even if we could infer that the plurality had silently
reached the rather bizarre conclusion that Congress intended to allow
dual convictions but to preclude other multiple punishments, only four
Justices would have supported it, with four others explicitly
disagreeing. As to this issue, then, the judgement amounts at best to
nothing more than an unexplained affirmance by an equally divided
court-a judgement not entitled to precedential weight no matter what
reasoning may have supported it. See Neil v. Biggers, 409 U. S. 188,
192 (1972). The more important message conveyed by Jeffers is found not
in the bare judgment, but in the plurality's conclusion, joined by the
four dissenters, that CCE and conspiracy are insufficiently distinct to
justify a finding that Congress intended to allow punishments for both
when they rest on the same activity.*fn14
V.
[29] Finally, the Government argues that Congress must have intended
to allow multiple convictions because doing so would provide a "back up"
conviction, preventing a defendant who later successfully challenges his
greater offense from escaping punishment altogethereven if the basis for
the reversal does not affect his conviction under the lesser. Brief for
United States 20-22. We find the argument unpersuasive, for there is no
reason why this pair of greater and lesser offenses should present any
novel problem beyond that posed by any other greater and lesser included
offenses, for which the courts have already developed rules to avoid the
perceived danger.
[30] In Tinder v. United States, 345 U. S. 565, 570 (1953), the
defendant had been convicted of theft from a mailbox and improperly
sentenced to prison for more than one year even though the evidence only
supported a misdemeanor conviction. Exercising our "power to do justice
as the case requires" pursuant to 28 U. S. C. Section(s) 2106, we
ordered the District Court to correct the sentence without vacating the
underlying conviction. Relying on Tinder and the practice in "state
courts, including courts governed by statutes virtually the same as
Section 2106," the Court of Appeals for the District of Columbia Circuit
later decided that its "power to modify erroneous judgments authorizes
reduction to a lesser included offense where the evidence is
insufficient to support an element of the [greater] offense stated in
the verdict." Austin v. United States, 382 F. 2d 129, 141-143
(1967).*fn15
[31] Consistent with the views expressed by the D. C. Circuit,
federal appellate courts appear to have uniformly concluded that they
may direct the entry of judgement for a lesser included offense when a
conviction for a greater offense is reversed on grounds that affect only
the greater offense. See 8A J. Moore, Federal Practice Para(s)
31.03[5], and n. 54 (2d ed. 1995); United States v. Ward, 37 F. 3d 243,
251 (CA6 1994) (after finding insufficient evidence to support CCE
count, Court of Appeals vacated CCE conviction and sentence and remanded
for entry of conspiracy conviction, which District Court had previously
vacated as lesser included offense of CCE), cert. denied, 514 U. S. ___
(1995); United States v. Silvers, 888 F. Supp. 1289, 1306-1309 (ND Md.
1995) (reinstating conspiracy conviction previously vacated after
granting motion for new trial on CCE conviction). This Court has noted
the use of such a practice with approval. Morris v. Mathews, 475 U. S.
237, 246-247 (1986) (approving process of reducing erroneous greater
offense to lesser included offense as long as the defendant is not able
to demonstrate that "but for the improper inclusion of the [erroneous]
charge, the result of the proceeding probably would have been
different"). See also Jones v. Thomas, 491 U. S. 376, 384-385, n. 3
(1989) (citing Morris).
[32] There is no need for us now to consider the precise limits on
the appellate courts' power to substitute a conviction on a lesser
offense for an erroneous conviction of a greater offense.*fn16 We need
only note that the concern motivating the Government in asking us to
endorse either the Seventh Circuit's practice of entering concurrent
sentences on CCE and conspiracy counts, or the Second Circuit's practice
of entering concurrent judgments, is no different from the problem that
arises whenever a defendant is tried for greater and lesser offenses in
the same proceeding. In such instances, neither legislatures nor courts
have found it necessary to impose multiple convictions, and we see no
reason why Congress, faced with the same problem, would consider it
necessary to deviate from the traditional rule.*fn17
VI.
[33] A guilty verdict on a Section(s) 848 charge necessarily includes
a finding that the defendant also participated in a conspiracy violative
of Section(s) 846; conspiracy is therefore a lesser included offense of
CCE. Because the Government's arguments have not persuaded us
otherwise, we adhere to the presumption that Congress intended to
authorize only one punishment. Accordingly, "[o]ne of [petitioner's]
convictions, as well as its concurrent sentence, is unauthorized
punishment for a separate offense" and must be vacated. Ball, 470 U.
S., at 864.
[34] The judgement of the Court of Appeals is reversed and the case is
remanded for further proceedings consistent with this opinion.
[35] It is so ordered.
***** BEGIN FOOTNOTE(S) HERE *****
[36] *fn1 Section 848(c) provides:
[37] "(c) `Continuing criminal enterprise' defined
[38] "For purposes of subsection (a) of this section, a person is
engaged in a continuing criminal enterprise if-
[39] "(1) he violates any provision of this subchapter or subchapter
II of this chapter the punishment for which is a felony, and
[40] "(2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this chapter-
[41] "(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
[42] "(B) from which such person obtains substantial income or
resources." 21 U. S. C. Section(s) 848(c).
[43] *fn2 The alleged unlawful acts included a series of cocaine
transactions in violation of Section(s) 841(a) and the same conspiracy
in violation of Section(s) 846 that was charged in Count Two.
[44] *fn3 "Section(s) 846. Attempt and conspiracy
[45] "Any person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object
of the attempt or conspiracy." 21 U. S. C. Section(s) 846.
[46] *fn4 See, e.g., United States v. Rivera-Martinez, 931 F. 2d 148,
153 (CA1), cert. denied, 502 U. S. 862 (1991); United States v. Butler,
885 F. 2d 195, 202 (CA4 1989); United States v. Neal, 27 F. 3d 1035,
1054 (CA5 1994), cert. denied, 513 U. S. ___ (1995); United States v.
Paulino, 935 F. 2d 739, 751 (CA6 1991), cert. denied, 502 U. S. 1036
(1992); United States v. Possick, 849 F. 2d 332, 341 (CA8 1988); United
States v. Hernandez-Escarsega, 886 F. 2d 1560, 1582 (CA9 1989), cert.
denied, 497 U. S. 1003 (1990); United States v. Stallings, 810 F. 2d
973, 976 (CA10 1989); United States v. Cruz, 805 F. 2d 1464, 1479 (CA11
1986), cert. denied, 481 U. S. 1006 (1987); United States v. Anderson,
39 F. 3d 331, 357 (CADC 1994), rev'd on other grounds, 59 F. 3d 1323
(CADC 1995) (en banc).
[47] *fn5 United States v. Aiello, 771 F. 2d 621, 634 (CA2 1985);
United States v. Fernandez, 916 F. 2d 125, 128-129 (CA3 1990), cert.
denied, 500 U. S. 948 (1991).
[48] *fn6 See, e.g., Ball v. United States, 470 U. S. 856, 861-864
(1985) (concluding that multiple prosecutions were barred because
statutes directed at "receipt" and "possession" of a firearm amounted to
the "same offense," in that proof of receipt "necessarily" included
proof of possession); Whalen v. United States, 445 U. S. 684, 691-695
(1980) (concluding that two punishments could not be imposed because
rape and felony murder predicated on the rape were the "same offense");
Brown v. Ohio, 432 U. S. 161, 167-168 (1977) (in multiple proceedings
context, applying Blockburger v. United States, 284 U. S. 299 (1932), to
confirm state-court conclusion that offense of "joyriding" was a lesser
included offense of auto theft).
[49] *fn7 The defendant must, for example, commit a series of
substantive violations, be a leader of the criminal enterprise, and
derive substantial income from it. The Government need not prove any of
those elements to establish a conspiracy in violation of Section(s) 846.
Even the "in concert" element of the CCE offense is broader than any
requirement in Section(s) 846 because it requires at least five
participants, while a conspiracy requires only two.
[50] *fn8 In Jeffers, we considered whether the Government could
prosecute the defendant under Section(s) 848 even though he had
previously been convicted of Section(s) 846 conspiracy on the basis of
the same agreements. The Government argued that the multiple
prosecution was permissible because the crimes were not the "same
offense." "The Government's position is premised on its contention that
agreement is not an essential element of the Section(s) 848 offense,
despite the presence in Section(s) 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." 432 U. S., at 147. The Government relied on
Iannelli v. United States, 420 U. S. 770 (1975), in which we construed
18 U. S. C. Section(s) 1955 as not requiring proof of conspiracy. As
Justice Blackmun pointed out, however, the language of Section(s) 1955
was significantly different from Section(s) 848 in that it omitted the
words "in concert" and left open "the possibility that the five persons
`involved' in the gambling operation might not be acting together." 432
U. S., at 147-148.
[51] *fn9 The plurality did not need to hold that conspiracy was a
lesser included offense because it found that even if it was, the
petitioner waived whatever right he may have had to object to the second
prosecution under Section(s) 848 when he opposed the Government's
motion, brought before the first trial, to consolidate the proceedings.
Id., at 149-150, 153-154.
[52] *fn10 The language of Section(s) 848 "restricts the definition
of the crime to a continuing series of violations undertaken by the
accused `in concert with five or more other persons.'" Id., at 148. As
a result, "a conviction [under Section(s) 848] would be impossible
unless concerted activity were present. . . . Even if Section(s) 848
were read to require individual agreements between the leader . . . and
each of the other five necessary participants, enough would be shown to
prove a conspiracy." Ibid.
[53] Furthermore, "[w]hen the phrase `in concert' has been used in
other statutes, it has generally connoted cooperative action and
agreement. . . . This suggests that Congress intended the same words to
have the same meaning in Section(s) 848. . . . 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."
Id., at 149, n. 14 (citations omitted); see 3 Oxford English Dictionary
658 (2d ed. 1989) (defining "concert" as "[a]greement of two or more
persons or parties in a plan, design, or enterprise; union formed by
such mutual agreement"; "esp[ecially] in phrase in concert"); Webster's
Third New International Dictionary 470 (1981) (defining "concert" as
"agreement in a design or plan: union formed by mutual communication of
opinions and views: accordance in a scheme") . Thus, "[i]n 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." Jeffers, 432 U. S., at 148-149.
[54] *fn11 See, e.g., Rivera-Martinez, 931 F. 2d, at 152 (CA1);
Aiello, 771 F. 2d, at 633 (CA2); Neal, 27 F. 3d, at 1054 (CA5); United
States v. Chambers, 944 F. 2d 1253, 1268 (CA6 1991), cert. denied, 502
U. S. 1112, sub nom. Lucas v. United States, 503 U. S. 989 (1992);
Rutledge, 40 F. 3d, at 886 (CA7); Possick, 849 F. 2d, at 341 (CA8);
Hernandez-Escarsega, 886 F. 2d, at 1582 (CA9); Stallings, 810 F. 2d, at
975 (CA10); United States v. Graziano, 710 F. 2d 691, 699 (CA11 1983).
[55] *fn12 Garrett v. United States, 471 U. S. 773, 794-795 (1985),
is not to the contrary. There, we affirmed the defendant's prosecution
for a CCE violation even though he had previously pleaded guilty to a
predicate crime of importing marijuana. Id., at 794-795. That holding,
however, merely adhered to our understanding that legislatures have
traditionally perceived a qualitative difference between conspiracy-like
crimes and the substantive offenses upon which they are predicated.
See, e.g., United States v. Felix, 503 U. S. 378, 389-390 (1992)
(allowing prosecution for conspiracy after petitioner was convicted of
underlying substantive offense, and citing Garrett as a similar case).
No such difference is present here. In contrast to the crimes involved
in Garrett, this case involves two conspiracy-like offenses directed at
largely identical conduct. Jeffers v. United States, 432 U. S. 137, 157
(1977); Garrett, 471 U. S., at 794 ("[T]he plurality [in Jeffers]
reasonably concluded that the dangers posed by a conspiracy and a CCE
were similar and thus there would be little purpose in cumulating the
penalties").
[56] *fn13 Indeed, the parties insisted that the case did not involve
multiple punishment concerns, Jeffers, 432 U. S., at 154, and n. 23, and
the Government did not contend that Congress intended to authorize the
imposition of dual punishments. Because neither the Court nor the
parties addressed the issue, Jeffers is a singularly unlikely source for
a holding that Congress clearly authorized multiple convictions. Cf.
United States v. Tucker Truck Lines, 344 U. S. 33, 38 (1952).
[57] *fn14 The Government suggests that convictions are authorized
for both Section(s) 846 and 848 because they are different sections of
the United States Code. Brief for United States 16. This does not rise
to the level of the clear statement necessary for us to conclude that
despite the identity of the statutory elements, Congress intended to
allow multiple punishments. After all, we concluded in Ball that the
statutes at issue did not authorize separate convictions, and they were
even more distant in the Code. See 470 U. S., at 863-864 (discussing 18
U. S. C. Section(s) 922(h) and 18 U. S. C. App. Section(s) 1202(a)
(1984)). If anything, the proximity of Section(s) 846 and 848 indicates
that Congress understood them to be directed to similar, rather than
separate, evils. Cf. Albernaz v. United States, 450 U. S. 333, 343
(1981).
[58] The Government further discerns congressional intent to allow
multiple punishment from "significant differences" between Ball and this
case. Brief for United States 19-24. None of its arguments, however,
demonstrates that Congress "specially authorized" convictions for both
the greater and lesser included offenses we address today. Whalen, 445
U. S., at 693. The Government suggests, for example, that the statutes
in Ball were directed at virtually identical activity, while CCE and
conspiracy are not. As we have already concluded, however, every proof
of a CCE will demonstrate a conspiracy based on the same facts. That
overlap is enough to conclude, absent more, that Congress did not intend
to allow punishments for both.
[59] *fn15 The Court of Appeals used this same power in Allison v.
United States, 409 F. 2d 445 (CADC 1969), but noted that "the
circumstances in which such authority may be exercised are limited. It
must be clear (1) that the evidence adduced at trial fails to support
one or more elements of the crime of which appellant was convicted, (2)
that such evidence sufficiently sustains all the elements of another
offense, (3) that the latter is a lesser included offense of the former,
and (4) that no undue prejudice will result to the accused." Id., at
450-451.
[60] *fn16 Indeed, because of our holding today, problems like the
one presented in this case are unlikely to arise in the future. A jury
is generally instructed not to return a verdict on a lesser included
offense once it has found the defendant guilty of the greater offense.
See, e.g., Seventh Circuit Pattern Criminal Jury Instruction 2.03, in 1
L. Sand, J, Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury
Instructions, p. 7-7 (1991).
[61] *fn17 In certain circumstances, it may be that the Government
will investigate and prosecute an individual for one or more Section(s)
846 conspiracies without being aware of facts that would justify
charging a defendant with a violation of Section(s) 848 as well.
Moreover, a lesser included Section(s) 846 conspiracy may not always be
coterminous with the larger CCE. Because neither instance is true here,
we need not explore the consequences of our holding today for purposes
of the successive prosecution strand of the Double Jeopardy Clause, see
Diaz v. United States, 223 U. S. 442, 448-449 (1912); Brown v. Ohio, 432
U. S. 161, 169, n. 7 (1977); see also Garrett, 471 U. S., at 786-793,
nor need we address how prior convictions for lesser included Section(s)
846 offenses should be handled for purposes of entering judgement if the
later Section(s) 848 conviction is obtained but then set aside.