NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. 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 metham-
 phetamine at an Oklahoma facility.  After Drug Enforcement Admin-
 istration (DEA) agents shut down that facility, Felix ordered addition-
 al chemicals and equipment from a DEA informant for delivery in
 Missouri.  Federal Government officials observed the delivery, arrest-
 ed him, and charged him with the offense of attempting to manufac-
 ture 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 distrib-
 ute 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 in Grady v. Corbin,
 495 U.S. 508, 521, that the Double Jeopardy Clause bars a subse-
 quent 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 substan-
 tive 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.
 5-13.
   (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.  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 to Grady, supra, which dis-
 claimed any intention of adopting a ```same evidence''' test, id., at 521
 and n. 12.  Pp.6-8.
   (b)A substantive crime and a conspiracy to commit that crime are
 not the ``same offense'' for double jeopardy purposes, see, e. g., United
 States 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 estab-
 lished doctrine predates, and was not questioned in, Grady, supra.
 In addition, while Grady-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 reading Grady as substituting for the
 ``same offence'' language of the Double Jeopardy Clause a test based
 on whether the two prosecutions involve the same conduct.
 Pp.9-12.
926 F.2d 1522, reversed.

 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 Stevens and Blackmun, JJ., joined.  Stevens,
J., filed an opinion concurring in part and concurring in the judgment,
in which Blackmun, J., joined.
-------------------------------



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, Wash-
ington, 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. 90-1599
--------
UNITED STATES, PETITIONER v.
FRANK DENNIS FELIX
on writ of certiorari to the united states court of
appeals for the tenth circuit
[March 25, 1992]

  The Chief Justice  delivered the opinion of the Court.
  The Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution provides: ``[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 DEA agents.  Felix thereupon ordered precursor
chemicals and equipment for the manufacture of metham-
phetamine 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 viola-
tion of the Fifth Amendment.  We hold that prosecution of
a defendant for conspiracy, where certain of the overt acts
relied upon 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 metham-
phetamine in Missouri, the Government showed that on
August 26, 1987, Felix asked to purchase chemicals and
equipment needed for the manufacture of methamphet-
amine from George Dwinnells, a Drug Enforcement Admin-
istration 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 mistak-
en 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 methamphet-
amine lab, on July 13, 1987.  The agents did not arrest
Felix at that time, however; he later told Dwinnell 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.  Id., 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 5 alleged that on or about July
13, 1987, in the Eastern District of Oklahoma, Felix had
manufactured methamphetamine, possessed methamphet-
amine with intent to distribute it, possessed methamphet-
amine 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, Felix 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 evi-
dence 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 in Grady 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) (quoting Grady 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 Govern-
ment proved that Felix had learned to mahamphet-
amine 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 substan-
tive 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 that this 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.
  We granted certiorari, 502  U. S. -- (1991), to consider
whether the Double Jeopardy Clause bars the prosecution
of Felix for these crimes.  We hold that it does not, and so
reverse.

                     II
  We first consider whether the Double Jeopardy Clause
bars Felix's prosecution on the substantive drug offenses
contained in counts 2 through 6 of the Oklahoma indict-
ment.  The Court of Appeals held that the 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's 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 meth-
amphetamine 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's 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 prosecut-
ed in the Oklahoma indictment is in any sense the ``same
offense'' 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 prosecut-
ed 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's 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 the Government
to help show Felix's state of mind, he was not prosecuted in
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 prece-
dents 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 in Grady v. Corbin, 495 U. S., at 521, in
reaching its result.  But we think that this is an extrava-
gant reading of Grady, which disclaimed any intention of
adopting a ```same evidence''' test.  Id., at 521, and n. 12;
accord, Gavieres v. United States, 220 U.S. 338 (1911).  Our
decision two Terms ago in Dowling 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 Fed. Rule Evid. 404(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.  See id., at 348-349 (citing Huddleston v.
United States, 485 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 in Dowling is 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.
  That principle is clearly applicable here.  At the Missouri
trial, the Government did not in any way prosecute Felix for
the Oklahoma methamphetamine transactions; it simply
introduced those transactions as prior acts evidence under
Rule 404(b).  The Government was therefore free to prose-
cute 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 prosecu-
tion of Felix for the conspiracy charge contained in count 1
of the indictment.  Here, too, that court - with consider-
able justification - relied upon language from our Grady
opinion 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 in Grady,
Felix's claim of double jeopardy fails.
  Felix contends, and the Court of Appeals agreed, that
language from Grady bars the conspiracy prosecution.
There we said that the Double Jeopardy Clause bars a
prosecution where the Government, ``to establish an essen-
tial 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
which Grady arose and because of difficulties which have
already arisen in its interpretation.
  Grady involved 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
pled 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 defen-
dant argued that this was a violation of his rights under
the Double Jeopardy Clause.  In our decision, we recognized
our previous holdings that the traditional Blockburger test
governing double jeopardy claims bars a subsequent
prosecution if one of the two offenses is a lesser included
offense of the other.  See Grady v. Corbin, supra, at 519
(citing Brown v. Ohio, 432 U. S. 161 (1977); Harris v.
Oklahoma, 433 U. S. 682 (1977)).  Although the traffic
offenses involved in Grady were not technically lesser
included offenses of the homicide and assault charges, we
analogized the case to the situation we had previously
confronted in Illinois 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.  In Grady, 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 in Vitale.  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 in Vitale.
Grady v. Corbin, supra, at 521.
  But long antedating any of these cases, and not ques-
tioned in any of them, is the rule that a substantive crime,
and a conspiracy to commit that crime, are not the ``same
offense'' for  double jeopardy purposes.
  For example, in United 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 or confederation
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.  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].''  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 the with necessity of reconciling this longstanding
authority with our language in Grady, we choose to adhere
to the Bayer-Pinkerton line of cases dealing with the
distinction between conspiracy to commit an offense and the
offense itself.  These are separate offenses for double
jeopardy purposes.  The majority in the Court of Appeals
below essentially read Grady as 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 from Grady is modified by the phrase ```that
constitutes an offense for which the defendant has already
been prosecuted.'''  926 F. 2d, at 1532 (Anderson, J.,
dissenting) (quoting Grady v. Corbin, 495 U. S., at 521).
The Court of Appeals for the Second Circuit, in United
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
from Grady differently.  That court decided that the
``conduct'' at issue in a conspiracy prosecution is not the
agreement itself, buconduct from which the Govern-
ment asks the jury to infer that there was an agreement.
917 F 2d., at 721.  Judge Newman filed a concurring
opinion, concluding that Grady bars a subsequent prosecu-
tion only when previously prosecuted conduct will be used
to establish the entirety of an element of the second crime.
See 917 F 2d, at 723-725 (Newman, J., concurring).  Other
Courts of Appeals, as described in more detail in footnote 2,
have rejected double jeopardy claims in similar situations.
It appears that while Grady eschewed a ``same evidence''
test and Garrett rejected a ```single transaction''' test,
Garrett v. United States, supra, at 790, the line between
those tests and the ``same conduct'' language of Grady is 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 prosecut-
ed, and the Double Jeopardy Clause did not bar his prose-
cution on that charge.
  The judgment of the Court of Appeals is accordingly

                                    Reversed.
-------------------------------


SUPREME COURT OF THE UNITED STATES
--------
No. 90-1599
--------
UNITED STATES, PETITIONER v.
FRANK DENNIS FELIX
on writ of certiorari to the united states court of
appeals for the tenth circuit
[March 25, 1992]

  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,'' ante, at 9, for the Court of Appeals' conclusion
that the Double Jeopardy Clause, as interpreted in Grady
v. Corbin, 495 U. S. 508 (1990), bars prosecution of Felix for
the conspiracy charge contained in count 1 of the indict-
ment.  In Grady, 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 con-
spiracy'' 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 coconspira-
tors.  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 2-8, and
Part III(B) of the dissenting opinion of the Court of Ap-
peals, 926 F. 2d, at 1536-1539.
-------------------------------
