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- 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.
-