708
Opinion of the Court
quent prosecutions after concluding that the Blockburger test (and only the Blockburger test) was satisfied.12 These cases are incompatible with the belief that Nielsen had created an additional requirement beyond the "elements" standard.13 Totally ignored by Justice Souter are the
12 Justice Souter contends that Burton is not in point because the case arose on a demurrer to the indictment, so that the Court "was not presented with the factual basis for the charges." Post, at 758. It would be a rare and unsatisfactory indictment that did not set forth the factual basis for the charges. The Court in Burton discusses the facts at length. 202 U. S., at 379-381. It is obvious, and it was assumed by the Court, that the same conduct was at issue in both indictments. Having decided, pursuant to Blockburger, that the nature of the statutes did not support a claim of double jeopardy, the Court (if it agreed with Justice Souter's view of the law) should have proceeded to consider whether the nature of the acts alleged supported such a claim.
13 Both Justice White, post, at 735, and Justice Souter, post, at 758- 759, recognize that Gavieres did hold that Blockburger is the only test for "same offence." Justice Souter handles this difficulty by simply ignoring the concession. See ibid. Justice White first minimizes the concession, arguing that application of our version of Blockburger to successive prosecutions has happened (by reason of Gavieres) "only once." Post, at 735. Once, it seems to us, is enough to make a precedent. Justice White then seeks to neutralize the precedent by offering still another case, Grafton v. United States, 206 U. S. 333 (1907), that cannot support the reading grafted onto it today. Post, at 739-740. The defendant in Grafton was first tried and acquitted by a military court for the offense of homicide, and then tried by a civilian criminal court for assassination, and convicted of homicide, based on the same conduct. 206 U. S., at 349. The second prosecution was held barred by the Double Jeopardy Clause. Justice White argues that, just as Grafton had to be a soldier for the military court to have jurisdiction, so too here the only relevance of the CPO is that it gave the court authority to punish offenses "already prescribed by the criminal law." Post, at 740. This description does not accurately portray the threat counts, see n. 8, supra—but the problem with Justice White's analysis is deeper than that. The substantive offense for which Grafton was first tried (violation of Philippines Penal Code Article 404) did not have as one of its elements status as a soldier, whereas the substantive offense for which Foster was first tried did have as one of its elements knowledge of an extant CPO. See supra, at 700-702. Since military status was not an element of Grafton's charged offense, it is not
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