758
Opinion of Souter, J.
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." Id., at 510 (footnote omitted). Grady did nothing more than apply a version of the Nielsen rule.
As against this sequence of consistent reasoning from Nielsen to Grady, the Court's citation to two cases, Gavieres v. United States, 220 U. S. 338, 343 (1911), and Burton v. United States, 202 U. S. 344, 379-381 (1906), cannot validate its insistence that, prior to Grady, our exclusive standard for barring successive prosecutions under the Double Jeopardy Clause was the Blockburger test. See ante, at 707-708. Burton came before the Court on a demurrer. The Court there was not presented with the factual basis for the charges, and simply held that two offenses, accepting a bribe from a company and accepting the same bribe from an officer of that company, were "not identical, in law." 202 U. S., at 381; see also id., at 379 ("[T]he question presented is whether, upon the face of the record, as matter of law simply, the offense charged in the third and seventh counts of the present indictment is the same as that charged in the third count of the former indictment") (emphasis in original); Abbate v. United States, 359 U. S. 187, 198, n. 2 (1959) (opinion of Brennan, J.). Rather than proving that the Block-burger same-elements test was always the Court's exclusive guide to evaluation of successive prosecutions prior to Grady, Burton stands only for the proposition that a claim of double jeopardy resting exclusively on pleadings cannot be adjudicated on any basis except the elements pleaded.
Gavieres is in fact the only case that may even be read to suggest that the Court ever treated a Blockburger analysis as the exclusive successive prosecution test under the Double Jeopardy Clause, and its precedential force is weak. Gavieres was an interpretation not of the Constitution, but
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