16
Opinion of the Court
plicitly held that § 846 requires proof of overt acts; otherwise, the double jeopardy discussion would have been merely advisory. The procedural history of Felix, however, belies this contention. The disputed evidence was offered not to prove overt acts qua overt acts, but to prove the existence of a conspiracy. The lower court in Felix noted that it was "mindful that 21 U. S. C. § 846 does not require proof of an overt act . . . ." United States v. Felix, 926 F. 2d 1522, 1529, n. 7 (CA10 1991). Nevertheless, evidence of such acts raised double jeopardy concerns because it "tended to show the criminal agreement for the conspiracy," an indisputably essential element of the offense. Ibid. Indeed, Justice Stevens also argued that "the overt acts did not establish an agreement between Felix and his co-conspirators." Felix, 503 U. S., at 392. In light of the lower court opinion, it is apparent that we rejected this point—rather than Justice Stevens' construction of § 846—before reaching the double jeopardy issue. In any event, Shabani's strained reading of Felix is of little consequence for precedential purposes, since "[q]uestions which 'merely lurk in the record' are not resolved, and no resolution of them may be inferred." Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 183 (1979), quoting Webster v. Fall, 266 U. S. 507, 511 (1925).
Shabani reminds us that the law does not punish criminal thoughts and contends that conspiracy without an overt act requirement violates this principle because the offense is predominantly mental in composition. The prohibition against criminal conspiracy, however, does not punish mere thought; the criminal agreement itself is the actus reus and has been so viewed since Regina v. Bass, 11 Mod. 55, 88 Eng. Rep. 881, 882 (K. B. 1705) ("[T]he very assembling together was an overt act"); see also Iannelli v. United States, 420 U. S. 770, 777 (1975) ("Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act") (citations omitted).
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