298
Opinion of the Court
In this case it is perfectly clear that the CCE offense requires proof of a number of elements that need not be established in a conspiracy case.7 The Blockburger test requires us to consider whether the converse is also true—whether the § 846 conspiracy offense requires proof of any element that is not a part of the CCE offense. That question could be answered affirmatively only by assuming that while the § 846 conspiracy requires proof of an actual agreement among the parties, the "in concert" element of the CCE offense might be satisfied by something less.
The Government advanced this precise argument in Jeffers v. United States, 432 U. S. 137 (1977),8 but it managed to persuade only one Justice. Id., at 158 (White, J., concurring). The position was rejected, to varying degrees, by the
v. United States, 284 U. S. 299 (1932), to confirm state-court conclusion that offense of "joyriding" was a lesser included offense of auto theft).
7 The defendant must, for example, commit a series of substantive violations, be a leader of the criminal enterprise, and derive substantial income from it. The Government need not prove any of those elements to establish a conspiracy in violation of § 846. Even the "in concert" element of the CCE offense is broader than any requirement in § 846 because it requires at least five participants, while a conspiracy requires only two.
8 In Jeffers, we considered whether the Government could prosecute the defendant under § 848 even though he had previously been convicted of § 846 conspiracy on the basis of the same agreements. The Government argued that the multiple prosecution was permissible because the crimes were not the "same offense." "The Government's position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase 'in concert with.' If five 'innocent dupes' each separately acted 'in concert with' the ring-leader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23." 432 U. S., at 147. The Government relied on Iannelli v. United States, 420 U. S. 770 (1975), in which we construed 18 U. S. C. § 1955 as not requiring proof of conspiracy. As Justice Blackmun pointed out, however, the language of § 1955 was significantly different from § 848 in that it omitted the words "in concert" and left open "the possibility that the five persons 'involved' in the gambling operation might not be acting together." 432 U. S., at 147-148.
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