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was engaged in horse betting and had petitioner been acquitted, his acquittal would bar any further prosecution for participating in the same gambling business during the same time period on a numbers theory. That the trial court disregarded the Government's allegation of numbers betting does not render its acquittal on the horse-betting theory any less an acquittal on the "offense” charged. “The Double Jeopardy Clause is not such a fragile guarantee that ... its limitations (can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units,” Brown v. Ohio, 432 U. S., at 169, or, as we hold today, into “discrete bases of liability" not defined as such by the legislature. See id., at 169 n. 8.29
While recognizing that only a single violation of the statute is alleged under either theory, so the Government nevertheless contends that separate counts would have been proper, and that an acquittal of petitioner on a horse-betting count would not bar another prosecution on a numbers count. Brief for United States 33. Although there may be circumstances in which this is true, petitioner here was acquitted for insufficient proof of an element of the crime which both such counts would share—that he was "connected with” the single gambling business. See supra, at 59. This finding of fact stands as an
28 See 1 C. Wright, Federal Practice and Procedure 125, p. 241 (1969). See also United States v. Sabella, 272 F. 2d 206, 211 (CA2 1959) (Friendly, J.); Hanf v. United States, 235 F. 2d 710, 715 (CAS), cert. denied, 352 U.S. 880 (1956).
29 See also United States v. Jackson, 560 F. 2d 112, 121 n. 9 (CA2 1977) (Government may not, under Double Jeopardy Clause, "fragment what is in fact a single crime into its components").
30 The Government concedes that it was required to bring all “theories of liability” in a single trial, and that only a single punishment could be imposed upon conviction on more than one such theory. Brief for United States 31, 33.
absolute bar to any further prosecution for participation in that business. 81
The Government having charged only a single gambling business, the discrete violations of state law which that business may have committed are not severable in order to avoid the Double Jeopardy Clause's bar on retrials for the “same offense." #2 Indeed, the Government's argument that these are discrete bases of liability warranting reprosecution following a final judgment of acquittal on one such "discrete basis” is quite similar to an unsuccessful argument that it presented in Braverman v. United States, 317 U. S. 49 (1942). Braverman had been convicted of and received consecutive sentences on four separate counts of conspiracy, each count alleging a conspiracy to violate a separate substantive provision of the federal narcotics laws.' The Government conceded that only a single conspiracy existed, as it concedes here that only a single gambling business existed; nonetheless, it urged that separate punishments were appropriate because the single conspiracy had several discrete objects. We firmly rejected that argument:
"[T]he precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in
31 It is true that no factual determination was made that petitioner had not engaged in numbers betting. Thus, there would be no collateralestoppel bar to a prosecution of petitioner for a different offense in which his liability would depend on proof of that fact. Cf. Ashe v. Swenson, 397 U.S. 436 (1970).
82 A single gambling business theoretically may violate as many laws as a State has prohibiting gambling, and § 1955 specifies six means by which a defendant may illegally participate in such a business, i. e., by conducting, financing, managing, supervising, directing, or owning it. If we were to accept the Government's theory, each of these could be varied, one at a time, to charge a separate count on which a defendant could be reprosecuted following acquittals on any of the others.
either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of
several statutes rather than one.” Id., at 53. The same reasoning must also apply where the essence of the crime created by Congress is participation in a "business,” rather than participation in an "agreement." *
The Double Jeopardy Clause is no less offended because the Government here seeks to try petitioner twice for this single offense, instead of seeking to punish him twice as it did in Braverman. "If two offenses are the same ... poses of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” Brown v. Ohio, supra, at 166. Accordingly, even if the numbers allegation were "dismissed,” we conclude that a subsequent trial of petitioner for conducting the same illegal gambling business as that at issue in the first trial would subject him to a second trial on the "game offense" of which he was acquitted.
.. for pur
88 If two different gambling businesses were alleged and proved, separate convictions and punishments would be proper. See American Tobacco Co. v. United States, 328 U. S. 781, 787–788 (1946) (holding Braverman inapplicable where two distinct conspiracies alleged). It is not always easy to ascertain whether one or more gambling businesses have been proved under § 1955. See, e. 9., United States v. DiMuro, 540 F. 2d, at 508–509; United States v. Bobo, 477 F.2d 974, 988 (CA4 1973). No such difficulties are presented here because both sides agree that only a single gambling business existed.
34 United States v. Tanner, 471 F. 2d 128, 141 n. 21 (CA7), cert. denied, 409 U. S. 949 (1972); see United States v. Mayes, 512 F. 2d 637, 652 (CA6), cert. denied; 422 U. S. 1008 (1975); United States v. Young, 503 F. 2d 1072, 1075 (CA3 1974); United States v. Cohen, 197 F.2d 26 (CA3 1952). See also Short v. United States, 91 F.2d 614 (CA4 1937); Powe v. United States, 11 F. 2d 598 (CA5 1926); United States v. Weiss, 293 F. 992 (ND Ill. 1923).
The only question remaining is whether any of the exceptions to the constitutional rule forbidding successive trials on the same offense, see n. 15, supra, apply here. The short answer to this question is that there is no exception permitting retrial once the defendant has been acquitted, no matter how "egregiously erroneous," Fong Foo v. United States, 369 U. S., at 143, the legal rulings leading to that judgment might be. The Government nevertheless argues, relying principally on Lee v. United States, 432 U. S. 23 (1977), and Jeffers v. United States, 432 U. S. 137 (1977), that petitioner waived his double jeopardy rights by moving to "dismiss” the numbers allegation and by not objecting to the form of the allegation prior to trial.
In Lee we held a retrial permissible because the District Court's midtrial decision granting the defendant's motion to dismiss the indictment for failure to state an offense was "functionally indistinguishable from a declaration of mistrial” at the defendant's request. 432 U.S., at 31. The mistrial analogy relied on in Lee is manifestly inapposite here. Although jeopardy had attached in Lee, no verdict had been rendered; indeed, petitioner conceded that “the District Court's termination of the first trial was not an acquittal,” id., at 30 n. 8. Here, by contrast, the trial proceeded to verdict, and petitioner was acquitted. While in Lee the trial court clearly did contemplate a reprosecution when it granted defendant's motion, id., at 30-31, neither petitioner's motion here nor the trial court's rulings contemplated a second trial-nor could they have, since only a single offense was involved and petitioner went to judgment on that offense. Where a trial terminates with a judgment of acquittal, as here, "double jeopardy principles governing the permissibility of retrial after a declaration of mistrial,” Lee v. United States, 432 U. S., at 31, have no bearing.
Nor does Jeffers support the Government's position. The
defendant there was first tried and convicted of conspiring to distribute narcotics in violation of 21 U. S. C. $ 846. Eight Members of the Court agreed that his subsequent trial for conducting a continuing criminal enterprise in violation of 21 U.S. C. $ 848 during the same time period was on the "same offense,” since the $ 846 violation was a lesser included offense to the $ 848 violation. Prior to the first trial, however, Jeffers had specifically opposed the Government's effort to try both indictments together, in part on the ground that they involved distinct offenses. 432 U. S., at 144 n. 8. Reasoning that Jeffers necessarily contemplated a second trial, four Members of the Court found that he had "elect[ed] to have the two offenses tried separately," id., at 152, and, by not raising the potential double jeopardy problem, had waived any objection on that ground to successive trials, id., at 152–154.35 The instant case presents quite a different situation. Petitioner's counsel never argued that horse betting and numbers were distinct offenses, 36 a fortiori did not argue for or contemplate
35 While holding that Jeffers could be subjected to a second trial, these four Justices were of the view that the total punishment imposed on Jeffers could not be in excess of that authorized for a single violation of 21 U. S. C. $ 848. They relied in part on the fact that Jeffers, who had argued in the District Court that the two statutes involved distinct offenses, had "never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments ...." 432 U. S., at 154 n. 23. They were joined in voting to vacate the excess punishment by the four Justices who believed that Jeffers could not be constitutionally subjected to another trial. MR. JUSTICE WHITE believed that Jeffers could be subjected to both a second trial and separate punishments.
36 That no such argument was made as to the numbers and horse-betting allegations is highlighted by the fact that petitioner's counsel did argue on behalf of another defendant that evidence relating to that defendant's betting on dog races should be excluded because "the theory of the Government's case is that this is a horse and numbers business. ... [The dog betting] stands by itself as a separate business,