William J. Brennan, Jr.

“ Subsequently he was prosecuted and convicted of adultery in violation of another congressional statute, the second prosecution being based on the same acts as the prior conviction. Despite the fact that it was necessary to prove a fact in the second prosecution not necessary for the first conviction, i.e., that the defendant was married to another woman, and that a different federal interest was protected by each statute, the Court held that the second prosecution unconstitutionally put the defendant twice in jeopardy for the same offense. ”

“ Obviously separate prosecutions of the same criminal conduct can be far more effectively used by a prosecutor to harass an accused than can the imposition of consecutive sentences for various aspects of that conduct. It is always within the discretion of the trial judge whether to impose consecutive or concurrent sentences, whereas, unless the Fifth Amendment applies, it would be solely within the prosecutor's discretion to bring successive prosecutions based on the same acts, thereby requiring the accused to defend himself more than once. ”

“ During the following three decades a number of state courts reached differing conclusions as to whether a state prosecution would bar a subsequent federal prosecution of the same person for the same acts. [6] Against this background this Court thoroughly considered the question in three cases between 1847 and 1852. In Fox v. State of Ohio, 5 How. 410, 12 L.Ed. 213, the petitioner had been convicted of passing a counterfeit coin of the United States within the State of Ohio in violation of a state statute. ”

“ The accused, although punished separately and cumulatively for various aspects of a single transactions, is subject to only one prosecution and one trial. If the Government attempted multiple prosecutions of the same offenses, an entirely different constitutional issue would be presented, cf. Hoag v. State of New Jersey, 356 U.S. at page 467, 78 S.Ct. at page 832. The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials ”

“ That case involved a conviction of Moore under an Illinois statute for harboring an escaped slave. A federal statute outlawed the same act as an interference with the rights of the owner of the slave. Moore urged that the Illinois statute was void 'as it subjects the delinquent to a double punishment for a single offence,' 14 How. at page 19. The Court rejected this argument, saying:
'Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. ”

“ United States v. Levine, 2 Cir., 1942, 129 F.2d 745.↑ 'It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions.' Wheeling Steel Corp. ”