MARION D. CAMPBELL, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-479

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-25a) is reported
at 852 F.2d 1456.  The opinion of the district court (Pet. App.
26a-30a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 22, 1988.
The petition for a writ of certiorari was filed on September 20, 1988.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1)

                          QUESTIONS PRESENTED

   1. Whether the district court and the court of appeals erred in
finding that two conspiracy charges in a single indictment constituted
separate offenses for purposes of the Double Jeopardy Clause.

   2. Whether collateral estoppel bars the government from
reprosecuting petitioner for conspiracy to distribute drugs, on which
a jury was unable to reach a verdict, after the same jury acquitted
petitioner of conspiracy to commit extortion.

                               STATEMENT

   In 1986 a federal grand jury in the Eastern District of Kentucky
charged petitioner with conspiracy to commit extortion under color of
official right and three substantive extortion counts, in violation of
the Hobbs Act, 18 U.S.C. 1951.  The grand jury also charged that
petitioner conspired to distribute cocaine and marijuana and to
possess those substances with intent to distribute them, in violation
of 21 U.S.C. 846.  After a jury trial, petitioner was acquitted of the
three substantive extortion counts and of the count charging him with
conspiracy to commit extortion.  The jury was unable to reach a
verdict on the count charging petitioner with conspiracy to distribute
cocaine and marijuana, and a mistrial was declared as to that count.

   This case arises from petitioner's motion to dismiss the remaining
count on double jeopardy grounds.  The district court denied the
motion to dismiss (Pet. App. 26a-30a), and on petitioner's
interlocutory appeal the court of appeals affirmed and remanded the
case for trial (Pet. App. 1a-25a).

   1. During the period relevant to the charged offenses, petitioner
was a high-ranking officer of the Kentucky State Police.  Co-defendant
Roger Benton was the Sheriff of Morgan County, Kentucky.  Co-defendant
Gene Allen was the Morgan County Judge.

   Count 1 of the original 18-count indictment charged petitioner,
Benton, Allen, and two others with conspiracy to commit extortion
between January 1, 1985, and February 11, 1986.  In particular, Count
1 alleged that the five defendants obtained and attempted to obtain
money and cocaine under color of official right from an undercover FBI
agent posing as a cocaine distributor.  Under the scheme alleged in
Count 1, the defendants agreed to obtain money and cocaine from the
agent in return for extending police protection to the agent's drug
operation.  The conspirators agreed to inform the undercover agent
about any state or local investigation that might affect his cocaine
distribution and to permit the agent to fly loads of cocaine into the
county and to distribute the contraband there.

   Count 16 of the original indictment charged the same five
individuals with a conspiracy to possess and distribute cocaine and
marijuana within the same time period as Count 1, in violation of 21
U.S.C. 846.

   Three of the charged conspirators, including Judge Allen, pleaded
guilty and testified for the government at the trial of petitioner and
co-defendant Roger Benton.  Their testimony and the other evidence at
trial, which are outlined in the opinion below (Pet. App. 4a-7a) and
set out in the government's brief in the court of appeals (at 3-16),
showed that in late 1983 petitioner approached Judge Allen to discuss
how they could profit from the highly lucrative drug dealing in which
others were engaged.  As Allen explained, "everytime I was with
(petitioner) we discussed the drug business" (VI Tr. 24;  Pet. App.
4a-5a).  The two initially planned to obtain drugs from a corrupt
Florida sheriff and fly them into Morgan County, Kentucky.  In the
fall of 1984, petitioner and Allen met with co-defendant Titus
Frederick, whom they believed to have connections in the drug
business, in an effort to locate a supplier of drugs for their planned
distribution.  The three men also met frequently with a local attorney
to discuss their hopes of making money in the drug business, and they
tried unsuccessfully to obtain financial backing for the venture from
the attorney.  Ibid.

   The conspirators then turned to Houston E. McNeal, an FBI
undercover agent who was posing as a drug dealer.  McNeal agreed to
pay the five conspirators $5000 a month for protection and to avoid
arrest.  He paid $2500 initially to one of the co-defendants, who said
he would give the money to petitioner.  Subsequently, McNeal brought
two kilograms of cocaine into Morgan County, and he then sold the
cocaine at Allen's home to purported buyers who in fact were other FBI
agents.  After the sale, McNeal gave $2500 to Allen and another
conspirator and left an additional $2500 for petitioner.  Less than
two months later, McNeal paid Allen another $5000 and gave him an
additional $5000 to be paid to petitioner.  One week after those
payments McNeal gave $5000 to Benton for protection.  Pet. App. 5a-6a.

   In his defense, petitioner testified that he engaged in the conduct
proved at trial not as part of an illegal scheme, but because he was
conducting his own investigation of McNeal.  Sheriff Benton also
presented that defense.  Pet. App. 6a.  Co-defendant Steve Allen (the
son of Judge Allen), however, testified that after their arrests his
father and Sheriff Benton said that "they were going to say they were
conducting an investigation on their own" and would see if petitioner
would go along with that plan (V Tr. 95).  In addition, other police
officers and the county prosecutor explained that neither man had
informed them of their alleged investigation (Pet. App. 6a-7a).
Moreover, a state police officer stated that petitioner had asked him
to testify that the two had discussed the investigation;  when the
officer replied that he could not "get on the stand and commit
perjury," petitioner responded, "Big * * * deal, I am looking at
ninety-five years." IX Tr. 44.

   The jury convicted Benton of both conspiracies and all substantive
extortion counts.  At the same time, it acquitted petitioner of the
extortion conspiracy charge (Count 1) and the three substantive
extortion counts.  The jury was unable to reach a verdict as to
petitioner on the drug distribution conspiracy charged in Count 16.

   2. After the government moved to set a date for a retrial on the
remaining conspiracy charge, petitioner moved to dismiss that count on
double jeopardy grounds.  While the motion was pending the government
obtained a superseding indictment that amended the time frame of the
original charged drug conspiracy and deleted reference to the planned
distribution of marijuana.  Whereas Count 16 had originally alleged a
conspiracy existing from January 1, 1985, through February 11, 1986,
the superseding indictment dated the conspiracy from November 1, 1983,
through March 12, 1986.  The new count also deleted reference to
Benton (who had been convicted on Count 16) and to defendant Steve
Allen, the son of Judge Allen.

   The district court denied the motion (Pet. App. 26a-30a).  The
court found that the two offenses charged in Count 1 and Count 16
constituted separate conspiracies and that charging petitioner with
the two conspiracy offenses therefore did not violate the Double
Jeopardy Clause.  The court pointed out that the two conspiracy
offenses with which petitioner was charged have very different
elements and that there is no evidence that Congress did not intend to
permit separate punishment for violations of the two conspiracy
statutes.  In addition, the court noted that the evidence supporting
the two conspiracy charges was quite different.  There was extensive,
corroborated testimony, the court pointed out, that petitioner had
discussed and planned a drug distribution operation in the Morgan
County area.  By contrast, the only testimony that petitioner
indirectly received money from Agent McNeal was the testimony of a
charged co-conspirator, who stated that he passed McNeal's money to
petitioner.  Pet. App. 28a-29a.

   The district court then rejected petitioner's collateral estoppel
claim.  Based on the evidence at trial, the court stated that "it is
obvious that the jury could have found that the Defendant Campbell did
not receive nor solicit any money, but nevertheless could have
conspired to possess with intent to distribute or to distribute
marijuana and cocaine." Pet. App. 29a-30a.

   3. The court of appeals affirmed (Pet. App. 1a-25a).  It agreed
with the district court that the indictment charged two separate
conspiracies (Pet. App. 12a-14a).  The court of appeals also rejected
petitioner's claim that his acquittal on the Hobbs Act conspiracy
charge collaterally estopped the government from reprosecuting him on
the drug conspiracy charge (Pet. App. 18a).  The court determined that
the jury's acquittal on the extortion conspiracy count could well have
been based on the conclusion that petitioner did not agree to commit
extortion.  Given the alternative explanations for the jury's verdict
on the extortion conspiracy count, the court of appeals held that it
could not find "with definite assurance, and by clear evidence, that
the jury found a fact in (petitioner's) favor, which is also a
necessary element of" the pending drug conspiracy charge (Pet. App.
19a).  In the absence of such a finding, the court concluded,
collateral estoppel does not bar petitioner's retrial.

                               ARGUMENT

   1. Petitioner first contends (Pet. 7-18) that the two conspiracies
alleged in the indictment constitute the "same offense" for purposes
of the Double Jeopardy Clause and that he cannot be prosecuted on the
drug distribution conspiracy charge after having been acquitted on the
extortion conspiracy charge.

   a. Even if petitioner were right in his contention that the two
conspiracies charged in this case arose from a single agreement, there
would be no double jeopardy bar to the prosecution of that agreement
as two separate crimes.  In Albernaz v. United States, 450 U.S. 333
(1981), this Court held that a single agreement to import marijuana
and then distribute it domestically could be prosecuted and punished
as two separate crimes:  conspiracy to import marijuana, in violation
of 21 U.S.C. 963;  and conspiracy to distribute marijuana, in
violation of 21 U.S.C. 846.  The Court made clear (450 U.S. at
338-342, 344 n.3) that separate conspiracy statutes can support
separate charges in a case such as this one.  Thus, when the different
conspiracy statutes proscribe agreements with different unlawful ends,
and each statute requires proof of a fact that the other does not, the
Double Jeopardy Clause permits prosecution and punishment under both
statutes unless Congress affirmatively indicates that it does not
intend cumulative punishment under the two statutes.  Here, the two
statutes proscribing the charged conspiracies each require proof of a
fact that the other does not, /1/ and petitioner has pointed to
nothing in the statutory language or legislative history to negate the
presumption that Congress intended to allow a single agreement to be
prosecuted under both statutes.  Petitioner's contention is therefore
wrong because, by analogy to Albernaz, a single agreement to extort
and to distribute drugs can be prosecuted under both 18 U.S.C. 1951
and 21 U.S.C. 846 without violating the Double Jeopardy Clause.  See
also United States v. Woodward, 469 U.S. 105, 107-109 (1985);
American Tobacco Co. v. United States, 328 U.S. 781, 787-789 (1946).

   Petitioner apparently seeks to avoid the effect of the rule in
Albernaz by characterizing this as a case involving multiple
prosecutions, whereas Albernaz involved multiple charges in a single
indictment.  That suggestion fails for two reasons.  First, because
each of the conspiracy statutes contains at least one element not
contained in the other, the two conspiracy charges satisfy the
requirements of Blockburger v. United States, 284 U.S. 299 (1932), and
could therefore be separately charged in separate indictments
resulting in separate trials.  See Garrett v. United States, 471 U.S.
773, 778-779 (1985).  Second, this is not a case involving "successive
prosecutions," but rather a case involving a single prosecution that
has resulted in two trials because of a mistrial granted on the drug
conspiracy count.  Petitioner has therefore been placed in jeopardy
only once (see Richardson v. United States, 468 U.S. 317, 325 (1984));
 the retrial on the drug conspiracy charge is part of the single
proceeding against petitioner.  This case is thus analogous to Ohio v.
Johnson, 467 U.S. 493 (1984), which this Court held to involve only a
single proceeding for double jeopardy purposes, even though the State
sought to try the defendant on certain counts of an indictment after
he had been convicted on others (see 467 U.S. at 500-502).  As the
Court explained in Johnson, "the principles of finality and prevention
of prosecutorial overreaching" (id. at 501) do not apply when the
defendant is subject to continuing prosecution "on the remaining
charges brought in the indictment" (ibid.).  The mistrial declared
after a hung jury on the drug conspiracy count entitles the government
to a new trial at which it will have "one complete opportunity to
convict those who have violated its laws." Arizona v. Washington, 434
U.S. 497, 509 (1978).

   Petitioner's position is wrong for the further reason that the
evidence in this case established two separate agreements.  The
evidence showed that petitioner and Allen initially conspired between
themselves and with others to make money distributing drugs well
before the possibility of extorting money or drugs from McNeal arose.
After their efforts to obtain drugs from a Florida source and
financing from a local attorney failed, some or all of the various
conspirators then entered into a separate agreement to extort McNeal
as a potential source of either cocaine or money with which to buy a
supply of drugs for distribution.  /2/ In light of the facts proved at
trial, the two charged conspiracies involve substantially different
activities and thus could properly be inferred to be the product of
separate agreements even if the two conspiracy counts were not based
on different statutory provisions.  /3/

   b. Petitioner raises as a separate argument (Pet. 11-18) the claim
that the charged drug conspiracy is a lesser included offense of the
extortion conspiracy of which he was acquitted.  This contention is
simply a restatement in a different form of his claim that the two
conspiracies are the "same offense" for double jeopardy purposes.
Like the first claim, the "lesser included offense" contention is
foreclosed by Albernaz v. United States, supra.  Even if there was
only one agreement in this case, neither charged conspiracy can be
regarded as a lesser included offense of the other, because the
offenses contain distinctly different elements.  See United States v.
Woodward, supra.

   In addition, this argument is based on a false factual premise.
Contrary to petitioner's assertion (Pet. 14), the Hobbs Act conspiracy
and the conspiracy to distribute drugs are not factually identical as
charged.  First, different time frames are spelled out in the
extortion conspiracy count and the superseding drug count.  Second,
contrary to petitioner's contention, the alleged effect on interstate
commerce in the Hobbs Act count is not the defendant's "intentional
distribution of cocaine." Count 1 charges that the defendants
conspired "to obstruct, delay and affect commerce by extortion, that
is, by obtaining and attempting to obtain money and cocaine from
Houston E. McNeal with his consent, under color of official right."
The extortion conspiracy count further alleges that the defendants
would offer protection to McNeal for his distribution activities in
exchange for payment.  That is a far cry from the drug conspiracy
allegation that the defendants conspired together to possess and
distribute drugs themselves.  Finally, although Count 1 alleges that
the extorted payment to the defendants would be "money and cocaine,"
that allegation is plainly not identical to the charge in the drug
conspiracy count that the defendants agreed to "possess with intent to
distribute controlled substances." Indeed, the allegation in the
extortion conspiracy count that the defendants would be paid off in
drugs is substantively quite different from an allegation that they
would possess drugs for distribution to others.

   Nor are the two conspiracy counts based on the same evidence, as
petitioner asserts (Pet. 17;  see also Pet. 19-20).  Petitioner states
that "all of the evidence that even remotely ties petitioner to the
events identified in the original indictment is directly related to
the alleged effort to extort Special Agent McNeal" (Pet. 20).  Yet the
superseding indictment dates back to a time well before Agent McNeal
was in the picture.  Moreover, the evidence at trial overwhelmingly
demonstrated a persistent and ongoing agreement to secure drugs for
distribution, and the events involving Agent McNeal occurred during
only one phase of the defendants' overall drug activities.  As is
clear from the facts stated in the opinion of the court of appeals,
the evidence concerning the drug distribution conspiracy was largely
independent of the extortion conspiracy evidence, and the government
could easily prove the Section 846 count without ever mentioning the
charged extortion.  Thus, to the extent that petitioner suggests a
circuit conflict on the "same evidence" standard (see Pet. 17-18),
this case does not present a factual basis for resolving that issue.

   2. Finally, petitioner claims (Pet. 18-20) that the principles of
collateral estoppel bar his impending retrial on drug conspiracy
charges.

   The facts of this case do not support petitioner's collateral
estoppel claim.  As petitioner acknowledges, collateral estoppel
prohibits a second trial only if the jury necessarily decided an issue
of fact in his favor without which the pending charge cannot be
proved.  Ashe v. Swenson, 397 U.S. 436, 443-445 (1970);  United States
v. Bennett, 836 F.2d 1314, 1316 (11th Cir. 1988), cert. denied, No.
87-1751 (June 20, 1988);  United States v. Head, 697 F.2d 1200, 1205
(4th Cir. 1982).  The defendant bears the burden of identifying the
factual issues necessarily decided at the first trial that would
preclude his retrial on the remaining charges.  United States v.
Ragins, 840 F.2d 1184, 1194 (4th Cir. 1988);  United States v.
Bennett, 836 F.2d at 1317 n.1;  United States v. Gentile, 816 F.2d
1157, 1162 (7th Cir. 1987);  see also Pet. App. 18a.  Petitioner has
not identified any element of the drug conspiracy charge that the jury
necessarily found in his favor in its extortion conspiracy verdict.
He has therefore failed to satisfy his burden of establishing a
collateral estoppel bar to retrial.

   The district court and the court of appeals correctly found that
the acquittal of the Hobbs Act conspiracy might reflect merely that
the jury accepted petitioner's defense that he was investigating
McNeal or that it did not believe beyond a reasonable doubt that
petitioner agreed to extort or actually extorted McNeal.  At the same
time, the court below correctly concluded that the verdict is not a
rejection of the government's case concerning the conspirators'
separate and preexisting plan to sell drugs on a large scale.  See
Pet. App. 29a-30a, 18a-20a.  That hypothesis is supported by the lack
of evidence corroborating petitioner's accomplice's testimony that
money was given to petitioner.  Since the explanation is reasonable
and petitioner identifies no other facts necessarily found by the
jury, petitioner is not entitled to invoke the principles of
collateral estoppel.

   Moreover, petitioner treats this case as if it were one in which
the government had charged him with the extortion conspiracy, had
failed in its effort to win a conviction on that charge, and had then
brought a new charge of drug conspiracy.  Petitioner's argument
ignores the critical differences between a successive-prosecution case
of the sort he imagines and the case actually before the Court, which
involves a proposed retrial of previously tried charges on which the
defendant was not acquitted.  If the jury necessarily had decided a
factual issue relating to the drug conspiracy in petitioner's favor,
it would have acquitted him on that charge.  But it did not do so.
Thus in this case, as in United States v. Bennett, 836 F.2d at 1317
(footnote omitted),

         (T)he jury verdict bespeaks a distinction between the two
      conspiracies.  The trial judge charged the jury on two
      conspiracies, and the very fact that the jury did not acquit
      (petitioner) on all * * * counts and instead disagreed on (one)
      of the counts implies that at least some members of the jury did
      not interpret the conspiracies as one.  Because the split jury
      verdict would cohere on the basis that the jury bought
      (petitioner's) defense for the one conspiracy but not for the
      other, (it follows) that the jury did not necessarily decide
      (petitioner's) involvement in the distribution scheme.
      Therefore, * * * the doctrine of collateral estoppel will not
      bar retrial * * *.

   We submit that the doctrine of collateral estoppel should never bar
the retrial of counts that were tried -- but did not result in
acquittal -- before the same jury as the counts giving rise to the
collateral estoppel claim.  If (as we contend and the lower courts
held in this case) there is a logically consistent way for the jury to
have acquitted on one count but not on another, then the jury did not
necessarily determine facts that require acquittal on the unacquitted
counts, and collateral estoppel does not bar retrial of the
unacquitted counts.  On the other hand, if (as petitioner contends in
this case) there is no logically consistent way for the jury to have
acquitted on one count but not on another, it did not, then we would
know that "the same jury reached inconsistent results." United States
v. Powell, 469 U.S. 57, 68 (1984).  "(O)nce that is established
principles of collateral estoppel -- which are predicated on the
assumption that the jury acted rationally and found certain facts in
reaching its verdict -- are no longer useful" (ibid.).  In such a
situation, the defendant has no right to argue that the verdicts of
acquittal were "the one(s) the jury 'really meant'" (ibid.).  /4/

   Both of the possible hypotheses lead readily to the same
conclusion:  there is no collateral estoppel bar to a retrial on the
unacquitted counts.  A defendant who wins a partial victory in the
jury room cannot by operation of law transform that partial victory
into the total victory that the first jury refused to give him.  See
United States v. Citron, 853 F.2d 1055, 1058 (2d Cir. 1988);  United
States v. Bennett, 836 F.2d at 1317;  Hess v. Medlock, 820 F.2d 1368,
1374 (4th Cir. 1987);  United States v. Price, 750 F.2d 363, 366 (5th
Cir.), cert. denied, 473 U.S. 904 (1985).  /5/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   SARA CRISCITELLI

      Attorney

   NOVEMBER 1988

   /1/ Petitioner concedes as much (Pet. 13).

   /2/ Although the government charged and sought to prove that all of
the individuals involved in the drug conspiracy, including petitioner,
were also involved in the extortion conspiracy, the jury's verdict
suggests that it did not believe beyond a reasonable doubt that
petitioner was a party to the latter conspiracy.  Thus, despite the
government's allegation that petitioner and his co-conspirators all
participated in both conspiracies, the proof at trial, in the eyes of
the jury, showed otherwise.

   /3/ The "totality of the circumstances" test that the courts below
applied to determine whether the two agreements were separate is not
materially different from the test used by the other circuits.  See
United States v. Ciancaglini, No. 88-1438 (3d Cir. Oct. 13, 1988),
slip op. 11;  United States v. MacDougall, 790 F.2d 1135, 1144 (4th
Cir. 1986);  United States v. Korfant, 771 F.2d 660, 662 (2d Cir.
1985);  United States v. Thomas, 759 F.2d 659, 661-662 (8th Cir.
1985);  United States v. Phillips, 664 F.2d 971, 1006 (5th Cir. 1981),
cert. denied, 457 U.S. 1136 (1982);  United States v. Castro, 629 F.2d
456, 461 (7th Cir. 1980);  United States v. Marable, 578 F.2d 151, 154
(5th Cir. 1978).  Petitioner claims that the decision of the court of
appeals in this case conflicts with the decision of the Third Circuit
in United States v. Liotard, 817 F.2d 1074 (1987), because in Liotard
the court of appeals declined to consider the fact that the two
conspiracy counts at issue charged different object offenses (see 817
F.2d at 1078 n.7).  There is no conflict between the circuits on this
point, for two reasons.  First, Liotard involved different object
offenses, not different conspiracy provisions, as in this case.  Both
prosecutions in Liotard were brought under the same conspiracy
statute.  Second, the Third Circuit recently declined to follow
Liotard's limitation in United States v. Ciancaglini, No. 88-1438
(Oct. 13, 1988), slip op. 11.  In Ciancaglini, the court suggested
that the use of different object offenses could be considered in
determining whether separate agreements were charged, as long as the
use of different object offenses did not disguise the fact that both
alleged conspiracies were based on the same agreement.  That rule is
no different in practical effect from the rule applied in every
circuit to determine whether two charges brought under the same
conspiracy provision constitute one offense or two.

   /4/ Petitioner faults the court of appeals for suggesting that the
jury might have acquitted him on the extortion conspiracy charges
because of leniency (Pet. 20 n.14 (citing Pet. App. 19a)).  Petitioner
might be right to take the court to task if this were a
successive-prosecution case in which the jury that acquitted him of
the extortion-related charges had not also heard the drug-related
charges, but this is not that case.  In a case in which the jury may
have acted inconsistently, it is quite proper -- indeed, it is
imperative -- for courts to take into account the possibility that an
acquittal was based on jury lenity.  See Powell, 469 U.S. at 63, 65-66
(quoting Dunn v. United States, 284 U.S. 390, 393 (1932)).

   /5/ In Ohio v. Johnson, 467 U.S. at 500 n.9, this Court wrote that,
"in a case such as this, where the State has made no effort to
prosecute the charges seriatim, the considerations of double jeopardy
protection implicit in the application of collateral estoppel are
inapplicable." The present case, like Ohio v. Johnson, is one in which
the government has made no effort to prosecute the charges of Hobbs
Act conspiracy and drug conspiracy seriatim.  Rather, the government
has been forced to try the latter charge separately only because it
was not, but the former charge was, resolved when the two were pursued
together.  It follows from Ohio v. Johnson that the principles of
collateral estoppel are inapplicable here.  See also United States v.
Ashley Transfer & Storage Co., No. 87-5153 (4th Cir. Oct. 3, 1988),
slip op. 14.

   Petitioner describes this case repeatedly as one involving
successive prosecutions (Pet. 6, 15, 16, 17), but, as we have noted,
that description no more fits this case than it did Ohio v. Johnson --
which this Court expressly regarded as a case in which the State had
not sought to prosecute the charges seriatim.  The prosecutions for
conspiracy to extort and for conspiracy to distribute drugs in this
case, like the prosecutions for murder and for manslaughter in Ohio v.
Johnson, supra, were eventually separated from each other because of
what happened in the trial court when the government sought to pursue
the charges together, but the element of potential government
harassment and oppression that inheres in the notion of successive
prosecutions is entirely absent.