Blockburger v. United States

***Blockburger v. United States***, 284 U.S. 299 (1932), was a case in which the Supreme Court of the United States set an important standard to prevent double jeopardy.

## Facts and procedural history

The defendant was charged with violations of the Harrison Narcotics Act; specifically, he was indicted on five separate counts, all involving the sale of morphine to the same purchaser.

The jury returned a verdict against petitioner upon the second, third, and fifth counts only. The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. The district court sentenced petitioner to five years' imprisonment and a fine of $2,000 upon each count, the terms of imprisonment to run consecutively; and this judgment was affirmed on appeal by the Seventh Circuit Court of Appeals.

The defendant advanced two legal theories as his defense:

1. That the two sales charged in the second and third counts as having been made to the same person constitute a single, continuous offense.
2. That the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense, for which only a single penalty lawfully may be imposed.

## Decision

Justice Sutherland, writing for a unanimous court, first held that the two sales, having been made at different times (albeit to the same person), were two separate and distinct violations of the law. He then held that under the statute, two distinct offenses are created by each section: § 1 of the Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package, and § 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Because the defendant had violated both sections, he could be prosecuted separately under the two sections.

As to the issue of whether the defendant had been subjected to double jeopardy, Sutherland reasoned that he did not:

> Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
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While Sutherland conceded that the penalties under the Act were harsh, he wrote that it was up to Congress, rather than the courts, to change the sentencing scheme.

Although this case is often cited for the standard it set with regard to double jeopardy, the Fifth Amendment to the United States Constitution is not mentioned anywhere in the text of the opinion itself.

This case was a landmark case, and it established the "same elements test" for determining when two offenses are the same for purposes of double jeopardy. Under the Blockburger test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. The appellate court determines whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. [ State v. Tweedy, 219 Conn. 489 (Conn. 1991)]

## California Code, Penal Code - PEN § 654

(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.  An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

(b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.