          United States Court of Appeals
                     For the First Circuit


No. 13-1543

                    UNITED STATES OF AMERICA,

                           Appellant,

                               v.

                   RICHARD W. SZPYT, a/k/a Zip;
      RAMÓN DELLOSANTOS, a/k/a José Ramón, a/k/a Monstrito,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                 Torruella, Howard, and Kayatta,
                         Circuit Judges.


     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellant.
     Caleigh Shea Milton, with whom Leonard I. Sharon, were on
brief, for appellee Szpyt.
     James S. Hewes, for appellee Dellosantos.




                          April 3, 2015
            TORRUELLA, Circuit Judge.             Appellant, the United States,

appeals the district court's order dismissing an indictment against

Appellees   Richard       Szpyt     and   Ramón       Dellosantos     (collectively,

"Appellees"      or    "Defendants")       as     a     violation     of     the     Fifth

Amendment's Double Jeopardy Clause.                     Specifically, the United

States contends that the current indictment alleges a factually

distinct    and       separate    conspiracy          from   an   earlier,         related

indictment and conviction which this court vacated due to a

material    variance.        Appellees,         meanwhile,        contend     that     the

dismissal was proper because their first convictions were vacated

due to the insufficiency of the evidence and the current indictment

is merely charging a subset of the broader conspiracy they were

acquitted of.          After careful consideration, we agree with the

government and reverse.

                                  I.   Background1

            On    October     22,      2008,    the      government        returned    an

indictment charging Szpyt, Dellosantos, and sixteen others (the

"First Indictment").        According to the First Indictment:

            Beginning on a date unknown, but not later
            than 2004 and continuing until a date unknown,
            but no earlier than December 2007, in the
            District of Maine and elsewhere, Defendants
            . . . knowingly and intentionally conspired
            with one another and with others known and
            unknown to the Grand Jury to commit offenses
            against    the    United    States,    namely,


1
  Unless otherwise noted, the information in this section is taken
from United States v. Dellosantos, 649 F.3d 109 (1st Cir. 2011).

                                          -2-
            distribution and possession with intent to
            distribute controlled substances, including 5
            kilograms or more of cocaine, and marijuana,
            and did aid and abet such conduct.

            At trial, the government presented evidence from a number

of   witnesses,    including    several     cooperating   witnesses.      The

evidence showed that from 2004 to 2007 (until their arrest), Szpyt

and Dellosantos, both residents of Massachusetts, sold cocaine

which they received solely from Plino Vizcaíno, a Massachusetts-

based drug distributor.        Specifically, Dellosantos would purchase

cocaine from Vizcaíno and later sell some of that cocaine to Szpyt.

            Szpyt, after purchasing cocaine from Dellosantos, would

sometimes   sell   it   from    his   Massachusetts   home   to   his   Maine

customers and, other times, deliver it directly to his Maine

customers. Both Szpyt and many of his Maine customers were members

of the "Iron Horsemen" motorcycle gang.               Not only was Szpyt

formerly the president of the Maine chapter of the Iron Horsemen,

but he was also the owner of the gang's Maine clubhouse.

            During this same time frame, one of Szpyt's fellow gang

members and cocaine customers, Robert Sanborn, also sold cocaine to

motorcycle gangs in Maine.       He obtained his cocaine primarily, but

not exclusively, from Szpyt.           In addition to selling cocaine,

Sanborn also sold marijuana to customers in Maine, starting some-

time in 2005 and ending in either late 2007 or early 2008,

following his arrest.     Sanborn obtained his marijuana from sources



                                      -3-
unaffiliated with Szpyt and Dellosantos.2        Sanborn did, however,

sometimes use the proceeds from his marijuana sales to buy cocaine

from Szpyt.

          Twice during the trial, both Szpyt and Dellosantos moved

for judgments of acquittal pursuant to Rule 29 of the Federal Rules

of Criminal Procedure: once at the close of the government's case

and once at the close of their own cases.          The district court

denied the motions.      Subsequently, on May 13, 2009, Szpyt and

Dellosantos, along with one other defendant,3 were found guilty of

conspiracy to distribute and possess with intent to distribute

cocaine and marijuana. In addition, the jury found Szpyt guilty of

using a communication facility to facilitate the commission of the

charged conspiracy.

          On   appeal,   Appellees    asserted   that   "the   evidence

presented at trial was insufficient to support their convictions."

In a 2-1 decision, we reversed, finding that

          there was insufficient evidence to support the
          finding of a single conspiracy. Rather, the
          evidence pointed to at least two distinct
          conspiracies:    (1) the Massachusetts-based
          Vizcaíno-Dellosantos-Szpyt    conspiracy    to


2
    At trial, Sanborn identified his marijuana sources as Carl
Demarco, Lee Chase, Danny Boivin, and Sherwood Jordan. There was
"no evidence that Sanborn consulted with or received approval from
Szpyt when he started to distribute marijuana, or at any point
thereafter," and no evidence that "directly implicate[d]
Dellosantos in any illegal [marijuana] activity."
3
   The other fifteen co-conspirators all pleaded guilty prior to
trial.

                                -4-
          distribute cocaine, and (2) the Maine-based
          Sanborn-centered conspiracy to distribute both
          cocaine and marijuana.

Dellosantos, 649 F.3d at 119.    In coming to this conclusion, we

were

          [m]indful of this variance, [and found] that
          the Defendants' convictions cannot stand for
          two reasons.    First, we f[ou]nd that the
          evidence was insufficient to support a verdict
          that either Szpyt or Dellosantos knowingly and
          voluntarily   joined    the   Sanborn-centered
          conspiracy to distribute both cocaine and
          marijuana. Second, assuming without deciding
          that the evidence was sufficient to permit a
          jury to find the Defendants guilty of joining
          the Vizcaíno-Dellosantos-Szpyt conspiracy to
          distribute cocaine, we f[ou]nd that the
          Defendants would be unfairly prejudiced by the
          difference between the conspiracy specified in
          the indictment and the Vizcaíno-Dellosantos-
          Szpyt conspiracy to distribute cocaine.

Id. at 121.

          After opining on why the evidence was insufficient to

conclude beyond a reasonable doubt that the Appellees joined the

Sanborn-centered   conspiracy   to    distribute   both   cocaine   and

marijuana, we then turned to "whether the Defendants' convictions

c[ould] nonetheless stand based on a finding that the Defendants

joined the other conspiracy proven by the United States, i.e., the

Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine." Id.

at 124.   Looking at this conspiracy, we concluded that "the

evidence was arguably sufficient to support a finding that the

Defendants joined the other conspiracy proven by the government."

Id. We added that "because the statutory violation for joining the

                                -5-
Vizcaíno-Dellosantos-Szpyt conspiracy remain[ed] the same as that

alleged     in    the   indictment,   the     jury,    under   a   proper    set    of

instructions, could arguably have convicted the Defendants of

participating in the Vizcaíno-Dellosantos-Szpyt conspiracy so long

as    the   difference     between     the    conspiracy       specified    in     the

indictment and the Vizcaíno-Dellosantos-Szpyt conspiracy 'd[id] not

cause unfair prejudice.'"        Id.

             Despite the sufficiency of the evidence on the Vizcaíno-

Dellosantos-Szpyt cocaine-only conspiracy, though, we found that

the convictions could not stand.               We held that "the difference

between     the    conspiracy   specified      in     the   indictment      and    the

Vizcaíno-Dellosantos-Szpyt        conspiracy          unfairly     prejudiced      the

Defendants," id. at 125, because

             under the guise of its single conspiracy
             theory,   the    government   subjected    the
             Defendants to voluminous testimony relating to
             unconnected crimes in which they took no part.
             This situation created a pervasive risk of
             "evidentiary spillover," where the jury might
             have unfairly transferred to the Defendants
             the guilt relating to the other sixteen
             indicted individuals.

Id.    In conclusion, we crystallized our holding:

             The   evidence   established   at  least   two
             conspiracies,    (1)    the   Sanborn-centered
             conspiracy, and (2) the Vizcaíno-Dellosantos-
             Szpyt conspiracy. With regards to the first
             conspiracy    (i.e.,    the   Sanborn-centered
             conspiracy), the evidence was insufficient to
             support a finding that the Defendants joined
             the same. In addition, although the evidence
             was arguably sufficient to support a finding
             that   the   Defendants   joined  the   second

                                        -6-
             conspiracy   proven   (i.e.,   the     Vizcaíno-
             Dellosantos-Szpyt conspiracy), we     find that
             the variance between the conspiracy   specified
             in   the   indictment    and   the     Vizcaíno-
             Dellosantos-Szpyt      conspiracy       unfairly
             prejudiced the Defendants.

Id. at 125-26. As a result, the court "vacate[d] both Dellosantos'

and Szpyt's convictions."     Id. at 126.

             Following the vacatur, the district court entered a

judgment of acquittal.     The government, meanwhile, obtained a new

indictment     against   Szpyt   and    Dellosantos    (the     "Current

Indictment").     According to this indictment:

             Beginning on a date unknown, but not later
             than 2006 and continuing until a date unknown,
             but no earlier than December 2007, in the
             District of Maine and elsewhere, Defendants
             . . . knowingly and intentionally conspired
             with one another and with others known and
             unknown to the Grand Jury to commit an offense
             against    the    United    States,    namely,
             distribution and possession with intent to
             distribute 5 kilograms or more of a mixture or
             substance containing cocaine, and did aid and
             abet such conduct.

In response to the Current Indictment, Szpyt and Dellosantos

separately filed motions to dismiss on double jeopardy grounds. On

April 3, 2013, the district court granted the motions and dismissed

the Current Indictment.      It reasoned that the two conspiracies

"amount to the same offense" because the time frame of the cocaine-

only conspiracy is "completely subsumed" in the time frame of the

cocaine-and-marijuana conspiracy, because there was a complete

overlap of personnel involved, and because the government would not


                                  -7-
present any new evidence in a second trial.           As such, it deemed

that the Current Indictment charged a conspiracy that was simply a

"chapter[]" of the "Szpyt I novel."

            On April 25, 2013, the government timely filed a notice

of appeal challenging the district court's dismissal of the Current

Indictment.

                             II.   Discussion

A.   Double Jeopardy

            Because this is a question of constitutional law, we

review the district court's dismissal of the indictment on double

jeopardy grounds de novo.     See United States v. García-Ortiz, 657

F.3d 25, 28 (1st Cir. 2011).

            As a quick primer, the Fifth Amendment's Double Jeopardy

Clause guarantees that no person shall "be subject for the same

offence to be twice put in jeopardy of life or limb."         U.S. Const.

amend. V.    Thus, "once [a] reviewing court has found the evidence

legally insufficient," a second trial is "preclude[d]."          Marshall

v. Bristol Superior Court, 753 F.3d 10, 18 (1st Cir. 2014) (quoting

Burks v. United States, 437 U.S. 1, 18 (1978)) (internal quotation

marks omitted). "It is a 'venerable principl[e] of double jeopardy

jurisprudence'"   however,    that    "'[t]he   successful   appeal   of   a

judgment of conviction, on any ground other than the insufficiency

of the evidence to support the verdict, poses no bar to further

prosecution on the same charge.'"          Montana v. Hall, 481 U.S. 400,


                                     -8-
402 (1987) (alteration in original) (internal citation omitted)

(quoting United States v. Scott, 437 U.S. 82, 90-81 (1978)).            A

material variance falls into this latter category.       Marshall, 753

F.3d at 18 ("[W]here reversal is based upon a variance between the

crime charged in the indictment and the crime proved at trial, the

Double Jeopardy Clause is no bar to retrial."); see also United

States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005) ("It has long

been accepted, for example, that retrial is not barred when a

defendant's conviction is vacated on appeal due to an insufficient

indictment . . . ."); Parker v. Norris, 64 F.3d 1178, 1181 (8th

Cir. 1995) ("It is clear that the Constitution permits retrial

after a conviction is reversed because of a defect in the charging

instrument." (quoting Hall, 481 U.S. at 404) (internal quotation

marks omitted)).

           Any double jeopardy analysis essentially splinters into

three questions: (1) whether jeopardy ever attached; (2) whether

the first proceeding was a decision on the merits; and (3) whether

the subsequent proceeding involves the "same offense."        See United

States v. Pacheco, 434 F.3d 106, 112 (1st Cir. 2006).              Only

questions two and three are implicated in this case.          Here, the

parties   dispute   why   Appellees'    convictions   were   vacated   in

Dellosantos, and whether that decision was, in fact, on the merits.

The government argues that our opinion in Dellosantos vacated

Appellees' convictions due to a material variance -- a procedural


                                  -9-
ground not subject to double jeopardy.                   See Hall, 481 U.S. at 402-

03; Marshall, 735 F.3d at 18.              Appellees, meanwhile, argue that we

vacated    their   convictions           due    to   insufficient        evidence      --    a

substantive ruling "relate[d] to the ultimate question of guilt or

innocence" and protected from retrial under the Double Jeopardy

Clause.     See Evans v. Michigan, 133 S. Ct. 1069, 1075 (2013)

(quoting Scott, 437 U.S. at 98 n.11) (internal quotation marks

omitted); United States v. Martin Linen Supply Co., 430 U.S. 564,

571 (1977); Marshall, 753 F.3d at 18.                          A careful reading of

Dellosantos reveals that we did both.

             In Dellosantos, we initially explained that while "the

indictment charged the Defendants with participation in a single

Maine-based conspiracy to distribute and possess with intent to

distribute both cocaine and marijuana," 649 F.3d at 121, there was

"insufficient      evidence        to    support        the    finding    of    a   single

conspiracy," id. at 119.                Rather, the evidence "established the

existence     of   at   least       two        distinct       conspiracies:      (1)    the

Massachusetts-based          Vizcaíno-Dellosantos-Szpyt                  conspiracy         to

distribute    cocaine,       and    (2)        the   Maine-based     Sanborn-centered

conspiracy to distribute both cocaine and marijuana."                          Id. at 121.

As such, because the charged conspiracy never existed, it was

necessary    to    analyze    each       of     these    distinct    conspiracies           to

evaluate    whether     there      was    sufficient          evidence    to    support      a

conviction, and, if so, whether the variance between the charged


                                           -10-
conspiracy and the conspiracy proven was prejudicial.                 Id. at 122,

124.    The analysis for each conspiracy resulted in an independent

holding -- each with its own consequence and implication for future

proceedings.

             Regarding      the    second   conspiracy    --   the    Maine-based

Sanborn-centered       conspiracy      to   distribute     both      cocaine    and

marijuana -- we held that "the evidence was insufficient to support

a   verdict    that    either      Szpyt    or   Dellosantos      knowingly     and

voluntarily joined."         Id. at 121.      This was clearly a substantive

ruling that went to the ultimate question of guilt or innocence.

As a result, any attempt to re-indict Appellees on that conspiracy

would   be    barred   by    the   Double   Jeopardy     Clause.      See,     e.g.,

Marshall, 753 F.3d at 18 ("It is black letter law that 'the Double

Jeopardy Clause precludes a second trial once the reviewing court

has found the evidence legally insufficient.'" (quoting Burks, 437

U.S. at 18)); United States v. Meléndez-Rivas, 566 F.3d 41, 43 (1st

Cir. 2009) (explaining that if "the evidence was insufficient

. . .   then the case ends and [defendant] may not be tried again").

             But our analysis in Dellosantos did not end there.

Instead, we then "turn[ed] to whether the Defendants' convictions

can nonetheless stand based on a finding that the Defendants joined

the other conspiracy proven by the government, i.e., the Vizcaíno-

Dellosantos-Szpyt conspiracy to distribute cocaine." Dellosantos,

649 F.3d at 124.            In analyzing this conspiracy, we held that


                                       -11-
"although the evidence was arguably sufficient to support a finding

that the Defendants joined the second conspiracy proven (i.e., the

Vizcaíno-Dellosantos-Szpyt conspiracy), . . . the variance between

the conspiracy specified in the indictment and the Vizcaíno-

Dellosantos-Szpyt conspiracy unfairly prejudiced the Defendants."

Id. at 125-26.    We explained that

           under the guise of its single conspiracy
           theory,   the    government   subjected    the
           Defendants to voluminous testimony relating to
           unconnected crimes in which they took no part.
           This situation created a pervasive risk of
           "evidentiary spillover," where the jury might
           have unfairly transferred to the Defendants
           the guilt relating to the other sixteen
           indicted individuals.

Id. at 125.

           Unlike our substantive holding regarding the Sanborn-

centered cocaine-and-marijuana conspiracy, our holding regarding

this   Vizcaíno-Dellosantos-Szpyt         cocaine-only   conspiracy   was

procedural -- there was a problem with the initial indictment --

and had nothing to do with either the sufficiency of the evidence

or   Appellees'   guilt   or   innocence.4     Accordingly,   the   Double


4
   Indeed, unlike the Sanborn-centered conspiracy to distribute
both cocaine and marijuana, the entire panel believed there was, at
least arguably, sufficient evidence to sustain the convictions on
this    independent     Vizcaíno-Dellosantos-Szpyt     cocaine-only
conspiracy. E.g., Dellosantos, 649 F.3d at 124 ("[T]he jury, under
a proper set of instructions, could arguably have convicted the
Defendants of participating in the Vizcaíno-Dellosantos-Szpyt
conspiracy . . . ."); id. at 125 ("[T]he evidence was arguably
sufficient to support a finding that the Defendants joined the
second conspiracy proven (i.e., the Vizcaíno-Dellosantos-Szpyt
conspiracy) . . . ."); id. at 126 (Howard, J., concurring in part

                                   -12-
Jeopardy Clause "poses no bar to further prosecution" on it. Hall,

481 U.S. at 402 (quoting Scott, 437 U.S. at 90-91) (internal

quotation marks omitted); see Marshall, 753 F.3d at 18 ("[W]here

reversal is based upon a variance between the crime charged in the

indictment and the crime proved at trial, the Double Jeopardy

Clause is no bar to retrial."); see also United States v. Akpi, 26

F.3d 24, 26 (4th Cir. 1994) (finding no double jeopardy violation

where Appellant "took his first appeal to correct an error based on

a defective indictment" because the "defect in no way related to

the sufficiency of the evidence but only to the manner in which he

was charged" and the reversal "was on a most technical ground,

particularly when it is remembered that the government presented

ample evidence at trial"); Hunter v. New Mexico, 916 F.2d 595, 599-

600   (10th    Cir.   1990)   ("[T]he   jury   was   allowed   to   convict

[Appellant] on a different set of facts than those set forth in the

information. . . .        Consequently, we hold the modified jury

instruction constituted a constructive amendment of the information

which requires reversal. . . .      [T]he case [is] remanded for a new

trial on that charge.").        It is this Vizcaíno-Dellosantos-Szpyt

cocaine-only conspiracy that is charged in the Current Indictment.

              The district court's entry of an order of acquittal on

the First Indictment does not alter this conclusion.           An acquittal


and dissenting in part) (finding that "[e]ven under [the
majority's] framework, there was sufficient evidence to convict
Szpyt" and possibly Dellosantos).

                                   -13-
"is not to be controlled by the form of the judge's actions," but

rather by "whether the ruling of the judge, whatever its label,

actually represents a resolution, correct or not, of some or all of

the factual elements of the offense charged."    Martin Linen Supply

Co., 430 U.S. at 571; see also United States v. Hosp. Monteflores,

Inc., 575 F.2d 332, 333 n.1 (1st Cir. 1978).          The Supreme Court

recently reaffirmed this principle, explaining that a "decision

turns not on the form of the trial court's action, but rather

whether it 'serve[s]' substantive 'purposes' or procedural ones."

Evans, 133 S. Ct. at 1078 (alteration in original) (quoting Scott,

437 U.S. at 98 n.11).     As an example, it observed that "[i]f a

trial court were to announce, mid-trial, 'The defendant shall be

acquitted because he was prejudiced by preindictment delay,' the

Double Jeopardy clause would pose no barrier to reprosecution,

notwithstanding the 'acquittal' label."    Id. (emphasis added).

          Though arising in a slightly different context, the same

principle applies here.    Dellosantos held that: (1) there was no

Maine-Massachusetts   overarching   conspiracy   to    distribute   both

cocaine and marijuana; (2) there was insufficient evidence to

convict on the Sanborn-centered marijuana and cocaine conspiracy;

and (3) though there was arguably enough evidence, it would

constitute a material variance to allow a conviction to stand on

the distinct Vizcaíno-Dellosantos-Szpyt cocaine-only conspiracy.

Regarding this distinct Vizcaíno-Dellosantos-Szpyt cocaine-only


                                -14-
conspiracy, therefore, Defendants prevailed on a procedural issue;

the merits of this separate crime were never decided, and the

district court's use of the word "acquittal" does not change that

fact.   It is clear to us that the entry of "acquittal" was intended

to be no different than had the government on remand moved to

dismiss without prejudice or to amend the indictment -- both of

which would not have been barred by the Double Jeopardy clause.5

As   such,     the   Current   Indictment   does   not   constitute   a

re-prosecution on the same crime and there is no double jeopardy

violation.

             Still, despite the analyses and holdings in Dellosantos,

Appellees argue that the government is seeking to prove the "same

offense" in this subsequent proceeding.            They argue that an

application of the "more nuanced form of the same evidence test" as

explained in United States v. Laguna-Estela, 394 F.3d 54, 57 (1st

Cir. 2005), and United States v. Hart, 933 F.3d 80, 85-86 (1st Cir.

1991), is required.6     That test, they say, necessitates a finding


5
    This, of course, only applies to the distinct Vizcaíno-
Dellosantos-Szpyt cocaine-only conspiracy.     Because we found in
Dellosantos that there was insufficient evidence to convict
Appellees on the Sanborn-centered cocaine-and-marijuana conspiracy,
the district court's entry of acquittal as applied to that
conspiracy was just that: an acquittal based on the merits. Thus,
had the government attempted to re-indict Appellees on the Sanborn-
centered conspiracy to distribute both cocaine and marijuana, the
entry of acquittal and the Double Jeopardy Clause would have barred
any further prosecution.
6
    In those cases, we "identified five factors that must be
considered" in determining whether "two charged conspiracies that

                                  -15-
that the Current Indictment is just a subset of the overarching

conspiracy    charged   in   the   First   Indictment,    and   that   both

indictments charge Appellees for their participation in one single

conspiracy.    However, Appellees seemingly overlook the fact that

Dellosantos explicitly rejected the argument that there existed

only one overarching conspiracy.           On at least six different

occasions, we emphasized that this overarching conspiracy did not

exist, but rather that the "evidence established at least two

conspiracies" which were "distinct" and separate from each other.

See, e.g., Dellosantos, 649 F.3d at 117, 119, 121, 122, 124, 125.

We explained that: "the two conspiracies had materially different

goals," id. at 119; that "the two conspiracies lacked sufficient

interdependence," id.; that "nothing was presented to the jury to

suggest that either [Appellee] believed that the success of their

cocaine   distribution   operation    likely   depended    on   Sanborn's

marijuana distribution venture," id.; that "the ventures [did not]

share the objective of serving a particular organization or boss,"

id.; that no "individual or group had an 'iron-fisted control' over

the two distribution schemes" but rather each scheme used different



allege violations of the same substantive statute are the same
offense for the purpose of double jeopardy." Laguna-Estela, 394
F.3d at 57.     These include: (1) the time during which the
activities occurred; (2) the persons involved; (3) the places
involved; (4) whether the same evidence was used to prove the two
conspiracies; and (5) whether the same statutory provision was
involved in both conspiracies. Id.; see also Hart, 933 F.2d at 85-
86.

                                   -16-
suppliers, id.; and that "Sanborn was not the type of 'hub'

character that frequently exists in cases where this court has

found significant overlap and an overarching conspiracy," id. at

121.

             In sum, we concluded that the "Vizcaíno-Dellosantos-Szpyt

criminal conspiracy to distribute cocaine was a different criminal

enterprise than the [Sanborn-centered] marijuana enterprise, with

different products, a different source of supply, different goals,

and    a   different   history."         Id.;    see     also   United    States   v.

Calderone,     982    F.2d   42,   47   (2d     Cir.    1992)   ("[W]e    have   held

conspiracies     to    be    different    where        the   facts   of   a   smaller

conspiracy . . . such as time and geography, were wholly contained

within a larger conspiracy so long as there were sufficient factors

that shared only a slight overlap of facts or none at all.");

United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985) ("The

essence of the determination is whether there is one agreement to

commit two crimes, or more than one agreement, each with a separate

object."). There is little question that the government is free to

bring separate charges on a different, though similar, conspiracy.

See, e.g., United States v. Félix, 503 U.S. 378, 386, 387 (1992)

(explaining that "a mere overlap in proof between two prosecutions

does not establish a double jeopardy violation" and that "the

introduction of relevant evidence of particular misconduct in a

case is not the same thing as prosecution for that conduct");


                                        -17-
United      States      v.   Morris,    99    F.3d        476,    480   (1st   Cir.      1996)

(rejecting double jeopardy claim despite the two conspiracies

taking place contemporaneously, involving essentially the same

personnel, occurring at much the same places, and involving most of

the same evidence because the conspiracies involved different

primary goals and thus separate statutory provisions); Hart, 933

F.2d   at    85    ("The      fact   that     both    counts       against     [plaintiff]

implicate the same statutory violations does not in itself create

a double jeopardy bar. . . .                 [Plaintiff] could have been tried

separately        for   the    two   similar        but    separate     conspiracies.");

Kerrigan     v.    United     States,     644   F.2d        47,    49   (1st      Cir.   1981)

("[I]ndictments charging two or more agreements, even agreements to

commit similar or related crimes, charge more than one conspiracy."

(citing Braverman v. United States, 317 U.S. 49, 52 (1949))); see

also United States v. Ziskin, 360 F.3d 934, 943-48 (9th Cir. 2003)

(finding      no   double      jeopardy      violation           because   defendant      was

indicted on two separate yet similar conspiracies and not one

overarching        conspiracy).         This    is        especially       true    when   the

convictions were reversed due to a material variance and not due to

the insufficiency of the evidence.7


7
   This is a far cry from the district court's pronouncement that
the "Government now essentially seeks to rip the 'Vizcaíno-
Dellosantos-Szpyt conspiracy' chapters from its Szpyt I novel and
present those very pages to a new jury in hopes that it can secure
a conviction of the Defendants on this smaller conspiracy." Though
the district court apparently viewed the evidence differently,
Dellosantos found not one overarching conspiracy but rather two

                                             -18-
          We recognize that the resolution of this case is driven

almost exclusively by our decision in Dellosantos. Indeed, had the

jury in that case returned a not-guilty verdict, our analysis today

would be limited solely to the indictments in each case and the

typical five-factor investigation called for by Laguna-Estela.

Under that scenario, the result would undoubtedly be different.

But, because we must give full force to our prior decision,8 we


simultaneous yet distinct conspiracies.       It is impossible to
conclude -- as both the district court and the dissent attempt to
do -- that the Vizcaíno-Dellosantos-Szpyt conspiracy is just a
smaller part of a larger overarching conspiracy when that supposed
overarching conspiracy was found to never have existed in the first
place.    Regardless of whether or not the district court's
application of Laguna-Estela and Hall would have withstood scrutiny
and been affirmed in the first instance, the findings in
Dellosantos mandate the opposite result and are binding under res
judicata. See Sealfon v. United States, 332 U.S. 575, 578 (1948)
(explaining that res judicata "applies to criminal as well as civil
proceedings"); Global NAPs, Inc. v. Verizon New Eng., 603 F.3d 71,
95 (1st Cir. 2010) ("Issue preclusion requires that (1) both
proceedings involved the same issue of law or fact, (2) the parties
actually litigated that issue, (3) the prior court decided that
issue in a final judgment, and (4) resolution of that issue was
essential to judgment on the merits."); Negrón-Fuentes v. UPS
Supply Chain Solutions, 532 F.3d 1, 7 (1st Cir. 2008) ("In general
terms . . . , issue preclusion renders conclusive the
determinations reached in previous law suits between the same (and,
sometimes, different) parties.").      Our dissenting colleague's
suggestion that these findings were not essential to the judgment
on the merits in Dellosantos just further highlights its misreading
of Dellosantos. Dellosantos's findings of two simultaneous yet
distinct conspiracies, and not one overarching conspiracy, were the
entire foundation for our holding that there was a material and
prejudicial variance mandating reversal.
8
   Though the dissent suggests that we are attempting to revisit
Dellosantos, it is actually the dissent that is doing so. Despite
Dellosantos's holding to the contrary, the dissent insists on
characterizing the Current Indictment as a "narrower" charge and a
"portion" of the First indictment. At the same time, it disregards

                               -19-
have no other choice but to conclude that double jeopardy does not

bar this indictment.

B.   Dellosantos's Additional Arguments

             Recognizing that we may affirm the district court "on any

basis made apparent by the record," McCloskey v. Mueller, 446 F.3d

262,   266   (1st       Cir.   2006),   Dellosantos     raises     two   additional

arguments to support the dismissal of the Current Indictment.                     We

address each issue briefly, finding neither to have merit.

             1.    Judicial Estoppel

             Dellosantos        first   contends      that   the   government      is

judicially estopped from arguing that there are two distinct

conspiracies because this position is inconsistent with its initial

position that there existed one overarching conspiracy.                           See

InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003) ("As a

general matter, the doctrine of judicial estoppel prevents a

litigant from pressing a claim that is inconsistent with a position

taken by that litigant either in a prior legal proceeding or in an

earlier phase of the same legal proceeding."). Though the contours

of judicial estoppel are "hazy, and there is no mechanical test for

determining       its    applicability,"       Alt.   Sys.   Concepts,     Inc.    v.

Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004), three factors have

guided us in the past:




Dellosantos's entire variance analysis.

                                        -20-
             First, a party's later position must be
             clearly   inconsistent    with   its   earlier
             position.   Second, courts regularly inquire
             whether the party has succeeded in persuading
             a court to accept that party's earlier
             position . . . .    A third consideration is
             whether the party seeking to assert an
             inconsistent position would derive an unfair
             advantage or impose an unfair detriment on the
             opposing party if not estopped.

United States v. Pakala, 568 F.3d 47, 59 (1st Cir. 2009) (quoting

Zedner v. United States, 547 U.S. 489, 504 (2006)).

             Dellosantos is certainly correct that the government has

taken     mutually    exclusive      positions     in     these     successive

prosecutions, thus satisfying the first factor. The other factors,

however, are not met.             Contrary to Dellosantos's claim, the

government was not successful in the initial prosecution.                   Its

initial   position    of    one   overarching    conspiracy    --   which   did

admittedly succeed at trial -- was ultimately rejected on appeal in

Dellosantos.    Once the jury's verdict was vacated, any success the

government     may   have   had    with   its   one-overarching-conspiracy

position disappeared.

             We also reject the contention that the government is

deriving an unfair advantage from this change in position.              As the

Supreme Court acknowledged in Burks, when a conviction is reversed

following a finding of procedural error, not only does "the accused

[have] a strong interest in obtaining a fair readjudication of his

guilt free from error," but society also "maintains a valid concern

for insuring that the guilty are punished."             437 U.S. at 15.     Both

                                     -21-
the jury and our prior decision found sufficient evidence to

convict Appellees.       There is nothing unfair about allowing the

government to retry them following a reversal for a material

variance, which is nothing more than a procedural error.            Because

two of the three considerations for a finding of judicial estoppel

are lacking, Dellosantos's argument fails.9

              2.   Improper Venue

              Dellosantos next argues that because he did not have a

relationship with any of the Maine co-conspirators, never lived or

worked in Maine, is accused of buying and selling cocaine only in

Massachusetts, and entered Maine only for court-related matters,

venue in Maine is improper and thus his constitutional rights are

being violated. See United States v. Lanou, 137 F.3d 656, 661 (1st

Cir. 1998) ("A defendant in a criminal case has a constitutional

right to be tried in a proper venue."); see also U.S. Const. art.

III, § 2, cl. 3 ("The Trial of all Crimes . . . shall be held in

the   State    where   the   said   Crimes   shall   have   been   committed



9
   We also note that Dellosantos's argument cuts both ways. Like
the government, Dellosantos is taking an opposite position here.
In the prior prosecution and before us in Dellosantos, Dellosantos
argued that the evidence was insufficient because there were
multiple conspiracies; now he argues that the two conspiracies were
really just part of one overarching conspiracy. If anything, the
case for judicial estoppel would be stronger against Dellosantos
because his initial position of two distinct conspiracies did
succeed in the earlier proceedings and because he is now attempting
to escape punishment for his crime despite a jury finding him
guilty beyond a reasonable doubt and this court finding sufficient
evidence in the record to support that verdict.

                                     -22-
. . . ."); id. amend. VI ("In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall

have been committed . . . .").             Venue in Maine, however, is

appropriate.

             In the context of a conspiracy, "venue is proper in any

district in which an act in furtherance of the charged conspiracy

has taken place."    United States v. Santiago, 83 F.3d 20, 25 (1st

Cir. 1996).     This is true "even if a particular coconspirator was

not himself physically present in that district."               Id.   While

Dellosantos may not have had any ties to Maine, his co-conspirator

Szpyt did have such ties.          As we explained in Dellosantos, the

evidence showed that Szpyt owned the Iron Horsemen clubhouse in

Maine and sold cocaine to numerous Iron Horsemen members there, one

of those customers being Sanborn. Dellosantos, 649 F.3d at 111-12.

Given   these    facts,   the   government    has   met   its   burden   of

establishing by a preponderance of the evidence that venue in Maine

is proper.    See Lanou, 137 F.3d at 661.

                            III.    Conclusion

             In Dellosantos, we rejected the argument that there

existed a single, overarching conspiracy to distribute both cocaine

and marijuana.     Instead, we held that there were two independent

and distinct conspiracies, each running simultaneously with one

another and with very little overlap.        While we found insufficient


                                    -23-
evidence to support Appellees' convictions on one conspiracy -- the

Sanborn-centered       conspiracy   to   distribute   both    cocaine     and

marijuana -- we found that there arguably was sufficient evidence

to convict Appellees on the other conspiracy -- the uncharged

Vizcaíno-Dellosantos-Szpyt conspiracy to distribute only cocaine.

Nevertheless, we vacated the convictions due to a procedural issue:

a material variance between this second conspiracy and the single

overarching conspiracy charged in the indictment.                Given our

holdings in Dellosantos, the government's decision to bring the

Current Indictment charging Appellees with this second conspiracy

is not barred by the Double Jeopardy Clause. Dellosantos's efforts

to save the dismissal on the alternate grounds of estoppel and

venue   also   fail.      Accordingly,     the   district    court's    order

dismissing the indictment is REVERSED.




                       "Concurring Opinion follows"




                                    -24-
           HOWARD, Circuit Judge, concurring.   The majority opinion

correctly solves this double jeopardy puzzle, and I join it except

with respect to one analytical step.

           The lead opinion suggests that issue preclusion requires

us to adopt the findings of Dellosantos.     Slip Op. at 18-19 n.7.

I, however, believe that the law of the case doctrine actually

governs.   See United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)

(explaining that a legal decision in one case ties "a successor

appellate panel in a second appeal in the same case").       If the

acquittal following Dellosantos "was intended to be no different

than had the government on remand moved . . . to amend the

indictment,"   Slip. Op. at 15, I do not see how this appeal differs

from any other that follows a remand and subsequent proceeding for

law of the case purposes. See, e.g., United States v. Wallace, 573

F.3d 82, 89 (1st Cir. 2009).    Indeed, by implying that this is a

new, discrete matter, the lead opinion might give fodder to the

dissent's point that our analysis should be limited solely to the

indictments.

           Either way, I agree that our decision must now be

tethered to the holdings of Dellosantos.10      Though the dissent's


10
   I continue to believe that Dellosantos was wrongly decided. See
United States v. Dellosantos, 649 F.3d 109, 126 (Howard, J.,
concurring in part and dissenting in part).        In addition to
expressing that belief at the time of the decision, I also
dissented from the panel's refusal to rehear the case. Order on
Appellee's Petition for Rehearing, United States v. Dellosantos,
Nos. 09-2135, 09-2670 (1st Cir. Nov. 1, 2011).      Our dissenting

                                -25-
analysis   would   unquestionably    be    correct   in   a   normal   double

jeopardy case, it does not adequately account for that prior

decision.11   Simply stated, Dellosantos reversed the appellants'

convictions on prejudicial variance grounds -- a purely procedural

decision that does not bar re-prosecution on the discrete crime

that the government currently charges.          See, e.g., Marshall v.

Bristol Superior Court, 753 F.3d 10, 18 (1st Cir. 2014).               Only by

turning a blind eye to the nearly twenty times that Dellosantos

differentiated the conspiracies, and by pretending that the charged

crimes present themselves here on a blank slate, could we view the

Massachusetts-based conspiracy as a "lesser included" version of an

offense the defendants were acquitted of.

           Such a perspective is certainly not mandated here, and it

would permit the defendants to escape the natural consequences of

their prior, successful appeal by introducing a new, irreconcilable



colleague here nicely captures the reasons why. Dissent at 35-36
n.16 (describing how the prior Dellosantos decision was potentially
incompatible with Griffin v. United States, 502 U.S. 46 (1991), and
questionable under a "mere variance analysis"). Having lost that
battle though, I cannot now "revisit[] how to decide Dellosantos."
Dissent at 36.
11
    The dissent takes the position that the prior Dellosantos
decision was one that spoke to the substantive guilt of the
defendants. As the lead opinion emphasizes, the dissent can only
reach that conclusion by ignoring the entire variance analysis at
the heart of Dellosantos.    It is that misstep that permits the
dissent to classify the charged conspiracy as "an offense entirely
subsumed in the prior acquitted offense," dissent at 37, and to
thus present its rhetorically powerful though ultimately fictive
parade of horribles.

                                    -26-
argument.   See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (A

litigant should not be permitted to "prevail[] in one phase of a

case on an argument and then rely[] on a contradictory argument to

prevail in another phase") (citation and internal quotation marks

omitted); see also United States v. Pakala, 568 F.3d 47, 59 (1st

Cir. 2009) (asking whether a party's later position is clearly

inconsistent with an earlier one; whether the party succeeded in

the first proceeding based on the prior argument; and whether that

party "would derive an unfair advantage" if permitted to "assert an

inconsistent position").

            In the first appeal, Dellosantos insisted that "[t]he

evidence showed there were two conspiracies; one involving cocaine

and the other involving marijuana.     These two conspiracies were

distinct, involved different sources and flow of distribution." He

added, "[i]f the defendant was a member of another conspiracy, and

not the one charged, then the defendant is not guilty of the

conspiracy as charged."     Szpyt likewise asserted that "[t]he

evidence in this case established two conspiracies, not the one

charged in the indictment."12

            In the appeal now, however, the defendants take an

entirely inconsistent position. They argue that "the government is


12
   The dissent again sees only what it wants. It states that in
Dellosantos the defendants merely "argued, first, that the
government failed to prove [the conspiracy charged]." Dissent at
32. But, the defendants' precise argument, as highlighted above,
shows otherwise.

                                -27-
attempting an 'end run' by re-prosecuting Dellosantos and Szpyt for

the same conspiracy, minus the marijuana part."               In other words,

they claim that this cocaine-only conspiracy is merely part of the

one, overarching conspiracy charged before.

             They cannot have it both ways.             Either there was a

conspiracy that included at least the cocaine-only conspiracy, or

there were entirely distinct conspiracies.              After succeeding in

convincing a majority of the prior panel that the latter was true,

it   would   be   inequitable    to   permit   the    defendants    to   escape

prosecution by now arguing the former.         As the lead opinion notes,

the defendants have changed their tune solely to "escape punishment

for [a] crime despite a jury finding [them] guilty beyond a

reasonable doubt and this court finding sufficient evidence in the

record to support that verdict."          Slip. Op. at 22 n.9.        Allowing

such a gambit threatens "the integrity of the judicial process."

Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010).

             Accordingly, because our inquiry must be anchored to

Dellosantos,      and   since   the   defendants     cannot   now   proffer   an

inconsistent position to dodge the foreseeable result of their

earlier contention, I concur.




                        "Dissenting Opinion follows"




                                      -28-
           KAYATTA, Circuit Judge, dissenting.            In Dellosantos the

government      charged    defendants    with    participating      in    a     single

conspiracy (the so-called "overarching conspiracy" covering two

states    and    two    illicit     drugs).      The   court    in       that    case

unequivocally stated:            "we conclude that there was insufficient

evidence to support the finding of a single conspiracy."                   649 F.3d

at 119.   My colleagues must therefore agree (they would say so if

they did not), that the Fifth Amendment bars the government from

re-indicting defendants for that single, overarching conspiracy

charged but not proven in Dellosantos.              Indeed, it would appear

that even the government agrees with that unremarkable proposition.

The   government       instead    re-indicted    defendants    on    a    narrower,

cocaine-only portion of the previously charged single, overarching

conspiracy. So we have a classic double jeopardy question: Is the

new charge the "same offense" as the offense for which defendants

were previously indicted and acquitted?

           When the offenses to be compared are each conspiracy

offenses, the comparison can sometimes be tricky.                        See United

States v. Laguna-Estela, 394 F.3d 54, 57 (1st Cir. 2005) (employing

a "nuanced," five-factor test).                Here, though, the government

concedes that there is no element of the second charged offense

that was not an element of the first charged offense.                         Indeed,

there will not even be any new evidence.                 Under basic double

jeopardy rules, it therefore follows that the two offenses are the


                                        -29-
same. See Brown v. Ohio, 432 U.S. 161, 168 (1977) ("[T]wo offenses

are the same unless each requires proof that the other does not.").

           The   majority    misses   this   straightforward    answer   by

failing to compare the offense charged in the new indictment (the

Massachusetts-based, cocaine-only conspiracy) with the offense for

which defendants were previously acquitted (the single overarching

conspiracy).     Instead, the majority devotes most of its effort to

comparing the offense charged in the new indictment with only the

unproven   portion    of    the   overarching   conspiracy     charged   in

Dellosantos. Noting that Dellosantos found that the Massachusetts-

based, cocaine-only conspiracy and the Maine-based, cocaine and

marijuana conspiracy were "distinct," 649 F.3d at 119, the majority

interprets that finding to mean that, for double jeopardy purposes,

the newly charged offense is different than the offense for which

defendants were acquitted.

           That is simply the wrong comparison.         As the majority

avoids acknowledging, but cannot claim to dispute, Dellosantos

plainly held that the evidence was insufficient to prove the

single, overarching conspiracy that was charged.        Id.    So, that is

the offense for which re-prosecution is barred.               And that is

therefore necessarily the offense to which this new indictment must

be compared to see if it alleges a different offense (i.e., one

with a new element).




                                   -30-
            To    support     a    contrary    and     entirely   unprecedented

approach, my colleagues declare that the single conspiracy charged

in Dellosantos "did not exist."            Slip Op. at 16.    And to make that

declaration binding on defendants, their two opinions audition a

trio of preclusion doctrines for roles these doctrines have never

played before in any cited precedent.                For example, to script a

role for the law of the case doctrine, the concurrence must pretend

that this case is actually the same case as Dellosantos.                  See,

e.g., United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (The

law of the case doctrine governs "the same issues in subsequent

stages in the same case") (emphasis added).              As the docket numbers

and common sense evidence, it clearly is not.13              More importantly,

in applying each of the estoppel doctrines mentioned in their

opinions, my colleagues make three fundamental mistakes.

            First, their description of the holding in Dellosantos

that they say now binds these defendants in this subsequent case

materially errs in its lack of precision.              The precise question at

issue in Dellosantos was whether the government had proven beyond

a    reasonable   doubt     that   there    was   an   overarching,   two-state

conspiracy to distribute both cocaine and marijuana.               The holding

in Dellosantos that the evidence was insufficient to prove such a


13
    Were it the same case, then I would presume no additional
appointments of counsel under the Criminal Justice Act would have
been required, Speedy Trial Act deadlines would be calculated
accordingly, limitations periods would not have continued running
after the acquittal, and so on.

                                       -31-
single conspiracy required acquittal on the charge.   Whether there

was in fact no such single conspiracy is something that the court

could not have known and the defendants need not have proved (and

actually did not argue).   For that simple reason there is no basis

at all for applying issue preclusion to establish that the single

overarching conspiracy never existed. See, e.g., Global NAPS, Inc.,

v. Verizon New Eng., 603 F.3d 71, 95 (1st Cir. 2010) (Issue

preclusion requires that resolution of the issue was essential to

judgment on the merits in the first case).

          Second, defendants are not engaged in any inconsistent

advocacy regarding the existence of the overarching conspiracy.

They argued, first, that the government failed to prove such a

conspiracy; they argue, now, that the government is still trying to

convict them of a lesser included version of that exact same

conspiracy.   The lack of any inconsistency between these two

positions renders judicial estoppel inapplicable. See, e.g., Perry

v. Blum, 629 F.3d 1, 8-9 (1st Cir. 2010) (Judicial estoppel

requires, among other things, that the party's earlier and later

positions are "clearly inconsistent.").

          Third, and most tellingly, even if one were to accept the

proposition that these defendants are now bound to accept as a fact

the non-existence of the single overarching conspiracy for which

they were acquitted in Dellosantos, so what?    Such a proposition

leaves untouched the pertinent double jeopardy inquiries:   Can the


                               -32-
prosecution re-indict on that offense?     Clearly it cannot.   And

does this newly charged offense have any element that was not

included in that prior acquitted offense?        As the government

concedes, it does not.      Under Brown v. Ohio, double jeopardy

therefore bars this second prosecution.   432 U.S. at 168.

          This conclusion is hardly surprising.      By definition,

most acquittals occur precisely because the government fails to

prove a part of its case.   If that failure therefore were to mean

that we no longer compare the newly charged offense to the prior

acquitted offense because the greater crime charged "did not

exist," then Fifth Amendment protections would shrink markedly.

Surely the majority does not mean to suggest that anytime the

government overcharges and a court finds that it fails to prove the

aggravating element, the government may re-indict on a lesser

included offense merely by pointing out that it failed to prove a

portion of the previously acquitted, greater offense?     Brown v.

Ohio plainly prohibits such a gambit.     Id.   Yet that is exactly

what the majority says the government can do here.14


14
    Implicitly recognizing that double jeopardy would bar the
prosecution here if Dellosantos resulted in an acquittal for
insufficient evidence, the concurrence argues that Dellosantos
vacated defendants' convictions on purely procedural grounds, like
a defect in the charging instrument, and thus double jeopardy does
not bar this prosecution. See Montana v. Hall, 481 U.S. 400, 404
(1987). But Dellosantos plainly stated: "the government failed to
prove beyond a reasonable doubt . . . the conspiracy that was
charged." 649 F.3d at 126 n. 18 (emphasis in original).  There was
no defect in the charging instrument except to the extent that the
government charged an offense that it could not prove.

                               -33-
          Nor does it matter that the government may have proved

part of its case the first time around.         That happens in most

prosecutions that end in acquittal.     See, e.g., United States v.

Glenn, 828 F.2d 855, 858–60 (1st Cir. 1987). Nevertheless, as long

as the disposition "represents a resolution, correct or not, of

some . . . of the factual elements of the offense charged," the

double jeopardy clause bars re-prosecution for that same offense.

United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

And, as I must stress, that "same offense" includes any offense

that does not contain a new element.    Brown, 432 U.S. at 168.

          The majority cannot pass its holding off as a one-time

only, idiosyncratic mulligan for the prosecution.       Prosecutors not

infrequently   stretch   ambitiously   in    charging   the   scope   of

conspiracies so as to rope in more drugs, more guns, and thus

higher minimum and maximum sentences.       See, e.g., Glenn, 828 F.2d

at 858–60. And jurors not infrequently buy such claims, leading to

judicial reversals for insufficient evidence.           In Glenn, for

example, we reversed a conviction for conspiracy to distribute both

hashish and marijuana because the evidence showed only that the

defendant was involved in a conspiracy to distribute hashish. Id.;

see also United States v. Franco-Santiago, 681 F.3d 1, 4 (1st Cir.

2012) (insufficient evidence to show that defendant conspired to

rob multiple banks, though sufficient evidence to show he conspired

to rob one bank);   United States v. Valerio, 48 F.3d 58, 63–65 (1st


                                -34-
Cir. 1995) (insufficient evidence to show that defendant conspired

to possess cocaine with intent to distribute, though arguably

sufficient evidence that she conspired to possess cocaine); United

States v. Hernandez, 625 F.2d 2, 3–4 (1st Cir. 1980) (insufficient

evidence to show that defendant conspired to distribute eight

pounds of cocaine, though arguably sufficient evidence that he

conspired to sell one ounce).      After today, in this circuit (but

fortunately in no others yet), the government need not worry itself

too much over losses of that type; rather, it can recharge on the

smaller, subsumed conspiracy, using even (as here) only evidence

from the first unsuccessful prosecution.15

           With some reason, my colleagues may wonder in hindsight

whether   Dellosantos   was   correctly   decided.16   But   the   Fifth


15
    The concurrence, like the majority, offers no counter to the
argument that its approach allows re-prosecution for uncharged
lesser included offenses in a broad array of cases of which the
foregoing is simply a sample.
16
    Under Griffin v. United States, 502 U.S. 46 (1991), the
indictment might arguably have been read as charging a dual object
conspiracy that could arguably be proven merely by supporting a
conviction on one of the two objects. 649 F.3d at 126-27 (Howard,
J., concurring in part and dissenting in part).      Or one might
arguably have read the indictment as simply a charge of conspiracy
to distribute and possess controlled substances, with the dual
product allegations serving as details that would lead only to a
mere variance analysis. See, e.g., Martin v. Kassulke, 970 F.2d
1539, 1545–46 (6th Cir. 1992); cf. Marshall v. Bristol Superior
Court, 753 F.3d 10, 18 (1st Cir. 2014).

     Apparently, though, the prosecution did not press these
arguments. 649 F.3d at 126 n.18 ("[T]he government argues in a
cursory manner . . . .") and 127 ("But the government has to make
the argument to benefit from it.") (Howard, J., concurring in part

                                 -35-
Amendment prevents us from revisiting how to decide Dellosantos.

Martin Linen Supply Co., 430 U.S. at 571 ("A verdict of acquittal

could not be reviewed on error or otherwise without putting (a

defendant) twice in jeopardy.") (internal citations and quotation

marks omitted).     The only relevant finding from Dellosantos now is

that it issued a "substantive ruling that went to the ultimate

question of guilt or innocence," Slip Op. at 11, indicating

acquittal    for   insufficient   evidence   on   the    charged    offense.

Dellosantos, 649 F.3d at 126.

             The government could have avoided all of this by pleading

alternative     counts   in   Dellosantos.    See       United   States    v.

Calderone, 982 F.2d 42, 48 (2d Cir. 1992).            Prosecutors are well

aware   of   the   double-edged   sword   presented     by   tiered,   lesser

included offenses.       Indicting a defendant in the alternative on

both greater and lesser included versions of a crime likely

increases the chances of a guilty verdict but also decreases the

chances of a guilty verdict on the greater offense.                Here, the

government was overly ambitious, charging defendants with only the

most extended characterization of the conspiracy that involved the

greatest drug quantity.        It then failed to prove that charged



and dissenting in part).    In any event, even if the result in
Dellosantos was wrong, we cannot fix it now without erring further.
See Evans v. Michigan, 133 S. Ct. 1069, 1081 (2013) ("[T]here is
no way for antecedent legal errors to be reviewable in the context
of judicial acquittals unless those errors are also reviewable when
they give rise to jury acquittals . . . .").

                                   -36-
conspiracy.      Allowing the government to take a second shot, trying

defendants for an offense entirely subsumed in the prior acquitted

offense, materially shifts the balance in favor of the government

in   a   way    that   our   founders    sought   to   avoid.   And   because

prosecutors frequently charge conspiracy counts and stack drug

quantity offenses, others who may actually be innocent of any crime

may pay a dear price.

               I therefore respectfully dissent from the majority's

decision to permit a post-acquittal prosecution for a lesser

included version of the prior charged offense.




                                        -37-
