Whether courts should assess the degree of difference or overlap between charged conspiracies to determine a double jeopardy violation

Questions Presented The Double Jeopardy Clause prohibits the government from carving up a single conspiracy in order to manufacture distinct charges out of what is in reality a single crime. This problem often arises when the government charges a defendant with participating in a relatively small conspiracy that, upon closer review, turns out to be comprised of overt acts that are carved out of a larger conspiracy with which the defendant is also charged. When that occurs, the defendant is being punished twice for engaging in only a single conspiracy—once for participating in the larger conspiracy, and once for participating in a smaller subset of the same conspiracy. Some circuits assess the double jeopardy concerns posed in such a situation under a test that measures the degree of difference between two charged conspiracies instead of the degree of overlap between them. But a smaller conspiracy can appear different than a larger conspiracy even when it is still completely encompassed by a larger conspiracy—if, for example, it involves fewer drugs, fewer coconspirators, or a smaller geographic location. The test therefore does not accurately measure whether a double jeopardy violation has occurred. The questions presented are: 1. Whether, when determining if two charged conspiracies violate double jeopardy, the court should assess the degree of difference between two charged conspiracies (as the Sixth Circuit holds) or should instead assess the degree of overlap between them to determine whether one conspiracy encompasses the other (as the Fourth Circuit holds). ‘ 2. Whether the burden of proof remains on the defendant to prove that two charged conspiracies violate double jeopardy (as the Ninth and Tenth Circuits hold) or the burden of proof shifts to the government once the defendant makes a prima facie showing of a double jeopardy violation (as every other circuit holds). ii