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State v. Figueroa-Soto7/9/1991
reated as lesser included offenses so as to preclude subsequent prosecution of the enterprise offense even where one of the charged predicate offenses was one of which the defendant had already been convicted. This has led one circuit to conclude that Grady does not bar seriatim prosecutions of such compound complex crimes and their simpler substantive offense elements. See United States v. Esposito, 912 F.2d 60 (3d Cir.1990). Contra United States v. Felix, 926 F.2d 1522 (10th Cir.1991); United States v. Calderone, 917 F.2d 717 (2d Cir.1990). Obviously if an element of an earlier prosecution does not bar a later prosecution, the mere introduction of evidence in the earlier case would not.
While Grady does not purport to overturn Garrett, the language in Garrett was dictum adhered to by only a plurality. In these circumstances, we believe it appropriate to rely more heavily on the rationale of Grady that double jeopardy involves, in addition to protection from multiple punishment, protection from the burdens of multiple trials where factual issues are to be relitigated. So read, Grady would preclude the subsequent prosecutions here because the same facts were presented in the initial prosecution and the subsequent charges could have been resolved in that prosecution.
Grady, however, does not provide total protection to the defendant on the facts of this case. What Grady requires is protection against multiple prosecutions; defendant voluntarily forewent that protection with respect to the three counts from CR-24301 when he insisted on early trial of the two charges and resisted consolidation of these three charges. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). The right to have all cognate charges resolved in a single proceeding belongs to the defendant. He cannot resist consolidation and then claim that separate trials denied him that right.
The order setting aside the findings of guilt in CR-24301 is reversed, the order otherwise is affirmed, and the matter is remanded for further proceedings.
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