Opinion of BLACKMUN, J.

432 U.S.

Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence over, the enterprise. §§ 848 (a)(1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. § 848 (c). In addition, § 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years. § 848 (a)(1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every § 848 violation by definition also will involve a series of other felony violations of the Act, see §§ 848 (b)(1), (2), there would have been no point in specifying maximum fines for the § 848 violation if cumulative punishment was to be permitted.

26

The legislative history of § 848 is inconclusive on the question of cumulative punishment." The policy reasons usually offered to justify separate punishment of conspiracies and

26 The Congress was plainly interested in punishing the professional criminal severely when it passed § 848. See, e. g., S. Rep. No. 91-613, pp. 2, 7 (1969); 116 Cong. Rec. 995, 1181, 1664 (1970) (remarks in Senate debate); id., at 33300-33301, 33304, 33314 (remarks in House debate). Taken alone, this might support an argument for cumulative penalties. The House Report, however, indicates that the penalty scheme of the continuing-criminal-enterprise section was to be separate from the rest of the penalties. H. R. Rep. No. 91-1444, pt. 1, pp. 10-11 (1970). In light of these arguably conflicting conclusions from the legislative history, we see no reason to deviate from the result suggested by the structure of the statute itself.

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Opinion of BLACKMUN, J.

underlying substantive offenses, however, are inapplicable to §§ 846 and 848. In Callanan v. United States, 364 U. S., at 593-594, the Court summarized these reasons:

"[C]ollective criminal agreement-partnership in crimepresents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.'

Accord, Iannelli v. United States, 420 U. S., at 778.

As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute.

Our conclusion that Congress did not intend to impose cumulative penalties under §§ 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the § 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by § 848. Thus, if petitioner received a total of $125,000 in fines

Opinion of STEVENS, J.

432 U.S.

on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000.

The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE WHITE, concurring in the judgment in part and dissenting in part.

Because I agree with the United States that Iannelli v. United States, 420 U. S. 770 (1975), controls this case, I for that reason concur in the judgment of the Court with respect to petitioner's conviction. For the same reason and because the conspiracy proved was not used to establish the continuing criminal enterprise charged, I dissent from the Court's judgment with respect to the fines and from Part III of the plurality's opinion.

MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting in part, and concurring in the judgment in part.

There is nothing novel about the rule that a defendant may not be tried for a greater offense after conviction of a lesser included offense. It can be traced back to Blackstone, and "has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen [, 131 U. S. 176,] was decided in 1889," Brown v. Ohio, post, at 168.1 I would not permit the prosecutor to claim ignorance of this ancient rule, or to evade it by arguing that the defendant failed to advise him of its existence or its applicability.

1 As the Court notes in Brown, Nielsen cites an 1833 New Jersey case; that case in turn quotes Blackstone. State v. Cooper, 13 N. J. L. 361, 375. See 4 W. Blackstone, Commentaries *336.

137

Opinion of STEVENS, J.

The defendant surely cannot be held responsible for the fact that two separate indictments were returned, or for the fact that other defendants were named in the earlier indictment, or for the fact that the Government elected to proceed to trial first on the lesser charge. The other defendants had valid objections to the Government's motion to consolidate the two cases for trial. Most trial lawyers will be startled to learn that a rather routine joint opposition to that motion to consolidate has resulted in the loss of what this Court used to regard as "a vital safeguard in our society, one that

2 The plurality implies that the result in this case would be different "if any action by the Government contributed to the separate prosecutions on the lesser and greater charges." Ante, at 152 n. 20. I wonder how the grand jury happened to return two separate indictments.

3 The Government retained the alternative of trying petitioner on both charges at once, while trying the other defendants separately for conspiracy. The prosecutor never attempted this course, and defense counsel-not having had an opportunity to read today's plurality opinion had no reason reason to believe he had a duty to suggest it. Until today it has never been the function of the defense to give legal advice to the prosecutor.

4 When the Government attempted to obtain a joint trial on all the charges against all the defendants, the attorney representing all the defendants resisted the Government motion. He did so largely because of the possible prejudice to petitioner's codefendants, and gave relatively little emphasis to arguments relating to petitioner alone. See ante, at 142-143, n. 5.

It is quite clear from the plurality opinion that petitioner has been denied his constitutional rights. As that opinion states, it is "the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense." Ante, at 150. And, as the plurality also demonstrates, that is precisely what happened here. Ante, at 147-150. Two additional facts, also noted by the plurality, clinch the double jeopardy claim: (1) petitioner was not only twice tried, but also twice punished for the same offense, ante, at 154-158; and (2) the instructions at the second trial required petitioner to defend against the lesser charge for a second time, ante, at 145 n. 11.

was dearly won and one that should continue to be highly valued," Green v. United States, 355 U. S. 184, 198. See United States v. Alford, 516 F. 2d 941, 945 n. 1 (CA5 1975).

It is ironic that, while the State's duty to give advice to an accused is contracting, see, e. g., Oregon v. Mathiason, 429 U. S. 492, a new requirement is emerging that the accused, in order to preserve a constitutional right, must inform the prosecution about the legal consequences of its acts. Even the desirability of extending Mr. Jeffers' incarceration does not justify this unique decision."

While I concur in the judgment to the extent that it vacates the cumulative fines, I respectfully dissent from the affirmance of the conviction.

The following sentence by Mr. Justice Black is also worth remembering: "If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance." Green, 355 U. S., at 198.

The Court's disposition is especially troubling because eight Justices agree that petitioner's constitutional right was violated and only four are persuaded that he waived his double jeopardy objection.