IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,360
STATE OF KANSAS,
Appellee,
v.
SCOTT E. SCHOONOVER,
Appellant.
SYLLABUS BY THE COURT
1. The issue of whether there is a double jeopardy violation under either the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review.
2. The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.
3. A double jeopardy issue is not raised when a defendant is charged, tried, and sentenced for discrete and separate acts or courses of conduct. A double jeopardy issue arises when the conduct is unitary, arising from the same act or transaction or a single course of conduct.
4. When conduct is unitary, a double jeopardy issue may arise because the defendant is convicted of violations of either multiple statutes or multiple counts of the same statute.
5. The Double Jeopardy Clause guarantees only the right not to be twice put in jeopardy for the same offense; thus, a second prosecution based upon the same acts but for a different crime is permitted.
6. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to a double jeopardy issue under the Fifth Amendment in order to determine whether there are two offenses or only one is whether each provision requires proof of a fact the other does not. This determination is based upon whether each offense contains an element not contained in the other. If not, they are the same offense and double jeopardy bars additional punishment and successive prosecution. Under this same-elements test, the evidence and proof offered at trial are immaterial. The sole concern is the statutory elements of the offenses charged.
7. The same-elements test, when applied to a double jeopardy issue under the Fifth Amendment to the United States Constitution, is a rule of statutory construction. Because it serves as a means of discerning legislative purpose, the rule should not be controlling where there is a clear indication of contrary legislative intent. The question of what punishments are constitutionally permissible is no different from the question of what punishment the legislative branch intended to be imposed. Where the legislature intended to impose multiple punishments, imposition of such sentences does not violate the Constitution.
8. When a double jeopardy issue arises under the Fifth Amendment because a defendant was convicted of multiple violations of a single statute, the statutory definition of the crime determines the minimum scope of the conduct proscribed by the statute. This minimum conduct is the allowable unit of prosecution. There can be only one conviction for that allowable unit of prosecution when the prosecution is based upon unitary conduct. The key to determining the allowable unit of prosecution is legislative intent.
9. A second conviction for the same offense, even if it results in no greater sentence because of concurrent sentences, has potential adverse collateral consequences and is an impermissible punishment under the Fifth Amendment.
10. Section 10 of the Kansas Constitution Bill of Rights provides that no person shall be twice put in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights; therefore, the underlying protection in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights.
11. Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
12. When a defendant is convicted of violations of multiple statutes arising from the same course of conduct, the test to determine whether the convictions violate § 10 of the Kansas Constitution Bill of Rights is the same-elements test: whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous and do not constitute a double jeopardy violation.
13. In cases where a defendant is convicted of violations of multiple statutes arising from the same course of conduct and the single act of violence/merger analysis has been applied, the results have been outcomes which cannot be reconciled with cases applying the same-elements test, lack of predictability as to outcome, disparate analysis, broader protection than required by the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, and circumvention of K.S.A. 2005 Supp. 21-3107. The single act of violence/merger analysis will no longer be applied to analyze double jeopardy or multiplicity issues.
14. When a defendant is convicted of multiple violations of a single statute, the test to determine whether the convictions violate § 10 of the Kansas Constitution Bill of Rights is the same test as used to determine if there is a violation of the Due Process Clause of the Fifth Amendment: whether there is more than one conviction for the allowable unit of prosecution.
15. In analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one? Under the first component, if the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation. If the charges arise from the same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense. Under the second component, it must be determined whether the convictions arise from a single statute or from multiple statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute the unit of prosecution test is applied. If the double jeopardy issue arises from multiple convictions of different statutes, in other words it is a multiple description issue, the same-elements test is applied.
16. Some factors to be considered in determining if a conviction is based upon unitary conduct, in other words if a conviction is based upon the "same conduct," include: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.
17. Applying the same-elements test, convictions of manufacture of methamphetamine in violation of K.S.A. 65-4159 and possession of methamphetamine in violation of K.S.A. 65-4160 are not multiplicitous and do not violate the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.
18. Applying the same-elements test, convictions of manufacture of methamphetamine in violation of K.S.A. 65-4159 and possession of anhydrous ammonia in an unapproved container in violation of K.S.A. 65-4152(a)(4) are not multiplicitous and do not violate the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.
19. Applying the same-elements test, convictions of manufacture of methamphetamine in violation of K.S.A. 65-4159 and possession of ephedrine or pseudoephedrine as a precursor to an illegal substance in violation of K.S.A. 65-7006(a) are not multiplicitous and do not violate the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.
20. Applying the same-elements test, convictions of manufacture of methamphetamine in violation of K.S.A. 65-4159 and possession of drug paraphernalia with intent to manufacture in violation of K.S.A. 65-4152(a)(3) are not multiplicitous and do not violate the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.
21. Applying the same-elements test, convictions of possession of ephedrine or pseudoephedrine as a precursor in violation of K.S.A. 65-7006(a), possession of anhydrous ammonia in an unapproved container in violation of K.S.A. 65-4152(a)(4), and possession of drug paraphernalia with intent to manufacture in violation of K.S.A. 65-4152(a)(3) are not multiplicitous and do not violate the Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.
22. Where a defendant complains of error in the failure to give lesser included offense instructions but did not request such instructions, the appellate court will not reverse unless the failure to give the instructions was clearly erroneous.
23. Under K.S.A. 2005 Supp. 21-3107(b), where all elements of a lesser crime are identical to some or all of the elements of the crime charged, the lesser crime is a lesser included offense of the other. The offenses of possession of drug paraphernalia with intent to manufacture and possession of methamphetamine do not contain elements which are identical to some or all of the elements of the offense of manufacture of methamphetamine and, therefore, neither is a lesser included offense of manufacture of methamphetamine.
24. Whether a case presents a multiple acts issue is a question of law over which this court has unlimited review.
25. The threshold question in multiple acts cases is whether there are factually separate incidents. If the incidents are not factually separate, there are not multiple acts.
26. Under K.S.A. 79-5204(c) and (d), a drug tax is due and payable, and drug tax stamps must be affixed immediately upon receipt, acquisition, or possession of the controlled substance.
27. K.S.A. 79-5202 imposes a drug tax on each gram of a controlled substance as defined by K.S.A. 65-4101(e). Any material, compound, mixture or preparation which contains any quantity of methamphetamine, even if not in usable form, is a controlled substance.
28. Where a defendant had sufficient possession and control over a controlled substance to permit the immediate affixing of drug tax stamps, the trial court does not err in failing to instruct the jury that the defendant must have had an opportunity to affix the drug tax stamps.
29. A defendant generally may not dispute the matters alleged in an affidavit in support of a search warrant. An exception exists where the defendant shows by a sworn allegation that the application for a search warrant contained: (1) material statements of deliberate falsehood or reckless disregard for the truth that were necessary to find probable cause or (2) deliberate omissions of material fact.
30. Where an affidavit in support of a search warrant omits information, the trial court and appellate court must determine whether the omission was material and whether the omission rendered the application and affidavit unreliable. Omissions in an affidavit in support of a search warrant will not render the warrant invalid if the affidavit, even with the omitted material added to it, established sufficient probable cause to issue the warrant.
31. When reviewing a motion to suppress evidence, the appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. The appellate court does not reweigh the evidence.
32. The requirement that a warrant must be issued by a neutral and detached magistrate does not equate to a constitutional mandate requiring that a judge have no contact with or knowledge of the case or the defendant.
33. When a lawful search is conducted pursuant to a warrant, officers may open a container if the object of their search could be found inside.
34. Multiple trial errors may require reversal of a defendant's conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found if the evidence against the defendant was overwhelming.
Review of the judgment of the Court of Appeals in an unpublished opinion filed November 5, 2004. Appeal from McPherson district court; CARL B. ANDERSON, JR., judge. Judgment of the Court of Appeals affirming the district court on the issues subject to our grant of review is affirmed. Judgment of the district court on these issues is affirmed. Opinion filed April 28, 2006.
Patrick H. Dunn, assistant appellate defender, argued the cause and was on the briefs for appellant.
Ty Kaufman, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Scott E. Schoonover petitions for review of the Court of Appeals' decision to affirm his convictions on seven counts arising from the manufacture and possession of methamphetamine. Several of the issues which Schoonover raises relate to multiplicity, lesser included offenses, and double jeopardy. These arguments require us to examine our jurisprudence regarding multiplicity and determine whether the single act of violence/merger doctrine is the test to be applied to determine whether a defendant has been twice placed in jeopardy in violation of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Schoonover also raises issues of multiple acts, search and seizure, and an issue of first impression for this court of whether a defendant can be guilty of possession of a controlled substance without the appropriate drug tax stamp if the defendant did not have actual possession for a sufficient period of time to allow an opportunity to obtain and affix the stamps.
Facts
Schoonover does not contest the facts as stated by the Court of Appeals.
"On May 11, 2001, at 8:30 p.m., Schoonover was found passed out in the driver's seat of a 1982 Ford Escort. The vehicle was setting in the roadway just past an intersection in rural McPherson County. The farmer who found Schoonover walked up near the driver's side door and tried to get his attention by yelling at him. The farmer was 5 feet from the vehicle when he tried to get Schoonover's attention; he never got any closer. When Schoonover did not respond, the farmer called EMS from his cell phone.
"Vicki Johnson, a volunteer with the Inman, Kansas, fire department responded to the scene. She observed Schoonover leaning back in the seat with his eyes closed. The engine was still running. When Johnson tried to wake Schoonover, she noticed that he had an open beer bottle between his legs. Johnson turned the engine off but was still unable to wake Schoonover.
"Next to arrive at the scene was Inman police officer Richard Langdon. Langdon testified that he arrived at the scene at approximately 8:35 p.m. Langdon testified that he observed a cooler on the front floorboard, coffee filters in the front seat, and a Bud Ice long-neck beer bottle sitting between Schoonover's legs.
"Langdon removed the beer bottle and shouted at Schoonover, who awoke when he saw a police officer standing outside his vehicle. Schoonover was asked to exit the vehicle after attempting to reach under the seat. When Langdon opened the door of the vehicle he 'smelled a mild odor of ammonia.' At this time, Schoonover was placed under arrest for transporting an open container.
"After exiting the vehicle, Schoonover stated that he was cold and asked for his shirt which was located on the passenger seat of the vehicle. Langdon reached in through the open passenger window to retrieve the shirt and again smelled what he 'believed to be anhydrous ammonia' coming from the floorboard where the cooler was located.
"Langdon was very familiar with the smell of anhydrous ammonia because he 'deal[s] with it daily at the anhydrous Co-op station.' Langdon again smelled the anhydrous ammonia when he opened the passenger door to look for Schoonover's identification. This time the smell took his breath away and burned his eyes.
"Captain Hoffman of the McPherson Sheriff's Department arrived to take command of the scene. Hoffman was a 25-year veteran with specific training and experience with respect to drugs and the manufacture of methamphetamine. Hoffman testified that as he approached the driver's side of the vehicle he could smell anhydrous ammonia. When he walked around to the passenger side of the vehicle, he detected a 'very strong odor' of anhydrous ammonia. Inside the vehicle in plain view of Hoffman were coffee filters and Coleman fuel. Believing that the vehicle might be a 'meth lab,' Hoffman contacted Detective Frazier of the McPherson Sheriff's Department.
"When Frazier arrived at the scene, he noted the anhydrous ammonia smell coming from the vehicle. He also saw the coffee filters and Coleman fuel inside the car. Based upon these observations and his discussions with the officers at the scene, Frazier applied for and obtained a search warrant.
"The search of the vehicle resulted in the following discovery. The cooler contained a bag of ice, a canning jar with a light blue liquid and a white substance 1 inch deep in the bottom of the jar, a 3-quart insulated cooler with anhydrous ammonia located inside, and three bottles of Bud Ice beer. The brand of beer was identical to the opened beer found between Schoonover's legs.
"Next, a backpack was found in the back seat which contained a bag of rock salt, a 1-quart bottle of muriatic acid, a quart canning jar with coffee filters inside, three empty canning jars and lids, and an assortment of plastic spatulas and spoons. A continuing search of the car uncovered a pair of brown boots; each boot contained a pint bottle of gas line antifreeze. Two cans of Coleman fuel were found in the rear cargo area of the vehicle.
"Inside a duffle bag located on the back seat the following items were found: six lithium batteries, a twin beam scale, a glass Pyrex square bowl, a metal kitchen strainer, folding knives, a Zip-Loc bag with vegetation and seeds inside, two mixing spoons, two pairs of pliers, a pair of forceps, Zip-Loc bags, single-edge razor blades, a razor blade scraper, a box of coffee filters, a coffee mill with a white powder inside, a drinking cup containing plastic bags and two white tablets, and a plastic bag containing red powder and a 'rocky substance.'
"Also found inside the vehicle were rolling papers, a plastic bag containing a 'green leafy substance,' a lithium battery, a box of coffee filters, and a brown pill bottle containing a white powder.
"Later testing revealed the following results: the brown pill bottle contained 27 grams of ephedrine or pseudoephedrine, the 'green leafy substance' was found to be marijuana, and the canning jar with the blue liquid and white substance was found to contain methamphetamine. The net weight of the methamphetamine was approximately 26 grams.
"Schoonover was charged in district court with numerous offenses, and his motion to suppress evidence was denied. Following a jury trial, Schoonover was found guilty of possession of ephedrine as a precursor drug, possession of anhydrous ammonia in an unapproved container, possession of drug paraphernalia with intent to manufacture, possession of marijuana, possession of methamphetamine, manufacture of methamphetamine, and possession of methamphetamine without the appropriate tax stamps. Schoonover received a controlling sentence of 158 months' imprisonment." State v. Schoonover, No. 90,360, unpublished opinion filed November 5, 2004.
Issues Presented
Schoonover petitioned for review and we granted his petition. We have reframed the issues he raises as: (1) Did the multiple convictions arising from the same course of conduct in obtaining the materials for and engaging in the various steps of manufacturing methamphetamine violate Schoonover's right to be protected from double jeopardy? (2) Are charges of possession of drug paraphernalia with intent to manufacture and possession of methamphetamine lesser included offenses of manufacture of methamphetamine? (3) Under the facts of the case, where there were multiple items of drug paraphernalia which could have supported the defendant's convictions but the jury was not given a multiple acts instruction, was the defendant's right to a unanimous verdict violated? (4) Did the evidence establish sufficient opportunity to affix a drug tax stamp? (5) Should the court have instructed the jury that the defendant must have had an opportunity to affix the drug tax stamp? (6) Were there material omissions in the affidavit for the search warrant which rendered the search unreasonable? (7) Was the search warrant issued by a neutral and detached magistrate and was it valid? (8) Did the officers exceed the scope of the search warrant by seizing items not specifically listed in the warrant and opening a duffle bag? and (9) Was there cumulative error?
Schoonover did not seek review of the Court of Appeals' decision to vacate his sentence on the count of manufacturing methamphetamine, finding that State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), applied. The Court of Appeals remanded for resentencing to a drug severity level 3 felony. That portion of the decision is not subject to our review.
Analysis
I. Double Jeopardy/Multiplicity
The defendant's first argument is that many of his drug convictions are multiplicitous and therefore in violation of his right not to be held in double jeopardy for an offense. The Court of Appeals panel relied on State v. Groves, 278 Kan. 302, 305-08, 95 P.3d 95 (2004) (single act of violence paradigm concerning multiplicity unaffected by 1998 amendments to K.S.A. 21-3107), in holding that multiplicity claims must be analyzed under both the common-law elements test and the "single act/merger" test. Schoonover, slip op. at 9-10. The panel then found that none of the defendant's convictions were multiplicitous because the elements of the offenses were not the same and none of the offenses merged because different evidence supported each offense.
In arguing that the Court of Appeals erred in its analysis, Schoonover asserts a violation of his rights under both the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Because there is some suggestion in the Court of Appeals' analysis and the defendant's arguments that Groves provides broader protection than that afforded by the Fifth Amendment, we will discuss cases under both the federal and state Constitutions. Under both lines of cases, the issue of whether convictions are multiplicitous is a question of law subject to unlimited review. Missouri v. Hunter, 459 U.S. 359, 368, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983); State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004).
A. Federal Analysis
The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The provision was made applicable to the States by the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). This seemingly straightforward provision has created a body of case law which Justice (later, Chief Justice) William H. Rehnquist described as "a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981).
The first step in navigating the sea of case law is to determine which map or chart guides the analysis. In order to make this determination, the issue must be specifically stated in terms of the various categories utilized by the United States Supreme Court in its analysis of double jeopardy issues. This categorization assists in applying various rules developed by the court; some rules apply to all categories of fact patterns while others apply to only specific categories. Moreover, the treatment of cases within different categories has changed at various times, and to understand these changes one must recognize which line of cases applies. See Thomas, A Unified Theory of Multiple Punishment, 47 U. Pitt. L. Rev. 1 (1985).
Categorization. The categorization utilized by the United States Supreme Court is separated into two layers, each of which contains multiple categories classifying types of cases by issues and facts. At the first layer, the Court divides the protection created by the Double Jeopardy Clause of the Fifth Amendment into three broad categories, stating the clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), overruled on other grounds Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989). This case raises double jeopardy concerns within the context of multiple punishments for the same offense (sometimes referred to as cumulative punishment) and does not raise a question about a successive prosecution, either after an acquittal or a conviction.
The second layer focuses upon the issue of whether the prosecution is for the same offense. At this layer of analysis, it is recognized that a double jeopardy issue is not raised when a defendant is charged, tried, and sentenced for discrete and separate acts or courses of conduct. Rather the issue arises when the conduct is unitary, arising from what is usually referred to by the Court as "the same act or transaction" (e.g., Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 [1932]) or a "single course of conduct" (e.g, United States v. Felix, 503 U.S. 378, 389, 118 L. Ed. 2d 25, 112 S. Ct. 1377 [1992]). At this second layer focusing upon what constitutes a "same offense," cases are divided into two categories. In one, the defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes. See, e.g., Gore v. United States, 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958) (defendant sentenced consecutively on three different drug charges for a single sale of narcotics). For ease of reference, these cases will be referred to as multiple description cases. In the second category, the defendant is charged with multiple violations of the same statute. See, e.g., Ebeling v. Morgan, 237 U.S. 625, 59 L. Ed. 1151, 35 S. Ct. 710 (1915) (upholding six convictions of defendant based upon defendant's cutting into six mail bags in a single transaction because Congress intended punishment for each act of damage to a mail bag); Bell v. United States, 349 U.S. 81, 99 L. Ed. 905, 75 S. Ct. 620 (1955) (under the Mann Act transporting two women in a single transaction across state lines for immoral purposes is one offense, not two); In re Snow, 120 U.S. 274, 30 L. Ed. 658, 7 S. Ct. 556 (1887) (continuous 35-month period of cohabitation is one offense because Congress did not create a temporal dimension to the offense). The sole issue in these cases is identification of the "allowable unit of prosecution." United States v. Universal C.I.T. Credit Corp, 344 U.S. 218, 221, 97 L. Ed. 260, 73 S. Ct. 227 (1952).
Same Offense. Even though this case does not raise a successive prosecution issue, it is helpful to briefly examine the United States Supreme Court's analysis of the Double Jeopardy Clause in the context of successive prosecutions because these cases clarify that the Fifth Amendment's prohibition against multiple prosecution and punishment for the "same offence" is a different concept from a prohibition against multiple prosecution or punishment for the "same conduct." The distinction was emphasized in United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993), which overruled Grady v. Corbin, 495 U.S. 508, 521, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990). In Grady, the Court held successive prosecution is prohibited under the Double Jeopardy Clause "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 510. Three years later, the Court in Dixon rejected this "same conduct" test. 509 U.S. at 711. Justice Scalia, who authored the opinion in Dixon, had written in his dissent in Grady:
"If the Double Jeopardy Clause guaranteed the right not to be twice put in jeopardy for the same conduct, it would bar this second prosecution. But that Clause guarantees only the right not to be twice put in jeopardy for the same offense, and has been interpreted since its inception, as was its common-law antecedent, to permit a prosecution based upon the same acts but for a different crime." 495 U.S. at 526 (Scalia, J., dissenting).
In Dixon, the Court, in a sharply divided opinion, adopted Justice Scalia's reading of the Fifth Amendment, noting that the "same conduct" test was "wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy" (509 U.S. at 704); "was not only wrong in principle[,] it had already proved unstable in application" (509 U.S. at 709); was "a continuing source of confusion" (509 U.S. at 710); and "was a mistake" (509 U.S. at 711). The Court discussed several cases to illustrate the instability and other problems created by the Grady holding. Of these several intervening decisions, we mention Felix, 503 U.S. 378, because it dealt with a charge of conspiracy to manufacture methamphetamine, a charge which is not present in this case but which raises a sim