(dissenting):
The rule announced by today’s decision subjects a criminal defendant to unlimited harassment by the government despite a pri- or finding that he was not guilty as a matter of law of engaging in the activities sought to be punished. Here appellee’s business in coins and stamps was found not to fall within the purview of the statute and regulations requiring the licensing of any person conducting a business in secondhand personal property. Six days later the government filed a second information charging the identical offense but alleging no reasons or facts why the prior determination was erroneous or distinguishable. In effect the government alleged only that the offense was continuing. Were the alleged offense not of a continuing nature the government would have been barred from filing such an information by the Fifth Amendment. Giving the government a second day in court under the circumstances here presented is equally offensive.
The majority states:
“ * * * the record does not disclose what activities of appellee were held in the first case not to be within the purview of the statute, and of course cannot show what activities of appellee will be disclosed by the evidence under the second prosecution. % * * ”
The effect of this holding is to place upon appellee the burden and expense of defending a second criminal prosecution to show that his activities are the same as those considered in the first litigation. And this despite the fact that he was there found not guilty as a matter of law. I would rather place the burden upon the government and hold that unless the government can make a preliminary showing of how the activities of the defendant have changed or are distinguishable from the ones considered in the first proceeding, the second proceeding is barred. The majority decision subjects a presumably innocent defendant to unlimited harassment, expense and prosecution until the government wins its case. Such a result is patently unfair. Consequently, I dissent.