dissenting.
This case raises difficult issues concerning the scope of the federal enterprise racketeering statute, 18 U.S.C. §§ 1961-68 (1976), as well as a number of related constitutional, evidentiary and procedural issues concerning notice and due process, the sufficiency of the evidence, the admissibility of co-conspirator hearsay, the instructions to the jury regarding multiple conspiracies and double jeopardy. As the Court suggests, the nine appellants may well be a band of modern day outlaws who have committed a host of federal and state crimes. Unfortunately, the government in its zeal to lump all their crimes into a single racketeering count for purposes of joint prosecution has failed to describe the kind of enterprise contemplated by the statute in question. Even worse, however, it has completely failed to prove the full extent .of the criminal enterprise that the indictment does describe. At best the government has *1043proved a common enterprise with only one objective and only one type of illegal act— sale of narcotics — rather than the far-ranging, multi-purpose enterprise alleged. The record does not show that other crimes, such as burglary and mail fraud, were part of the overall enterprise.
I.
After a jury trial in the United States District Court for the Southern District of Ohio, on an indictment containing 329 counts against 37 defendants, the 9 appellants — Carl Sutton, Jr., Joseph' Elkins, Dyeatra Carter, Edwin Adams, Otis Hensley, Prince Albert Rankin, Samuel Harris, Charles Cravens, and Viola Holmes — were each convicted of “conducting the affairs” of an “enterprise” affecting interstate commerce “through a pattern of racketeering activity,” 18 U.S.C. § 1962(c),1 and of conspiracy to commit that offense, 18 U.S.C. § 1962(d).
The law in question was enacted as Title IX of the Organized Crime Control Act of 1970 and is popularly known as RICO, an acronym for “Racketeer Influenced and Corrupt Organizations,” the heading under which it appears in the criminal code. What RICO outlaws is the corruption of an enterprise through a “pattern of racketeering activity.” RICO in § 1961(5) defines a “pattern of racketeering activity” as requiring at least two predicate “racketeering” crimes2 and in § 1961(1) defines these predicate crimes to include a long list of federal and state crimes ranging from murder, rape, robbery, burglary and fraud to narcotics and receiving stolen property.
The main constitutional, evidentiary and statutory construction questions of this appeal arise from the theory of the government’s case as presented in the indictment. The indictment alleges a RICO conspiracy in Count I and a RICO substantive offense in Count II. In both counts, the enterprise element of the offense is alleged not as an apparently legitimate business but rather as “being an unlawful business enterprise engaged in distribution of controlled substances, interstate transportation of stolen property, receipt of stolen property transported in interstate commerce, and mail fraud.”3 In addition, both the substantive and conspiracy counts alleged that the purposes of “the illegal enterprise” also included the “theft” of merchandise “by a network of burglars” directed by the defendant Hensley in order “to finance the purchase of” narcotics. (App. 85-87.) Thus the enterprise alleged in the indictment is a wholly “unlawful business enterprise” which engaged in burglary, fencing and fraud, as well as narcotics.
As the “pattern of racketeering” element of the offense the indictment alleges a host of crimes consistent with the “enterprise” previously alleged. The indictment alleges that the predicate crimes constituting “the pattern of racketeering activity included, but [were] not limited to the acts described in” the conspiracy count and in 101 of the substantive counts. (App. 97.) The predicate crimes alleged in the RICO count thus included specific substantive offenses involving the receipt of and transportation of stolen property (Counts 3 and 4), possession and distribution of narcotics (Counts 5 through 97) and mail fraud (Counts 123 through 130).
In addition to the RICO conspiracy and enterprise counts, each defendant was con*1044victed of numerous substantive narcotics counts. Two of the defendants, Adams and Hensley, were convicted of substantive stolen property and mail fraud counts. The defendants received long consecutive sentences on the two RICO offenses and the substantive offenses which constituted the RICO predicate crimes.
It was the government’s theory of the case, as alleged in the indictment and argued on appeal, that these various crimes were not discrete criminal ventures but were merely separate departments of a unitary RICO “criminal enterprise” under the management and control of Sutton and Herschel Weintrub, a defendant who was not tried in the instant prosecution. Our Court has found that the evidence supports the existence of what it calls a “centrally-directed criminal enterprise” engaged in burglary, fencing, fraud and narcotics.
The evidence in the case simply does not support the government’s theory or the Court’s finding. Taking the proof in the light most favorable to the government, it establishes that the defendants were a chain of buyers and sellers engaged in the distribution of heroin. Carter and Elkins, located in Cleveland, were wholesalers of heroin. The proof does not show that these two Cleveland wholesalers talked or sold heroin to anyone but Sutton (another wholesaler located in Cincinnati) and his assistant, Holmes. Sutton, in turn, sold to Adams, Cravens and Rankin, and also to Weintrub. Weintrub, in turn, sold to Harris and also to Adams. Adams also sold to others including, apparently, Hensley.
There is no proof that any of the defendants except four — Adams, Hensley, Harris and Weintrub — knew about or engaged in the transportation and distribution of stolen merchandise, or in making false insurance claims involving the use of the mails, or knew about Hensley’s burglary operation. There is no proof whatever that six of the defendants — Elkins, Carter, Sutton, Holmes, Rankin, and Cravens — had knowledge of the stolen merchandise, burglary, fencing and mail fraud activities. There is not a word or a line in the record from which it could be inferred that these six defendants agreed, intended to conduct, or participated in any enterprise engaged in burglary, fencing and mail fraud.
The only proof in the record on Dyeatra Carter consists of two taped telephone conversations between Carter and Sutton and a handwritten record. In the taped conversation, Carter discusses what, on the surface, appears to be her exterminating business, Carter Exterminating Co.4 The government’s expert witness, however, later interprets these conversations as being related to heroin.5 The handwritten note was found in the residence of Viola Holmes, supposedly about measurements of heroin (TR. Vol. IV pp. 3795-3797). Ex. # 41. A government expert testified that it was in the handwriting of Dyeatra Carter (TR. Vol. IV p. 3797) and that it related to the distribution of narcotics (TR. Vol. IV p. 3997-4000).
*1045The government’s proof on Joseph Elkins consists mainly of two taped conversations with Sutton, one in which he discusses opening up a business and another in which he discusses “roach spray.”6
The proof on Cravens consists of taped telephone conversations between him and Sutton, a search (TR. Vol. IV p. 3560) of his home which turned up bags containing heroin (TR. Vol. IV p. 3878), quinine and lactose and a note pad with passages related to narcotics sales.7 (TR. Vol. IV p. 3993). There is no evidence connecting him to anyone other than Sutton or any crimes other than narcotics.
The proof on Viola Holmes, Sutton’s associate, is likewise scanty. A search of her home turned up a motel receipt, a cashier’s check for $1000 made payable to Dyeatra Carter, an address book and a McDonald’s spoon (TR. pp. 3730-3736 Vol. IV). There were also several taped telephone conversations which mainly consisted of “Hi, how are you?” In one conversation with Collins Jones, another alleged conspirator, Holmes, referring to Carl Sutton, tells Jones, “Well, he told me, he gave me a message .... And that was that if you called to just tell you to come on and bring it, give it to me.” (TR. Vol. III, p. 3376.)
The proof on Edwin Adams demonstrates he was involved in narcotics,8 insurance fraud9 and dealing in stolen goods.10 The *1046proof on Adams consisted of. numerous taped telephone conversations, mainly with Herschel Weintrub, and a purchase by government agents (TR. Vol. I p. 177).
The proof on Otis Hensley shows he was involved in defrauding an insurance company using the mail,11 dealing in stolen goods12 and narcotics.13 There were taped telephone conversations with Adams and Weintrub and a purchase of drugs by a government agent (TR. Vol. I pp. 398^412).
The proof on Sam Harris consists of taped telephone conversations concerning stolen goods14 and narcotics.15
*1047The government’s proof on Carl Sutton consists of numerous taped telephone conversations with people such as Rankin, Cravins, Carter, Adams and Weintrub, along with the government’s interpretations of those conversations. A typical telephone conversation was replete with narcotic phraseology.16 The searches of Sutton’s person and car turned up “spoons” and a “mortar and pestle” showing traces of heroin.
Sutton is alleged to be the leader and managing partner of this RICO enterprise. He was under surveillance and his telephones were tapped for several weeks; yet there is not a single line of testimony, not a single document, not a single tape-recorded conversation introduced in the government’s case from which one could legitimately infer that as the managing partner of the enterprise he engaged in, directed, suggested, profited from, or financed the stolen property, burglary and fraud crimes perpetrated by Adams, Hensley and Weintrub. Sutton was concerned only with the distribution of narcotics.
Likewise, there is simply no evidence in this record to show that Elkins, Carter, Sutton, Holmes, Cravens or Rankin delegated any authority to Adams, Hensley and Weintrub to commit these crimes. The burglary, stolen merchandise and mail fraud crimes were discrete criminal ventures, carried on by Adams, Hensley, Weintrub and Harris, unconnected with the narcotics enterprise.
In Section II. of the majority opinion, entitled “The Indictment and the ‘Enterprise’ Proofs,” a section written after this dissent was circulated, the Court attempts to marshall evidence on the sufficiency is*1048sue. With respect to Carter and Elkins, the Court implicitly concedes that there is no evidence connecting them to any fencing, burglary and insurance mail fraud crimes. The Court does not point to any evidence suggesting that they even had knowledge of the existence of these crimes. Yet the Court is willing to convict them and let them go to jail for prison terms exceeding 80 years for engaging in the business of fencing, burglary and insurance fraud. I do not understand why, and the Court offers no explanation.
On the defendant Sutton, the so-called “managing partner” of this “centrally-directed” “unlawful criminal enterprise engaged in fencing, insurance fraud and burglary as well as narcotics,” the Court at least makes an effort to recount evidence to justify the RICO conviction. That effort is unconvincing.
The first bit of evidence adduced is a series of pictures of Sutton and Weintrub together with a gold box. This proves nothing except that they associated together and possessed a gold box. We do not know what was in the gold box. The gold box is never connected with anything. This proof hardly permits an inference, as the Court claims, that Sutton ran a burglary, fencing and insurance fraud operation financed by Weintrub. Much better proof of the association between Sutton and Weintrub comes from the voluminous, tape recorded, tapped telephone conversations between the two about narcotics. During all of these many conversations, however, there is but one unclear reference to merchandise other than narcotics. There is one reference to some “watches.” That is all. We do not know what connection Sutton had to the watches, if any, or whether they were stolen. Is it reasonable to infer from that one item the conclusion that Sutton directed a fencing, burglary and insurance fraud operation financed by Weintrub? I think not.
As additional proof the Court cites and quotes at length in the addendum from a tapped telephone conversation in which Sutton offers to help Rankin fix his broken stereo set. But there is no proof the set was stolen or connected with any fencing, burglary or insurance fraud operation.
There is, as the Court suggests, one item of testimony from which one could perhaps infer that Sutton knew about and participated in the fencing of stolen property, but that item of proof was developed on cross examination of Sutton’s associate, Holmes, when she took the stand in her own defense. That testimony is as follows:
Q. Now do you know whether or not Carl Sutton ever sold rings or watches?
A. Yes.
Q. Did you all discuss this?
A. Not a great deal, but I knew that he sold rings and watches, jewelry for Herschel Weintrub.
Q. Now, in connection with his selling of jewelry or selling of furniture, did you on any occasion collect any money for him?
A. Yes.
There are several problems with this testimony. The witness, Holmes, who gave the testimony claimed the jewelry was legitimate. No effort is made to prove that this jewelry was stolen, and we cannot simply assume that it was. Weintrub sold a lot of jewelry (he ran a jewelry store) that was not stolen. Even if we assume, however, that the jewelry was stolen, it does not help the Court’s argument because this proof came in after the government closed its case. This evidence, developed during another defendant’s proof, cannot be used to shore up the government’s case in chief against Sutton. Sutton made a motion for judgment of acquittal on the basis of the sufficiency of the evidence at the end of the government’s case, and that motion should have been granted. He did not take the stand or offer proof; he, therefore, did not waive his motion based on the insufficiency of the government’s case in chief. The law is clear that in such circumstances the later proof cannot be taken into account when an appellate court rules on the sufficiency of the government’s case. See F.R.Crim.P. *104929(a); United States v. Calderon, 348 U.S. 160, 164 n.1, 75 S.Ct. 186, 188, n.1, 99 L.Ed. 202 (1954); United States v. Black, 525 F.2d 668, 669 (6th Cir. 1975).
Even if we accept the Court’s argument that the government proved that Sutton knew about, participated in and directed a fencing operation — a conclusion that seems contrived and without factual support to me — where is the evidence that he knew of, participated in and managed a “centrally-directed criminal enterprise engaged in burglary and insurance fraud”? The Court makes no effort at all to connect him to these criminal ventures. No evidence is marshalled or mentioned to show that he directed a burglary and insurance fraud enterprise.
II.
On these facts, the District Court committed four errors which in my view require reversal.
1. Variance Between the Indictment and the Proof. — The indictment alleged a conglomerate or multi-purpose criminal enterprise engaged in narcotics, burglary, fencing and fraud. The proof showed at most a narcotics distribution conspiracy. This variance is material, and the District Court should have granted the defendants’ motions for acquittal on the two RICO counts at the end of the government’s proof for this reason. To illustrate the problem in a different context, suppose the government charges a RICO enterprise engaged in murder, robbery and extortion but proves only an enterprise engaged in extortion or robbery and extortion. Under such circumstances the proof is insufficient to prove the crime charged, and the defendants must be acquitted.
The reason for this is that in our legal system the government must prove the crime charged in the indictment. Due process and the Fifth Amendment provision that “[n]o person shall be held to answer . .. unless on a presentment or indictment of a Grand Jury” provide this right even for dealers in narcotics. Our adversary system of criminal justice requires that the contestants persuade, and the judge instruct, twelve minds to return a unanimous verdict beyond a reasonable doubt after an intense battle in a formal setting. Our system can only maintain clarity and self-discipline and avoid confusion by rigorously enforcing the notice requirement, especially in an era when multiple, complex offenses are the norm.17 Otherwise, the government can charge a conspiracy or an enterprise engaged in the commission of a multitude of major and minor crimes without knowing in advance what it can prove in the hope that it can prove something. The defendant will not know how to go about defending himself. The jury will not know precisely what combination of facts it is supposed to find in order to convict. If the jury convicts, the sentencing judge will not know what particular crime the jury found.18 In order for the adversary system to work effectively, the issues in criminal jury trials therefore must be kept clear and succinct.
This fundamental principle of criminal law has many times been repeated and applied by the Supreme Court. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the variance was less material than here. The indictment charged extortionate interference under the Hobbs Act with goods flowing into the victim’s plant. The proof showed that the interference occurred after the manufactured product left the plant. Justice Black, writing for a unanimous Court, reversed *1050the conviction on the basis of the ruling in Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887):
In that case, the court ordered that some specific and relevant allegations the grand jury had charged be stricken from the indictment so that Bain might be convicted without proof of those particular allegations. In holding that this could not be done, Mr. Justice Miller, speaking for the Court, said:
“If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says ‘no person shall be held to answer,’ may be frittered away until its value is almost destroyed.”
361 U.S. at 216, 80 S.Ct. at 272. (footnote omitted).
In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), the Supreme Court had made the same basic point. It reversed convictions because the evidence showed multiple conspiracies rather than the one alleged in the indictment. In a long and passionate opinion, Justice Rutledge, speaking for the Court, discusses the considerations involved and the injustice that a contrary principle would allow. “Criminal they may be,” he concludes, but our system is not one of “mere convenience or efficiency” and we must not allow ourselves to “become careless or complacent when that fashion has become rampant over the earth” for in “[t]hat way lies the drift toward totalitarian institutions.” 328 U.S. at 773, 66 S.Ct. at 1252.
This Court up until now has consistently enforced this same basic principle in conspiracy cases: “Where one conspiracy is specifically charged, proof of different and disconnected ones will not sustain a conviction.” United States v. Bostic, 480 F.2d 965, 968 (6th Cir. 1973). There Judge McAlister explained that “[t]o allege against a number of persons generally that they have conspired ... does not enable the prosecution to prove several conspiracies each affecting . . . different persons or groups of persons ... unless . .. the wrong purposes ... form parts of the same combination.” Judge McAlister’s reasoning is based expressly on Judge Learned Hand’s analysis of conspiracy in United States v. Peoni, 100 F.2d 401 (2nd Cir. 1938), and in United States v. Falcone, 109 F.2d 579 (2nd Cir.) aff’d, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In Peoni Judge Hand concluded: “Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.” 100 F.2d at 403. Judge McAlister in Bostic, quoting Judge Hand in Falcone, warned that “many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders,” and that “there are opportunities of great oppression” in such prosecutions. 480 F.2d at 968 quoting 109 F.2d at 581.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court, applying a similar principle, recently explained the meaning of the requirement that the proof must show beyond a reasonable doubt the material facts charged in the indictment. Noting that “a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process” and that under our system “even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglary,” the Supreme Court said that when the question is one of the sufficiency of the evidence, “the critical inquiry on review” is not “whether the jury was properly instructed” but “whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt” of the crime charged. Id. at 2786, 2789, 2792.
Applying these standards to the facts of the instant case, it is clear that the government did not prove the enterprise agree*1051ment charged in Counts I and II of the indictment. In its brief at page 79 the Government concedes that it must prove the enterprise agreement charged in the indictment. Here the proof does not support such a finding. The Record shows at least four distinct conspiracies: (1) narcotics, (2) burglary, (3) fencing and (4) mail fraud. These conspiracies involve different people, different goals, and different overt acts. Without severance or special limiting instructions, prejudice was inevitable. As a reviewing court we cannot now disentangle the proof and maintain that defendants received a fair trial. New trials are necessary. See United States v. Reynolds, 489 F.2d 4, 6 (6th Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766 (1974).
2. Co-Conspirator Hearsay. — The evidence of the burglary, fencing and fraud crimes committed by Adams, Hensley and Weintrub was admitted against all the other defendants under the exception to the hearsay rules permitting “oral or written assertions or nonverbal conduct” by a “co-conspirator of a party during the course and in furtherance of the conspiracy.” Fed.R. of Evid. 801. Under this exception, all of the telephone conversations among Adams, Hensley and Weintrub about burglary, fencing and fraud were admitted against all the other defendants. In addition the District Court admitted against all defendants documentary evidence in the form of false insurance claims filed by Hensley, inventory records of stolen property maintained by Adams and Weintrub, as well as their nonverbal conduct showing possession and distribution of a large volume of stolen merchandise. Even real evidence in the form of “hot” stoves and other household merchandise, or descriptions and photographs thereof, were admitted against Elkins, Carter, Sutton and the rest even though there is no proof, hearsay or otherwise, that they ever heard of the merchandise, knew of these crimes or authorized their commission.
The admission of all this evidence against the other defendants was clear error under United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974), and United States v. Hoffa, 349 F.2d 20, 41-A2 (6th Cir. 1965), aff’d on other grounds, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). The District Court did not require the government to establish by independent evidence the existence of the alleged conspiracy before admitting the hearsay for consideration by the jury. Nor did the court require the government to establish that the hearsay evidence occurred during the course and in furtherance of the conspiracy alleged in the indictment. The defendants objected to the evidence, but the District Court overruled their objections without explanation. (TR. 188-89, 4172). In addition, the District Court failed to make the findings of fact or follow the procedures required prior to the admission of co-conspirator hearsay by the recent decisions of this Court in United States v. Enright, 579 F.2d 980 (1978), and United States v. Vinson, 606 F.2d 149 (1979).
The dangers of this kind of evidence, even when the rules of admissibility are satisfied, are well known. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980) (Blackmun, J.); Kotteakos v. United States, 328 U.S. 750, 770-71, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946); United States v. Bostic, 480 F.2d 965, 968 (6th Cir. 1973); Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378 (1972). Here, however, the problem with the evidence is not that it is necessarily unreliable as proof that the declarant or actor committed the property crimes in question. It is simply irrelevant until it is connected to the defendant against whom it is admitted. By admitting the evidence against the defendant, the judge implicitly tells the jury that it may rationally find that the connection has been made. Since the connection was never made, the District Court committed reversible error by admitting this kind of evidence against defendants who had no relationship to it.
*10523. The Jury Instructions. — The District Court allowed the jury verdict to stand and admitted the hearsay because of its theory that the jury could return a verdict of guilty against a defendant by simply finding that he participated in any one of the five conspiracies. It instructed the jury to this effect:
Although the indictment charges a single conspiracy, it would be possible for you to find the following separate conspiracies: A conspiracy to engage in a racketeering enterprise; A conspiracy to engage in distribution of controlled substances; A conspiracy to engage in interstate transportation of stolen property; A conspiracy to engage in receipt of stolen property transported in interstate commerce; or A conspiracy to engage in mail fraud. Whether there was one conspiracy, five conspiracies, or no conspiracy at all is a fact for you to determine from the evidence. (TR. pp. 6099-6100, Vol. VI.)
The District Court then advised the jury that it had “previously instructed” the jury as to the statements of co-conspirators. Id. at 6100. The Court then says that the jury “may not consider any such act or statements against” another defendant unless the jury finds “that the person doing the act or making the statement was a member of the same conspiracy as was such defendant.” Id. Thus the Court allowed the jury to decide what conspiracy each defendant was involved in and what hearsay to consider.
This instruction was carefully written down and handed to the jury before the Court’s charge was given. The District Court asked the jury to read the instruction as he gave it orally and to take the written instructions to the jury room when they retired to consider their verdict. The charge was not inadvertent, as the majority ingenuously suggests. It was not given by mistake. It embodied the District Court’s theory of the case.
The defendants specifically objected to the instruction before it was given and then again after it was given. Counsel for the defendant submitted and then resubmitted a correct instruction which said that “to find a defendant guilty you must find that he was a member of the conspiracy charged in the indictment and not some other conspiracy.” 19 The District Court repeatedly rejected this charge in favor of the one allowing conviction of a defendant if he participated in any one of five conspiracies. The District Court never instructed the jury that in order to convict it must find the defendant guilty of a conspiracy or enterprise agreement of the scope alleged in the indictment. This was error.
4. Double Jeopardy. — Under the Court’s interpretation of RICO, problems of double jeopardy under the “same evidence” or *1053Blockburger test20 are acute. For example, the defendant Elkins received a sentence of 82 years’ imprisonment. The 82-year term consists of consecutive sentences of 20 years on the RICO conspiracy, 20 years on the RICO substantive offense, 15 years on the narcotics distribution substantive offense, 15 years on the narcotics possession substantive offense, and 4 years on each of 3 offenses involving use of a telephone to facilitate the drug offenses. The other defendants received similar sentences.
There is little logic to the Court’s position that the RICO conspiracy offense merges into the RICO substantive offenses, thereby preventing multiple punishments, while the RICO predicate offenses, e. g., the substantive narcotics counts, do not merge. All of the substantive narcotics distribution, possession, mail fraud, and stolen property offenses are part of the series of predicate crimes which constitute the “pattern of racketeering activity” element of the RICO substantive offense, just as the RICO conspiracy — the agreement to commit this pattern of crimes — constitutes the enterprise element of the crime under the Court’s interpretation. Under the Court’s interpretation, RICO becomes just another way to punish the predicate crimes.
Proof of a RICO violation necessarily is proof of the underlying “pattern” crimes; if the “pattern” crimes cannot be proved, there is no RICO violation.21 Defendants are punished once under RICO for committing the “pattern” crimes. They cannot be punished again with consecutive sentences or additional fines, for commission of these same offenses that both define the enterprise and constitute the alleged pattern of racketeering activity.22 See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
Under the Court’s interpretation of RICO, it is necessary, therefore, to instruct the District Court to reduce the fines and sentences of the defendants so that no defendant suffers any additional punishment by virtue of the predicate offense convictions.
III.
I have already set out at length in the panel opinion in this case and will not re*1054peat here my own views concerning the proper interpretation of the enterprise element of the RICO statute. In my view the language, structure and legislative history of the statute require as an element of the offense the use of an apparently legitimate enterprise, not just a wholly criminal enterprise.23 The Supreme Court in dicta in Iannelli v. United States,24 the Senate Judiciary Committee in its reports on both RICO25 and the proposed Federal Criminal Code,26 which incorporates RICO, and the House Judiciary Committee27 in its report on RICO have said flatly that the legislative purpose of RICO is to stop the infiltration of apparently legitimate businesses by racketeers. The “pattern of racketeering activity” should therefore facilitate the conduct of an apparently legitimate business. Unless an individual or group (1) “conducts the affairs,” (2) “of an [apparently legitimate] enterprise,” (3) “through” a series of predicate crimes which further the business of the enterprise, there is no RICO offense under § 1962(c).
That was not the government’s theory of the case at trial or on appeal, as government counsel readily conceded in its briefs and at oral argument. The government concedes that the RICO enterprise is a wholly “unlawful business enterprise” and not the insurance company which was defrauded or the jewelry stores or the exterminating company as the Court argues in the alternative. The Court’s opinion misleads the reader about this matter. On the one hand it accepts the government’s position that a wholly criminal enterprise is sufficient. On the other hand, it makes it appear that the government contends, and that the facts support the contention, that these legitimate organizations constitute the enterprise through which the defendants conducted a pattern of racketeering activity. Neither the government nor the lower court takes that position. Again the Court in its alternative argument has amended the indictment to suit its own convenience, the practice that the Supreme Court disapproved in Ex Parte Bain and Stirone, supra, and again unanimously last year in United States v. Dunn, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) (Mar-shall, J.).
The Court’s repeated efforts to amend the indictment arise from its failure to define clearly the elements of the offense in question. Under the Court’s interpretation, the RICO conspiracy offense appears to have only two elements: (a) an agreement by two individuals to (b) commit any two predicate crimes. Under the court’s interpretation, the RICO substantive offense has only one element — the commission by one individual of any two predicate crimes. The Court has not required the government to prove the existence of any unifying enterprise or any unifying agreement to conduct an enterprise because it has read the enterprise requirement out of the statute. All it has required is a “pattern of racketeering activity,” i. e., any two or more predicate crimes, no matter how disparate and unconnected. Only the last four words of the statute — “pattern of racketeering activity” — are given any meaning. The other words of the statute which Congress intended to mean something — whoever “conducts the affairs of an enterprise through” — are simply read out of the statute.
Thus the Court concludes that the racketeering activity and the enterprise elements are the same thing. Under the Court’s *1055interpretation, an individual who buys or sells a bag of marijuana on two occasions or commits any other two predicate crimes violates RICO. The two crimes themselves constitute the “enterprise” and the “affairs” and the “conducting.” Having read these words out of the statute, the word “through” must also be read out of the statute because there is nothing for the predicate crimes to further, facilitate or connect with, except the crimes themselves. As read by the Court the statute says: “Whoever conducts a pattern of racketeering activity through a pattern of racketeering activity,” is guilty; or, eliminating the redundancy, “whoever commits two predicate crimes” is guilty.
When the enterprise element is read out of the RICO substantive offense, the enterprise agreement element inevitably is read out of the RICO conspiracy offense as well. All that is necessary is an agreement to commit any two predicate offenses. There is a great risk of erroneous convictions and multiple punishments for the same offense when we join this interpretation of RICO with conspiracy theory, the co-conspirator hearsay exceptions and the difficulties which are inherent in the concept of double jeopardy. It is the Court's failure to give meaning to each of the words used in the statute and to define and elaborate the elements of the statute as reflected in its legislative history that has led the Court into a series of serious constitutional, procedural and evidentiary errors.
There is now a clear conflict in the Circuits on this RICO, statutory construction issue. The First28 and Eighth Circuits29 have recently agreed with the reasoning of our panel opinion in this case and disagreed with the contrary construction given the statute by the Second,30 Fourth,31 Fifth,32 Seventh,33 and Ninth Circuits 34 and our Circuit in this case. Judges from the Second, Seventh and Ninth Circuits have recently filed opinions strongly dissenting from the position of those Circuits. There is strong conflict not only among the Circuits but strongly held differences exist among individual judges within the Circuits.
The number of RICO prosecutions is rising rapidly. There is a “need for certainty in the workaday world of conducting criminal trials.” Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (Black-mun, J.). The courts of appeal have performed their assigned function, and the issue now awaits authoritative resolution by the Supreme Court.
. 18 U.S.C. § 1962(c):
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
. 18 U.S.C. § 1961(5):
“[PJattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity ....
. This definition of the enterprise is found in paragraph 2 of the conspiracy count (App.80) and is incorporated by reference in the substantive RICO count.
. Gov’t Exhibit 258, TR. p. 3420-24, Vol. III, a conversation between Carl Sutton and Dyeatra Carter:
DC “Then I just go on, do you have an idea of, you know, like a, a, let’s see we just got a new shipment of spray.
CS Uh huh.
DC And do you have any idea how many, a gallons after the, you know, to hold for you.
* * * * * *
DC Right, do you have any idea about how many gallons, you know, you’d like to order?
CS About 10.
DC Ok, well then I’ll I’ll hold a 10 gallons for you until you get here, or until we we mix it, cause I won’t be down that way until the middle of December.”
. TR. p. 3949-50, Vol. IV:
The government expert witness interpreted the conversations as follows:
Mr. Steinberg: “Now, in that conversation,
Mr. Stuart, do you have an opinion as to what the term “a new shipment of spray” means?
The Witness: Sir, in my opinion, that means heroin.
******
Mr. Steinberg: And in the same conversation, do you have an opinion as to what the term “gallons” means in the statement by Dyeatra Carter when she says, “How many gallons would you like to order?”
******
The Witness: “Sir, in my opinion, Miss Carter there is referring to ounces of heroin.”
. Gov’t Ex. # 258, pp. 3444-3447 Vol. III:
JE “I, I don’t, I think we were supposed to ship you that spray before. That glass case you were supposed to get, uh, four cases.
CS Uh huh.
JE We still owe ya 4.
5{! ifc % Jfc if!
JE And you need 10 more.
Gov. Interpretation: The Witness: “Yes, sir. That spray in my opinion means heroin.”
j(!
By Mr. Steinberg: “Q. And in his next statement, That glass case, you were supposed to get, a four cases, do you have an opinion as to what the term glass case refers to?” The Witness: “Sir, again it is conversation regarding a shipment of heroin.”
. The Government expert testified as to what the note pad contained:
Q. Mr. Stuart, with respect to the book found in the apartment of Mr. Craven, have you noted certain passages which in your opinion relate to narcotics transactions?
A. Yes, sir, I have.
Q. Now, can you take each page at a time and read a particular passage that you believe so relates and explain how it relates?
A. Yes, sir. At the top of the pages marked January 5, the first line says “Paid 1100 or 1200” .... The next line has the numeral 1 and the letter Z. The next line has 3TP, 2TP at first, then 1 TP. The next line is a column of numbers, and it has 200, 150, 200, 120. These are added together to arrive at a total of 670.
Beneath that is the number 100 with a notation directly to the right which says “To go with D,” and then there is a line and the 100 is subtracted from the 670 to equal 570. There is another notation in the lower right-hand corner where it says 1100, and beneath that 100, and they are added together for a total of 1200.
# * * * *
The figure 12 in my opinion represents one ounce of heroin.
The figure 3TP, 2TP and 1TP represent tablespoons. TP in my opinion means tablespoon. TR. 3993-94.
. Telephone conversation between Adams and Herschel Weintrub (TR. Vol. II p. 1191, 1192):
EA' “What we’ll have to do, is, ah, we’ll have to get together, now, be sure and give me some lack, ok? Then we’ll step on it. We’ll make one table up. See, he’s used to this. See, well, well, the last deal that we made with him . . .
HW Yeah.
EA Instead of taking one and making four, we took one and made two, see, at 3 and a quarter apiece. Now he’s taking 2 ozs, so that would be that we’d take one oz and make 2 ozs.”
. Telephone conversation between Adams and Charles Combs (TR. Vol. I, p. 1842):
EA “This morning and forgot about it cause, you know, I was all jammed up . . . you got any old invoices from Lebanon?
CC Yeah.
EA Ah, any chance of getting a couple of em for a Sony TV and a Sony tape recorder, ah, a neighbor of mine had ripped off, he can’t find the receipts to save his ass?
CC Yeah, I have a few.
EA Ok, when can he get em?
CC Ah, let me see.
EA Insurance man been bugging the shit out of him.
CC Yeah, I know, backdate it? Now, I’ve got the . . .
. Telephone conversation with Herschel Weintrub (TR. Vol. II, p. 1642):
EA “Yeh, get out of this God damn robbing business. I’ll tell you I’m so God damn sick *1046of fencing merchandise, it’s, you wouldn’t believe.”
. Telephone Conversation between Otis Hensley and Herschel Weintrub (TR. Vol. II pp. 1817, 1818):
OH No, I’m not kidding you, and to collect off anything that was taken I gotta have receipts.
HW Yeh.
OH Can you cover anything?
HW Such as what?
OH Well, say like small stuff typewriters, binoculars, anything like that?
HW Ah yea, I can ah well I don’t carry those things any more, and if you say that you bought them too long ago they would have depreciated way down.
OH Well, how long ago?
HW I really quit carrying them about four years ago. •
OH Oh.
HW But I can ah you know like a typewriter up till last year or something.
OH Yea.
HW It’s according to what make now. You’d have to tell me the make and the price. Are you gonna be home?
OH Now you mean?
HW Yea cause I’ve got to cooperate with insurance companies.
OH Well, he told me, I talked to the adjuster a while ago. He’s coming Friday. Now these people are kind of different. Now he told me to go ahead and he said anything I could come up with receipts on right off the bat he said he’d go ahead and take care of.
HW Yea
OH But he said anything else we’d have to try to make a settlement on.
HW OK, I can give you receipts from my old cash register.
OH Yeh, well .. .
HW But you’ll have to ah you know you can’t do it on a new piece of paper ah . . .
OH What I was thinking though couldn’t you just see I told him that they got my box, my filing cabinet like thing with most of my receipts and canceled checks in it. Couldn’t you just make a copy of something down there, and I don’t believe he’ll come around. I think he might just call.
. Telephone Conversation between Otis Hensley and Charles Thomas Hill, a severed defendant. TR. Vol. II p. 1443:
CTH ... so I was thinking if he wants to give $150 ...
OH For what, the Browning?
CTH Yeh, that’s worth it, isn’t it?
OH Hell, he was selling to Jay for $125, $135.
CTH Yeh, well, I think he was au ...
OH He might give it to ya for it, I don’t know.
CTH I don’t know if he can even use em. I was just thinking if see you can get that, if he, see, you can get ah, see I.eonard doesn’t need any money right now, Jimmy does and I do.
OH Well.
CTH So we can au, I’m trying to think who I knew to sell em to, you know. Maybe we can come out with more money, you know. We can still come out ahead.
OH Well, I, that one guy asked me what I’d take for the Model 10 and the Browning by theirself, but hell, that’s the two guns.
CTH Tell him, yeh, that’s a well, we have to have at least two hundred or two and a quarter, wouldn’t we?
OH Yeh.
CTH $225.
OH Those are your two best guns there.
CTH Yes, you can only figure about $40 or $50 on that 37. And the same on the other one.
OH $40 or $50 on a 37.
. Telephone conversation between Herschel Weintrub and Otis Hensley (TR. Vol. II, p. 1555). Ex. # 231.
HW “I just want to know what you could opt for em. I don’t want any profit above what you pay for it.
OH Yeh, well, anywhere from $350 to $375 probably.
HW That’s all.
OH It depends. Yeh, that’s about all I can get.
HW Even if you broke it down?
OH Well, I don’t know.
HW You know, T’s or half T’s or something.”
. Telephone conversations between Herschel Weintrub and Sam Harris (TR. Vol. Ill, pp. 3889, 2890):
SH I’m out stealin spare tires out of new cars.
HW Ha, ha, you’re doin what?
SH Yeh, you heard it.
HW Say that again.
*1047SH Rippin off spare tires on new cars.
HW Ha.
SH I try em out and take the spare.
. Telephone conversation between Sam Harris and Herschel Weintrub (TR. Vol. II, p. 2037)
SH You remember tha, ah, glue that I was using to set them stones with, it keeps, ah, vou know, like, ah, jelling up like jello.
HW Yeah.
SH Do you have any idea what might cause that?
HW No, is that what it’s doing?
SH Yeah, and, ah, you can’t get it, you know, to the mounting in time, ah, before it jells up.
The government’s interpretation of this conversation is as follows: (TR. Vol. II, pp. 2058, 2059)
The Witness: Exhibit 223-B is a call from Herschel Weintrub’s residence to the Essex House where he speaks to Commodore Perry Harrison, and it is related to the call we heard previously between Herschel Weintrub and Sam Harris where Sam Harris states that the glue he was using to set the stones kept, you know, jelling up like jello. In my opinion, what he is stating there is the people using the heroin that he has been selling are having a problem getting it to cook up properly, so they are unable to draw it from the spoon in which they cook it up into the syringe, so they are unable to inject it into their arm.”
. Government Ex. # 226, pp. 2208-2216, Vol. Ill, p. '2211:
HW Ok, now I talked to Sam, he’s got problems.
CS Oh
HW He’s got 5 customers that just left. It just won’t come through. I told him how Eddie used it and everything else and they can’t so, but I thought, have you got anything made?
CS No
HW If we gave em, not give em, sell em one
CS Ah-huh
HW Mix it with one, you follow me?
% * Hs *
p. 2210
HW Did they go up?
CS No, no nothing like that. They would only give like 1 for that.
The Government’s interpretation by their expert witness:
p. 2287.
A. Sir, there were numerous discussions prior to this call shown in Exhibit 226-E in which bad heroin was discussed, ... and later in the same conversation they discuss how much money they got for it which Carl Sutton says they got one, and in my opinion he meant one thousand, and Herschel Weintrub seemed to be upset that they didn’t get 1200.
******
A. Sam Harris still had part of that bad heroin, yes, sir. I said in my opinion that it was an ounce package to begin with that was bad. Some of it was sent to Eddie Lawwill, some of it was sent to Sam Harris, and the remainder of that package I feel was returned to the source of supply on this particular day.
. At common law, the doctrine of election of offenses prevented the trial of multiple overlapping charges too complex for the jury to understand. See Friedland, DOUBLE JEOPARDY 170-84 (1969): “The rule [requiring election of offenses] had the effect of confining the jury’s attention to a relatively simple issue.” Id. at 180.
. These are the considerations discussed in Supreme Court opinions on the subject of variance between the indictment and the proof. See Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Kotteakos v. United States, 328 U.S. 750, 769-70, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946).
. The defendants proposed a correct instruction which said:
The indictment in this case charges there was a single, overall conspiracy, by and between the various defendants and others, to conduct and to participate in an illegal racketeering enterprise that had as its goals the following specifically enumerating purposes: (1) the interstate transportation of stolen property; (2) the distribution of controlled substances; (3) the receipt of stolen property transported in interstate commerce; and (4) mail fraud.
Now it is the law that proof of several conspiracies, or even proof of a different conspiracy, is not proof of a single overall conspiracy charged in an indictment unless one of the several conspiracies is also the single conspiracy which the indictment charges. This being so, the jury must first determine whether the conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed then you must acquit all of the defendants on the conspiracy charge. However, if you are satisfied that the charged conspiracy actually existed, you must then determine who were the members of that conspiracy.
If you determine that a particular defendant' was not a member of any conspiracy, or was the member of a conspiracy other than the one charged in the indictment, then you must acquit that defendant. In other words, to find a defendant guilty, you must find that he was a member of the conspiracy charged in the indictment and not some other conspiracy.
(App. 6099 and Addendum to Reply Brief of Elkins and Carter filed September 25, 1978.)
. See Blockburger v. U. S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Gavieres v. U.S., 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911). Under the Blockburger test, a “single act may be an offense against two statutes” only if “each statute requires proof of an additional fact which the other does not.” If proof of the elements of one crime necessarily and fully proves the elements of another, the principal and constituant offenses are regarded as the “same offense” for Double Jeopardy purposes. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). See Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L.J. 962, 965-67 (1980). Because the Double Jeopardy clause “protects against multiple punishments for the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (dicta); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L.Ed. 872 (1873), only one of these offenses may be punished.
. The Blockburger test “emphasizes the elements of the [various] crimes. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). It lays two offenses side-by-side, and compares the provisions of “each statute.” Thus the Blockburger test matches the provisions of 18 U.S.C. § 2314 (interstate transportation of stolen property) with 18 U.S.C. § 1962(c) (RICO). Likewise, it compares 18 U.S.C. § 2315 (receipt of stolen property) to 18 U.S.C. § 1962(c); 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute) with 18 U.S.C. § 1962(c); 21 U.S.C. § 841(a)(1) (distribution of controlled substances) with 18 U.S.C. § 1962(c); and 18 U.S.C. § 1341 (mail fraud) with 18 U.S.C. § 1962(c). By its terms, then, the Blockburger test contemplates a particularized, statute-by-statute, offense-by-offense analysis. It does not call for a comparison of the entire alleged pattern of racketeering activity, collectively, to RICO; instead, each predicate offense is compared individually and separately to RICO in order to determine whether the RICO conviction and sentence preclude any consecutive sentencing on the constituent crimes. In this way, the Blockburger test seeks to assure that a particular crime is punished only once.
. Cf. In re Neilson, 131 U.S. 176, 95 S.Ct. 672, 33 L.Ed. 118 (1889) (conviction for crime having several elements precludes subsequent trial or additional punishment for a lesser-included offense consisting solely of one or more elements of the crime for which convicted).
. See United States v. Sutton, 605 F.2d 260 (6th Cir. 1979), for a more detailed analysis of the statute and its legislative history, as well as for a discussion of the effect at a new trial of the misjoinder of the parties in the RICO counts.
. 420 U.S. 770, 787 n. 19, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975). (RICO “seeks to prevent the infiltration of legitimate business operations”).
. RICO “has as its purpose the elimination of the infiltration of . . . legitimate organizations operating in interstate commerce,” S.Rep.No. 617, 91st Cong. 1st Sess. 76 (1969).
. RICO prohibits the “infiltration of legitimate business,” Report on Criminal Code Reform Act, S.Rep.No. 95-605, 95th Cong. 1st Sess. 767 (1977).
. H.Rep.No.1549, 91st Cong. 2nd Sess. (1970), U.S.Code Cong. & Admin.News 1970, p. 4007.
. United States v. Turkette, 632 F.2d 896 (1980).
. United States v. Anderson, 626 F.2d 1358 (1980).
. United States v. Altese, 542 F.2d 104 (2d Cir. 1976) (VanGraafiland, J., dissenting).
. United States v. Whitehead, 618 F.2d 523 (1980).
. United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979), cert. denied 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978).
. United States v. Aleman, 609 F.2d 298 (7th Cir. 1979) (Swygert, J. dissenting), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980).
. United States v. Rone, 598 F.2d 564 (9th Cir. 1979) (Ely, J. dissenting), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980).