dissenting:
I depart from the majority on its double jeopardy analysis. I believe the Double Jeopardy Clause was violated by the second prosecution of Huffman for the same act of theft he was charged with in the earlier trial.
Theft is normally a target of state criminal law. However, since it was the federal government that wished to prosecute Huffman, it had to find some basis of jurisdiction. It elected to charge that government property was stolen in violation of 18 U.S.C. § 641 (1976). When the government admitted it could not prove the requisite jurisdictional fact, the defendant was acquitted.1 A second prosecution was then brought for the same theft, this time on the basis that the theft was from an interstate shipment in violation of 18 U.S.C. § 659 (1976). The interstate character of the shipment was known, of course, from the beginning. This time Huffman was convicted. Except for federal jurisdictional elements, there was no difference between the first prosecution, which resulted in an acquittal, and the one ultimately resulting in his conviction. Both prosecutions sought to convict him for the same act of theft.
I believe that meaningful double jeopardy protections are infringed by successive prosecutions for the same act, particularly when the additional element of an “offense” is merely a jurisdictional basis for prosecution and not a substantive fact in the evil whose prevention is sought.
*559Whether a defendant is guilty or not, the Double Jeopardy Clause is aimed at preventing what amounts to either harassment or wearing a defendant down.2 In my view, affirmance in this case invites just such actions on the part of the government.
The majority reaches the result it does by relying on the “same evidence” test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 40, 76 L.Ed. 520 (1932). In my opinion, the Blockburger analysis is not always adequate to protect defendants from the abuses the Double Jeopardy Clause is intended to bar. The present case illustrates at least one of its deficiencies. Even if the two “offenses” involved in this case can be considered separate under Blockburger, the prejudice to the defendant involved in successive prosecutions for exactly the same act could have been avoided had both “crimes” been charged in the initial prosecution. In this regard I believe that the “same transaction” analysis recommended by Justice Brennan would be a preferred approach. See Ashe v. Swenson, 397 U.S. 436, 448-60, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring).3 Except in rare circumstances, all the charges against a defendant that grow out of a single act should be brought in a single proceeding. Id. at 453-54, 90 S.Ct. 1189.
. The prosecution was not terminated until after a jury had been empanelled and sworn. The majority acknowledges that this constituted an acquittal. For purposes of double jeopardy analysis, jeopardy had attached.
. In this case the defendant was required to make separate trips from California to Utah to defend himself against separate prosecutions for the same act. The delay between his arrest and the beginning of the second trial was about 25 months in duration. The repose that acquittal should have entitled the defendant to, and which the Double Jeopardy Clause was designed to ensure, was abrogated by the second prosecution.
. Justice Brennan recently reasserted his position on this issue in his concurring opinion in Brown v. Ohio, 432 U.S. 161, 170, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).