dissenting:
The offense of conspiracy lies in the agreement alone. United States v. Alvarez, 610 F.2d 1250 (5th Cir. 1980); United States v. Suarez, 608 F.2d 584 (5th Cir. 1979); see United States v. Falcone, 109 F.2d 579 (2d Cir.), aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). It “is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616, 622 (1975); accord, United States v. Conroy, 589 F.2d 1258, 1269 (5th Cir.), cert. denied, - U.S. -, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).
As the majority opinion makes clear, the defendants were charged with entering into only one agreement, and only one agreement was proved; that agreement had two objectives, importing marijuana and distributing it.1 Though the charge described overt acts, it was unnecessary for the prosecution to charge or to prove any act in furtherance of the conspiracy (majority opinion, n. 37 supra) and, therefore, according to the majority’s opinion, the single agreement itself constituted two crimes, punishable twice, the instant there was assent, whether express or by wink or handshake, and whether or not anything further was ever done to accomplish the illicit bargain. For that one agreement the defendants were charged with violating two separate provisions enacted by a single law, convicted of violating both and sentenced to separate and consecutive sentences.
I respectfully disagree with what seems to me to be both an erroneous conjecture of the unarticulated purpose behind enactment of the statute and a failure to grant the defendants the protection of the double jeopardy clause.2
*926Each of the sections of the law which the defendants were convicted of violating, 21 U.S.C. §§ 846 and 963, prohibits a conspiracy to violate any provision of the Title in which it is contained. Each is contained in a different Title of a single law, the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91 — 513, 84 Stat. 1236. Each manifests an intention by Congress, in dealing with illegal traffic in drugs, to strike against group activity in drug traffic. Ordinarily, a single section forbidding any conspiracy to violate substantive provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 would have sufficed to address the problem. However, because the responsibility for drafting the importation and distribution provisions in the Act was divided between two congressional committees, each committee was careful to ensure that a conspiracy to violate the ■ provisions it drafted was made illegal. From this accident of legislative development of the statute and Congress’s failure in reviewing the work of its two committees to consolidate the twin conspiracy provisions that resulted, my brethren now conclude by a grudging reading of Supreme Court precedent that a single conspiracy to violate the provisions of the Act can be punished twice.
They reach this troubling result by saying that the conspiracy sections of the statute proscribe “acts of thought and agreement.” Majority opinion, slip op. p. 911 supra (Emphasis supplied). Leaving aside the patently dubious proposition that “acts of thought” may ever be made criminal, calling an agreement an act may accommodate our customary taxonomy but it does not alter the nature of the offense. What is proscribed by criminalization of conspiracy is the purely consensual compact to engage in a crime. One illegal agreement must be distinguished, as the Supreme Court has told us, “from a single act which violates two statutes.” Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23, 28 (1942).
My brethren acknowledge the authority of Braverman but make an effort to distinguish it, saying that it limits only “the Government’s ability to fragment a single conspiracy under the general conspiracy statute.” Majority opinion, n. 16 supra (their emphasis). This is not an adequate basis for reaching a different result from the one determined in Braverman. Here there was but one conspiracy regardless whether it is declared illegal by what my brethren consider two discrete laws, 21 U.S.C. §§ 846 and 963, or by one law, former 18 U.S.C. § 88, considered in Braverman. Cf. Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 964— 966 (1959); W. LaFave & A. Scott, Handbook on Criminal Law § 62, at 479 — 180 (1972). Moreover, I submit that the provisions we here consider are in fact but two parts of one law, Pub.L. No. 91-513 (1970), although that enactment was divided into multiple sections. However, whether there was one statute or two, there was one agreement and, as the court said in Braverman : “[t]he one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” 317 U.S. at 53, 63 S.Ct. at 102, 87 L.Ed. at 28. I see little difference between fragmenting a conspiracy according to the number and diversity of its objectives in order to charge several violations of a single statute, and using the same technique to charge violations of two statutory provisions. The teaching of Braverman is that a conspiracy cannot be so fragmented.
*927If, as the majority finds, Braverman is limited to the interpretation of one statute, the general conspiracy statute, and its rule is to be distinguished from the interpretation of two separate sections of a law enacted by a single vote of Congress, nothing in it tells us so. If Congress in the Comprehensive Drug Abuse Prevention and Control Act of 1970, intended to adopt a different policy from the purpose that the Supreme Court had found in- the statute construed in Braverman, it failed to say so in the statute and nothing in the legislative history, so extensively examined by the majority, supports the view that Congress merely failed to articulate its intention. Both statute and congressional proceedings are simply silent. If, in this instance, silence speaks louder than words, what it says is that we should not consider it eloquent of a purpose to change.
That Congress intended to punish severely those involved in the drug trade is evident. It demonstrated this intention not only by enacting the drug control law but by the penalties permitted in that law. That Congress made criminal both a conspiracy to import a controlled substance and a conspiracy to distribute it is patent. Finally, it is clear that Congress intended to permit separate punishments for the substantive acts of importation and distribution of controlled substances (incorrectly, I suggest, referred to by the majority as “the substantive act of importation and distribution,” majority opinion, slip op. p. 917 supra (emphasis changed), for one can hardly import and distribute by a single act).
However, those premises do not lead to the conclusion that, therefore, Congress intended to permit one agreement to be prosecuted under two sections of the same law and punished by two consecutive sentences. Cf. Jeffers v. United States, 432 U.S. 137, 156 n. 26, 97 S.Ct. 2207, 2219 n. 26, 53 L.Ed.2d 168, 184 n. 26 (1977) (Congress’s intent to punish severely in drug cases does not conclusively determine that it intended cumulative penalties). As the majority cautiously observes, Congress is a body of lawyers. As such it can be expected, indeed presumed, to be aware that a conspiracy statute outlaws the agreement itself, and not to intend, by a division of drafting responsibility, to permit courts to punish a single agreement twice. The majority’s conclusion, I respectfully submit, is not supported by any express statutory provision or by legislative history and is “based on no more than a guess as to what Congress intended,” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199, 205 (1958).
Of course, if there are two separate and distinct conspiratorial agreements, then there are two crimes. This was the situation in American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Although the opinion in that case does not tell us whether the theory of the prosecution was that there were two agreements or merely one, the instructions to the jury, published in ABA Section of Antitrust Law Jury Instructions in Criminal Antitrust Cases 180-81, (1965), make it clear that two separate conspiracies were charged.3 This is the basis for the Court’s statement in the American Tobacco opinion that the convictions for conspiracy to monopolize and conspiracy in restraint of trade required “proof of conspiracies which are reciprocally distinguishable from and independent of each other although the objects of the conspiracies may partially overlap.” 328 U.S. at 788, 66 S.Ct. at 1129, 90 L.Ed. at 1582 (emphasis supplied). No such showing was made in this case.
*928My brethren fully sum up the divergent results reached by the other circuit courts. All of these courts agree, however, that Congress has the power to enact overlapping statutes and that defendants can be prosecuted and convicted under each simultaneously, for it might be difficult or impossible for the grand jury definitely to determine in advance which set of laws the conspiracy would violate if proved. Accepting this, the final question is the one here presented; I believe the sounder view of statutory construction is that, if the defendants are convicted of violating both provisions by a single agreement, they can be sentenced only once, whether tried in a single or separate trial.
In interpreting statutes making criminal such essentially preparatory conduct as conspiracy, we must balance interests, weighing both the threat created by intrigue to violate the law and the consideration that the legislature has outlawed a simple concert of minds and words. The implications of making not one but two crimes out of a purely verbal agreement, and, indeed, of what my brethren even embrace as the parties’ “thoughts,” ought to be considered in evaluating congressional intent and in reading the fifth amendment.
Because the interpretation of the two sections to permit the imposition of two sentences for one agreement would raise serious constitutional questions concerning double jeopardy, and because it is not clear either from the statute or its history that Congress intended this result (as distinguished from a general purpose of punishing severely those engaged in drug trade and attempting to control that trade), I would resolve this case by construing the statute so as to avoid the constitutional issue. See Simpson v. United States, 435 U.S. 6, 11-13, 98 S.Ct. 909, 912-913, 55 L.Ed.2d 70, 76-77 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168, 182 (1977).
However, if we accept the construction adopted by the majority and conclude that Congress intended to permit one agreement to be punished by the court as two crimes, we must consider whether this result was forbidden by the double jeopardy clause of the sixth amendment.
While the “core concern” of the double jeopardy clause is to protect against successive trials, the present Supreme Court, like its predecessors, considers it also to prohibit multiple punishment for the same offense. “The Double Jeopardy Clause,” the Court observed in Simpson v. United States, 435 U.S. 6, 11 n. 5, 98 S.Ct. 909, 912 n. 5, 55 L.Ed.2d 70, 76 n. 5 (1978), “‘protects against multiple punishment for the same offense,’ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), and prohibits multiple prosecutions for the ‘same offense,’ Jeffers v. United States, 432 U.S. 137, 150-151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977).” (Emphasis supplied.) If that were doubtful, we could turn to the even more detailed but no less explicit language in North Carolina v. Pearce, 395 U.S. 711, 716, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664 (1969), quoted in the footnote.4
This is no new doctrine. It was announced when Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872, was decided in 1874: [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.” 85 U.S. at 173, 21 L.Ed. at 878.
*929None of these cases considered factual situations identical to the one before us. Yet they and the host of other double jeopardy decisions reviewed by my brethren rest on the thesis that two punishments for one offense violate the double jeopardy clause. A fundamental provision of the Bill of Rights should not be applied narrowly as a result of a fastidious effort to distinguish each possible precedent.5
The majority opinion concludes, “[T]he Double Jeopardy Clause imposes no limits on Congress’s power to define the allowable unit of prosecution and punishment, at least so long as all charges are brought in a single proceeding.” P. 924 supra (emphasis supplied). I take it that they would add that the double jeopardy clause does not limit the power of the courts to impose separate punishments for all charges brought in a single proceeding. This is the crux of our difference. I submit that, however difficult it may be to define “units of prosecution,” if the crime is conspiracy and there is but one agreement, there can be but one punishment even though there may be multiple charges; the imposition of two sentences is double jeopardy.
In this respect the analogy between a conspiracy and a substantive crime is misleading. Conspiracy, like attempt, stigmatizes a nascent offense. Alvarez v. United States, 610 F.2d 1250 (5th Cir. 1980). A single act may constitute two offenses if it violates two substantive statutes. This may be the result if the act has two separate consequences, and each consequence of the act completes a different crime. If a defendant kills two persons by one gun shot, the offense of homicide is not completed merely by pulling the trigger; it is the act of shooting the gun and the resultant death that together constitute homicide. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), (involving the violation of several substantive statutes by one act of sale). An act may also be a course of conduct, each separate facet of which may be a crime.
We need not at this time explore all of the difficult and, to some extent, still unresolved problems of whether and to what extent the double jeopardy clause acts as a restraint on the power of Congress to define what is the criminal conduct punished and to divide a single act or course of activity into fragments or units of punishment, each labelled a separate crime, provided only that Congress do so with sufficient clarity and demonstrated purpose. We here consider only conspiracies, that is, agreements. Agreements are not acts. Even if a single agreement has more than one unlawful objective it does not truly constitute more than one conspiracy; it is the agreement per se that is illegal in a conspiracy and indeed, is coextensive with it.6
*930If Congress wished to increase the permissible penalty for conspiracy to import marijuana from five years to 15 years, or to impose any other penalty short of one forbidden as cruel and unusual punishment, it might do so.7 If it wished to increase the penalty for a conspiracy to distribute, it might do so. What it cannot do is legislatively to give a court power to punish doubly for a single violation of the law.
All law, but particularly the criminal law, is and ought to be founded in good sense. Its intricacies ought at least to be explicable. The majority opinion almost recognizes explicitly that, if the government had chosen to prosecute the defendants for conspiracy to import and then separately for conspiracy to distribute, this would violate the Constitution. They pause on the brink of going quite that far by a “cautionary admonition” to the government, suggesting that it “would be well-advised to bring all of its charges (relating to a single conspiracy) in a single proceeding,” majority opinion p. 925 supra.
Why there would be double jeopardy if the same court were to impose two sentences after two trials and not if it were to impose two sentences after one is difficult to comprehend. To conclude that the double jeopardy clause protects one agreement from successive prosecutions but that, if the government elects to prosecute that same agreement under two separate counts in a single case, the judge can impose a double sentence appears to me to offend the logic that should govern constitutional interpretation. It is no easier to characterize the two crimes here charged as the “same offense” under the fifth amendment for prosecution than it is for punishment. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978).
Even in construing laws designed to protect our shores against importers of a noxious weed, we must apply proper standards of statutory interpretation and fundamental constitutional principles or we are in jeopardy of succumbing to the temptation of making the punishment fit what we believe to be the crime.
. The offense of conspiracy to distribute was inferred from the quantity of marijuana involved in the conspiracy to import.
. Although I follow the lead of my brethren by separately discussing congressional intent and the double jeopardy issue in this case, I believe an overly sharp distinction may depreciate the significance of the double jeopardy clause in matters of statutory interpretation. If the clause has any effect on the decision whether *926to cumulatively punish behavior that may violate two statutory sections, at the least it demands that the rules of statutory interpretation should be weighed most favorably to a defendant in determining what Congress intended. Cf. Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). See generally Westen & Dru-bel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 106-24. I think by their sharp distinction between statutory interpretation and the force of the double jeopardy clause, my brethren fail to give it even this minimal effect. This is particularly distressing since our very discretion to interpret statutes to permit double punishment is one of the exercises of power the double jeopardy clause seeks to restrain. See Brown v. Ohio, 431 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193 (1977).
. The Supreme Court also reads American Tobacco to allow cumulative punishment only of two separate conspiracies. In Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 2184, n. 33, 57 L.Ed.2d 43, 60 n. 33 (1978), considering a conviction for the substantive crime of conducting an illegal gambling business, it said, “If two different gambling businesses were alleged and proven, separate convictions and punishments would be proper” (emphasis in original) (citing American Tobacco ), and characterized American Tobacco as “holding Brav-erman inapplicable where two distinct conspiracies [are] alleged.” It continued, “It is not always easy to ascertain whether one or more gambling businesses have been proven under [18 U.S.C.] § 1955. ... No such difficulties are presented here because both sides agree that only a single gambling business existed.” Id. (emphasis supplied).
. “The Court has held today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 & n. 11, 89 S.Ct. 2072, 2076 & n. 11, 23 L.Ed.2d 656, 664 (1969) (emphasis supplied, footnotes omitted) (citing Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354; United States v. Sacco, 2 Cir., 367 F.2d 368; United States v. Adams, 6 Cir., 362 F.2d 210; Kennedy v. United States, 9 Cir., 330 F.2d 26).
. The labor my brethren take to distinguish Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), and Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), seems to me ill-spent. Ian-nelli turns only on statutory construction, and Jeffers, a successive prosecution case, likewise dealt solely with statutory construction. Jef-fers fairly read, I submit, does not “[teach] that the analysis of reprosecution following conviction on similar charges or following acquittal is entirely separate from that of cumulative punishments, rendered in a single proceeding,” majority opinion, pp. 923-924 supra (footnote omitted). Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) does put emphasis on statutory construction, but it later makes clear that there is double jeopardy if a person is punished for “different descriptions of the same offense” and not for each of several separate offenses. Id. at 392, 78 S.Ct. at 1284, 2 L.Ed.2d at 1410.
. Of course, the difficulties inherent in saying any physical act cannot be divided into more than one offense are well-known. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Westen & Drubel, supra, note 2. But it requires a metaphysician or a neuropsychologist to find the same difficulty with “acts of thought.” I believe this is a proper case to conclude that a single, simple agreement cannot be fragmented into multiple crimes by Congress or the courts. Although the Supreme Court has never directly addressed the limits “imposed by the Double Jeopardy Clause on the legislative power to define offenses,” Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43, 57 (1978), neither has it concluded, as the majority appears to, that there are no such limits.
. The terms of imprisonment for the three defendants who received consecutive sentences on the conspiracy counts each exceeded the statutory maximum for either conspiracy to import marijuana or conspiracy to distribute. Rodriguez was sentenced to imprisonment for four and one-half years on each count, the sentences to be served consecutively. Alber-naz was sentenced to imprisonment for three and one-half years (42 months) on each count, the sentences to be served consecutively. Smi-gowski was sentenced to imprisonment for three years on each count, the sentences to be served consecutively. Martins was sentenced to three years on each count, the sentences to be served concurrently.