dissenting:
The conflicting decisions resulting from the fortuity that this case and United States v. Cassity, No. 79—1077 (10th Cir. Jan. 31, 1980) were separated and assigned to separate panels on appeal dramatize the need for this court to develop a clearer and more consistent set of doctrines and governing principles to be applied to conspiracy eases. It also emphasizes the need for a reexamination of the propensity of the entire federal appellate system to treat the Double Jeopardy Clause with less openhandedness than is applied to the balance of the Bill of Rights. The potential for abuse is too great to give this admittedly difficult task anything less than highest priority. The dangers include the potential that the developing conspiracy doctrine will lead to inexcusable violations of the spirit of the Double Jeopardy Clause and wholesale circumvention of constitutional guarantees and time-tested principles of evidentiary fairness. We have before us the anomaly of opposite results in cases involving the same charges against the same parties based on a single set of factual circumstances. The factual differences emphasized in each case are without legal significance. Whether this be one “chain conspiracy” or one “plain conspiracy” on the one hand, or a series of separate conspiracies on the other hand, the fact remains that Cassity, like McMurray and Whiting, was at the hub of the alleged conspiracy. We cannot by any theory justify a holding that there is one conspiracy as to Cassity and several conspiracies as to the other hub conspirators.
As a matter of abstract precedent analysis, I believe that the majority in this case has the best of it in the application of our existing conspiracy doctrines to the facts which lie at the bottom of both of these cases. However, I concur in the conclusion in Cassity that a second prosecution of these defendants violates any reasonable construction of the Double Jeopardy Clause. When the conscientious members of this court have so much difficulty in determining when prior conspiracy convictions or acquittals bar additional trials, it strengthens my fears that the current conspiracy doctrine threatens the rights sought to be protected by the Double Jeopardy Clause, the Confrontation Clause, the hearsay rules, prohibitions against guilt by association, and other respected doctrines of fairness.
I believe that this second prosecution violates the Double Jeopardy Clause simply because the prosecution has used the same set of facts to wear out, grind down and keep after these defendants. In any event, I believe we ought to endorse clearly and unequivocally the proposition that whenever the double jeopardy question is fairly debatable, it ought to be resolved in favor of the application of the Double Jeopardy Clause. These two cases are prime and compelling targets for the application of that doctrine.