dissenting:
I respectfully disagree with my colleagues’ conclusion that the double jeopardy rule announced in Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), operates as a bar to the prosecution of the indictment in this case.
The Grady rule forecloses a later prosecution only “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant already has been prosecuted.” Id. 110 S.Ct. at 2093. Accordingly, we are not constrained, at this early stage in the proceedings, to examine the government’s case with a view toward determining whether the government simply will prove conduct or adduce evidence that supported the earlier prosecution. Indeed, Grady re*727quires the rejection of a “same evidence” or “actual evidence” test: “[T]he presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding.” Id. 110 S.Ct. at 2093 (citations omitted).
What we are required to do here is to ascertain whether the government, in order to establish an essential element of an offense charged in the indictment at bar, intends to prove conduct for which Calder-one and Catalano already have been prosecuted. While the government in this case very well may introduce evidence of conduct presented in the previous prosecution, and while some of that conduct may even constitute one or more offenses, it appears to me that the government has no intention of presenting evidence of conduct constituting any offense “for which the defendant[s] [have] already been prosecuted.” Id. 110 S.Ct. at 2093 (emphasis added). Simply stated, the various items of conduct to be proved by the government, whether constituting offenses or not, have not been the subject of previous prosecution.
The Adamita indictment, the basis for the prior prosecution, was dismissed as to Calderone and Catalano and five other defendants at the close of the government’s case. In that indictment, twenty-eight defendants originally were charged with a wide-ranging narcotics conspiracy played out over a period of three and one-half years and implicating forty-nine unindicted co-conspirators. The conspiracy, which was international in scope, involved the importation of heroin, the distribution of heroin, cocaine and marijuana, the exchange of heroin for cocaine, and various nareotics-related crimes. Listed in the indictment were one hundred and five “overt acts,” with Calderone and Catalano named in but eight of those listed. As in the case at bar, the conspiracy was charged under the provisions of 21 U.S.C. § 846. In granting the motions of Calderone and Catalano for dismissal under the Adamita indictment, Judge Sprizzo opined that the evidence simply was insufficient to link the movants to the broadly-based conspiracy charged, although a charge of a more narrowly-based heroin conspiracy might be viable.
The conspiracy charged in the indictment at bar is the more narrowly-based heroin conspiracy suggested by Judge Sprizzo. The conspiracy alleged covers the distribution of heroin in the New York metropolitan area and spans a period of just over one year. Only Calderone and Catalano are named as conspirators. Twenty-one “overt acts” are listed in the indictment, with these defendants named in all but two. There are but three such acts carried over from the Adamita indictment: a telephone conversation between Calderone and one Alfred Spavento on June 24, 1987; a meeting of Calderone and Spavento on the same day; and a meeting of Catalano and Spavento, also held on June 24. It would seem that elimination of evidence of the conduct of the defendants on June 24, 1987 could be accomplished without any harm to the government’s case. It is not necessary to do so, however, because these items of conduct were not the subject of previous prosecution and they do not constitute offenses in any event. They are merely items of evidence that the government has chosen to set forth in both indictments under the heading, “Overt Acts.”
“In contrast to the general conspiracy statute, 18 U.S.C. § 371, which requires the performance of an overt act, no overt act need be alleged or proven as a necessary element of a conspiracy under 21 U.S.C. § 846.” United States v. Delvecchio, 816 F.2d 859, 864 (2d Cir.1987). See also United States v. Bermudez, 526 F.2d 89, 94 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). The agreement between the parties is said to be the “gist” of a narcotics conspiracy. United States v. Nusraty, 867 F.2d 759, 763 (2d Cir.1989). Of course, the requisite agreement may be established by circumstantial evidence. United States v. Cepeda, 768 F.2d 1515, 1517 (2d Cir.1985). Reasonable inferences may be drawn from the circumstantial evidence. United States v. Martino, 664 F.2d 860, 876 (2d Cir.1981). All of this is to say that the allegation and proof of “overt acts” is superfluous where defendants are charged under 21 U.S.C. § 846 *728with a conspiracy to commit drug offenses. See United States v. Quinones, 906 F.2d 924, 926 (2d Cir.1990). If an “element” of an offense is a constituent part or ingredient of the offense that must be proved to sustain a conviction, see Black’s Law Dictionary 467 (5th ed. 1979), the overt acts set out in the Adamita indictment and in the indictment at bar, in support of the conspiracies charged, do not fall within the definition. Unless one of the overlapping “overt acts” is not only an element but an “essential element” of the conspiracy charged in the Calderone indictment, the Grady double jeopardy test is not met.
Even if the overlapping “overt acts” were considered to be essential elements of each of the conspiracies, the Grady test would not be met. This is so because the conduct represented by those acts must constitute an offense previously prosecuted, in order to fit within the Grady rubric. Surely we are not prepared to say that two meetings and a telephone call constitute an offense or offenses, let alone offenses for which Calderone and Catalano were prosecuted. A meeting or a telephone call may be conduct, and may even be conduct in furtherance of a conspiracy. But a meeting or a telephone call is not conduct constituting an offense, such as driving while intoxicated or crossing the center line of a highway, as in Grady v. Corbin. Those offenses, entire in and of themselves, established essential elements — necessary constituent parts — of the homicide charges later faced by Corbin, who already had been prosecuted for the traffic violations. Here, the previous prosecution involved the greater conspiracy, an agreement among a large number of people to deal in a variety of drugs over a wide geographical area during a long period of time. The present conspiracy prosecution involves two people agreeing to deal in heroin in a limited area during a much shorter time period. Confronting us, then, are two entirely different conspiracies, and, while evidence that tends to prove the existence of one may also tend to prove the existence of the other, Grady affords no double jeopardy protection under such circumstances.
What is applicable here is the test established by this court in United States v. Korfant, 771 F.2d 660 (2d Cir.1985). The Korfant test is designed to address the merits of double jeopardy claims arising from successive conspiracy prosecutions. It requires a “totality of the circumstances” analysis, illuminated by eight factors identified “as relevant to the task of individuating conspiracies.” Id. at 662. These factors are: “(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.” Id. (citations omitted).
Applying these factors, it seems clear that the indictment before us survives the Korfant test. The crimes charged in the successive indictments are distinct, involving entirely different agreements for the distribution of narcotics. The overlap of participants and time is small — only two participants in the second indictment overlap with 77 (28 defendants and 49 unindicted co-conspirators) in the first and there is a one year out of three and one-half year overlap in time. The operations were dissimilar; one involved a variety of drugs and one was limited to heroin. As has been demonstrated, only three “overt acts” overlapped. The geographic scope of the activities described in the Adamita indictment was international, while the activities described in the Calderone indictment were local to the New York metropolitan area. Other than gaining money from illegal drug transactions, there were no common objectives, and the degree of interdependence between the two conspiracies is nil. A totality of the circumstances analysis dictates rejection of the double jeopardy claim.
If Grady does not bar prosecution of the conspiracy charged in the indictment before us (Count One), it surely does not bar prosecution of the charges of using a communication facility to facilitate heroin dis*729tribution (Counts Two through Twenty-Five) and possession of heroin with intent to distribute (Counts Twenty-Six through Twenty-Eight). Calderone and Catalano never before have been prosecuted for the conduct alleged in the “telephone” and possession counts, and no conduct for which they have been prosecuted constitutes an “element” of the offenses charged in those counts. The most that can be said in this regard is that some of the same evidence used in the prior prosecution may be used in the present one to prove the “telephone” and possession counts. Such use of evidence, it must be emphasized, does not constitute double jeopardy. See Dowling v. United States, — U.S. -, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
United States v. Russo, 906 F.2d 77 (2d Cir.1990) (per curiam), a post-Grady opinion, is not inconsistent with any of the foregoing. In that case, “[o]ne of the predicate acts alleged in the RICO prosecution was the identical obstruction of justice for which [the defendant] was later tried and convicted in the present case.” Id. at 78. The government conceded that the later prosecution “was inconsistent with the ‘conduct’ test announced in Grady.” Id. Russo is a case much different from the one at bar. There, the obstruction of justice conduct did not merely establish an essential element of the offense charged in the subsequent prosecution; it was the entire crime charged in the later indictment. Moreover, the conduct itself, obstruction of justice, was prosecuted separately and specifically as a discrete offense necessary to establish a predicate act.
Because I believe that the reading of Grady by my colleagues is far too expansive, I am compelled to dissent.