(concurring). I concur in the result on the basis that the prosecution has not challenged that the “same act” is the basis of both the federal conviction and the state charge1 and has not addressed the applicability of MCL 333.7409; MSA 14.15(7409).2
*253Alternatively, I would join in a remand for further argument and consideration in light of the Supreme Court's decision in People v Mezy, 453 Mich 269; 551 NW2d 389 (1996).
At the trial level, defendant’s motion sought dismissal on constitutional double jeopardy grounds and based on MCL 333.7409; MSA 14.15(7409). The prosecution responded to the double jeopardy argument on the merits, asserting that successive prosecutions by dual sovereigns for the same act do not violate the Double Jeopardy Clause and addressing the factors enunciated in People v Cooper, 398 Mich 450; 247 NW2d 866 (1976).
During argument on the motion, defense counsel asserted that the prosecutor did not contest that the same act was involved. The prosecutor did not disagree and responded by emphasizing the points made in her brief— that the federal government had not vindicated Michigan’s interests in the instant case, that conspiracy and the underlying offense are two distinct crimes, and that in Michigan a defendant can be convicted of both. In rendering its decision, the court stated “[a]nd I think the people have conceded that it arises out of the same criminal act.” The prosecution did not take issue with that statement at the trial level and does not challenge it on appeal.
Although defendant asserted the applicability of the statute in his motion to dismiss in the trial court and argued the statute affords greater protection than the Double Jeopardy Clause, the prosecution did not *253address the statute as an independent ground for dismissal. The prosecution stated:
First, I would just argue that statute 333.7409 has been determined as simply a codification in the Public Health Code of the double jeopardy portion of the Constitution. I would argue that it provides no greater or no lesser protections with regard to drug cases than the Constitution provides in any other case. I believe the legislature simply codified that section in the drug laws when it created the mandatory penalty sections just to be making sure that and reasserting the fact that double jeopardy protections apply to violations of the Public Health Code in this case.
Similarly, the prosecution’s only references to the statute in its brief on appeal are a statement that the Legislature codified double jeopardy principles in the statute and a statement in a footnote referring to the Court of Appeals’ decision in People v Mezy, 208 Mich App 545; 528 NW2d 783 (1995), pointing out that conspiracy and the underlying offense are separately punishable offenses.
Although defendant has always asserted the statute as a separate basis for dismissal, and the Supreme Court held in Mezy, 453 Mich 269, 282 (Weaver, J.), 289 (Levin, J.); 551 NW2d 389 (1996), that the statute is not simply a codification of Cooper and is a complete bar to dual prosecution, the prosecution failed to file a supplemental brief in this Court addressing the application of the statute or the Supreme Court’s decision in Mezy, either before this Court’s initial decision, or after remand for plenary consideration and argument. Further, the prosecutor waived oral argument on remand to this Court.