dissenting.
Because the further prosecution of the defendant would violate his rights under the double jeopardy clauses of the state and federal constitutions, I respectfully dissent.
The majority opinion does not even address Hoyle’s contention that the Double Jeopardy Clauses of the State and Federal Constitutions bar his continued prosecution. *689Therefore, I will begin by stating the relevant facts. On March 31, 1989, the State filed an amended indictment charging Hoyle with eight felonies. They were: soliciting the destruction of evidence (Count A), racketeering (Count B), misappropriation of premium funds (Counts C, D, F, G, and H), and solicitation of grand theft (Count E). In connection with the racketeering charge, the indictment also alleged 114 predicate acts, each of which would be a felony if charged separately. In addition, the State alleged that Hoyle had committed the crime of racketeering under both the “investment” theory (Idaho Code § 18-7804(a)) and the “participation” theory (Idaho Code § 18-7804(c)).
By the time the case was submitted to the jury, only two charges (soliciting the destruction of evidence and racketeering) remained, and all but thirty of the alleged predicate acts had been stricken. On June 12, 1999, the jury returned its verdict finding Hoyle not guilty of both soliciting the destruction of evidence and racketeering. After marking on the verdict that Hoyle was not guilty of racketeering under both the investment theory and the participation theory, the presiding juror wrote, “Except as to the seven predicate acts upon which we could not reach unanimous agreement.” Thus, the first question is the significance of that notation.
That notation did not in any way limit the scope or effect of the not guilty verdicts. The State did not charge the predicate acts as separate offenses, nor was the jury instructed that they were included offenses to consider if they found Hoyle not guilty of the greater charge of racketeering. Rather, the district court in this case asked the jury to determine whether the State had proven that Hoyle committed each of the thirty alleged predicate acts as elements of the racketeering charge. This was consistent with the United States Supreme Court’s construction of a federal continuing criminal enterprise (CCE) statute in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (to convict a defendant of engaging in a CCE, the juiy must unanimously and separately agree upon each of the individual violations that constitute the series of violations required for a conviction under the statute).
The jury returned a verdict of not guilty as to twenty-three of the predicate acts and indicated that it could not reach a unanimous decision as to the remaining seven predicate acts. The jury was not required to unanimously agree upon the predicate acts in order to return a verdict of not guilty on the charge of racketeering, however. If the jury unanimously concluded that the State had failed to prove one element of the racketeering charge (such as a pattern of racketeering activity), then it must return a verdict of not guilty to racketeering regardless of whether it unanimously agreed upon any other element (such as the predicate acts). To find someone not guilty, the jury need not unanimously agree that the State has failed to prove all of the elements of the crime charged. It need only unanimously agree that the State has failed to prove one of the elements of the crime. Thus, the jury could return a verdict of not guilty to racketeering even though it could not unanimously agree upon the seven predicate acts, which is what the jury did in this case. The jury was not deadlocked on the racketeering charge. It was deadlocked on seven predicate acts, which were simply elements of the racketeering charge. It was unanimous, however, that the State had failed to prove racketeering.
With respect to each of the thirty predicate acts, the verdict form asked the jury to “[cjheck the appropriate box to reflect your verdict.” For each predicate act, there was a line designated “Guilty” and a line designated “Not Guilty.” Twenty-three times the presiding juror placed a checkmark on the line designated “Not Guilty.” With respect to the seven predicate acts upon which the jury could not agree, the presiding juror did not make any marks on the designated lines. Rather, seven times he wrote “NO AGMT” in the margin to the right of those lines. With respect to the racketeering charge, the verdict form directed the jury as follows:
Considering your answers to the foregoing questions under the heading “Count B”, and considering all the other required elements of the crime of racketeering, you must decide whether the state proved or *690failed to prove beyond a reasonable doubt that the defendant committed the crime of racketeering under the “investment” theory and the “participation” theory.
The questions under the heading “Count B” had two parts. The first part was the question, “Did the defendant commit at least two incident [sic] of racketeering conduct?” The presiding juror checked the line marked “No” and added, “Except as to the seven predicate acts upon which we could not reach unanimous agreement.” The second part consisted of the jury’s answers to whether the State had proven each of the thirty predicate acts. When returning a verdict on racketeering, the jury was instructed to consider its answers regarding the predicate acts and “all the other required elements of the crime of racketeering.” After considering its answers to the questions regarding the predicate acts and “all the other required elements of the crime of racketeering,” the jury returned a verdict of not guilty to racketeering. The presiding juror marked the verdict form “Not Guilty” with respect to racketeering under the investment theory and “Not Guilty” with respect to racketeering under the participation theory. The presiding juror then wrote at the bottom of the verdict form, “Except as to the seven predicate acts upon which we could not reach unanimous agreement.” If the jury was hung on the charge of racketeering, there is no logical reason to believe the presiding juror would have twice marked “Not Guilty” with respect to that charge. He had seven times written “NO AGMT” next to the predicate acts upon which the jury could not agree. Because the jury found Hoyle not guilty of the only crimes with which he was charged, that should have ended this case. It did not, however.
The district court declared a mistrial as to the racketeering charge. Even though the jury had found Hoyle not guilty of racketeering, the district court ordered a new trial on that charge, but limited the State to alleging the seven predicate acts upon which the jury could not unanimously agree. The district court’s action was clear error, even if the verdict could be construed as being ambiguous. One interpretation of the verdict is that the jury found Hoyle not guilty of racketeering, but simply could not agree upon all of the predicate acts charged. The presiding juror wrote the notation “except as to the seven predicate acts upon which we could not reach unanimous agreement” simply because the jury was not sure of the significance of the lack of unanimous agreement on all predicate acts. Another possible interpretation is that the notation somehow qualified the verdict of not guilty of racketeering. The jury was not asked to clarify the meaning of the notation. It is sufficient, however, that the verdict could have been based upon a finding that the State had failed to prove one essential element of racketeering (such as a pattern of racketeering activity). In that circumstance, the jury would be required to return a not guilty verdict to racketeering even if it could not unanimously agree upon all of the alleged predicate acts. Therefore, the verdict must be construed as a not guilty verdict on the racketeering charge. As this Court stated in State v. Lewis, 96 Idaho 743, 750, 536 P.2d 738, 745 (1975), when addressing whether the erroneous dismissal of a rape charge by the trial court prevented a retrial of that charge, “It is unclear upon what basis the rape charges were dismissed, whether they were dismissed upon an erroneous evaluation of the evidence or upon an erroneous interpretation of the law, but because the dismissals might have been based upon a factual determination favorable to the defendants they cannot be retried upon the rape charges.” Likewise, in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the federal district court, sitting as the trier of fact, dismissed an indictment and discharged the defendant, but it was unclear whether the court did so based upon the government’s failure of proof or upon the resolution of a legal question in favor of the defendant. The United States Supreme Court held that the government could not appeal the dismissal because where the dismissal could have been based upon the resolution of factual issues against the government, the Double Jeopardy Clause barred further proceedings.
The racketeering charge against Hoyle was not retried, however. The State obtained a new indictment against him charg*691ing as individual felonies five of the seven predicate acts upon which the jury could not reach an agreement. After the State informed the district court that it intended to proceed with the new indictment and would not retry the racketeering charge in this case, the district court dismissed this case.
The issue is whether the State can pursue a second prosecution for lesser included offenses (predicate acts) that the State alleged were a means by which Hoyle committed racketeering but did not separately charge as criminal offenses in the first prosecution. The Double Jeopardy Clause protects against three abuses of prosecutorial power: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Talavera, 127 Idaho 700, 905 P.2d 633 (1995). This case presents an instance of the first abuse — a second prosecution for the same offense after acquittal.
The double jeopardy clause in the Idaho Constitution does not provide greater protection against double jeopardy than its federal counterpart. Berglund v. Potlatch Corp., 129 Idaho 752, 932 P.2d 875 (1996); State v. Reichenberg, 128 Idaho 452, 915 P.2d 14 (1996). To determine whether the second prosecution is for the same offense, the United States Supreme Court applies what has become known as the Blockburger test. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). That test, from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), is:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....
“This test emphasizes the elements of the two crimes.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977). A greater offense and a lesser included offense are, by definition, the “same” for purposes of double jeopardy. “As is invariably true of a greater and lesser included offense, the lesser offense ... requires no proof beyond that which is required for conviction of the greater____ The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Id. at 168, 97 S.Ct. at 2226-27, 53 L.Ed.2d at 195-96. The Double Jeopardy Clause forbids successive prosecution for a greater offense and a lesser included offense, regardless of the sequence of the prosecutions. “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Id. at 169, 97 S.Ct. at 2227, 53 L.Ed.2d at 196. Under the Blockburger test, the five felonies with which Hoyle is charged in the new case are the same offense for which he was acquitted.
The predicate acts upon which the jury could not reach an agreement alleged commission of the crimes of grand theft and insurance fraud. The statutory definition of racketeering requires the commission of acts that are chargeable under any of certain criminal code sections, including grand theft and insurance fraud. Idaho Code § 18-7803(2) & (10). Applying the Blockburger test, each of the alleged predicate acts is the same for double jeopardy purposes as the racketeering charge because the predicate acts do not require proof of any fact not necessary to the racketeering charge. As the United States Supreme Court recognized with respect to predicate offenses required for a conviction under a federal CCE statute, “[A]pplying the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), each of the predicate offenses is the ‘same’ for double jeopardy purposes as the CCE offense because the predicate offense does not require proof of any fact not necessary to the CCE offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764, 771 (1985).
The State argues that the United States Supreme Court has held that the Double Jeopardy Clause does not apply to CCE offenses, such as racketeering. That argument is incorrect. In Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 *692(1996), the Court held that a continuing criminal enterprise in violation of 21 U.S.C. § 848 and a conspiracy under 21 U.S.C. § 846 based on the same agreements were the same offense under the Blockburger test, that the conspiracy charge was a lesser included offense of the CCE charge, and that the defendant could therefore not be punished for both offenses. In Garrett v. United, States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), however, the United States Supreme Court made an exception for CCE offenses under the Double Jeopardy Clause.
In Garrett, the defendant pled guilty to one count of importing marijuana for his role in the off-loading and landing of approximately 12,000 pounds of marijuana from a “mother ship” at Neah Bay, Washington. He was sentenced to five years’ imprisonment and a $15,000 fine. Approximately two months after his guilty plea, he was charged in Florida with engaging in a CCE. The jury convicted him on the CCE charge, and the evidence offered by the government during his trial to show the required three predicate offenses included evidence regarding the charge to which he had pled guilty in Washington. He appealed, alleging that the CCE prosecution in Florida violated his rights under the Double Jeopardy Clause because of his earlier conviction for the Washington offense. The Supreme Court rejected his argument, based upon Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), in which the Court rejected a claim of double jeopardy where the defendant had been prosecuted for assault and battery and, when the victim later died, was then prosecuted for homicide. The Court in Garrett reasoned, “In the present case, as in Diaz, the continuing criminal enterprise charged against Garrett in Florida had not been completed at the time that he was indicted in Washington. The latter event took place in March 1981, whereas the continuing criminal enterprise charged in the Florida indictment and found by the trial jury extended from January 1976 to July 1981.” 471 U.S. at 791, 105 S.Ct. at 2418, 85 L.Ed.2d at 779. The Court also noted, “Whenever it was during the 5 1/2-year period alleged in the indictment that Garrett committed the first of the three predicate offenses required to form the basis for a CCE prosecution, it could not then have been said with any certainty that he would necessarily go ahead and commit the other violations required to render him liable on a CCE charge.” 471 U.S. at 788-89, 105 S.Ct. at 2416, 85 L.Ed.2d at 778. The Court concluded, ‘We think this evidence not only permits but requires the conclusion that the CCE charged in Florida, alleged to have begun in January 1976, and continued up to mid-July 1981, was under Diaz a different offense from that charged in the Washington indictment.” 471 U.S. at 792, 105 S.Ct. at 2418, 85 L.Ed.2d at 780.
The rationale in Garrett does not apply, however, when the greater offense is prosecuted first and the alleged predicate acts are prosecuted later. All of the alleged predicate acts had occurred and were known to the State when it initiated the racketeering prosecution. They were all alleged as the means by which Hoyle committed the crime of racketeering. Thus, they were not events that occurred after the continuing criminal enterprise had ended. The State could have charged them as separate offenses, or it could have requested that the jury consider them as included offenses if it found Hoyle not guilty of racketeering. Instead, the State made the tactical decision to charge only the greater offense, possibly in the belief that the jury may be more likely to convict of racketeering if they were not given the choice of any lesser included offenses. When that strategy failed, the State now wants to prosecute Hoyle for what are lesser included offenses. Particularly apt to this situation are the words of the United States Supreme Court in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957):
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possi*693bility that even though innocent he may be found guilty.
The continued prosecution of Hoyle would violate the Double Jeopardy Clauses of the United States and Idaho Constitutions.
Justice BURDICK concurs.