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*Miner dissent starts on page 726

Claudio Calderone and Domenico Catalano appeal on double jeopardy grounds from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, denying their motions to dismiss Indictment 89 Cr. 786 (RJW), which charges them with conspiracy to distribute heroin, use of a telephone to facilitate narcotics crimes, and possession of heroin with intent to distribute it. In a previous prosecution, Calderone and Catalano were acquitted of membership in a larger conspiracy that involved, in addition to the heroin-selling activities alleged here, the distribution of large quantities of cocaine and marijuana. We hold that the "same conduct" test that is now to be applied to double jeopardy claims arising in the context of successive prosecutions, see Grady v. Corbin, ___ U.S. ___, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), bars prosecution of all counts of the present indictment. We therefore reverse the order of the district court and remand with a direction to dismiss the indictment.


917 F.2d 717 (1990)

UNITED STATES of America, Appellee,


Claudio CALDERONE, and Domenico Catalano, a/k/a "Micu", Defendants-Appellants.

Nos. 1200, 1289, Dockets 90-1122, 90-1123.

United States Court of Appeals, Second Circuit.

Argued March 23, 1990.Decided October 24, 1990.New York Law School location: