Opinion for the Court filed by Circuit Judge MIKVA.
Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.
Opinion dissenting in part and concurring in part filed by Circuit Judge HARRY T. EDWARDS.
MIKVA, Circuit Judge:
The appellees in this case were convicted in previous trials of conspiracy to possess unregistered firearms, explosives, and false identification. Subsequently, they were indicted on charges that they aided and abetted in the bombing of several Washington buildings during 1983 and 1984. The district court determined that the double jeopardy clause of the fifth amendment barred the subsequent prosecution of the appellees because the government planned to establish the appellees’ liability for the bombings by using the same actual evidence that the government had used to convict the appellees of conspiracy in their earlier trials. Because we find no support for the use of a “same actual evidence” test in assessing whether successive prosecutions violate the double jeopardy clause, we reverse and remand. We note, however, that under established double jeopardy guidelines the government would be precluded from prosecuting the appellees for the substantive bombings charged if the sole theory of prosecution is vicarious liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
I. Background
A. The Previous Trials
Appellees Blunk and Rosenberg were arrested in Cherry Hill, New Jersey on November 29, 1984, following an investigation that culminated in the police observing Blunk and Rosenberg unload a large quantity of explosives from a U-Haul trailer into a rented public storage area. After further investigation, the government obtained indictments against Blunk and Rosenberg. After a trial in the District Court for the District of New Jersey, they were convicted on nine counts of conspiracy to possess unregistered firearms, explosives, and false identification documents, as well as several substantive counts related to the overt acts charged in the conspiracy. Rosenberg and Blunk were sentenced to 58 years in prison.
Appellee Berkman was arrested on May 23, 1985 while driving toward Doylestown, Pennsylvania. At the time of Berkman’s arrest, FBI agents searched Berkman’s car and found firearms, false identification documents, and explosives. Berkman was subsequently indicted, tried, and convicted in the District Court for the Eastern District of Pennsylvania for conspiracy to possess — and substantive possession of — the firearms, explosives, and false identification papers. Berkman was sentenced to ten years in prison and five years probation.
[1408]*1408B. The District of Columbia Indictments
The appellees were indicted in the District Court for the District of Columbia on four counts of bombing, during 1983 and 1984, the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer’s Club at the Navy Yard (the “Washington bombings”) in violation of 18 U.S.C. §§ 844(f), 2. The appellees were also listed as unindicted co-conspirators in the conspiracy to carry out the foregoing bombings in violation of 18 U.S.C. § 371. Because the government apparently has little evidence linking the three appellees directly to the bombings, it had planned to establish the appellees’ guilt of the substantive bombing charges on a theory of vicarious liability, asking the jury to infer the appellees’ guilt from their involvement in the conspiracy for which they remain unindicted. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The government did not seek an indictment for conspiracy to bomb the aforementioned buildings in this case because the appellees had already been convicted of the same conspiracy in their earlier trials. Though the conspiracy counts in the earlier trials alleged the criminal objects of the conspiracy as possession of unregistered firearms, explosives, and false identification documents, the mere substitution of different criminal objects (the bombing of the buildings) does not change the conspiracy into a separate offense distinct from the one previously tried. Such a “pile on” use of conspiracy doctrine has long been precluded under federal law. See Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942).
C. The District Court’s Decision
On April 11, 1989, Judge Harold H. Greene dismissed the District of Columbia indictments against the appellees on double jeopardy grounds. In his opinion, the district judge noted that the formal elements of the conspiracies of which the appellees had been convicted did not include the acts of bombing for which they were indicted in the District of Columbia District Court. Therefore, under his reading of the double jeopardy test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), appellees’ double jeopardy argument would fail, because the statutory definitions of the two offenses indicate that each involves proof of an element that the other does not. Nonetheless, Judge Greene rejected the government’s argument that the Blockburger test was the definitive inquiry in this case.
The district court determined that the facts of this case demanded an inquiry beyond the Blockburger “elements test” to see if the government’s prosecution would be a double jeopardy violation. Under its reading of double jeopardy caselaw, the district court concluded that the government was barred from prosecuting the ap-pellees for the substantive bombings charged in the District of Columbia indictments because the government planned to use the “same actual evidence” to prosecute the appellees in the District of Columbia that it had used to obtain the conspiracy convictions in the appellees’ earlier trials. The district court reasoned that the same factors that render successive prosecutions violative of the double jeopardy clause in lesser-included offense cases obtain in this case:
In both instances (1) the evidence in the first trial is the same as that used in the second trial, (2) the evidence is necessarily identical, for at the second trial the offenses could not be proved without use of that evidence, and (3) thus one trial involves relitigation of the other trial in full.
United States v. Whitehorn, 710 F.Supp. 803, 848 (D.D.C.1989). The court acknowledged that few cases have applied what it termed the “same actual evidence” test outside of the lesser-included offense context because of the unique factual and procedural circumstances that must converge in order for the test appropriately to be applied:
This case ... is one of those presumably rare cases in which the government prosecutes a defendant for conspiracy in successive trials and is forced to reprove [1409]*1409the conspiracy in order to establish the defendant’s guilt for aiding and abetting the substantive offense.
Id. at 850. The court specifically noted that there would be no double jeopardy problem if the government had independent, direct evidence of the appellees’ guilt of the substantive offenses charged in the second prosecution. Id. at 850 n. 161. Here, however, the court found that the government would use all of the evidence in this prosecution that it had used to prosecute the appellees in their earlier trials. The judge determined that the small amount of “new evidence” the government planned to introduce to link the appellees to the Washington bombings was either cumulative of evidence used at the earlier trials or failed to tie the appellees directly to the bombings.
II. Double JeopaRdy and Successive Prosecutions
After reviewing all of the cases cited by the district court in support of its “same actual evidence” test, we conclude that despite some admittedly ambiguous language in these opinions, neither the Supreme Court nor this circuit has ever endorsed a double jeopardy test that looks to the actual evidence presented in successive prosecutions. We likewise conclude that the district court has misread the opinions of our sister circuits addressing double jeopardy in the context of successive prosecutions. In any case, to the extent that any other circuits have suggested that the application of a “same actual evidence” test is appropriate, we decline to follow them.
A. The Supreme Court
The Supreme Court has noted repeatedly that the double jeopardy clause has three functions: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The case sub judice concerns the double jeopardy clause’s protection against successive prosecutions for the same offense. The protection against successive prosecution is rooted in the “constitutional policy of finality for the defendant’s benefit.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). The Court in Brown explained that this policy protects the accused from repeated litigation of facts underlying a prior acquittal, and from the prosecutor’s desire to secure additional punishment where the government is dissatisfied with the result of the first trial. 432 U.S. at 165-66, 97 S.Ct. at 2225 (citations omitted).
The Court has rejected claims that successive prosecutions are jeopardy-barred because of a substantial overlap in the evidence introduced to prove both offenses. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), the Supreme Court permitted successive prosecutions despite a virtual, if not complete, identity of evidence in proving the two offenses. See also Jones v. Thomas, — U.S. -, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989).
Instead of an actual evidence test, the Court has applied the Blockburger test in successive prosecution cases. In Brown, the Court explained that “[i]f two offenses are the same under [Blockburger ] for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” 432 U.S. at 166, 97 S.Ct. at 2225-26. The Court went on, however, to note that there are some circumstances in which two offenses might pass the Block-burger test but successive prosecutions would be barred because “the second prosecution requires the relitigation of factual issues already resolved by the first.” Id. at 166-67 n. 6, 97 S.Ct. at 2226 n. 6. As examples, the Court cited its decisions in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (principles of collateral estoppel in double jeopardy clause barred prosecution of the accused for robbing victims at a poker game where the accused had been acquitted at an earlier trial of robbing one of the participants [1410]*1410at the same game) and In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) (conviction of cohabitation with two wives found to bar subsequent trial on charge of adultery with one of the wives). The Court stated that the offenses charged in each of these cases would have satisfied the Block-burger test for independent crimes as each required proof of a fact that the other did not, but that the Court in each case nonetheless found that the second trial would violate the protections of the double jeopardy clause. Brown, 432 U.S. at 167 n. 6, 97 S.Ct. at 2226 n. 6.
The Court’s decision in Ashe is inapposite to the instant case, because Ashe addressed successive prosecutions following acquittal. In Nielsen, even though the statutory definitions of cohabitation and adultery each contained an element that the other did not, the Supreme Court looked to the intent behind the statute prohibiting cohabitation and construed it to include all of the elements necessary to establish adultery. Nielsen, 131 U.S. at 189, 9 S.Ct. at 676. Thus, one might read Nielsen as merely one in the line of cases which hold that the double jeopardy clause prohibits subsequent prosecution for a lesser-included offense. In any case, Nielsen does not stand for the proposition that a reviewing court should consider the “actual evidence” presented to determine whether two offenses are sufficiently distinct to merit separate trials. The Court’s decision was based upon its construction of the cohabitation statute. It determined that adultery was a lesser-included offense of cohabitation because, the Court reasoned, no one could be convicted for cohabitation without the prosecutor also proving all of the elements of adultery. The test that the Nielsen Court conducted was asking, in the abstract, what evidence would be needed for anyone to be convicted of cohabitation; it did not ask whether the actual evidence presented at Nielsen’s first trial would suffice to convict him in the second. Thus, to the extent that the district court relied upon Brown and derivatively upon Nielsen to support its “same actual evidence” test, it erred.
Some of the Court’s language in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), might be read to support the district court’s decision. In Vi-tale, a car driven by the defendant struck two small children, both of whom died within two days of the incident. The defendant was tried and convicted of failing to reduce speed in order to avoid an accident in violation of an Illinois traffic law. After the first trial, the defendant was charged with two counts of involuntary manslaughter based upon the same conduct. The Supreme Court of Illinois held that the second prosecution was barred by the double jeopardy clause because the charge of failing to reduce speed was a lesser-included offense of involuntary manslaughter. Id. at 414, 100 S.Ct. at 2264. The United States Supreme Court vacated and remanded, holding that “[i]f manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test.” Id. at 419, 100 S.Ct. at 2266. Despite this apparently clear reliance upon Blockburger, however, the Court continued:
In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vi-tale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).
Vitale, 447 U.S. at 420, 100 S.Ct. at 2267. This language might be read to endorse an inquiry into the actual evidence presented at trial like that conducted by the district court. The reference is at best ambiguous, however, and in the context of the entire opinion it would be inconsistent to conclude that the Court has advocated some kind of “same actual evidence” test for successive prosecutions. In the only subsequent Supreme Court comment on this language from Vitale, Justice Rehnquist rejected [1411]*1411reading the above-quoted language to indicate that an actual-evidence double jeopardy test should be applied to successive prosecutions. He opined that in spite of the ambiguous language quoted above, he was
reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an either “up or down” inquiry based on the evidence required to prove the statutory elements of a crime into a “substantial claim” inquiry based upon the evidence that the State introduced at trial.
Thigpen v. Roberts, 468 U.S. 27, 35-39, 104 S.Ct. 2916, 2921-23, 82 L.Ed.2d 23 (1984) (Rehnquist, J., dissenting). We can be at least as “reasonably sure” as the Chief Justice that the Supreme Court did not intend Vitale to signal an entirely new standard of double jeopardy jurisprudence.
B. D. C. Circuit
In United States v. Black, 759 F.2d 71 (D.C.Cir.1985), this court refused to grant a stay of a district court order denying the defendant’s motion to dismiss certain counts in the indictment against him on double jeopardy grounds. In Black, the defendant had been convicted in a previous trial of conspiracy to distribute controlled substances and violation of the Travel Act. He asserted that evidence to be used at his second trial to prove certain of the charges and several of the overt acts necessary to demonstrate conspiracy would be substantially the same as that used to obtain the convictions in the first trial. The defendant asked the court to focus on the actual evidence presented at the two trials, urging that the Blockburger “elements” test was inapplicable to successive prosecutions. The district court rejected the defendant’s claim. United States v. Black, 605 F.Supp. 1027, 1028 (D.D.C.1985). This court approved the district court’s reasoning in Black, noting that
[although some authority exists for the proposition that, under certain exceptional circumstances, evidence adduced at an earlier trial which is reintroduced at a subsequent trial may give rise to double jeopardy claims, see, e.g., In re Nielsen, 131 U.S. 176 [, 9 S.Ct. 672, 33 L.Ed. 118] (1889); Jordan v. Commonwealth of Virginia, 653 F.2d 870 (4th Cir.1980); United States v. Sabella, 272 F.2d 206 (2d Cir.1959), these circumstances are not present here and there is no general prohibition against evidence introduced at one criminal trial being introduced against the same defendant at a subsequent trial for a different offense.
759 F.2d at 73.
We have determined, supra, that Nielsen does not support a “same actual evidence” test. We also conclude that neither Sabella nor Jordan supports the district court’s close scrutiny of the actual evidence used to convict the appellees in their previous trials to determine if the double jeopardy clause bars their subsequent prosecution for the Washington bombings.
In Sabella, the defendants were convicted of violating 26 U.S.C. § 4705 by selling heroin without a written order. They were subsequently convicted of violating 21 U.S.C. §§ 173, 174 by selling illegally imported heroin. 272 F.2d at 207-08. The Second Circuit (Friendly, J.) held that the second prosecution was a violation of the double jeopardy clause, because the evidence required to convict the defendants on one of the indictments was sufficient to support a conviction on the other. Id. at 211. By proving the single sale of heroin, the government necessarily established a prima facie case under both indictments. Id. While he rejected applying the Block-burger “elements” test to the facts of Sa-bella because the case dealt with successive prosecutions instead of a multiple count indictment, Judge Friendly did not analyze the actual evidence presented (or to be presented) in each prosecution. Rather, he examined the relevant statutes in the abstract and, under a Nielsen analysis, determined that neither offense required proof of a significant fact not required to sustain the other. Id.
In Jordan, the defendant was convicted of the misdemeanor offense of obtaining a drug by presenting a forged prescription. In a second trial, the defendant was convicted of possessing a controlled substance. [1412]*1412Both convictions arose from the same conduct. 653 F.2d at 871-72. The Fourth Circuit began its analysis of the double jeopardy implications of the second prosecution by noting that “multiple charges that satisfy the Blockburger test so that they may properly be joined in a single prosecution may nevertheless violate double jeopardy if prosecuted successively.” Id. at 873. The court determined that “the evidence necessarily used by the government in prosecuting the earlier misdemean- or charge would totally have sufficed to sustain the later felony conviction.” Id. at 874 (emphasis added). Because the government was compelled to prove that the defendant had obtained the specific drug (defined as a controlled substance under the felony statute) in order to prove the misdemeanor charge, the Commonwealth had already proven the necessary elements of possession of a controlled substance necessary for conviction under the felony statute. Id. at 874-75. The court did not refer to the actual evidence presented at either trial. Instead, it analyzed abstractly what any prosecutor would have to demonstrate in order to convict under the relevant statutes.
The foregoing review shows that the Supreme Court has consistently held impermissible the prosecution of an individual in successive trials for two offenses where the evidence required to prove the elements of one offense necessarily suffices to prove the elements of the other. Often, merely examining the statutes defining the two offenses reveals that the elements of one offense are facially contained within the other. Occasionally, however, courts have determined that despite the facial disparity of two statutes, proving the elements of one offense necessarily establishes the elements of the other. See Nielsen, 131 U.S. at 189, 9 S.Ct. at 676; Jordan, 653 F.2d at 871-72; Sabella, 272 F.2d at 211. In none of these cases did the courts stray from an abstract examination of what must be proved in order to establish the elements of the offenses in question. Therefore, we reject the district court's “same actual evidence” test as an unsupported departure from established double jeopardy jurisprudence.
C. Pinkerton Liability
In rejecting the “same actual evidence” test, we do not disparage the district court’s efforts to avoid double jeopardy in the case sub judice. If the government prosecutes the appellees for the substantive bombing offenses solely on a Pinkerton theory of liability, with no evidence of the appellees’ guilt apart from their involvement in the conspiracy to bomb, then the double jeopardy clause precludes the subsequent prosecution. In reaching this conclusion, we do not compare the actual evidence that the government presented in the appellees’ previous conspiracy trials with the evidence it plans to offer in the substantive bombing trial. Instead, consistent with the double jeopardy guidelines outlined above, we examine in the abstract the evidence required to establish the elements of each offense. The jeopardy bar arises because despite the facial disparity of the elements required to establish the appellees’ guilt of conspiracy to possess unregistered firearms, explosives, etc. and the elements necessary to prove liability for the substantive bombings, a Pinkerton theory of liability for the bombings necessitates re-proving each element of the conspiracy of which the appellees stand convicted.
In order to establish the appellees’ vicarious liability for the Washington bombings under Pinkerton, the government must prove: (1) that the appellees were members of a conspiracy which had as one of its objects the Washington bombings; and (2) that some member of the conspiracy other than the appellees actually carried out the Washington bombings. See Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184. The government has acknowledged that the conspiracy to possess unregistered firearms, explosives, etc. — of which the appel-lees have been convicted in their earlier trials — is indivisible from the conspiracy to bomb, a necessary element of the substantive bombing offense under Pinkerton. The two conspiracies are the same under the rule of Braverman v. United States, [1413]*1413317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). Thus, the conspiracy of which the appellees have been convicted in their earlier trials is functionally a lesser-included offense of the substantive bombing offense, see United States v. Larkin, 605 F.2d 1360, 1367 (5th Cir.1979), withdrawn in part, 611 F.2d 585 (5th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980), and the subsequent prosecution is barred.
Our conclusion is in accord with the Supreme Court’s decision in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Garrett could be read to limit the scope of Brown v. Ohio, in which the Court stated clearly that the double jeopardy clause bars a prosecution where the defendant has already been convicted of a lesser-included offense of the crime charged in the second trial. See 432 U.S. at 169, 97 S.Ct. at 2227. In Garrett, the Court expressed “serious doubts” as to whether a drug importation conviction, which the judge at a second trial instructed the jury that it might consider as one of the three predicate offenses necessary to establish a Continuing Criminal Enterprise (“CCE”), constituted a lesser-included offense within the CCE charge. 471 U.S. at 787, 105 S.Ct. at 2415-16. The Court distinguished the two charges at issue in Garrett from traditional lesser-included offense cases in which both offenses arise from a single course of conduct. The Court stressed that even after Garrett had committed the first predicate offense, “it could not be said with any certainty that he would necessarily go ahead and commit the other violations required to render him liable on a CCE charge.” Id. at 788-89, 105 S.Ct. at 2416. By contrast, to establish Pinkerton liability in the case sub judice, the single action by the appellees that the government must prove is their involvement in the conspiracy to carry out the Washington bombings. The government has acknowledged that under the Braver-man bar to subdividing a conspiracy this conspiracy is inseparable from the conspiracy for which the appellees were charged and convicted in their earlier trials. Thus, by conspiring to possess unregistered firearms, explosives, and false identification papers, the appellees had done everything they had to do in order for the government to charge them with vicarious liability for the Washington bombings. It is hard to imagine a more singular course of conduct.
We emphasize that the government is not precluded from prosecuting the appel-lees for the Washington bombings on a theory of liability of aiding and abetting or on a theory of direct participation in the bombing. Nor is it precluded from using any evidence introduced at earlier trials. The existence of the conspiracy may even be used as circumstantial evidence that the appellees aided and abetted or participated in the bombings. (If the government does rely on the conspiracy as circumstantial evidence, the trial judge may, in his discretion, give an anti-Pinkerton charge, making clear to the jury that they cannot impose liability based solely on the defendants’ participation in the conspiracy.) The government is disabled only from relying on a theory of liability that requires the jury (or judge sitting without a jury) to find as a necessary ingredient the appellees’ participation in the conspiracy for which they have already been convicted.
The dissent mischaracterizes the breadth and focus of our holding. We do not challenge the proposition that a conspiracy and the object of that conspiracy may be prosecuted separately in separate trials. Indeed, we have stated directly that the government may prosecute the appellees in the case sub judice for the Washington bombings even though they have been convicted in earlier trials of a conspiracy which is indivisible from the conspiracy to bomb. The litany of caselaw that the dissent offers to prove this unobjectionable point is neither new nor directed at the narrow issue we are forced to confront in this case. We hold simply that the government may not, consistent with the Supreme Court’s teachings regarding the prosecution of greater and lesser-included offenses in successive trials, prosecute the appellees for the Washington bombings on a theory of liability that necessarily requires the [1414]*1414government to re-prove the conspiracy of which the appellees have been convicted.
The dissent purports to refute our conclusion by reference to Pinkerton, claiming that “Pinkerton itself is dispositive of the issue at hand.” Dis.Op. at 1426. Yet, a careful reading of Pinkerton reveals that it did not — and could not — have properly addressed the question posed by this case. Pinkerton involved a single prosecution. Therefore, the unique problem caused by successive prosecutions of greater and lesser-included offenses was not available for the Pinkerton Court’s consideration. Moving beyond Pinkerton to the successive prosecution context, we are forced to confront the Supreme Court’s teaching in Brown that the successive prosecution of greater and lesser-included offenses is prohibited. 432 U.S. at 169, 97 S.Ct. at 2227. We conclude that prosecuting the appellees under a Pinkerton theory of vicarious liability renders the conspiracy of which they have been convicted a lesser-included offense of the substantive bombing charged. A second prosecution on this theory is jeopardy-barred.
As noted above, much of the case-law that the dissent cites supports the proposition that a defendant may be prosecuted for a conspiracy and the object of that conspiracy in separate trials. See United States v. Bayer, 331 U.S. 532, 541-42, 67 S.Ct. 1394, 1398-99, 91 L.Ed. 1654 (1947); United States v. McCullah, 745 F.2d 350, 355 (6th Cir.1984); United States v. Kalish, 734 F.2d 194, 197-98 (5th Cir.1984), cert. denied, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 321 (1985); United States v. Brooklier, 637 F.2d 620, 624 (9th Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1514, 67 L.Ed.2d 815 (1981); United States v. Cruz, 568 F.2d 781, 782-84 (1st Cir.1978), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979). We do not object to this conclusion. To the extent that United States v. Marden, 872 F.2d 123, 125 (5th Cir.1989), supports the proposition that a defendant may be convicted of a conspiracy and then prosecuted separately for a substantive offense based solely upon proof of their involvement in that conspiracy, we decline to follow it. It is unclear whether the Marden court considered the bar to prosecuting greater and lesser-included offenses in succession, and, despite our reluctance to create a circuit split on this issue, our duty to abide by the Supreme Court’s teaching compels our decision. In United States v. Cerone, 830 F.2d 938, 944 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988), the Eighth Circuit dealt with a single prosecution, and its holding is therefore inapposite to the issue we are confronting. Likewise, in United States v. Manzella, 791 F.2d 1263, 1270 (7th Cir.1986), the Seventh Circuit reached the unsurprising conclusion that there was no jeopardy bar to re-trying a defendant based upon vicarious liability where the original conviction on this charge was vacated because of an error in jury instructions. This procedural posture renders Manzella indistinguishable from a single prosecution, and it is thus inapposite.
The dissent dismisses vicarious liability under Pinkerton as “a theory of proof —nothing more and nothing less.” Dis.Op. at 1424. This is disturbing, as is the dissent’s conclusion that the prosecution’s theory of liability does not meaningfully transform the elements of the offense from the perspective of double jeopardy. See id. at 1424-1425. The simple fact is that if the prosecution proceeds on a theory of vicarious liability in this case the only actions by the appellees that the government must prove is that they were involved in the same conspiracy of which they have been convicted. This is radically different from establishing some affirmative link to the bombings, and while it may be permissible in a single prosecution, our cognizance of the values at stake in successive prosecutions for greater and lesser-included offenses leads us to find a subsequent prosecution on a vicarious liability theory violative of double jeopardy.
D. Exceptions to Double Jeopardy
The government also claims an exception to whatever jeopardy bar might exist because it asserts that it was precluded from prosecuting the appellees in a single trial for the Washington bombings and the con[1415]*1415spiracies of which they have been convicted.
With respect to appellee Dr. Berkman, the government asserts that venue for the Washington bombings did not lie in the Eastern District of Pennsylvania because, except as provided by statute or rule, the government must prosecute a case in the district where the crime was committed. The government asserts that none of the actions that Berkman carried out in the Eastern District of Pennsylvania were in furtherance of the bombings and, therefore, the government could not prosecute Berkman for the bombings in the Philadelphia trial. Without addressing the merits of this argument, we note simply that the government could have prosecuted Berk-man for both the Washington bombings and the conspiracy charge in the District of Columbia. The Supreme Court has held that a conspiracy prosecution may be brought in any district in which some overt act in furtherance of the conspiracy was committed by any of the co-conspirators. See Hyde v. United States, 225 U.S. 347, 363-64, 32 S.Ct. 793, 800-01, 56 L.Ed. 1114 (1912). Because the government has conceded that the conspiracy of which Berk-man was convicted in Philadelphia is not severable from the larger conspiracy to carry out the Washington bombings, it follows that acts in furtherance of the conspiracy were committed in Washington. Thus, the government could have brought both charges in Washington.
The government’s argument with respect to Blunk and Rosenberg will require further inquiry by the district court on remand. The government contends that it could not have brought the substantive bombing charges against Blunk and Rosenberg in their earlier trial because the government did not possess essential evidence linking them to the Washington bombings until after they had been convicted and sentenced in New Jersey. The government thus asserts that it falls within a claimed “due diligence” exception to the double jeopardy clause alluded to in Brown, 432 U.S. at 169 n. 7, 97 S.Ct. at 2227 n. 7 (“An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.”) (citing Diaz v. United States, 223 U.S. 442, 448-49, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912)). On remand, the government must be given an opportunity to argue for the existence of this “due diligence” exception and to demonstrate that, despite the exercise of due diligence, it did not discover evidence linking the conspiracy to the Washington bombings until after Rosenberg and Blunk had been convicted in the New Jersey trial.
The government also argues that venue for the substantive bombing charges did not lie in the District of New Jersey for the same reasons that it did not lie in the Eastern District of Pennsylvania. We reject this argument for the same reasons we rejected it for appellee Berkman. As with Berkman, venue for Rosenberg and Blunk would have been proper in Washington for both the substantive bombing offenses and the conspiracy offense. The only difference is that the government might have lacked sufficient evidence to link Rosenberg and Blunk to the bombings at the time of the first trial. But that difference is only relevant to the due diligence exception issue. Venue is a wholly separate inquiry, and no venue barriers prevent the conspiracy and substantive bombing offense from being brought in a single prosecution.
E. Conclusion
The constitutional guarantee against double jeopardy has never proven as easy to administer judicially as it sounds in abstract policy terms. All can agree that a defendant ought not to be doubly tried or doubly punished for the same offense. What separates permissible prosecutions from the proscribed turns on ephemeral distinctions that give rise to numerous and difficult parsings of the term “double jeopardy.” We decline to add to the permutations by approving a “same actual evidence” test. But we and the government must adhere to the longstanding double [1416]*1416jeopardy proscription of successive prosecutions for lesser-ineluded offenses.
We reverse and remand for proceedings consistent with this opinion.