in issue. If the defendant presents a non-frivolous showing of double jeopardy, he is entitled to a pre-trial evidentiary hearing to determine the merits of his claim. Once the defendant has established his prima facie case, the burden of persuasion shifts to the Government to prove by a preponderance of the evidence that the two indictments charge the defendant with legally distinct crimes. See Smith, 82 F.3d at 1266. The double jeopardy clause prevents the Government from 'splitting one conspiracy into multiple prosecutions. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942). Generally, the same evidence test is utilized to determine whether a second prosecution is barred. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (<HOLDING>). When the charge involves a conspiracy,
holding that offenses sentenced on the same day by the same judge are not related under the guidelines holding that in the conviction and sentencing for criminal offenses committed in the course of one criminal episode it is the intent of the legislature that there be a separate conviction and sentence for each criminal offense unless one of the offenses is a degree of the other a necessarily included lesser offense subsumed in the other or both offenses are identical holding that test for whether two offenses are not the same is whether each offense requires proof of a fact that the other does not holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction holding that when the legislature intends to punish separate acts even ones in close temporal proximity the blockburger test does not apply because the precondition for employing that test that the two offenses involve the same conduct is absent