(concurring specially):

The law of this circuit, expressed in United States v. Kartman (9th Cir. 1969) 417 F.2d 893 and McEwen v. United States (9th Cir. 1968) 390 F.2d 47 , is that a defendant’s actual or implied knowledge that his victim was a federal law enforcement officer is not an element of the offense defined by 18 U.S.C. § 111 . I concur solely under the compulsion of the law of the circuit, but I express my reasons for believing that these Ninth Circuit cases and the cases on which they rely are wrong. 1

Section 111 does not explicitly state that Congress intended to punish conduct by persons who were ignorant of their victim’s official status. This fact, however, begins rather than ends our inquiry. Congress’ failure to specify that knowledge of the victim’s status was an element of the offense does not compel the conclusion that knowledge is not required. Although Congress could easily have said that knowledge was an element (United States v. Lombardozzi (2d Cir. 1964) 335 F.2d 414 ), it could as easily have expressly deleted knowledge as an element (cf., Morissette v. United States (1952) 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 ). Its failure to be precise does not suggest that the opposite of either was intended; rather it suggests that Congress failed to appreciate that there *741 was a need for Congress to voice a clear judgment on the matter.

Although the legislative history of section 111 is sparse, the hints of congressional intent all indicate that knowledge was to be an element of the crime. The statutory ancestor of section 111 was codified as former 18 U.S.C. § 254 , which was enacted in 1934 against a background of several laws (formerly codified as 8 U.S.C. § 152 and 18 U.S.C. §§ 118 , 121, 245) proscribing certain offenses against specialized federal law enforcement officers. (See Ladner v. United States (1958) 358 U.S. 169 , 174-175 n. 3, 79 S.Ct. 209 , 3 L.Ed.2d 199 .) The legislative history of former section 254 reveals that that section was intended to extend to other federal officers the same kind of protection that its predecessor statutes had given to various specialized officers. (Id.) Among the prior statutes, former 18 U.S.C. § 245 expressly required proof of knowledge, and former 18 U.S.C. § 121 had, prior to 1934, been consistently interpreted to require proof of knowledge even though the statute itself was silent on the point. (See Gay v. United States (5th Cir. 1926) 12 F.2d 433, 434-435 ; United States v. Page (W.D.Va.1921) 277 F. 459, 460 ; cf. Moore v. United States (5th Cir. 1932) 57 F.2d 840, 843 ; Hlabse v. United States (6th Cir. 1927) 20 F.2d 482 .) 2

The law with regard to analogous offenses was fairly uniform in requiring proof of scienter. (See Pipes v. United States (5th Cir. 1968) 399 F.2d 471, 476 (dissenting opinion); United States v. Taylor (E.D.Va.1893) 57 F. 391 .) The then most recent Supreme Court case on an analogous issue had held proof of knowledge required even though the statute there in question did not explicitly demand such proof. (Pettibone v. United States (1893) 148 U.S. 197 , 13 S.Ct. 542 , 37 L.Ed. 419 .) Because former section 254 was expressly based on prior laws, this background strongly suggests that Congress thought that its new law would require knowledge whether or not Congress so specified. 3

The wording of former section 254 also suggests that Congress meant proof of knowledge to be necessary to a conviction under the section. Former section 254 provided in pertinent part, “Whoever shall forcibly resist, oppose, impede, intimidate, or interfere with any [of certain designated federal officers] while engaged in the performance of his official duties, or shall assault him on account of the performance of his official duties, shall be [subject to prescribed punishment].” Assault is treated differently in former section 254 than the other enumerated acts. The section does not proscribe assaults on officers “in” the performance of their duties; rather it makes punishable only assaults on officers “on account of” the performance of their duties. This difference in treatment was apparently an attempt to inject into the assault offense a knowledge element that might not be there naturally. The words “resist,” etc., imply that knowledge is an element of the crime. Similarly, the phrase “on account of” has been interpreted as inherently requiring knowledge of official function. (United States v. Chunn (4th Cir. 1965) 347 F.2d 717, 721-722 ; Portnoy v. United States (1st Cir. 1963) 316 *742 F.2d 486, 488 . See also Finn v. United States (9th Cir. 1955) 219 F.2d 894 .) The structure of former section 254 should therefore be viewed as reflecting an attempt by Congress to conform assault, a crime that normally has no scienter requirement, to resistance, etc., crimes for which knowledge is normally required. Indeed, the different treatment given assault is difficult to explain on any basis other than that, by so wording the statute, Congress included an implicit knowledge requirement in the assault offense proscribed by former section 254.

When Title 18 was revised in 1948, former section 254 and former section 118 were combined and the blend was codified as 18 U.S.C. § 111 . (Reviser’s Note, 18 U.S.C. § 111 .) The revision removed the different manner in which assault had been treated in former section 254. The 1948 revision reflects no intent to remove the knowledge requirement from former section 254; the alteration was merely a way to merge the former sections without undue grammatical difficulties. See id.; cf. Morissette v. United States, supra, 342 U.S. at 266-267 , 269 n. 28.)

Clues from the legislative history that Congress intended knowledge .to be an element of the offense are reinforced by an analysis of the purposes that could have been served by creating the federal offense defined by section 111 and its predecessor. Congress could have thought that the federal courts would better protect federal officers from the proscribed conduct than the state courts. (Cf. United States v. Goodwin (3d Cir. 1971) 440 F.2d 1152, 1155 ; United States v. Kartman, supra, 417 F.2d at 895 ; United States v. Wallace (4th Cir. 1966) 368 F.2d 537, 538-539 ; United States v. Lombardozzi, supra, 335 F.2d at 416 .) There are suggestions, however, that Congress was not concerned about the quality of justice that was available in state courts. The legislative history of section 111 indicates that Congress wanted the statute passed “however respectable and well disposed” the state courts were. (Ladner v. United States, supra, 358 U.S. at 175, n. 3 .)

Even if section 111 were intended as a forum shifting device, it was also intended to be a substantive proscription. It is not like a removal statute (cf., e. g., 28 U.S.C. § 1442 ) or a federal criminal law which merely incorporates state law by reference (cf., e. g., 18 U.S.C. § 13 ). The federal law does not merely effect a change in the forum in which cases of assault on a federal officer will be tried; it also creates a substantive proscription even where state laws do not (compare definition of assault in Cal.Penal Code § 240 with that in Ladner v. United States, supra, 358 U.S. at 177 ; cf. United States v. Anderson (7th Cir. 1970) 425 F.2d 330 ), and authorizes punishment to an extent that state laws do not (compare punishment for simple assault in Cal.Penal Code § 241 with punishment in 18 U.S.C. § 111 ). 4 Section 111, therefore, manifests not only a possible concern that cases involving assaults on federal officers be tried in a federal forum, but also a desire that the minimum scope of and punishment for the crime be controlled by federal law. Thus, even though enactment of section 111 may have been influenced by a congressional desire to have certain cases tried in federal court, it was also motivated, as is any criminal law, by a desire to deter proscribed conduct.

If the statute had been designed simply to adjust the forum in which the eases are tried, a defendant’s knowledge that his victim was a federal officer would be irrelevant. But section 111 creates a new substantive crime, and does not merely effect a change in forum. Whether knowledge is an element of the offense depends, therefore, on the nature of the crime that Congress in *743 tended to proscribe when it enacted section 111 and its predecessors. 5

Section 111 is often treated as if it were the federal analog of a state simple assault statute. (See, United States v. Kartman, supra, 417 F.2d at 895 ; cf. United States v. Young (5th Cir. 1972) 464 F.2d 160, 163 .) When the section is so viewed, the specification that section 111 applies only to those assaults that are on federal officers seems to be merely a jurisdictional element of the crime. Thus, Congress might have intended to deter all assaults by proscribing as many assaults as it felt constitutionally empowered to punish; the reference to federal officers acting in the performance of federal duties would then, like most references to interstate commerce in federal criminal statutes, be no more than a jurisdictional requirement. However, section 111 is not a simple assault statute. For two related reasons, discussed below, the status of the victim must be regarded as a substantive rather than a jurisdictional element of the crime defined by the section. The mischaracterization has led courts to ignore aspects of section 111 that imply that knowledge is an element of the crime.

First, section 111 should not be interpreted as a simple assault statute because the gist of the section is not prevention of assaults, but rather facilitation of certain federal officials’ law enforcement efforts. An assault statute is designed to protect persons. An obstruction of justice statute, on the other hand, is ultimately designed to protect official functions; if an obstruction of justice statute protects persons, it does so only as a means of protecting those individuals’ functions. The basic purpose of section 111 is preventing obstruction of justice. (See Hargett v. United States (5th Cir. 1950) 183 F.2d 859, 864-865 .) The Supreme Court in Ladner v. United States, supra, indicated that section 111 should be interpreted to reflect the view that “the congressional aim was to prevent hindrance to the execution of official duty, and thus to assure the carrying out of federal purposes and interests, and was not to protect federal officers except as incident to that aim. Support for this meaning may be found in the fact that [section 111] makes it unlawful not only to assault federal officers engaged on official duty but also forcibly to resist, oppose, impede, intimidate or interfere with such officers. Clearly one may resist, oppose, or impede the officers or interfere with the performance of their duties without placing them in personal danger.” ( 358 U.S. at 175-176 .) When a statute defines an offense by listing several words disjunctively, the words *744 should, to the extent possible, be read in the same manner. (Cf. Morissette v. United States, supra,, 342 U.S. at 266-269 .) In Ladner the Supreme Court held, albeit in a somewhat different context, that the assault offense in this statute should be limited to conform to the scope reasonably given to the other words defining the offense proscribed by section 111. ( 358 U.S. at 176-177 .)

Obstruction of justice laws implicitly contain a knowledge requirement. Statutory offenses of this sort have their roots in the common law, and at common law scienter was an element of the offense. (E. g., City of Seattle v. Gordon (Wash.1959), 54 Wash.2d 516 , 342 P.2d 604, 606 ; cf. Morissette v. United States, supra, 342 U.S. at 258-259 ; United States v. Balint (1922) 258 U.S. 250, 251 , 42 S.Ct. 301 , 66 L.Ed. 604 . See also Hargett v. United States, supra, 183 F.2d at 864-865 .) Unless Congress specifies otherwise, federal criminal statutes are to be interpreted to require proof of the same mental elements that were required for their common law ancestors. (See Morissette v. United States, supra.) 6 Furthermore, the knowledge requirement is well suited to the purpose of an obstruction of justice law. The law is designed to affect the behavior of individuals toward the administration of justice, and the relevant behavior of the individual is not implicated unless he knew or had notice that justice was being administered by the person with whom he interfered. (Cf. Pettibone v. United States, supra.) Resisting, opposing, impeding, or interfering with another are not generally proscribed as wrongful under criminal or even civil laws. Were knowledge not required in obstruction of justice offenses described by these terms, wholly innocent (or even socially desirable) behavior could be transformed into a felony by the wholly fortuitous circumstance of the concealed identity of the person resisted. (Cf. Rewis v. United States (1971) 401 U.S. 808, 812 , 91 S.Ct. 1056 , 28 L.Ed.2d 493 .) Accordingly, the courts have been reluctant to say that knowledge is not an element of the non-assault varieties of the offense defined by section 111. (See United States v. McKenzie (2d Cir. 1969) 409 F.2d 983, 986 ; United States v. Rybicki (6th Cir. 1968) 403 F.2d 599, 601-602 ; Burke v. United States (5th Cir. 1968) 400 F.2d 866, 868 ; cf. United States v. Wallace, supra, 368 F.2d at 538.) 7 Thus, while the word “assault” in *745 a criminal law generally does not imply that knowledge is an element of the offense, the word “assault” in section 111 must be viewed in light of its context. Because the statute as a whole is directed toward the prevention of interferences with federal law enforcement personnel, and because knowledge is an element of such a statute, the word “assault” in section 111 must be read more narrowly than it would be in a simple assault statute; a showing of knowledge is required.

The second reason that section 111 should not be interpreted as a simple assault statute is that, to the extent that section 111 prohibits assault, it is best viewed as defining an aggravated assault offense. 8 The assault portion of the offense defined by section 111 seems to be an attempt to create a federal crime analogous to the state offense of assault on a peace officer. Section 111 does not proscribe assaults on any federal officer or employee; it was initially conceived as a protection only for federal investigative and law enforcement personnel. (See Ladner v. United States, supra, 358 U.S. at 175 n. 3; 18 U.S.C. §§ 111 , 1114; 78 Cong.Rec. 8126 (1934).) Probably motivating the enactment of the assault portion of section 111 was a congressional desire to fill a gap in the state laws defining aggravated assaults: state laws mandated increased punishment only for assaults on state peace officers (cf., e. g., People v. Garfield (Utica City Ct. 1970) 63 Misc.2d 79 , 312 N.Y.S.2d 830 ; Cal.Penal Code §§ 241, 830.1, 830.2, 830.6(a)); if the person assaulted was a federal officer, the assailant would only be punishable under state law for simple assault. Section 111 accordingly provides for punishment in excess of that which states would impose (compare 18 U.S.C. § 111 with, e. g., Cal.Penal Code § 241) for assaults on those involved in the investigation or enforcement of federal laws.

A statute proscribing assaults on peace officers should be interpreted as requiring proof of knowledge of the status of the victim. While it is conceivable that a state might wish to augment the punishment for assaults on peace officers whether or not the assailant knew that his victim was a peace officer, it is extremely unlikely that it would do so. (See e. g., In re Cline (1967) 255 Cal.App.2d 115 , 63 Cal.Rptr. 233, 239 ; People v. Prante (Colo.1972) 493 P.2d 1083, 1085 ; People v. Litch (1972), 4 Ill.App. 3d 788, 281 N.E.2d 745, 747 ; Ford v. State (Tex.Cr.App.1952), 158 Tex.Cr.R. 26 , 252 S.W.2d 948 .) The deterrent effect of such a law would be slight; assailants would so discount the risk that an apparently non-official victim was a federal officer that section Ill’s penal *746 ties would cease to be a deterrent factor. (See United States v. Alsondo (2d Cir. 1973) 486 F.2d 1339, 1343, 1344-1345 .) If an assailant attacks one who is covertly a peace officer, the only social policies that really are implicated are those underlying the proscription against simple assault. If, however, the assailant knows his victim to be a peace officer, the assailant’s acts take on a more sinister character, and society’s interest in punishing the assailant becomes greater. In essence the criminal assaults “the law” rather than merely the officer. Society’s concern for the person of the officer is amply reflected in a simple assault statute; the enhanced punishment of the aggravated offense is reflective of the state’s concern for the integrity of law itself. 9 If the mens rea requirement for the crime of assault on a peace officer is to bear an appropriate relation to the interests that demand augmented punishment for such aggravated assaults, the mens rea requirement must include a requirement that the assailant knew or should have known that his victim was a peace officer. Section 111 should be interpreted in the same manner as its state law analog; proof of knowledge should therefore be required. Indeed, to hold that knowledge is not required with regard to each substantive element of the assault offense defined by section 111, is inconsistent with the teaching of Morissette v. United States, supra.

Congress desired to deter not all, but only certain assaults — those on federal law enforcement officers — and its desire to deter such assaults was less the product of solicitude for the individual officer than of concern for the effectiveness with which federal functions were performed. (See Ladner v. United States, supra, 358 U.S. at 174-177 .) Section 111 may therefore not be interpreted as if Congress desired it to have a broad anti-assault impact. (See also 78 Cong. Rec. 8127 (1934) (remark of Representative Sumners).') Undue expansion of federal criminal jurisdiction was unacceptable to the Congress that adopted the statute that now is section 111. (Id.) In refusing to enact a federal simple assault statute, Congress was seeking to avoid creation of a federal crime that was wholly duplicative of a state crime. Its refusal was consistent with its effort to minimize federal intrusions upon exclusive state criminal jurisdiction.

The overriding purpose of section 111 is the protection of federal law enforcement functions and that purpose is best served by requiring that the potential offender knows his victim’s official status.

Fear expressed in this circuit and sometimes elsewhere that a knowledge element would weaken the effectiveness of section 111 is based on the idea that persons charged with the offense would be harder to convict if the government had to prove knowledge. That fear, even if founded, is irrelevant, as the Supreme Court observed in Morissette v. United States, supra (holding that criminal intent was required to be proven under a criminal conversion statute even though the statute omitted mention of such a requirement): “Of course, the purpose of every statute would be ‘obstructed’ by requiring a finding of intent [or, in the case at bench, knowledge], if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not help us to learn the purpose of the omission by Congress.” ( 342 U.S. at 259 (emphasis and bracketed material added).)

Even if difficulty of proof were relevant, however, proof of the knowledge element in section 111 is not unduly burdensome. Knowledge in this context is *747 not limited to actual knowledge of the fact of the victim’s status but also includes knowledge of facts that would lead a reasonable person to believe that the victim was or could be a law enforcement officer. (Cf. Hall v. United States (5th Cir. 1956) 235 F.2d 248 ; Carter v. United States (5th Cir. 1956) 231 F.2d 232 .) 10

Any doubt that Congress intended to include knowledge as an element of the section 111 offense must be resolved in favor of the defendants, as the Supreme Court has repeatedly and emphatically stated. (E. g., United States v. Bass (1971) 404 U.S. 336, 347-350 , 92 S.Ct. 515 , 30 L.Ed.2d 488 ; Ladner v. United States, supra, 358 U.S. at 177-178 ; Jerome v. United States (1943) 318 U.S. 101, 104-105 , 63 S.Ct. 483 , 87 L.Ed. 640 .) If Congress is dissatisfied with the narrow interpretation of section 111, it has the power and the duty to clarify the statute.

. The Supreme Court has the opportunity to decide whether knowledge of the victim’s official status must be proved before one may be convicted of conspiring to violate section 111. (United States v. Alsondo (2d Cir. 1973) 486 F.2d 1339 , cert. granted sub nom. United States v. Feola, - U.S. -, 94 S.Ct. 1932 , 40 L.Ed.2d 285 (1974) (No. 73-1123); United States v. Farr (2d Cir. 1973) 487 F.2d 1023 , petition for cert. filed 42 U.S.L.W. 3379 (U.S. Dec. 19, 1973) (No. 73-953).) Implicit in that question is the question of whether knowledge is an element of the underlying substantive offense. Despite the probability that Feola will be relevant to the issues raised here, we do not hold this case further because it has been long pending and the Feola decision is not imminent.

. Cases decided after 1934 continued to interpret former section 121 as requiring proof of knowledge. (¡See Sparks v. United States (6th Cir. 1937) 90 F.2d 61, 63 ; cf. Armes v. United States (7th Cir. 1935) 77 F.2d 163, 164 .)

. It is unlikely that the fact that one of the predecessor statutes, former section 245, explicitly required proof of knowledge would imply that former section 254, not explicitly so requiring, did not include a scienter element. Former section 254 was meant to mirror substantively its predecessors, including former section 245. The fact that former section 121 was interpreted as implicitly requiring knowledge may have led Congress to the conclusion that the explicit statement in former section 245 was surplusage. Furthermore,' the wording of former section 254 embodied a clearer implication of a knowledge requirement than any of its predecessors other than former section 245.

. Note that California’s augmented punishment for assault on a peace officer does not apply when the person assaulted is a federal officer.

. Congress did not seek by enactment of section 111 to adjust the forum for all crimes the victims of which were federal officers. (See 78 Cong.Rec. 8126-27 (1934).) Congress sought rather to make only certain crimes triable in federal court. “Certain”, in this regard, can only be defined by looking to the substantive scope of section Ill’s proscription; Congress sought to make triable in federal court only those crimes that section 111 is designed to deter. Thus it is the substantive purpose of the statute, rather than its forum shifting purpose, that ultimately determines what must be proved to support a conviction. Failure to appreciate this relationship is one of the basic errors of those cases that hold that section 111 is merely designed to provide a federal forum. The cases purport to determine that knowledge is not an element of the crime defined by section 111 by holding that section 111 was designed “to provide a federal forum for the trial of cases involving various offenses against federal officers in the performance of official duties.” (United States v. Lombardozzi (2d Cir. 1964) 335 F.2d 414, 416 (emphasis added); see United States v. Goodwin (3d Cir. 1971) 440 F.2d 1152, 1155 (to provide a federal forum for “the enumerated offenses”); United States v. Kartman (9th Cir. 1969) 417 F.2d 893, 895 (same).) Because, however, the cases failed to define the elements of the “various offenses” for which the federal forum was provided, the courts actually avoided the issue they purported to resolve. The eases ignore the fact that the forum shifting effect of section 111 has no impact on the elements of the crime with regard to which the forum is shifted; section 111 could as easily have been intended to provide a federal forum for cases of assault with knowledge of the victim’s status as for cases of assault without such knowledge.

. Morissette decided that unless it was clear that Congress intended otherwise, courts should require proof of felonious intent for conviction of a federal larceny-type offense, even though the statute defining the offense omitted mention of an intent requirement. Obviously, because Morissette was interpreting a statute defining a larceny-type offense, its language focuses on such offenses. Nonetheless, it is apparent that the principle enunciated in Morissette was meant to apply in all cases where the crime defined by the statute has its roots in the common law of crimes. ( 342 U.S. at 202-263 .) The suggesttion in United States v. Kartman (9th Cir. 1969) 417 F.2d 893, 894-895 , that it is not inconsistent with Morissette to hold that proof of knowledge is not required under section 111 seems unreasonable. The suggestion would be reasonable only if the status of the victim were not a substantive element of the crime defined by section 111. The status of the victim would be not a substantive element only if section 111 were solely a forum shifting device or if mention of the status of the victim were solely to establish federal jurisdiction. As the text indicates, neither of these views of section 111 is tenable. Because the specification that section 111 applies only to assaults on federal officers is a substantive element, Morissette implies that mens rea with regard to that element should not be read out of the statute unless Congress clearly so intended.

. Admittedly, some courts have overcome their reluctance. (United States v. Goodwin (3d Cir. 1971) 440 F.2d 1152, 1155-1156 ; United States v. Ulan (2d Cir. 1970) 421 F.2d 787, 788-789 .) The logic that supports their conclusion, however, is backward. They assume that knowledge is necessarily not an element of the assault offense defined by section 111. Then, because it would not be proper to interpret different parts of section 111 differently (Goodwin correctly cites Ladner v. United States (1958) 358 U.S. 169 for this proposition), they conclude that “resist,” etc., must be given as broad a scope as “assault” has been given. In doing so they make the tail wag the dog. These courts fail to realize that “assault” need not *745 be (and in light of the former wording of the statute cannot be) viewed as the dominant word in the statute. Rather than modifying the natural meaning of “resist,” etc., to conform to the broader meaning of “assault,” courts should limit the meaning of “assault” to conform it to the rest of the statute. Of particular note is that Ladner , the case relied on in Goodwin, refused to give the assault offense broad impact because to have done so would have required similar but unreasonable impositions of liability under the other section 111 offenses. (Ladner v. United States, supra at 176-177.) The same preference for a narrowing interpretation should be applied in this case. Because it would be unreasonable to convict one for resisting an officer he did not know was an officer, a similar knowledge requirement should be read into the assault offense defined by section 111.

. This characteristic distinguishes section 111 from other federal crimes with state law analogs. For example, murder of a peace officer is not an aggravated form of murder. Either would be as wrong; the penalties in either case would be the same. Similarly, theft of government property is not an aggravated theft offense. Thus the scienter requirement that is a natural element of aggravated offenses need not be implied in either 18 U.S.C. § 1114 (compare Hargett v. United States (5th Cir. 1950) 183 F.2d 859, 864 , with McNabb v. United States (6th Cir. 1941) 123 F.2d 848 , rev’d on other grounds 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943)) or 18 U.S.C. § 641 (cf. United States v. Howey (9th Cir. 1970) 427 F.2d 1017 ).

. It is because their underlying policies are so nearly the same that both an obstruction of justice offense and an aggravated assault offense seem to be defined by section 111. The two offenses are, however, probably not different at all, but are rather the same offense differently characterized. Each has as its ultimate purpose something other than the protection of the person assaulted; each serves that purpose by protecting from assaults those involved in the enforcement of the law.

. Other difficulties that are perceived in interpreting the statute to require knowledge, such as procedural complications or potential double jeopardy problems, are neither created nor solved by recognizing or refusing to recognize the knowledge element. They are problems either inherent in judicial process or in our dual sovereignty system. Fear that a miscreant will escape unscathed from both systems via double jeopardy is not well founded. (Abbate v. United States (1959) 359 U.S. 187 , 79 S.Ct. 666 , 3 L.Ed.2d 729 ; Bartkus v. Illinois (1959) 359 U.S. 121 , 79 S.Ct. 676 , 3 L.Ed.2d 684 .) These decisions have not been eroded by subsequent Supreme Court authority. (Cf. Robinson v. Neil (1973) 409 U.S. 505, 510 , 93 S.Ct. 876 , 35 L.Ed.2d 29 ; Waller v. Florida (1970) 397 U.S. 387, 392 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 .) While Ashe v. Swenson (1970) 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 , somewhat broadened the impact of the double jeopardy clause, it only affected relitigation of an issue between “the same parties” (397 U.S. at 443). Because the state and federal governments, being separate sovereigns, are not the same party, Ashe does not undermine Abbate and Bartkus . Thus, in Waller , a case decided the same day as Ashe, the Court declined an opportunity either to disapprove Abbate and Bartkus or to suggest application of Ashe’s principle in the separate sovereign context. Any fears that California’s statutory double jeopardy provisions (see Cal. Penal Code §§ 656 , 793) would bar state prosecutions where an assailant has been acquitted of the federal crime, do not seem to be legitimate concerns of this court. We cannot convict under federal law those that Congress did not intend to convict merely because the laws of California would prevent California from trying an assailant for a lesser but related offense. Even if in enacting section 111 Congress relied on the states’ ability to prosecute lesser offenses, that that reliance was in certain particulars ill founded is a problem to be remedied by Congress and not the courts.

Even were that California double jeopardy law and the consequent risk that assailants might be immunized from state prosecution concerns to which this court could legitimately give weight, they are of slight weight at best. The California law is of significance only if the federal prosecution precedes the state prosecution; a state conviction Or acquittal does not bar federal prosecution. Thus, if a federal prosecutor entertains any doubts at all about his ability to prove scienter, he need merely await the outcome of the state prosecution.