What is the burden of proof for a motion to dismiss on double jeopardy grounds?

This court has jurisdiction over this appeal from a pretrial denial of a defendant's motion to dismiss on double jeopardy grounds under 28 U.S.C. Sec. 1291 and Abney v. United States, 431 U.S. 651, 662 (1977). We affirm.

Since the trial has not yet commenced, we review for clear error only the district court's determination that proof of the conduct constituting the offense of which defendant has been acquitted would not be essential to prove the offense now charged. United States v. Bendis, 681 F.2d 561, 566 (9th Cir.1981).

Because Sturman has made a non-frivolous showing of former jeopardy, see infra, the government bears the burden of establishing separate offenses are involved. Id. at 564. The district court's opinion is silent as to the burden of proof, and Sturman argues the order therefore is "constitutionally suspect" and the matter should be remanded for further proceedings. United States v. Ragins, 840 F.2d 1184, 1193 (4th Cir.1988). A remand is unnecessary. Defense counsel informed the district court of the appropriate allocation of the burden of proof, and the government did not deny that it bore that burden. There is no reason to believe the experienced trial judge disregarded what both parties conceded. Cf. id. at 1191 (noting the district court "apparently assumed that [the burden of proof] lay with the defendant throughout the proceeding.").