<Li> the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense </Li> <Li> the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions </Li> <P> The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances: </P> <Ol> <Li> If the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence--including forfeiture and restitution as well as imprisonment and fines--is available through the contemplated federal prosecution, or </Li> <Li> If the choice of charges, or the determination of guilt, or the severity of sentence in the prior prosecution was affected by the sorts of factors listed in the previous list . An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official . </Li> </Ol>

Which of the following is not one of the double jeopardy provisions of the fifth amendment