United States v. Dixon, 509 U.S. 688 (1993)

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certiorari to the district of columbia court of appeals

No. 91-1231. Argued December 2, 1992—Decided June 28, 1993

Based on respondent Dixon's arrest and indictment for possession of cocaine with intent to distribute, he was convicted of criminal contempt for violating a condition of his release on an unrelated offense forbidding him to commit "any criminal offense." The trial court later dismissed the cocaine indictment on double jeopardy grounds. Conversely, the trial court in respondent Foster's case ruled that double jeopardy did not require dismissal of a five-count indictment charging him with simple assault (Count I), threatening to injure another on three occasions (Counts II-IV), and assault with intent to kill (Count V), even though the events underlying the charges had previously prompted his trial for criminal contempt for violating a civil protection order (CPO) requiring him not to " 'assault . . . or in any manner threaten . . .' " his estranged wife. The District of Columbia Court of Appeals consolidated the two cases on appeal and ruled that both subsequent prosecutions were barred by the Double Jeopardy Clause under Grady v. Corbin, 495 U. S. 508.

Held: The judgment is affirmed in part and reversed in part, and the case is remanded.

598 A. 2d 724, affirmed in part, reversed in part, and remanded.

Justice Scalia delivered the opinion of the Court with respect to Parts I, II, and IV, concluding that: 1. The Double Jeopardy Clause's protection attaches in nonsummary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the "same-elements" or "Blockburger" test. See, e. g., Blockburger v. United States, 284 U. S. 299, 304. That test inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" within the Clause's meaning, and double jeopardy bars subsequent punishment or prosecution. The Court recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a "same-conduct" test to avoid the double jeopardy bar. That test provides that, "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct

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