Cite as: 509 U. S. 688 (1993)
Opinion of the Court
offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.
IV
Having found that at least some of the counts at issue here are not barred by the Blockburger test, we must consider whether they are barred by the new, additional double jeopardy test we announced three Terms ago in Grady v. Corbin.9 They undoubtedly are, since Grady prohibits "a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution [here, assault as an element of assault with intent to kill, or threatening as an element of threatening bodily injury], the government will
ered. Surely "in any manner threaten" should cover at least all threats to commit acts that would be tortious under District of Columbia law (which would be consistent with the trial court's later reference to a "legal threat"). Thus, under our Blockburger analysis the aggravated threat counts and the assault-with-intent-to-kill count come out the same way.
9 Justice White attempts to avoid this issue altogether because, in his view, it would be "injudicious" to consider the differences in Foster, not pressed by the Government, between the CPO restrictions and the alleged statutory offenses. Post, at 740. Of course, these differences are pure facts, apparent on the face of the CPO and the indictment. They do not alter the question presented, which assumes only that the prosecuted conduct was the same, see supra, at 694, not that the terms of the CPO and the statute were. Further, although the Government did not argue that the different counts in Foster should come out differently, it did argue (as we do) that they all should be evaluated under Blockburger and not Grady, see, e. g., Brief for United States 14-15, 42; and we are not aware of any principle that prevents us from accepting a litigant's legal theory unless we agree with the litigant on all the applications of the theory. The standard to be applied in determining the double jeopardy effect of criminal charges based on the same conduct (Blockburger vs. Grady) assuredly is included within the question presented. That makes Justice White's citation of cases declining to consider legal issues not raised below wholly beside the point. Nor can we see any abuse of what Justice White himself regards as a prudential limitation, when the evident factual difference between the charges and the CPO order is central to proper constitutional analysis.
703
Page: Index Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: October 4, 2007