Cite as: 509 U. S. 688 (1993)
Opinion of White, J.
Thus, in this case, the offense for which Dixon was held in contempt was possession with intent to distribute drugs. Since he previously had been indicted for precisely the same offense, the double jeopardy bar should apply. In Foster's contempt proceeding, he was acquitted with respect to threats allegedly made on November 12, 1987, and March 26 and May 17, 1988. He was found in contempt of court for having committed the following offenses: Assaulting his wife on November 6, 1987, and May 21, 1988, and threatening her on September 17, 1987. 598 A. 2d, at 727; App. 42. The subsequent indictment charged Foster with simple assault on November 6, 1987 (Count I); threatening to injure another on or about November 12, 1987, and March 26 and May 17, 1988 (Counts II, III, and IV); and assault with intent to kill on or about May 21, 1988 (Count V). All of the offenses for which Foster was either convicted or acquitted in the contempt proceeding were similar to, or lesser included offenses of, those charged in the subsequent indictment. Because "the Fifth Amendment forbids successive prosecution . . . for a greater and lesser included offense," Brown v. Ohio, 432 U. S. 161, 169 (1977); see also Grafton, 206 U. S., at 349-351, the second set of trials should be barred in their entirety.
B
Professing strict adherence to Blockburger's so-called "same-elements" test, see Blockburger v. United States, 284 U. S. 299 (1932), Justice Scalia opts for a more circuitous approach. The elements of the crime of contempt, he reasons, in this instance are (1) the existence and knowledge of a court, or CPO; and (2) commission of the underlying substantive offense. See ante, at 701. Where the criminal conduct that forms the basis of the contempt order is identical to that charged in the subsequent trial, Justice Scalia
In re Nielsen, 131 U. S. 176, 187 (1889), the offense of criminal threat defined in § 22-2307. Therefore, for reasons explained below, prosecution for one should preclude subsequent prosecution for the other.
733
Page: Index Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: October 4, 2007