734
Opinion of White, J.
concludes, Blockburger forbids retrial. All elements of Foster's simple assault offense being included in his previous contempt offense, prosecution on that ground is precluded. Ante, at 700. The same is true of Dixon's drug offense. Ibid. I agree with this conclusion, though would reach it rather differently: Because in a successive prosecution case the risk is that a person will have to defend himself more than once against the same charge, I would have put to the side the CPO (which, as it were, triggered the court's authority to punish the defendant for acts already punishable under the criminal laws) and compared the substantive offenses of which respondents stood accused in both prosecutions.8
The significance of our disaccord is far more manifest where an element is added to the second prosecution. Under Justice Scalia's view, the double jeopardy barrier is then removed because each offense demands proof of an element the other does not: Foster's conviction for contempt requires proof of the existence and knowledge of a CPO, which conviction for assault with intent to kill does not; his conviction for assault with intent to kill requires proof of an intent to kill, which the contempt conviction did not. Ante, at 701. Finally, though he was acquitted in the contempt proceedings with respect to the alleged November 12, March 26, and May 17 threats, his conviction under the threat charge in the subsequent trial required the additional proof that the threat be to kidnap, to inflict bodily injury, or to damage property. Ante, at 702. As to these counts, and absent any collateral-estoppel problem, see ante, at 712,
8 Therefore, I obviously disagree with The Chief Justiceís Block-burger analysis which would require overruling not only Grady v. Corbin, 495 U. S. 508 (1990), but, as Justice Scalia explains, Harris v. Oklahoma, 433 U. S. 682 (1977), as well. See ante, at 698. At the very least, where conviction of the crime of contempt cannot be had without conviction of a statutory crime forbidden by court order, the Double Jeopardy Clause bars prosecution for the latter after acquittal or conviction of the former.
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