762
Opinion of Souter, J.
Foster was subject to a Civil Protection Order (CPO) not to "molest, assault, or in any manner threaten or physically abuse" his wife, Ana Foster. App. 18. With respect to the period in which the CPO was in effect, Foster was alleged to have violated it (in incidents relevant here) by (1) "grabbing [Ms. Foster] and thr[owing] her against a parked car," on November 6, 1987, by threatening her on (2) November 12, 1987, (3) March 26, 1988, and (4) May 17, 1988, and by (5) throwing her down basement stairs, kicking her and hitting her head against the floor until she lost consciousness, on May 21, 1988. These incidents formed the basis for charging Foster with contempt of court for violation of the CPO. Foster was found guilty of violating the court order by assaulting Ana Foster on November 6, 1987, and May 21, 1988. He was found not guilty of the threats on November 12, 1987, March 26, 1988, and May 17, 1988.
The Government then sought to prosecute Foster for these same threats and assaults, charging him in a five-count indictment with violations of the D. C. Code. Count I charged him with simple assault on November 6, 1987. Since he has already been convicted of this assault, the second prosecution is barred. The Court agrees with this under its reading of Harris, but would distinguish the other counts: Counts II, III, and IV (based on the same threats alleged in the contempt proceeding) charging Foster with "threaten[ing] to injure the person of Ana Foster . . . , in violation of 22 D. C. Code, Section 2307" (which prohibits threats to kidnap, to do bodily injury, or to damage property); and Count V, charging Foster with "assaul[t] . . . with intent to kill" as a result of his actions on May 21, 1988. App. 43-44. The Court concludes that the later prosecutions are not barred, because in its view the offenses charged in the indictment each contained an element not contained in the contempt charge (with respect to the threats, that they be threats to kidnap, to inflict bodily injury, or to damage property; with respect to the assault, that it be undertaken with an intent to kill); and
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