509 U.S. 688 (1993), 91-1231, United States v. Dixon

Docket Nº:No. 91-1231
Citation:509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556, 61 U.S.L.W. 4835
Party Name:UNITED STATES v. DIXON Et. al.
Case Date:June 28, 1993
Court:United States Supreme Court
 
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Page 688

509 U.S. 688 (1993)

113 S.Ct. 2849, 125 L.Ed.2d 556, 61 U.S.L.W. 4835

UNITED STATES

v.

DIXON Et. al.

No. 91-1231

United States Supreme Court

June 28, 1993

Argued December 2, 1992

CERTIORARI TO DISTRICT OF COLUMBIA COURT OF APPEALS

Syllabus

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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that constitutes an offense for which the defendant has already been prosecuted," a second prosecution may not be had. 495 U.S., at 510. Pp. 694-697.

2. Although prosecution under Counts II-V of Foster's indictment would undoubtedly be barred by the Grady "same-conduct" test, Grady must be overruled because it contradicted an unbroken line of decisions, contained less than accurate historical analysis, and has produced confusion. Unlike Blockburger analysis, the Grady test lacks constitutional roots. It is wholly inconsistent with this Court's precedents and with the clear common-law understanding of double jeopardy. See Grady, supra, at 526 (Scalia, J., dissenting). In re Nielsen, 131 U.S. 176, and subsequent cases stand for propositions that are entirely in accord with Blockburger and that do not establish even minimal antecedents for the Grady rule. In contrast, two post- Nielsen cases, Gavieres v. United States, 220 U.S. 338, 343, and Burton v. United States, 202 U.S. 344, 379-381, upheld subsequent prosecutions because the Blockburger test (and only the Blockburger test) was satisfied. Moreover, the Grady rule has already proved unstable in application, see United States v. Felix, 503 U.S. 378. Although the Court does not lightly reconsider precedent, it has never felt constrained to follow prior decisions that are unworkable or badly reasoned. Pp. 703-712.

Justice Scalia, joined by Justice Kennedy, concluded in Part III that:

1. Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution fails the Blockburger test. Dixon's contempt sanction was imposed for violating the order through commission of the incorporated drug offense. His "crime" of violating a condition of his release cannot be abstracted from the "element" of the violated condition. Harris v. Oklahoma, 433 U.S. 682 (per curiam). Here, as in Harris, the underlying substantive criminal offense is a "species of lesser-included offense," Illinois v. Vitale, 447 U.S. 410, 420, whose subsequent prosecution is barred by the Double Jeopardy Clause. The same analysis applies to Count I of Foster's indictment, and that prosecution is barred. Pp. 697-700.

2. However, the remaining four counts of Foster's indictment are not barred under Blockburger. Foster's first prosecution for violating the CPO provision forbidding him to assault his wife does not bar his later prosecution under Count V, which charges assault with intent to kill. That offense requires proof of specific intent to kill, which the contempt offense did not. Similarly, the contempt crime required proof of knowledge of the CPO, which the later charge does not. The two crimes were different offenses under the Blockburger test. Counts II, III, and IV are likewise not barred. Pp. 700-703.

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Justice White, joined by Justice Stevens, concluded that, because the Double Jeopardy Clause bars prosecution for an offense if the defendant already has been held in contempt for its commission, both Dixon's prosecution for possession with intent to distribute cocaine and Foster's prosecution for simple assault were prohibited. Pp. 720, 731-733.

Justice Souter, joined by Justice Stevens, concluded that the prosecutions below were barred by the Double Jeopardy Clause under this Court's successive prosecution decisions (from In re Nielsen, 131 U.S. 176, to Grady v. Corbin, 495 U.S. 508), which hold that even if the Blockburger test is satisfied, a second prosecution is not permitted for conduct comprising the criminal act charged in the first. Because Dixon's contempt prosecution proved beyond a reasonable doubt that he had possessed cocaine with intent to distribute it, his prosecution for possession with intent to distribute cocaine based on the same incident is barred. Similarly, since Foster has already been convicted in his contempt prosecution for the act of simple assault charged in Count I of his indictment, his subsequent prosecution for simple assault is barred. Pp. 761-763.

Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Parts III and V, in which Kennedy, J., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which O'Connor and Thomas, JJ., joined, post, p. 713. White, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Stevens, J., joined, and in which Souter, J., joined as to Part I, post, p. 720. Blackmun, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 741. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Stevens, J., joined, post, p. 743.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, James A. Feldman, and Deborah Watson.

James W. Klein argued the cause for respondents. With him on the brief were Elizabeth G. Taylor and Rosemary Herbert.[*]

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Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Parts III and V, in which Justice Kennedy joins.

In both of these cases, respondents were tried for criminal contempt of court for violating court orders that prohibited them from engaging in conduct that was later the subject of a criminal prosecution. We consider whether the subsequent criminal prosecutions are barred by the Double Jeopardy Clause.

I

Respondent Alvin Dixon was arrested for second-degree murder and was released on bond. Consistent with the District of Columbia's bail law authorizing the judicial officer to impose any condition that "will reasonably assure the appearance of the person for trial or the safety of any other person or the community," D. C. Code Ann. § 23-1321(a)(1989), Dixon's release form specified that he was not to commit "any criminal offense," and warned that any violation of the conditions of release would subject him "to revocation of release, an order of detention, and prosecution for contempt of court." See D. C. Code Ann. § 23-1329(a) (1989) (authorizing those sanctions).

While awaiting trial, Dixon was arrested and indicted for possession of cocaine with intent to distribute, in violation of D. C. Code Ann. § 33-541(a)(1) (1988). The court issued an order requiring Dixon to show cause why he should not be held in contempt or have the terms of his pretrial release modified. At the show-cause hearing, four police officers testified to facts surrounding the alleged drug offense; Dixon's counsel cross-examined these witnesses and introduced other evidence. The court concluded that the Government had established " 'beyond a reasonable doubt that [Dixon] was in possession of drugs and that those drugs were possessed with the intent to distribute.' " 598 A.2d 724, 728(D. C. 1991). The court therefore found Dixon guilty of

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criminal contempt under § 23-1329(c), which allows contempt sanctions after expedited proceedings without a jury and "in accordance with principles applicable to proceedings for criminal...

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