598 A.2d 724 (D.C. 1991), 88-1375, United States v. Dixon

Docket Nº:88-1375, 89-449.
Citation:598 A.2d 724
Party Name:UNITED STATES, Appellant, v. Alvin J. DIXON, Appellee. Michael FOSTER, Appellant, v. UNITED STATES, Appellee.
Case Date:October 31, 1991
Court:Court of Appeals of Columbia District
 
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Page 724

598 A.2d 724 (D.C. 1991)

UNITED STATES, Appellant,

v.

Alvin J. DIXON, Appellee.

Michael FOSTER, Appellant,

v.

UNITED STATES, Appellee.

Nos. 88-1375, 89-449.

Court of Appeals of Columbia District

October 31, 1991

Argued En Banc Jan. 10, 1990.

John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., David M. Zlotnick, Asst. U.S. Atty., and Deborah Watson, Atty., Dept. of Justice, Washington, D.C., were on the briefs, for the U.S., appellant in No. 88-1375 and appellee in No. 89-449. Michael V. Tomaselli, Asst. U.S. Atty., Washington, D.C., also entered an appearance for the U.S.

Rosemary Herbert, Public Defender Service, with whom James W. Klein and Elizabeth G. Taylor, Public Defender Service, Washington, D.C., were on the briefs, for appellee Dixon in No. 88-1375 and appellant Foster in No. 89-449.

Clifton S. Elgarten, with whom Susan M. Hoffman, M. Lisanne Crowley, Nancy J. Spencer, Laura A. Foggan, G. Diane Dodson, Aimee R. Berenson, Susan Deller Ross, and Naomi R. Cahn, Washington, D.C., were on the brief, for the Women's Legal Defense Fund, the Family Abuse Project, and The Family Place, Inc., amici curiae in No. 89-449.

ON REHEARING EN BANC

Before ROGERS, Chief Judge, FERREN, TERRY, STEADMAN, and SCHWELB, Associate Judges, and NEWMAN [*] and BELSON, [**] Senior Judges.

TERRY, Associate Judge:

These consolidated appeals, which present the same issue, arise from trial court rulings on motions to dismiss indictments on the ground of double jeopardy.

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In one case the motion was granted; in the other it was denied. We hold that both motions should have been granted because both prosecutions were barred by the Double Jeopardy Clause of the Fifth Amendment. Accordingly, we affirm in one case ( Dixon ) and reverse in the other ( Foster ). [1]

Appellant Foster was prosecuted for criminal contempt for violating civil protection orders obtained by his wife and mother-in-law. After a bench trial in August 1988, he was convicted on four counts of criminal contempt, two of which were based on assaults committed against his wife on November 6, 1987, and May 21, 1988. He was acquitted, however, on eighteen additional counts, including those based on threats allegedly made against his wife on November 12, 1987, March 26, 1988, and May 17, 1988. The court later sentenced Foster to an aggregate of 600 days' imprisonment.

In January 1989 Foster was charged in a five-count indictment with one count of simple assault, [2] one count of assault with intent to kill, [3] and three counts of threats to injure another person. [4] The two assault charges were based upon the same assaults which underlay Foster's contempt convictions, and the threats charges were based on the same alleged threats for which Foster had been acquitted of contempt. Foster moved to dismiss the indictment on the grounds of double jeopardy and collateral estoppel. The trial court denied the motion, and Foster noted an appeal. [5]

Appellee Dixon, while on pretrial release pending trial for second-degree murder, was arrested and indicted for possession of cocaine with intent to distribute it (PWID). [6] The trial court issued an order directing Dixon to show cause why he should not be held in contempt for violating a condition of his pretrial release, namely, to refrain from committing any criminal offense. At the hearing on the show cause order, the court found beyond a reasonable doubt that Dixon had possessed cocaine with intent to distribute it. Dixon was therefore adjudicated in criminal contempt for violating the conditions of his release and sentenced to 180 days in jail. He then filed a motion in the PWID case to dismiss the indictment on the ground of double jeopardy. The judge to whom the PWID case had been assigned granted the motion in a published opinion. United States v. Dixon, 117 Daily Wash.L.Rptr. 9 (D.C.Super.Ct. September 26, 1988). From that dismissal the government appeals.

In light of the recent Supreme Court decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), we hold that the court in Foster erred in denying the motion to dismiss on the ground of double jeopardy. At the same time, we uphold the trial court's dismissal of the indictment in Dixon, again relying on Grady v. Corbin.

I

A. Foster

1. The Contempt Proceedings

On August 12, 1987, Judge Tignor of the Superior Court, sitting in the Intra-Family Branch of the Family Division, issued a civil protection order (CPO) stating that Michael Foster "shall not molest, assault, or in any manner threaten or physically abuse" his estranged wife, Ana Virginia Foster, for a period of twelve months from the date of the order. On the same day Judge Tignor issued a second CPO directing Foster not to "molest, assault, or in any manner threaten or physically abuse" Elvira Rivas, Mrs. Foster's mother. The

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CPO affecting Mrs. Rivas contained the added condition that Foster stay away from her home and place of work. Foster consented in writing to both orders.

Within a fairly short time, however, Foster began to violate these orders, particularly the one relating to his wife. On September 22, and again on November 19, Mrs. Foster filed motions to adjudicate Mr. Foster in contempt, asserting that he had violated the terms of the order. The second motion included allegations that on November 6 Foster "grabbed Petitioner and threw her against a parked car" and that on November 12 he "called Petitioner at home and threatened her...." Mrs. Foster filed a third motion on May 24, 1988, alleging additional violations of the CPO. This motion stated that on March 26 Foster "called threatening Petitioner," that on May 17 he "called ... threatening to kill the Petitioner," and that on May 21 he "threw Petitioner down basement stairs, kicking her body. Respondent also pushed her head into the floor causing head injuries. Petitioner lost consciousness." In all, Mrs. Foster alleged sixteen violations of the CPO. Mrs. Rivas also filed a motion to adjudicate Foster in contempt, alleging six violations of the CPO pertaining to her. [7]

In August 1988 Judge Murphy presided over a three-day bench trial on the various charges of criminal contempt in the intra-family case. Mrs. Foster and Mrs. Rivas, both represented by counsel, were the petitioners, and Mr. Foster was the respondent. The United States was not a party and was not represented at that trial. [8] Eight witnesses testified in support of the contempt motions, including Mrs. Foster, Mrs. Rivas, and other family members. Photographs, medical records, and other items of tangible evidence were also admitted.

Mrs. Foster identified her husband as the man who had beaten her on November 6, 1987, near her place of work, and on May 21, 1988, at her apartment on Argonne Place, N.W. She also said he had threatened her on November 12, 1987, March 26, 1988, and other occasions. With respect to the November 6 assault, the court heard additional testimony from Mrs. Rivas and from a police officer, Kenneth White. Several witnesses testified about the May 21 assault. Mrs. Foster said that Mr. Foster grabbed her and threw her down the basement stairs, then kicked her and hit her on the head until she lost consciousness. A neighbor, Ana Ruchlozo, said that she saw Mr. Foster in the apartment building on May 21, headed in the direction of the basement. Bryan Connell, a security guard, saw Mrs. Foster shortly after the assault and described her injuries ("she was bleeding very badly from the forehead [and] had very, very deep cuts on her forehead"). Connell testified that he also saw a man wielding a machete in the basement of the building soon after Mrs. Foster was injured, but that the man with the machete "was not Michael Foster." Medical records and photographs were introduced to document Mrs. Foster's injuries.

At the close of the petitioners' case, Mr. Foster's counsel moved for a judgment of acquittal on all counts. The court granted the motion with respect to seven counts, including those involving threats alleged to have been made by Foster on November 12 and May 17. [9] As to the remaining charges, however, the motion was denied.

Foster then took the stand in his own defense. He denied assaulting his wife on May 21, 1988, stating that he was in Norfolk, Virginia, visiting relatives on that date. He also denied assaulting his wife on November 6, 1987, or making threatening telephone calls to her at any time, including March 26, 1988. Finally, Foster testified

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that he had not threatened his mother-in-law but, to the contrary, had complied with the terms of the CPO.

The court found Foster guilty on four counts of criminal contempt, including those based upon the November 6, 1987, and May 21, 1988, assaults on Mrs. Foster. [10] As to those, the judge said:

The Court is satisfied beyond a reasonable doubt that you did, contrary to your testimony, assault your wife near Kalorama Park, 11/6/87, that leading to the injuries described and testified to.

The Court is also satisfied beyond a reasonable doubt that you committed the assault alleged to have occurred, and the Court is satisfied did in fact occur on May 21st, 1988, at the Argonne address, which led to your wife's hospitalization.

The court found Foster not guilty, however, of the remaining counts of criminal contempt, including the threats allegedly made against Mrs. Foster on March 26, 1988.

2. Subsequent Criminal Proceedings

On July 21, 1988, about two weeks before the contempt trial, the United States Attorney's Office filed a complaint charging Foster with a single count of assault with intent to kill while armed. The complaint and...

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