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No.91-1231. Argued December 2, 1992-Decided June 28,1993

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 "sameelements" or "Block burger" 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


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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