dixon argued december decided june based respondent dixon arrest indictment possession cocaine intent distribute convicted criminal contempt violating condition release unrelated offense forbidding commit criminal offense trial later dismissed cocaine indictment double jeopardy grounds conversely trial respondent foster case ruled double jeopardy require dismissal indictment charging simple assault count threatening injure another three occasions counts assault intent kill count even though events underlying charges previously prompted trial criminal contempt violating civil protection order cpo requiring assault manner threaten estranged wife district columbia appeals consolidated two cases appeal ruled subsequent prosecutions barred double jeopardy clause grady corbin held judgment affirmed part reversed part case remanded affirmed part reversed part remanded justice scalia delivered opinion respect parts ii iv concluding double jeopardy clause protection attaches nonsummary criminal contempt prosecutions criminal prosecutions contexts multiple punishments successive prosecution double jeopardy bar applies two offenses defendant punished tried survive blockburger test see blockburger test inquires whether offense contains element contained offence within clause meaning double jeopardy bars subsequent punishment prosecution recently held grady addition passing blockburger test subsequent prosecution must satisfy test avoid double jeopardy bar test provides establish essential element offense charged prosecution government prove conduct constitutes offense defendant already prosecuted second prosecution may pp although prosecution counts foster indictment undoubtedly barred grady test grady must overruled contradicted unbroken line decisions contained less accurate historical analysis produced confusion unlike blockburger analysis grady test lacks constitutional roots wholly inconsistent precedents clear common law understanding double jeopardy see grady supra scalia dissenting nielsen subsequent cases stand propositions entirely accord blockburger establish even minimal antecedents grady rule contrast two cases gavieres burton upheld subsequent prosecutions blockburger test blockburger test satisfied moreover grady rule already proved unstable application see felix although lightly reconsider precedent never felt constrained follow prior decisions unworkable badly reasoned pp justice scalia joined justice kennedy concluded part iii dixon drug offense include element contained previous contempt offense subsequent prosecution fails blockburger test dixon contempt sanction imposed violating order commission incorporated drug offense crime violating condition release abstracted element violated condition harris oklahoma per curiam harris underlying substantive criminal offense species offense illinois vitale whose subsequent prosecution barred double jeopardy clause analysis applies count foster indictment prosecution barred pp however remaining four counts foster indictment barred blockburger foster first prosecution violating cpo provision forbidding assault wife bar later prosecution count charges assault intent kill offense requires proof specific intent kill contempt offense similarly contempt crime required proof knowledge cpo later charge two crimes different offenses blockburger test counts ii iii iv likewise barred pp justice white joined justice stevens concluded double jeopardy clause bars prosecution offense defendant already held contempt commission dixon prosecution possession intent distribute cocaine foster prosecution simple assault prohibited pp justice souter joined justice stevens concluded prosecutions barred double jeopardy clause successive prosecution decisions nielsen grady corbin hold even blockburger test satisfied second prosecution permitted conduct comprising criminal act charged first dixon contempt prosecution proved beyond reasonable doubt possessed cocaine intent distribute prosecution possession intent distribute cocaine based incident barred similarly since foster already convicted contempt prosecution act simple assault charged count indictment subsequent prosecution simple assault barred pp scalia announced judgment delivered opinion respect parts ii iv rehnquist kennedy thomas joined opinion respect parts iii kennedy joined rehnquist filed opinion concurring part dissenting part thomas joined post white filed opinion concurring judgment part dissenting part stevens joined souter joined part post blackmun filed opinion concurring judgment part dissenting part post souter filed opinion concurring judgment part dissenting part stevens joined post deputy solicitor general bryson argued cause briefs solicitor general starr assistant attorney general mueller james feldman deborah watson james klein argued cause respondents brief elizabeth taylor rosemary herbert clifton elgarten susan hoffman susan deller ross naomi cahn laura foggan catherine klein filed brief ayuda et al amici curiae urging reversal justice scalia announced judgment delivered opinion respect parts ii iv opinion respect parts iii justice kennedy joins cases respondents tried criminal contempt violating orders prohibited engaging conduct later subject criminal prosecution consider whether subsequent criminal prosecutions barred double jeopardy clause respondent alvin dixon arrested murder released bond consistent district columbia bail law authorizing judicial officer impose condition reasonably assure appearance person trial safety person community ann dixon release form specified commit criminal offense warned violation conditions release subject revocation release order detention prosecution contempt see code ann authorizing sanctions awaiting trial dixon arrested indicted possession cocaine intent distribute violation ann issued order requiring dixon show cause held contempt terms pretrial release modified hearing four police officers testified facts surrounding alleged drug offense dixon counsel witnesses introduced evidence concluded government established beyond reasonable doubt dixon possession drugs drugs possessed intent distribute therefore found dixon guilty criminal contempt allows contempt sanctions expedited proceedings without jury accordance principles applicable proceedings criminal contempt contempt dixon sentenced days jail maximum penalty six months imprisonment fine later moved dismiss cocaine indictment double jeopardy grounds trial granted motion respondent michael foster route similar based foster alleged physical attacks upon past foster estranged wife ana obtained civil protection order cpo superior district columbia see ann cpo may issued upon showing good cause believe subject committed threatening intrafamily offense order foster consented required molest assault manner threaten physically abuse ana foster separate order implicated sought protect mother course eight months ana foster filed three separate motions husband held contempt numerous violations cpo alleged episodes charges relevant three separate instances threats november march may two assaults november may serious foster threw wife basement stairs kicking body pushed head floor causing head injuries ana foster lost consciousness issuing notice hearing ordering foster appear held bench trial counsel ana foster mother prosecuted action represented trial although attorney apparently aware action aware separate grand jury proceeding alleged criminal conduct assault charges stated ana foster prove element first civil protection order assault defined criminal code fact occurred tr nob accord close plaintiffs case granted foster motion acquittal various counts including alleged threats november may foster took stand generally denied allegations found foster guilty beyond reasonable doubt four counts criminal contempt three violations ana foster cpo one violation cpo obtained mother including november may assaults acquitted counts including march alleged threats sentenced aggregate days imprisonment see authorizing contempt punishment sup intrafamily rules maximum punishment six months imprisonment fine attorney office later obtained indictment charging foster simple assault november count violation threatening injure another november march may counts violation assault intent kill may count violation app ana foster complainant counts first last counts based events foster held contempt three based alleged events foster acquitted contempt like dixon foster filed motion dismiss claiming double jeopardy bar counts also collateral estoppel counts trial denied double jeopardy claim rule collateral estoppel assertion government appealed double jeopardy ruling dixon foster appealed trial denial motion district columbia appeals consolidated two cases reheard en banc relying recent decision grady corbin ruled subsequent prosecutions barred double jeopardy clause petition certiorari government presented sole question hether double jeopardy clause bars prosecution defendant substantive criminal charges based upon conduct previously held criminal contempt pet cert granted certiorari ii place cases context one must understand consequence historically anomalous use contempt power dixon foster issued order directing particular individual commit criminal offenses dixon case incorporated entire criminal code foster case criminal offense simple assault occurred common law american judicial system common law criminal contempt power confined sanctions conduct interfered orderly administration judicial proceedings blackstone commentaries limitation closely followed american courts see hudson cranch goldfarb contempt power federal courts power enforce observance order implied powers support common law jurisdiction criminal acts hudson supra congress amended judiciary act allowing federal courts summary contempt power punish generally disobedience resistance orders act march stat see bloom illinois discussing evolution federal courts statutory contempt power amendment judiciary act still given rise orders sort issue however since long common law tradition judicial orders prohibiting violation law injunctions example issue forbid infringement criminal civil laws absence separate injury private interest see blackstone supra high law injunctions pp notes citing english cases beach law injunctions pp interest protected criminal civil prohibition vindicated law though equity might enjoin harmful acts happened violate civil criminal law enjoin violation civil criminal law see sparhawk union passenger refusing enjoin railroad violation sunday closing law attorney general utica insurance johns ch refusing enjoin violation banking statute surprising therefore double jeopardy issue presented whether prosecution criminal contempt based violation criminal law incorporated order bars subsequent prosecution criminal offense arise common law even quite recently american cases see generally zitter contempt finding precluding substantive criminal charges relating transaction english earlier american cases report instances prosecution criminal contempt originally understood bar subsequent prosecution criminal offense based conduct see king lord ossulston str state yancy contempt prosecutions disruption judicial process disruptive conduct happened also criminal double jeopardy clause whose application new context called upon consider provides person shall subject offence twice put jeopardy life limb amdt protection applies successive punishments successive prosecutions criminal offense see north carolina pearce well established criminal contempt least sort enforced nonsummary proceedings crime ordinary sense bloom supra accord new orleans steamship wall held constitutional protections criminal defendants double jeopardy provision apply nonsummary criminal contempt prosecutions criminal prosecutions see gompers bucks stove range presumption innocence proof beyond reasonable doubt guarantee cooke notice charges assistance counsel right present defense oliver public trial think obvious today hold protection double jeopardy clause likewise attaches accord menna new york per curiam colombo new york per curiam multiple punishment multiple prosecution contexts concluded two offenses defendant punished tried survive test double jeopardy bar applies see brown ohio blockburger multiple punishment gavieres successive prosecutions test sometimes referred blockburger test inquires whether offense contains element contained offence double jeopardy bars additional punishment successive prosecution case yancy example contempt prosecution disruption judicial business test bar subsequent prosecution criminal assault part disruption contempt offense require element criminal conduct criminal offense require element disrupting judicial business recently held grady addition passing blockburger test subsequent prosecution must satisfy test avoid double jeopardy bar grady test provides establish essential element offense charged prosecution government prove conduct constitutes offense defendant already prosecuted second prosecution may iii first question us today whether blockburger analysis permits subsequent prosecution new criminal contempt context judicial order prohibited criminal act must proceed consider whether grady also permits see grady supra begin dixon statute applicable dixon contempt prosecution provides person conditionally released violated condition release shall subject prosecution contempt obviously dixon commit offence provision order setting conditions issued statute imposes legal obligation anyone dixon cocaine possession although offense ann supp offense judge incorporated statutory drug offense release order situation contempt sanction imposed violating order commission incorporated drug offense later attempt prosecute dixon drug offense resembles situation produced judgment double jeopardy harris oklahoma per curiam held subsequent prosecution robbery firearm barred double jeopardy clause defendant already tried felony murder based underlying felony described terse per curiam harris standing proposition double jeopardy purposes crime generally described felony murder separate offense distinct various elements illinois vitale accord whalen crime violating condition release abstracted element violated condition dixon order incorporated entire governing criminal code manner harris felony murder statute incorporated several enumerated felonies harris underlying substantive criminal offense species offense vitale supra accord whalen supra oppose analysis government point dictum debs extent attempted exclude certain nonsummary contempt prosecutions various constitutional protections criminal defendants squarely rejected cases bloom government also relies upon chapman jurney maccracken recognize congress power punish contempt refusal witness testify say congress punish refusal say criminal punish refusal yet neither case dealt issue chapman specifically declined address noting successive prosecutions congress contemptuous refusal testify violation federal statute making refusal crime improbable government brief justice blackmun post contend legal obligation dixon case may serve interests fundamentally different substantive criminal law derives part determination rather determination legislature distinction seems questionable since power establish conditions release punish violation conferred statute legislature ultimate source criminal contempt prohibition importantly however distinction moment purposes double jeopardy clause text looks whether offenses interests offenses violate stated long ago criminal contempt least nonsummary form crime every fundamental respect bloom supra accord steamship dixon drug offense include element contained previous contempt offense subsequent prosecution violates double jeopardy clause foregoing analysis obviously applies well count indictment foster charging assault violation based event subject prior contempt conviction violating provision cpo forbidding commit simple assault subsequent prosecution assault fails blockburger test barred remaining four counts foster assault intent kill count threats injure kidnap counts barred blockburger count foster conduct may found violate family division order molest assault manner threaten physically abuse wife contempt hearing stated ana foster attorney prosecuted contempt prove first knowledge cpo second willful violation one conditions simple assault defined criminal code see thompson accord parker per curiam basis episode foster indicted violation proscribes assault intent kill governing law offense requires proof specific intent kill simple assault see logan similarly contempt offense required proof knowledge cpo assault intent kill applying blockburger elements test result clear crimes different offenses subsequent prosecution violate double jeopardy clause counts ii iii iv foster indictment likewise barred charged foster forbidding anyone threate kidnap person injure person another physically damage property person alleged threats three separate dates foster contempt prosecution included charges dates violated cpo provision ordering manner threaten ana foster conviction contempt required willful violation cpo conviction conviction required threat threat kidnap inflict bodily injury damage property conviction contempt violating cpo provision foster manner threaten offense therefore contained separate element blockburger test double jeopardy met iv found least counts issue barred blockburger test must consider whether barred new additional double jeopardy test announced three terms ago grady corbin undoubtedly since grady prohibits subsequent prosecution establish essential element offense charged prosecution assault element assault intent kill threatening element threatening bodily injury government prove conduct constitutes offense defendant already prosecuted assault threatening conduct constituted offense violating cpo concluded however grady must overruled unlike blockburger analysis whose definition prevents two crimes offence amdt deep historical roots accepted numerous precedents grady lacks constitutional roots rule announced wholly inconsistent earlier precedent clear common law understanding double jeopardy see gavieres subsequent prosecution hile true conduct accused one two offenses resulted element embraced need discuss many proofs statements set forth length grady dissent see opinion scalia respond however contrary contentions today dissents centerpiece justice souter analysis appealing theory successive prosecution strand double jeopardy clause different meaning supposed successive punishment strand often noted clause serves function preventing successive punishment successive prosecution see north carolina pearce authority except grady proposition different meanings two contexts perhaps embarrassing assert single term offence words fifth amendment issue two different meanings offense yet offense justice souter provides authority whatsoever aware none bald assertion long held government must sometimes bring prosecutions separate offenses together post collateral estoppel effect attributed double jeopardy clause see ashe swenson may bar later prosecution separate offense government lost earlier prosecution involving facts establish government must bring prosecutions together entirely free bring separately win convictions course issue raised case justice souter relies upon four cases establish existence minimal antecedents grady post fountainhead rule asserts nielsen demonstrably wrong nielsen simply applies common proposition entirely accord blockburger prosecution greater offense cohabitation defined require proof adultery bars prosecution lesser included offense adultery clear nielsen framing question opinion therefore habeas corpus proper remedy petitioner crime adultery charged included crime unlawful cohabitation convicted punished question considered emphasis added legal analysis repeated observations cohabitation required proof adultery second case comes almost century later brown ohio contains support position except cites nielsen proposition blockburger test standard determining whether successive prosecutions impermissibly involve offense brown supra purest dictum flatly contradicts text opinion next page describes nielsen first case endorse blockburger rule brown supra quoting suspect dictum multiple times see post convert case law see national bank independent ins agents america emphasizing need distinguish opinion holding dicta holding brown like nielsen rests squarely upon existence lesser included offense setting question presented third case harris justice souter asserts reaffirmation contends earlier holding nielsen blockburger test insufficien determining successive prosecution barred conduct merely elements offense must object inquiry post surely harris never uses word conduct entire discussion focuses elements two offenses see prove felony murder necessary ingredients underlying felony proved far validating justice souter extraordinarily implausible reading nielsen harris plainly rejects reading treating earlier case focused like blockburger upon elements offense immediately stating conviction felony murder greater crime without conviction lesser crime harris quotes nielsen statement person tried convicted crime various incidents included second time tried one incidents quoting clear context harris regarded incidents included mean offenses included reference defined crimes rather conduct finally justice souter misdescribes vitale despite bold assertion contrary see post vitale unquestionably reads harris merely application double jeopardy bar lesser greater included offenses justice souter instead elevates statement vitale certain hypothetical facts petitioner substantial claim double jeopardy theory see post holding petitioner win theory post justice vitale dissenters included ever construed passage answering rather simply raising question later granted certiorari grady see stevens dissenting addition finding claim substantial dissent find dispositive see also grady vitale suggested test adopted grady contrast dicta relied upon justice souter two cases directly point gavieres burton upheld subsequent prosecutions concluding blockburger test blockburger test satisfied cases incompatible belief nielsen created additional requirement beyond elements standard totally ignored justice souter many early american cases construing double jeopardy clause support elements test see grady supra scalia dissenting grady wrong principle already proved unstable application less two years came felix forced recognize large exception concluded subsequent prosecution conspiracy manufacture possess distribute methamphetamine barred previous conviction attempt manufacture substance offered justification avoiding literal faithful reading grady longstanding authority effect prosecution conspiracy precluded prior prosecution substantive offense felix supra course existence large longstanding exception grady rule gave cause concern rule accurate expression law past practice excuse available support ignoring grady present case since precedent even discussing fairly new breed successive prosecution criminal contempt violation order prohibiting crime followed prosecution crime hypothetical based facts harris reinforces conclusion grady continuing source confusion must overruled suppose state first tries defendant felony murder based robbery indicts defendant robbery firearm incident absent grady cases provide clear answer double jeopardy claim situation blockburger second prosecution barred clearly barred common law famous case establishes king vandercomb leach government abandoned midtrial prosecution defendant burglary breaking entering stealing goods turned property removed date alleged burglary defendant prosecuted burglary breaking entering intent steal second prosecution allowed two offences distinct nature evidence one support indictment ibid accord english american cases cited grady scalia dissenting encountered today yet another situation understanding double jeopardy clause allows second trial though test think time acknowledge three years grady compellingly clear case mistake lightly reconsider precedent grady contradicted unbroken line decisions contained less accurate historical analysis produced confusion solorio although stare decisis preferred course constitutional adjudication governing decisions unworkable badly reasoned never felt constrained follow precedent payne tennessee quoting smith allwright collecting examples mock stare decisis add chaos double jeopardy jurisprudence pretending grady survives therefore accept government invitation overrule grady counts ii iii iv foster subsequent prosecution barred dixon subsequent prosecution well count foster subsequent prosecution violate double jeopardy clause reasons set forth part iv counts foster subsequent prosecution violate double jeopardy clause judgment district columbia appeals affirmed part reversed part case remanded proceedings inconsistent opinion ordered footnotes order analysis applicable violation statute criminalizing disobedience lawful police order chief justice dissent point hypothesizes see post statute must embrace police orders command noncommission crimes instance shoot man seems us unlikely police order statute interpreted fashion rather addressing new obligations imposed lawful order police example obligation remain behind police lines heed command freeze however statute interpreted cover police orders forbidding crimes double jeopardy clause practical matter bar subsequent prosecution relatively minor offenses assault conceivable lesser included offense order shoot unless one assumes constables often order noncommission serious crimes example murder man serious felons murderers first prosecuted disobeying police orders obvious word assault cpo bore precise meaning assault imposing contempt construed way however point contested litigation justice white complains section opinion gives arguments short shrift post treats conclusory fashion post proceeds reject arguments largely agreeing analysis post think unnecessary indeed undesirable address greater length arguments based dictum inapplicable doctrines dual sovereignty remainder part justice white opinion deals issue argues means conclusory fashion practical consequences law enforcement serious post may right share pragmatic view post meaning double jeopardy clause depends upon approval consequences given requirement willful violation order justice white desire put side cpo triggered authority reconciled desire compar substantive offenses respondents stood accused post substantive offense criminal contempt willful violation order far mere jurisdictional device order cpo centerpiece entire proceeding terms define prohibited conduct existence supports imposition criminal penalty willful violation necessary conviction ignore cpo determining whether two offenses possible putting aside statutory definitions criminal offenses course justice white view elements criminal contempt essentially irrelevant double jeopardy analysis precedent albeit erroneous grady test grady corbin justice souter also ignores knowledge element post accept ordinarily construction district columbia law adopted district columbia appeals see pernell southall realty construction sound support text statute compare ann assault intent kill rob rape poison assault justice white suggestion post foster received lesser included offense instruction assault trial assault intent kill uphold conviction lesser count simply wrong basic blockburger analysis foster may neither tried second time assault convicted assault concluded count charging simple assault thus foster certainly receive full constitutional protection entitled post may neither tried convicted second time assault affect conclusion trial conviction assault intent kill barred merely illustrates unremarkable fact one offense simple assault may included offense two offenses violation cpo assault assault intent kill separate offenses blockburger think highly artificial interpret cpo prohibition threatening manner justice white interpret refer threats violate district criminal laws post threats meeting definition threats physical harm kidnap damage property see ann threats stalk frighten cause intentional embarrassment make harassing phone calls make false reports employers prospective employers harass phone calls otherwise work mention additional threats might anticipated domestic situation covered surely manner threaten cover least threats commit acts tortious district columbia law consistent trial later reference legal threat thus blockburger analysis aggravated threat counts count come way justice white attempts avoid issue altogether view injudicious consider differences foster pressed government cpo restrictions alleged statutory offenses post course differences pure facts apparent face cpo indictment alter question presented assumes prosecuted conduct see supra terms cpo statute although government argue different counts foster come differently argue evaluated blockburger grady see brief aware principle prevents us accepting litigant legal theory unless agree litigant applications theory standard applied determining double jeopardy effect criminal charges based conduct blockburger grady assuredly included within question presented makes justice white citation cases declining consider legal issues raised wholly beside point see abuse justice white regards prudential limitation evident factual difference charges cpo order central proper constitutional analysis justice souter apparently led astray misinterpretation word incidents following passage nielsen case person tried convicted crime various incidents included second time tried one incidents without twice put jeopardy offence apparently takes incident mean event conduct see post obviously means however element see black law dictionary ed defining incidents ownership bouvier law dictionary defining incident giving examples incident reversion incidents contract perfectly clear next sentence nielsen justice souter quote may contended adultery incident unlawful cohabitation example way read following passage illinois vitale quoted justice souter post harris treated killing course robbery separate statutory offense robbery species offense justice souter contents burton point case arose demurrer indictment presented factual basis charges post rare unsatisfactory indictment set forth factual basis charges burton discusses facts length obvious assumed conduct issue indictments decided pursuant blockburger nature statutes support claim double jeopardy agreed justice souter view law proceeded consider whether nature acts alleged supported claim justice white post justice souter post recognize gavieres hold blockburger test offence justice souter handles difficulty simply ignoring concession see ibid justice white first minimizes concession arguing application version blockburger successive prosecutions happened reason gavieres post seems us enough make precedent justice white seeks neutralize precedent offering still another case grafton support reading grafted onto today post defendant grafton first tried acquitted military offense homicide tried civilian criminal assassination convicted homicide based conduct second prosecution held barred double jeopardy clause justice white argues grafton soldier military jurisdiction relevance cpo gave authority punish offenses already prescribed criminal law post description accurately portray threat counts see supra problem justice white analysis deeper substantive offense grafton first tried violation philippines penal code article one elements status soldier whereas substantive offense foster first tried one elements knowledge extant cpo see supra since military status element grafton charged offense true analysis produce result contrary opinion grafton traditional blockburger elements test assassination defined article philippines penal code contained element homicide defined article noted homicide contain element included assassination one crime may constituent part accord subsequently tried offense grafton therefore later prosecuted assassination much less later convicted homicide offense acquitted fact grafton may simply decided grounds collateral estoppel see issue specifically decline reach case see infra unclear definition offence justice souter us adopt successive prosecution times appears content added blockburger grady test times however adopts transaction rule require government try together offenses regardless differences statutes based one event see post course test long espoused justice brennan see brown ohio concurring opinion consistently rejected see garrett justice souter dislikes result violates principles behind protection successive prosecutions included fifth amendment post principles behind fifth amendment likely honored following longstanding practice following intuition case justice souter concern prosecutors bring separate prosecutions order perfect case seems unjustified little gain much lose strategy ashe swenson acquittal first prosecution might well bar litigation certain facts essential second one though conviction first prosecution excuse government proving facts second time surely moreover government must deterred abusive repeated prosecutions single offender similar offenses sheer press demands upon prosecutorial judicial resources finally even justice souter fear double jeopardy bar short analysis eliminate problem interpretation double jeopardy clause soundly rejected see garrett supra require overruling numerous precedents latest barely year old felix see sharpton turner grady formulation proven difficult apply whatever difficulties previously encountered grappling grady language eased felix cert denied ladner smith divided adopts test application grady notes grady even carefully analyzed painstakingly administered easy apply cert denied calderone divided issues three opinions construing grady vacated remanded remanded consideration light felix prusan sdny lower courts difficulty discerning precise boundaries grady standard circuits applied uniformly conduct test rev cert denied sub nom vives state woodfork neb divided overrules precedent construing grady misapplication grady eatherton state wyo majority really develop new law grady respect successive prosecutions dissent concludes grady requires reversal commentators confirmed grady contributed confusion rather certainty see poulin double jeopardy protection successive prosecutions complex criminal cases model thomas modest proposal save double jeopardy clause address motion dismiss threat counts based collateral estoppel see ashe swenson supra neither lower ruled issue justices white stevens souter concur portion judgment justice blackmun concurs judgment respect portion chief justice rehnquist justice justice thomas join concurring part dissenting part respondent alvin dixon possessed cocaine intent distribute held contempt violating condition bail release later criminally charged conduct possession intent distribute cocaine respondent michael foster assaulted threatened estranged wife held contempt violating civil protection order entered domestic relations proceeding later criminally charged conduct assault threatening injure another assault intent kill today concludes double jeopardy clause prohibits subsequent prosecutions foster assault dixon possession intent distribute cocaine prohibit subsequent prosecutions foster threatening injure another assault intent kill finding least charges prohibited test set blockburger goes consider whether double jeopardy bar test set grady corbin determines however test inconsistent text history double jeopardy clause departure earlier precedents proven difficult apply concludes grady must overruled join part iii justice scalia opinion think none criminal prosecutions case barred blockburger must confront expanded version double jeopardy embodied grady reasons set forth dissent grady supra opinion scalia part iv opinion think grady must overruled therefore join parts ii iv opinion write separately express disagreement justice scalia application blockburger part iii view blockburger test requires us focus terms particular orders involved elements contempt ordinary sense relying harris oklahoma per curiam unargued case justice scalia concludes otherwise today thus incorrectly finds part opinion subsequent prosecutions dixon drug distribution foster assault violated double jeopardy clause justice scalia rejects traditional view shared every federal appeals state addressed issue prior grady general matter double jeopardy bar subsequent prosecution based conduct defendant held criminal contempt subscribe reading harris upsets previously principle law generic crime contempt different elements substantive criminal charges case believe separate offenses blockburger therefore limit harris context arose crimes question analogous greater lesser included offenses crimes issue bear resemblance justice scalia dismisses hand see ante government reliance several statements prior decisions see debs chapman jurney maccracken statements dicta sure thus binding us stare decisis yet still significant reflect unchallenged contemporaneous view among courts double jeopardy clause prohibit separate prosecutions contempt substantive offense based conduct view dates back english common law see wharton criminal pleading practice ed prevailed present day see generally criminal law fact every federal appeals state last resort consider issue grady agreed double jeopardy bar successive prosecutions criminal contempt substantive criminal offenses based conduct see hansen orban state sammons app commonwealth allen cert denied people totten somewhat ironic think justice scalia today adopts view double jeopardy come fore grady decision goes emphatically reject lack ing constitutional roots ante heart consensus lay common belief double jeopardy bar blockburger stated two offenses different purposes double jeopardy provision requires proof fact emphasis added applying test offenses bar clear elements governing contempt provision entirely different elements substantive crimes contempt comprises two elements order made known defendant followed ii willful violation order gorfkle thompson neither elements necessarily satisfied proof defendant committed substantive offenses assault drug distribution likewise element either substantive offenses necessarily satisfied proof defendant found guilty contempt justice scalia grounds departure blockburger customary focus statutory elements crimes charged harris oklahoma supra improbable font authority see ante summary reversal like harris enjoy full precedential value case argued merits connecticut doehr accord edelman jordan today decision shows pitfalls inherent reading much terse per curiam ante justice scalia discussion harris nearly long harris consists largely quote harris subsequent opinion analyzing harris justice scalia concludes harris somehow requires us look facts must proved particular orders question rather general law criminal contempt determining whether contempt related substantive offenses double jeopardy purposes interpretation harris unprecedented mistaken double jeopardy cases applying blockburger focused statutory elements offenses charged facts must proved particular indictment issue indictment closest analogue orders case see grady scalia dissenting th test focuses statutory elements two crimes defendant charged proof offered relied upon secure conviction albernaz application test focuses statutory elements offense quoting iannelli woodward per curiam looking statutory elements offense applying blockburger focusing facts needed show violation specific orders involved case generic elements crime contempt justice scalia double jeopardy analysis bears striking resemblance found grady one expect opinion overrules grady close inspection crimes issue harris reveals moreover decision case departure blockburger focus statutory elements offenses charged harris held conviction felony murder based killing course armed robbery foreclosed subsequent prosecution robbery firearm though felony murder statute harris require proof armed robbery include element proof defendant engaged commission felony harris state app construed generic reference felony incorporating statutory elements various felonies upon felony murder conviction rest cf whalen criminal contempt provision involved contrast contains generic reference definition incorporates statutory elements assault drug distribution unless accept extraordinary view per curiam harris intended overrule sub silentio previous decisions looked statutory elements offenses charged applying blockburger bound conclude justice scalia see ante ratio decidendi harris decision two crimes akin greater lesser included offenses crimes issue however viewed greater lesser included offenses either intuitively logically crime possession intent distribute cocaine serious felony easily conceived lesser included offense criminal contempt relatively petty offense applied conduct case see ann supp maximum sentence possession intent distribute cocaine years prison indeed say criminal contempt aggravated form offense defies common sense even courts found double jeopardy bar cases resembling one appreciated counterintuitive notion haggerty fundamental reason offenses case analogous greater lesser included offenses lesser included offense defined one necessarily included within statutory elements another offense see schmuck taking facts harris example defendant commits armed robbery necessarily satisfied one statutory elements felony murder said course case defendant guilty possession intent distribute cocaine assault necessarily satisfied statutory element criminal contempt matter said defendant held criminal contempt necessarily satisfied element substantive crimes short offenses dixon foster prosecuted case analogized greater lesser included offenses hence separate distinct double jeopardy purposes following analogy raised government oral argument see tr oral arg helps illustrate absurd results justice scalia analysis theory produce suppose offense question failure comply lawful order police officer see supp police officer order shoot man justice scalia flawed reading harris elements offense failure obey police officer lawful order include purposes blockburger test elements perhaps murder manslaughter effect converting felonies lesser included offense crime failure comply lawful order police officer sum think substantive criminal prosecutions case followed convictions criminal contempt violate double jeopardy clause least decision grady grady double jeopardy clause bars subsequent prosecution establish essential element offense charged prosecution government prove conduct constitutes offense defendant already prosecuted points see ante case undoubtedly falls within expansive formulation secure convictions substantive criminal charges case government prove conduct basis contempt convictions forced confront grady join overruling decision justice scalia suggests dicta earlier cases limited value light bloom illinois held sixth amendment right jury trial applies nonsummary contempt prosecutions simply reason think dicta cases based understanding prosecutions contempt subject double jeopardy clause rather principal theme running cases nonsummary contempt criminal prosecution prosecution later one substantive offense involve two separate distinct offenses discussion use contempt power common law century america see ante undercut relevance later decisions late century instant case assuming arguendo justice scalia reading harris oklahoma accurate must look terms particular orders involved believe justice scalia correct differentiating among various counts foster order provided foster must molest assault manner threaten physically abuse estranged wife app pet cert foster found contempt wife need proved knowledge order assaulted threatened assaulted intent kill count threatened inflict bodily harm counts crime criminal contempt foster even analyzed justice scalia reading harris nonetheless different offense blockburger crimes alleged counts indictment since provision requires proof fact justice scalia finds double jeopardy bar respect counts agree result reached part opinion justice white justice stevens joins justice souter joins part concurring judgment part dissenting part convinced double jeopardy clause bars prosecution offense defendant already held contempt commission therefore agree conclusion dixon prosecution possession intent distribute cocaine foster prosecution simple assault prohibited view however justice scalia opinion gives short shrift arguments raised also uncomfortable reasoning underlying holding particular application blockburger facts case reasoning betrays overly technical interpretation constitution result concur judgment part mischief approach far apparent second portion today decision constrained narrow reading double jeopardy clause asserts fate foster remaining counts depends grady corbin chooses overrule ante agree resolution question presented foster case requires reliance grady points reasons reversing decision rather construe clause double jeopardy principles compel equal treatment foster counts dissent holding contrary inasmuch grady dragged case however agree justice blackmun justice souter overruled post aspect opinion well dissent chief issue us whether double jeopardy clause applies cases justice scalia finds applies conclusory fashion without dealing adequately either government arguments practical consequences today decision view worthy position purpose applying double jeopardy clause charge criminal contempt engaging conduct proscribed order turn forbidden criminal code offense separate statutory crime begins pointing prior decisions support view heavy reliance placed debs majority notes see ante relevant portion opinion dictum seriously weakened dictum see bloom illinois government also relies two cases involving congress power punish contempt witness refuses testify chapman jurney maccracken cases appear lean petitioner direction neither conclusive first statements dicta claim jurney chapman power punish contempt power punish commission statutory offense coexist side side neither powers exercised neither case defendant face realistic threat twice put jeopardy fact majority notes ante expressed doubt consecutive prosecutions brought circumstances see chapman supra second decisions concern power deal acts interfering directly performance legislative functions power constitutional restraints exercise judiciary authority apply see marshall gordon point spelled marshall case chapman contempt proceeding need resor modes trial required constitutional limitations substantive offenses criminal law escape prohibitions double jeopardy clause however character subject constitutional restrictions things pointed chapman distinct therefore one frustrate implied legislative authority compel giving testimony right criminally punish failure become one exercise one therefore exertion exhausting right resort marshall thus suggests application double jeopardy clause like constitutional guarantees function type contempt proceeding issue chapman follows said control case rather whatever application chapman implication jurney might context judicial contempt limited cases contempts constitute direct obstructions judicial process summary proceedings remain acceptable cf marshall supra neither dixon foster case second powerful argument contempt underlying substantive crime constitute two separate offenses involve injuries two distinct interests one interest preserving authority public interest protected harmful conduct position finds support justice blackmun partial dissent see post bolstered reference numerous decisions acknowledging importance role courts contempt power see young ex rel vuitton et fils michaelson gompers bucks stove range lightly dismissed indeed recognized young supra contempt proceedings intended punish conduct proscribed harmful general criminal laws rather designed serve limited purpose vindicating authority punishing contempt judiciary sanctioning conduct violates specific duties imposed arising directly parties participation judicial proceedings fact two criminal prohibitions promote different interests may indicative legislative intent extent important deciding whether cumulative punishments imposed single prosecution violate double jeopardy clause see missouri hunter cases decided today involve instances successive prosecutions interests defendant paramount concern subject individual repeated prosecutions exposes embarrassment expense ordeal green violates principles finality wilson increases risk mistaken conviction one punishments designed protect rather public regard scant comfort defendant true always given primacy defendant interest particular government directs attention dual sovereignty doctrine hen defendant single act violates peace dignity two sovereigns breaking laws committed two distinct offences heath alabama quoting lanza see also wheeler moore illinois dual sovereignty doctrine limited terms cases two entities seek successively prosecute defendant course conduct termed separate sovereigns heath determination explained turns whether two entities draw authority punish offender distinct sources power whether pursuing separate interests indeed rejected precise argument past perhaps nowhere resolutely grafton case defendant private army stationed philippines tried general homicide subsequent grafton acquittal filed criminal complaint civil based acts seeking discredit view double jeopardy clause violated subsequent prosecution government asserted grafton committed two distinct offenses one military law discipline civil law may prescribe punishment crimes organized society whomsoever crimes committed responded congress express constitutional provision power prescribe rules government regulation army rules must interpreted connection prohibition man put twice jeopardy offense therefore person tried offense tribunal deriving jurisdiction authority acquitted convicted tried offense another tribunal deriving jurisdiction authority acts constituting crime acquittal conviction accused competent jurisdiction made basis second trial accused crime another civil military government congress chosen discretion confer upon general authority try officer soldier crime capital committed territory serving done judgment military placed upon level judgments tribunals inquiry arises whether accused virtue judgment put jeopardy life limb government amici submit application double jeopardy clause context carries grave practical consequences see also post blackmun concurring judgment part dissenting part argued cripple power enforce orders alternatively allow individuals escape serious punishment statutory criminal offenses argument offshoot principle necessity familiar law contempt see wilson relaxed certain procedural requirements contempt proceedings time essence immediate remedy needed prevent breakdown proceedings exclude double jeopardy protections setting lest damage courts authority words ability punish disobedience judicial orders regarded essential ensuring judiciary means vindicate authority young exercise inhibited fear might immunize defendants subsequent criminal prosecution adherence double jeopardy principles context however seriously deter courts taking appropriate steps ensure authority flouted courts remain free hold transgressors contempt punish see fit government counters possibility prove either illusory prosecuting authority declines initiate proceedings fear jeopardize substantial punishment underlying crime costly prosecuting authority risk notwithstanding chooses go forward fanciful imagine judges prosecutors select third option ensure necessary advisable contempt substantive charge tried time case double jeopardy issue limited ensuring total punishment exceed authorized legislature halper indeed recently exercised supervisory power suggest federal ordinarily first request appropriate prosecuting authority prosecute contempt actions appoint private prosecutor request denied young practice courts reasonably expect public prosecutor accept responsibility prosecution public prosecutor reasonably anticipate agree delay needed bring two actions together backdrop appeal principle necessity loses much force ultimately urgency punishing contempt violations less token punishing violations criminal laws general application case simply question defendant right protections worked carefully years deemed fundamental system justice bloom illinois including protection double jeopardy clause perhaps extent sacrifice efficiency expedition economy choice made retained constitution see sound reason logic policy apply area criminal contempt dixon aptly illustrates points case motion requesting modification conditions dixon release filed government entity responsible prosecution drug offense indeed relied explicitly defendant indictment cocaine charge logically problem coordination advance notice impending prosecution substantive offense minimal aside legitimate desire punish offenders swiftly appear real need hold dixon contempt immediately without waiting second trial way comparison time drug offense dixon awaiting trial murder charge brought months earlier besides situation person violated condition release generally exist number alternatives defendant right put twice jeopardy offense safeguarded ensuring disregard authority go unsanctioned extent exercised due regard constitution options might include modification release conditions revocation bail detention respondents acknowledge solutions raise double jeopardy problem see tr oral arg difficult deal circumstances surrounding foster defiance order realization scope domestic violence according american medical association ama single largest cause injury women ama five issues american health come difficulty come late doubt time delays operation criminal justice system frustrating even perilous individual left exposed defendant potential violence true domestic context true elsewhere well resort expedient methods therefore appealing many cases permissible today decision instance police officers retain power arrest violation civil protection order offense warrants judges haul assailant charge criminal contempt hold without bail see salerno edwards also cooperation government parties bringing contempt proceedings achieved various actors might thought cooperation necessary past today decision suspect victims understandably prefer access proceeding swift expeditious punishment inflicted offense without prejudice subsequent criminal trial justification system however nothing preventing disruption proceedings even vindicating authority principle necessity contempt proceedings exempted constitutional constraints done strictly secure judicial authority obstruction performance duties end means appropriate preservation enforcement constitution may secured ex parte hudgings end invoked principle necessity summoned sole purpose letting contempt proceedings achieve constitution criminal trials ii agrees double jeopardy clause ignored context view subsequent prosecutions dixon foster impermissible counts reach conclusion offenses issue contempt proceedings either identical lesser included offenses charged subsequent prosecutions justice scalia contrary conclusion foster counts reaches exclusive focus formal elements relevant crimes divorced purposes constitutional provision purports apply moreover results approach lead indefensible contempt orders foster dixon referred one case district laws regarding assaults threats criminal code entirety prohibitions imposed orders words duplicated already place virtue criminal statutes aside differences sanctions inflicted distinction punished violation criminal laws punished violation orders therefore simply whereas former case entire population subject prosecution latter authority extends particular persons whose legal obligations result earlier participation proceedings young offenses sanctioned either proceeding must similar since contempt orders incorporated full part criminal code thus case offense dixon held contempt possession intent distribute drugs since previously indicted precisely offense double jeopardy bar apply foster contempt proceeding acquitted respect threats allegedly made november march may found contempt committed following offenses assaulting wife november may threatening september app subsequent indictment charged foster simple assault november count threatening injure another november march may counts ii iii iv assault intent kill may count offenses foster either convicted acquitted contempt proceeding similar lesser included offenses charged subsequent indictment fifth amendment forbids successive prosecution greater lesser included offense brown ohio see also grafton second set trials barred entirety professing strict adherence blockburger test see blockburger justice scalia opts circuitous approach elements crime contempt reasons instance existence knowledge cpo commission underlying substantive offense see ante criminal conduct forms basis contempt order identical charged subsequent trial justice scalia concludes blockburger forbids retrial elements foster simple assault offense included previous contempt offense prosecution ground precluded ante true dixon drug offense ibid agree conclusion though reach rather differently successive prosecution case risk person defend charge put side cpo triggered authority punish defendant acts already punishable criminal laws compared substantive offenses respondents stood accused prosecutions significance disaccord far manifest element added second prosecution justice scalia view double jeopardy barrier removed offense demands proof element foster conviction contempt requires proof existence knowledge cpo conviction assault intent kill conviction assault intent kill requires proof intent kill contempt conviction ante finally though acquitted contempt proceedings respect alleged november march may threats conviction threat charge subsequent trial required additional proof threat kidnap inflict bodily injury damage property ante counts absent problem see ante justice scalia finds constitution prohibit retrial distinction drawn justice scalia predicated reading double jeopardy clause abstracted purposes constitutional provision designed promote focus statutory elements crime makes sense cumulative punishment stake aim simply uncover legislative intent blockburger inquiry accordingly serves means determine intent cases recognized see missouri hunter justice souter shows adherence legislative little important interests advanced double jeopardy safeguards successive prosecutions post central purpose double jeopardy clause protect vexatious multiple prosecutions see hunter supra wilson interests go well beyond prevention unauthorized punishment test inadequate safeguard leaves constitutional guarantee mercy legislature decision modify statutory definitions significantly therefore applied inflexible version test successive prosecution case see gavieres since noted blockburger test standard determining whether successive prosecutions impermissibly involve offense brown rather ven two offenses sufficiently different permit imposition consecutive sentences successive prosecutions barred circumstances second prosecution requires relitigation factual issues already resolved first ibid take example count foster intents purposes offense convicted contempt proceeding assault wife majority eyes fixed rigid elements test fate turn whether subsequent prosecution charges simple assault assault intent kill yet crime simple assault included within crime assault intent kill reasons bar retrial first hypothesis equally present second include principles finality see wilson supra protecting foster embarrassment expense green preventing government gradually strategy thereby minimizing exposure mistaken conviction see also tibbs florida arizona washington supra analysis threat charges counts makes point clearly still contempt proceeding recalled foster acquitted arguably offense threatening manner stated law attaches particular significance acquittal permit second trial acquittal however mistaken acquittal might present unacceptably high risk government vastly superior resources might wear defendant even though innocent may found guilty scott citation omitted respond majority appears concerns relating defendant interests repeat trials unjustified prosecutors little gain much lose bringing successive prosecutions government must deterred abusive repeated prosecutions single offender similar offenses sheer press demands upon prosecutorial judicial resources ante get things exactly backwards majority prophesies might correct double jeopardy might problem simply take care however according constitution whose firm prohibition double jeopardy satisfied wishful thinking consequences illogical harmful flow justice scalia approach turn illustration foster assault case second prosecution government brought charges assault intent kill district columbia superior criminal rule faithfully mirrors federal counterpart federal rule criminal procedure provides defendant may found guilty offense necessarily included offense charged attempt commit either offense charged offense necessarily included therein attempt offense provision construed require jury determine guilt lesser included offenses see simmons specifically defendant entitled offense instruction elements lesser offense included within offense charged sufficient evidentiary basis lesser charge rease citations omitted simple assault lesser included offense assault intent kill cf keeble jury second prosecution likelihood receive instructions lesser offense find foster guilty simple assault short government constitution bring charges simple assault apparently majority interpretation secure conviction simple assault long prosecutes foster assault intent kill see foster put jeopardy twice simple assault result unjustifiable pernicious stems believe hypertechnical archaic approach ashe swenson archaic might quite word even far back appeared hold pragmatic view defendant grafton authorized article war pursuant congress granted military courts power try officers soldiers time peace offense capital civil law declares crime public grafton faced following charge private homer grafton sentry post unlawfully willfully feloniously kill florentino castro philippino felix villanueva philippino acquitted three months later grafton prosecuted civil criminal charged crime assassination defined killing accompanied following treachery price promise reward means flood fire poison deliberate premeditation vindictiveness deliberately inhumanly increasing suffering person attacked grafton ultimately found guilty homicide lesser included offense dispose foster case like fashion focus justice scalia overlooks interests safeguarded double jeopardy clause fact foster defend twice charges case viewed condition foster subject contempt order practical matter analogous condition grafton soldier triggered authority punish offenses already prescribed criminal law point relevant comparison double jeopardy purposes offenses charged two proceedings iii agreed double jeopardy clause applies context clause properly construed governs case disposes distinction foster charges upon justice scalia relies therefore see little need draw grady dispute event attempted distinguish dixon foster charges assault one hand assault intent kill threat injure another issue raised appeals considered neither presented petition certiorari briefed either party circumstances injudicious address matter see mazer stein adickes kress majority nonetheless chosen consider grady anew overrule agree justice blackmun justice souter course unwarranted unwise see post hence dissent judgment overruling grady iv believing double jeopardy clause bars foster dixon successive prosecutions counts affirm judgment district columbia appeals concur judgment part holds dixon subsequent prosecution count foster subsequent prosecution barred disagree justice scalia application blockburger part part iv opinion majority decides overrule grady dissent distinction one hand direct summary contempt contempt acts occurring courtroom interfering orderly conduct business nonsummary contempt possesses old roots cases see wilson cammer nye cooke savin ex parte terry see also significantly courts relied division allow retrial substantive criminal charges summary contempt proceeding based conduct see rollerson app mirra argument goes follows summary proceedings really involve adversary proceedings see cooke supra raise typical double jeopardy concerns defendant subjected successive trials instant cases deal exclusively nonsummary contempt trials also worth noting sentences contumacious conduct quite severe federal law statutory limit sentence imposed criminal contempt proceeding see true district columbia see ann supp see also caldwell significantly courts found bar imposition prison sentence contempt even order transgressed injunction violation statute provide imprisonment penalty see quade cert denied mitchell fiore cert denied fidanian cert denied contempt proceeding brought prosecuted private party foster immaterial rivate attorneys appointed prosecute criminal contempt action represent party beneficiary order allegedly violated said gompers criminal contempt proceedings arising civil litigation public defendant young ex rel vuitton et fils like justice scalia take position application double jeopardy clause conduct warranting summary contempt proceedings see ante different circumstances recognized exceptions policy avoiding multiple trials manifest necessity wilson quoting perez wheat laws different jurisdictions make alternatives less available course bearing constitutional requirements recognize today district columbia code ann contemplates revocation release order detention event condition release violated also trial judges possess authority modify pretrial bail see code ann clotterbuck federal provisions similar thus provides person released pending trial violated condition release subject revocation release order detention prosecution contempt response amici emphasize many motions brought women proceed pro se familiar minutiae double jeopardy law brief ayuda et al amici curiae point well taken problem addressed means adequately informing pro se litigants disregarding double jeopardy clause justice scalia disputes description civil protection order cpo questions whether word assault meant assault ante defers contempt interpretation notes parties challenged point ibid also disagrees reference threats threats violate district criminal laws ante indeed given context domestic situation finds construction highly artificial ibid applying order appears understood responding argument made justice scalia namely context domestic violence somehow stretched meaning threat tr nos asserted criminal case defendant entitled specific notice nature charge significantly acquitting foster respect threat allegedly made november stated satisfied words spite context dispute constitutes legal threat ibid emphasis added reason concluded word assault referred district criminal provisions decided cpo reference threats legal threats threats defined law moreover note government presentation case coincides view see brief describing order assault manner threaten direct ing foster refrain engaging criminal conduct event even assuming prohibition order referred threats already outlawed change outcome case offense prohibited cpo threaten manner least incident part nielsen offense criminal threat defined therefore reasons explained prosecution one preclude subsequent prosecution therefore obviously disagree chief justice blockburger analysis require overruling grady corbin justice scalia explains harris oklahoma well see ante least conviction crime contempt without conviction statutory crime forbidden order double jeopardy clause bars prosecution latter acquittal conviction former similar results follow course chief justice interpretation clause justice scalia dismissal concern difficult follow understand maintains double jeopardy problem exists blockburger conviction assault upheld see ante suppose judge upon request instruct jury lesser included offense await verdict find foster guilty simple assault vacate conviction violative double jeopardy clause barring foster appeal conviction basis sheer oddity scenario aside falls short providing foster full constitutional protection entitled double jeopardy violation occurs inception trial order denying motion dismiss double jeopardy grounds immediately appealable see abney explained case double jeopardy clause protects individual subjected double punishments guarantee twice put trial offense light lesser included offense instructions associated risk conviction offense foster defend second trial charge simple assault thereby undergoing personal strain public embarrassment expense criminal trial even conviction set aside still forced endure trial double jeopardy clause designed prohibit indeed imagined justice scalia agree recently wrote since double jeopardy clause protects defendant twice put jeopardy made stand trial offence presupposes sameness determined second trial otherwise clause prohibited second conviction sentence offense grady dissenting opinion emphasis added double jeopardy predicament course avoided foster attorney requesting lesser included offense instructions client entitled place defendant choice hardly strikes satisfactory resolution justice blackmun concurring judgment part dissenting part agree contempt offence double jeopardy clause either assault intent kill possession cocaine intent distribute write separately emphasize two interrelated points agree justice souter blockburger test exclusive standard determining whether rule successive prosecutions applies given case post also share justice white dismay cavalierly overruled precedent barely three years old proved neither unworkable unsound continue believe grady corbin correctly decided double jeopardy clause prohibits subsequent criminal prosecution proof required convict later offense require proving conduct constitutes offense defendant already prosecuted case involving successive prosecutions substantive criminal law true harris oklahoma illinois vitale grady agree double jeopardy clause bar subsequent prosecution concerned contempt special situation explained young ex rel vuitton et fils fact come regard criminal contempt crime ordinary sense bloom illinois mean prosecution contempt must considered execution criminal law executive branch may engage criminal procedure protections required prosecutions obscure fact proceedings intended punish conduct proscribed harmful general criminal laws rather designed serve limited purpose vindicating authority punishing contempt judiciary sanctioning conduct violates specific duties imposed arising directly parties participation judicial proceedings ii contempt one mechanisms available trial vindicate authority orders fear willingness overlook unique interests served contempt proceedings jeopardize ability trial courts control defendants supervision undermine ability respond effectively unmistakable threats authority sought protection fact poignantly stressed amici ontempt litigators criminal prosecutors seek different interests battered woman seeks enforce private order end violence contrast criminal prosecutor vindicating society interest enforcing criminal law two interests consider contempt litigator criminal prosecutor one adopt absurd fiction brief ayuda et al amici curiae emphasis original justice souter justice stevens joins concurring judgment part dissenting part agree far goes holding citation criminal contempt indictment violating substantive criminal statute may amount charges offence purposes double jeopardy clause amdt join restricting clause reach dismembering protection successive prosecution constitution meant provide read precedents narrowly leave bereft principles animating protection chosen overrule recent relevant cases grady corbin decided three years ago think grady correctly decided amounting merely expression animating principles even decision wrong first instance warrant overruling respectfully dissent join part justice white opinion hold prosecution dixon prosecution foster counts indictment barred double jeopardy clause providing person shall subject offence twice put jeopardy life limb amdt double jeopardy clause protects two distinct types abuses see north carolina pearce protects punished single offense multiple punishment person subjected one sentence double jeopardy clause ensures receiving one offense punishment authorized clause also protects prosecuted offense successive prosecution protects second prosecution offense acquittal protects second prosecution offense conviction ibid footnotes omitted clause functions different ways two contexts analysis applied claims successive prosecution differs employed analyze claims multiple punishment addressing multiple punishments role constitutional guarantee limited assuring exceed legislative authorization imposing multiple punishments offense brown ohio courts enforcing federal guarantee multiple punishment therefore must examine various offenses person punished determine whether defined legislature two offense years ago stated test still used today determine whether two offenses sufficiently distinguishable permit imposition cumulative punishment act transaction constitutes violation two distinct statutory provisions test applied determine whether two offenses one whether provision requires proof fact blockburger respect punishment single act blockburger test thus asks effect whether legislature meant punishable one crime give government broad control number punishments may meted single act however consistent general rule government may punish chooses within bounds contained eighth fourteenth amendments respect punishment provisions provide primary protection excess substantive power prescribe crimes determine punishments vested legislature question double jeopardy clause whether punishments multiple essentially one legislative intent johnson supra citations omitted iii interests stake avoiding successive prosecutions different stake prohibition multiple punishments cases reflect reality protection successive prosecutions central protection provided clause case observed prohibition twice punished twice put jeopardy accused whether convicted acquitted equally put jeopardy first trial ball successive prosecutions stake guarantee serves constitutional policy finality defendant benefit brown supra quoting jorn plurality opinion double jeopardy clause prevents government mak ing repeated attempts convict individual alleged offense thereby subjecting embarrassment expense ordeal compelling live continuing state anxiety insecurity green clause addresses concern well government given opportunity rehearse prosecution honing trial strategies perfecting evidence successive attempts conviction tibbs florida enhanc es possibility even though innocent defendant may found guilty green supra consequently government may punish person separately conviction least many different offenses meet blockburger test long held must sometimes bring prosecutions offenses together separate prosecution permitted every offense arising conduct government manipulate definitions offenses creating fine distinctions among permitting zealous prosecutor try person essentially criminal conduct punishing different combinations elements consistent double jeopardy clause limitation imposition multiple punishments limitation rooted concerns legislative intent permitting repeated prosecutions consistent principles underlying clause limitation successive prosecutions limitation successive prosecutions thus restriction government different kind contained limitation multiple punishments government get around restriction repeated prosecution single individual merely precision way defines statutory offenses thus blockburger test standard determining whether successive prosecutions impermissibly involve offense even two offenses sufficiently different permit imposition consecutive sentences successive prosecutions barred circumstances second prosecution requires relitigation factual issues already resolved first brown example show assume three crimes robbery firearm robbery dwelling simple robbery elements three crimes except robbery firearm element firearm used commission robbery two crimes robbery dwelling element robbery occur dwelling two crimes person committed robbery dwelling firearm prosecuted simple robbery agree prosecuted subsequently either greater offenses robbery firearm robbery dwelling lens blockburger however person prosecuted first robbery firearm prosecuted subsequently robbery dwelling even though subsequently prosecuted basis robbery simple robbery true simply neither crimes robbery firearm robbery dwelling either identical lesser included offense since purpose double jeopardy clause protection successive prosecutions prevent repeated trials defendant forced defend charge government may perfect presentation dress rehearsal dress rehearsal irrelevant second prosecution require defendant defend charge committed robbery also charge additional fact case scene crime dwelling instead protection successive prosecutions limited blockburger alone doctrine striking anomalies limited protection provide thus relatively successive prosecution cases years held blockburger test hurdle government must clear one exception see infra iv recognition blockburger rule insufficient protection successive prosecution seen long ago nielsen held conviction one statutory offense precluded later prosecution another even though required proof fact appellant nielsen convicted indictment guilty plea territory utah cohabit ing one woman based upon cohabitation anna lavinia nielsen caroline nielsen period october may violation federal antipolygamy law see act mar ch stat nielsen served sentence three months imprisonment paid fine came trial second indictment charging another federal antipolygamy law committing adultery caroline nielsen day following period described first indictment may based fact married lawful wife married caroline nielsen see act mar ch stat nielsen pleaded former jeopardy second indictment arguing first true period cohabitation charged first indictment extended well beyond may day indictments september offence charged indictments one offence divisible government argued two crimes elements two offenses differed nielsen first considered question whether offense unlawful cohabitation included temporal sense single act adultery subsequently prosecuted question first noted following snow although indictment cohabitation listed may end offense cohabitation continuing offence committed purposes indictment prosecution prior time prosecution instituted quoting snow supra thus nielsen interpreted indictment cohabitation covering single continuing offense ended day indictment handed see concluded offense cohabitation continuous one extending whole period including time adultery alleged committed considered question whether double jeopardy applies defendant first convicted continuing offense indicted single act continuing offense includes answered question quoting approval observation found morey commonwealth mass conviction common seller intoxicating liquors held bar prosecution single sale liquors within time conceded quoting observation morey opinion alone suffice decide case since government relying statement morey one expressing morey reason holding prior conviction charge lewdly lasciviously associating unmarried woman bar subsequent prosecution adultery lthough proof acts unlawful intercourse introduced trials evidence required support two indictments morey reasoning behind holding single act may offence two statutes statute requires proof additional fact acquittal conviction either statute exempt defendant prosecution punishment quoted nielsen supra morey rule governing subsequent prosecution words know today blockburger elements test nielsen held blockburger test inapplicable two reasons first distinguished morey noting crime loose lascivious association necessarily imply sexual intercourse continuous offense involved nielsen cohabitation polygamy statute required proof iving together man wife course implies sexual intercourse even though intercourse need pleaded proven cohabitation indictment second offense charged morey case nielsen adultery course require act sexual intercourse even assumption continuous crime morey necessarily imply sexual intercourse rendering cases indistinguishable facts nielsen indicated follow holding morey nielsen clear case person tried convicted crime various incidents included second time tried one incidents without twice put jeopardy offence last statement rejected successive prosecution case double jeopardy test set morey later adopted blockburger instead agreeing morey test whether defendant already tried act concluded defendant second time tried single act included one various incidents continuous crime already convicted went address contention adultery opposed sexual intercourse act included continuing offense cohabitation adultery requires proof one parties married cohabitation require proof although agreed adultery contains element found element irrelevant successive prosecution rule sexual intercourse essential principal ingredient adultery words may successively prosecuted act constituting principal ingredient second offense act already subject prior prosecution beside point subsequent offense defined include addition act element uncommon first offense first offense also includes element shared second thus holding cohabitation conviction good bar material part adultery charged intercourse comprised within unlawful cohabitation petitioner already convicted emphasis supplied see also ibid sexual intercourse integral part adultery charged second indictment emphasis supplied one final aspect nielsen opinion deserves attention rejecting blockburger test successive prosecutions proceeded discuss familiar rule conviction greater offense bars subsequent prosecution lesser included offense discussion misleads majority thinking nielsen nothing apply familiar rule course corollary blockburger test see ante nielsen discussion proceed ground believed adultery lesser included offense cohabitation thus later prosecution barred reason contrary finished explaining marriage must proven adultery cohabitation precluded finding adultery lesser included offense cohabitation discussion lesser included offense rule apposite different reason element marriage disregarded done considering instead adultery principal ingredient intercourse act intercourse stood cohabitation lesser included offense stands greater offense treating intercourse though lesser included offense nielsen barred subsequent prosecution act adultery charge indeed reading conclude nielsen know holding subsequent prosecution lesser included offense barred adultery prosecution question adopting different rule subsequent prosecution barred charge comprising act subject prior conviction modern cases reflect concerns resulted nielsen holding already quoted observation blockburger test standard determining whether successive prosecutions impermissibly involve offense even two offenses sufficiently different permit imposition consecutive sentences successive prosecutions barred circumstances second prosecution requires relitigation factual issues already resolved first brown ohio brown indeed relied nielsen proposition nielsen held conviction mormon charge cohabiting two wives period barred subsequent prosecution adultery one day following end period trict application blockburger test permitted imposition consecutive sentences charges consolidated single proceeding onviction adultery required proof defendant sexual intercourse one woman married another conviction cohabitation required proof defendant lived one woman time nonetheless held separate offenses ibid past years addressed problem successive prosecution three occasions harris oklahoma per curiam held prosecution robbery firearms barred double jeopardy clause defendant already convicted felony murder comprising robbery firearms underlying felony course elements two offenses different enough permit one punishment blockburger test felony murder required killing person one engaged commission felony see tit robbery firearms required use firearm commission robbery see harris state app harris however held hen conviction greater crime murder without conviction lesser crime robbery firearms double jeopardy clause bars prosecution lesser crime conviction greater one justified conclusion circumstances case quoting nielsen explanation blockburger test insufficiency determining successive prosecution barred person tried convicted crime various incidents included second time tried one incidents without twice put jeopardy offence nielsen citations omitted nielsen analysis harris turned considering prior conviction terms conduct actually charged process might viewed misapplication blockburger lesser included offense analysis crucial point blockburger elements test produced different result case thus follows holding nielsen conforms statement already quoted brown blockburger test exclusive standard determining whether rule successive prosecutions applies given case subsequently illinois vitale indicated valid claim double jeopardy necessarily defeated fact two offenses blockburger test case confronted prosecution failure reduce speed subsequent prosecution involuntary manslaughter opinion illinois made clear whether elements failure slow always necessarily included within elements involuntary manslaughter automobile remanded clarification point among things held matter illinois law careless failure slow always necessary element manslaughter automobile two offenses blockburger vitale trial latter charge constitute double jeopardy writing justice white went say event may sustain manslaughter case state may find necessary prove failure slow rely conduct necessarily involving failure case vitale already convicted conduct necessary element serious crime charged claim double jeopardy substantial brown later decision harris oklahoma decade ago clearly understood harris stand proposition one already tried crime comprising certain conduct subsequent prosecution seeking prove conduct barred double jeopardy clause way inconsistent vitale description harris treat ing killing course robbery separate statutory offense robbery species lesser included offense act treating way departure straight blockburger analysis departure taken nielsen vitale read harris quoted nielsen hold even blockburger test satisfied second prosecution permitted conduct comprising criminal act charged first nielsen harris used word incident vitale used word conduct matter word used describe unlawful activity one forced stand trial import successive prosecution strand double jeopardy jurisprudence clear even clear since time nielsen debate settled decision three terms ago grady corbin double jeopardy clause bars subsequent prosecution establish essential element offense charged prosecution government prove conduct constitutes offense defendant already prosecuted omitted grady nothing apply version nielsen rule sequence consistent reasoning nielsen grady citation two cases gavieres burton validate insistence prior grady exclusive standard barring successive prosecutions double jeopardy clause blockburger test see ante burton came demurrer presented factual basis charges simply held two offenses accepting bribe company accepting bribe officer company identical law see also question presented whether upon face record matter law simply offense charged third seventh counts present indictment charged third count former indictment emphasis original abbate opinion brennan rather proving blockburger test always exclusive guide evaluation successive prosecutions prior grady burton stands proposition claim double jeopardy resting exclusively pleadings adjudicated basis except elements pleaded gavieres fact case may even read suggest ever treated blockburger analysis exclusive successive prosecution test double jeopardy clause precedential force weak gavieres interpretation constitution act congress applicable philippines providing person offense shall twice put jeopardy punishment act july ch stat true opinion gavieres justice day wrote held kepner protection double jeopardy therein provided means statute carried philippine islands sense meaning obtained constitution laws nonetheless declined treat decisions statute authoritative constructions fifth amendment see green see also abbate supra opinion brennan vi burton gavieres thus lend support decision overrule grady constrict harris whatever may merits debate grady decision deserves respect receives today although adherence precedent rigidly required constitutional cases departure doctrine stare decisis demands special justification see swift wickham smith allwright arizona rumsey search justification fails reveal grady conclusion either unsound principle unworkable practice garcia san antonio metropolitan transit authority grady rule straightforward departure justified fact two appeals decisions described difficult apply see ante one apparently must distinguished evidence test see ladner smith fact one courts broken single sentence grady holding four constituent clauses applying see ladner supra reveal type confusion ante citation omitted somehow obviate obligation adhere precedent cf patterson mclean credit union burton gavieres strength justify reading harris solely narrow proposition case statute refers offenses elements offenses incorporated reference statute reading case way might suffice purposes avoiding multiple punishment reading work unprecedented truncation protection afforded double jeopardy clause successive prosecutions transferring government leeway determining many offenses create assessment many times person may prosecuted conduct double jeopardy clause provide protection successive prosecutions provides multiple punishments instead expressing principle underlying protection double jeopardy harris anomaly exceptio blockburger without principled justification grady scalia dissenting relying anomaly defining offenses care government merely add punishment punishment within eighth fourteenth amendment limits bring person trial conduct violating principle finality subjecting repeatedly burdens trial rehearsing prosecution increasing risk erroneous conviction contravention principles behind protection successive prosecutions included fifth amendment protection double jeopardy clause successive prosecutions fragile avoided finely drafted statutes carefully planned prosecutions vii invite consequences apply successive prosecution decisions nielsen grady conclude prosecutions barred double jeopardy clause dixon prosecuted violating order efrain committing criminal offense app contempt prosecution proved beyond reasonable doubt possessed cocaine intent distribute prosecution therefore possession intent distribute cocaine based incident barred course true elements two offenses treated different contempt conviction government prove knowledge order well dixon commission criminal offense subsequent prosecution government prove possession cocaine intent distribute event government already prosecuted dixon possession cocaine issue dixon tried incident second time foster subject civil protection order cpo molest assault manner threaten physically abuse wife ana foster app respect period cpo effect foster alleged violated incidents relevant grabbing foster thr owing parked car november threatening november march may throwing basement stairs kicking hitting head floor lost consciousness may incidents formed basis charging foster contempt violation cpo foster found guilty violating order assaulting ana foster november may found guilty threats november march may government sought prosecute foster threats assaults charging indictment violations code count charged simple assault november since already convicted assault second prosecution barred agrees reading harris distinguish counts counts ii iii iv based threats alleged contempt proceeding charging foster threaten ing injure person ana foster violation section prohibits threats kidnap bodily injury damage property count charging foster assaul intent kill result actions may app concludes later prosecutions barred view offenses charged indictment contained element contained contempt charge respect threats threats kidnap inflict bodily injury damage property respect assault undertaken intent kill contempt charge contained element specified criminal code sections formed basis indictment violation cpo see ante instance however second prosecution barred nielsen harris construed vitale grady conduct issue constituted conduct contempts first charged well crimes subsequently prosecuted government prosecution foster twice conduct common violate double jeopardy clause viii grady simply applied rule roots cases going back well years nielsen held double jeopardy clause bars successive prosecutions one statutory offense charges comprise act harris understood vitale properly read standing rule overruling grady alone remove principle constitutional jurisprudence uprooting entire sequence cases grady vitale harris nielsen constitutional principle undone affirm judgment appeals concur judgment dixon respect count foster respectfully dissent disposition case respect counts foster consequently concur judgment respect dixon prosecution prosecution foster count indictment purposes case need express view question whether proscription punishment state law offenses fail blockburger test somehow overcome clearly shown legislative intent punished separately see albernaz stewart concurring judgment cases long made clear order one prosecuted two crimes alleged matters demonstrating violation double jeopardy see brown ohio sequence immaterial irrelevance additional elements seen fact every member agrees double jeopardy clause provide protection merely prosecution second time literally offense also prosecution greater offenses first crime lesser included offenses definition require proof one additional elements citing dictionary definitions majority claims incident used passage obviously means element ante explanation make sense defendant tried element defendant may tried crime adultery contains certain elements may tried certain acts immediate context passage nielsen indicates latter definitions incident intended see tried act point nailed discussion intercourse incident cohabitation indicated intercourse need pleaded proven cohabitation indictment incident mean element pleading proof intercourse course required incident clearly means act cases course hold protection inheres acquittal see north carolina pearce brown recognized exception may exist state unable proceed serious charge outset additional facts necessary sustain charge occurred discovered despite exercise due diligence true light decision remand case provide state opportunity put forward basis prosecution vitale appropriately described claim substantial important point however way vitale matter dissent case see opinion stevens read harris opinion indeed least common elements offenses describe separate criminal offense reading harris oklahoma apparently inconsistent even historical understanding clause put forward three dissenters grady see grady corbin scalia dissenting quoting starkie criminal pleading ch xix pp ed one charge consist circumstances another circumstances circumstance belongs common constitute distinct substantive offence acquittal one charge include acquittal emphasis supplied agree therefore justice white element knowledge order irrelevant double jeopardy purposes see ante opinion concurring judgment part dissenting part note least charge concerning assault intent kill apparently barred approach taken justice scalia dissenting opinion grady see supra