The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_1231/91_1231.zx

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SUPREME COURT OF THE UNITED STATES
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No. 91-1231
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UNITED STATES, PETITIONER v. ALVIN J. DIXON
and MICHAEL FOSTER
on writ of certiorari to the district of columbia
court of appeals
[June 28, 1993]

  Chief Justice Rehnquist, with whom Justice
O'Connor and Justice Thomas join, concurring in part
and dissenting in part.
  Respondent Alvin Dixon possessed cocaine with intent
to distribute it.  For that he was held in contempt of
court for violating a condition of his bail release.  He was
later criminally charged for the same conduct with posses-
sion with intent to distribute cocaine.  Respondent Michael
Foster assaulted and threatened his estranged wife.  For
that he was held in contempt of court for violating a civil
protection order entered in a domestic relations proceed-
ing.  He was later criminally charged for the same
conduct with assault, threatening to injure another, and
assault with intent to kill.
  The Court today concludes that the Double Jeopardy
Clause prohibits the subsequent prosecutions of Foster for
assault and Dixon for possession with intent to distribute
cocaine, but does not prohibit the subsequent prosecutions
of Foster for threatening to injure another or for assault
with intent to kill.  After finding that at least some of the
charges here are not prohibited by the -same-elements-
test set out in Blockburger v. United States, 284 U. S.
299, 304 (1932), the Court goes on to consider whether
there is a double-jeopardy bar under the -same-conduct-
test set out in Grady v. Corbin, 495 U. S. 508, 510 (1990),
and determines that there is.  However, because the
same-conduct test is inconsistent with the text and history
of the Double Jeopardy Clause, was a departure from our
earlier precedents, and has proven difficult to apply, the
Court concludes that Grady must be overruled.  I do not
join Part III of Justice Scalia's opinion because I think
that none of the criminal prosecutions in this case were
barred under Blockburger.  I must then confront the
expanded version of double jeopardy embodied in Grady.
For the reasons set forth in the Grady dissent, supra, at
526 (Scalia, J., dissenting), and in Part IV of the Court's
opinion, I, too, think that Grady must be overruled.  I
therefore join Parts I, II, and IV of the Court's opinion,
and write separately to express my disagreement with
Justice Scalia's application of Blockburger in Part III.
  In my view, Blockburger's same-elements test requires
us to focus not on the terms of the particular court orders
involved, but on the elements of contempt of court in the
ordinary sense.  Relying on Harris v. Oklahoma, 433 U. S.
682 (1977), a three-paragraph per curiam in an unargued
case, Justice Scalia concludes otherwise today, and thus
incorrectly finds in Part III-A of his opinion that the
subsequent prosecutions of Dixon for drug distribution and
of Foster for assault violated the Double Jeopardy Clause.
In so doing, Justice Scalia rejects the traditional
view-shared by every federal court of appeals and state
supreme court that addressed the issue prior to
Grady-that, as a general matter, double jeopardy does
not bar a subsequent prosecution based on conduct for
which a defendant has been held in criminal contempt.
I cannot subscribe to a reading of Harris that upsets this
previously well-settled principle of law.  Because the
generic crime of contempt of court has different elements
than the substantive criminal charges in this case, I
believe that they are separate offenses under Blockburger.
I would therefore limit Harris to the context in which it
arose: where the crimes in question are analogous to
greater and lesser included offenses.  The crimes at issue
here bear no such resemblance.
  Justice Scalia dismisses out-of-hand, see ante, at 9-10,
the Government's reliance on several statements from our
prior decisions.  See In re Debs, 158 U. S. 564, 594,
599-600 (1895); In re Chapman, 166 U. S. 661, 672
(1897); Jurney v. MacCraken, 294 U. S. 125, 151 (1935).
Those statements are dicta, to be sure, and thus not
binding on us as stare decisis.  Yet they are still signifi-
cant in that they reflect the unchallenged contempora-
neous view among all courts that the Double Jeopardy
Clause does not prohibit separate prosecutions for con-
tempt and a substantive offense based on the same
conduct.  This view, which dates back to the English
common law, see F. Wharton, Criminal Pleading and
Practice 444, p. 300 (8th ed. 1880), has prevailed to the
present day.  See generally 21 Am. Jur. 2d, Criminal Law
250, p. 446 (1981).  In fact, every federal court of
appeals and state court of last resort to consider the issue
before Grady agreed that there is no double-jeopardy bar
to successive prosecutions for criminal contempt and
substantive criminal offenses based on the same conduct.
See, e.g., Hansen v. United States, 1 F. 2d 316, 317 (CA7
1924); Orban v. United States, 18 F. 2d 374, 375 (CA6
1927); State v. Sammons, 656 S. W. 2d 862, 868-869
(Tenn. Crim. App. 1982); Commonwealth v. Allen, 506 Pa.
500, 511-516, 486 A. 2d 363, 368-371 (1984), cert. denied,
474 U. S. 842 (1985); People v. Totten, 118 Ill. 2d 124,
134-139, 514 N. E. 2d 959, 963-965 (1987).  It is some-
what ironic, I think, that Justice Scalia today adopts a
view of double jeopardy that did not come to the fore until
after Grady, a decision which he (for the Court) goes on
to emphatically reject as -lack[ing] constitutional roots.-
Ante, at 14.
  At the heart of this pre-Grady consensus lay the com-
mon belief that there was no double-jeopardy bar under
Blockburger.  There, we stated that two offenses are
different for purposes of double jeopardy if -each provision
requires proof of a fact which the other does not.-  284
U. S., at 304 (emphasis added).  Applying this test to the
offenses at bar, it is clear that the elements of the govern-
ing contempt provision are entirely different from the
elements of the substantive crimes.  Contempt of court
comprises two elements: (i) a court order made known to
the defendant, followed by (ii) willful violation of that
order.  In re Gorfkle, 444 A. 2d 934, 939 (D. C. 1982); In
re Thompson, 454 A. 2d 1324, 1326 (D. C. 1982).  Neither
of those elements is necessarily satisfied by proof that a
defendant has committed the substantive offenses of
assault or drug distribution.  Likewise, no element of
either of those substantive offenses is necessarily satisfied
by proof that a defendant has been found guilty of con-
tempt of court.
  Justice Scalia grounds his departure from
Blockburger's customary focus on the statutory elements
of the crimes charged on Harris v. Oklahoma, supra, an
improbable font of authority.  See ante, at 8-9.  A sum-
mary reversal, like Harris, -does not enjoy the full
precedential value of a case argued on the merits.-
Connecticut v. Doehr,  501 U. S. --, --, n. 4 (1991);
accord, Edelman v. Jordan, 415 U. S. 651, 671 (1974).
Today's decision shows the pitfalls inherent in reading too
much into a -terse per curiam.-  Ante, at 8.  Justice
Scalia's discussion of Harris is nearly as long as Harris
itself and consists largely of a quote not from Harris, but
from a subsequent opinion analyzing Harris.  Justice
Scalia then concludes that Harris somehow requires us
to look to the facts that must be proven under the partic-
ular court orders in question (rather than under the
general law of criminal contempt) in determining whether
contempt and the related substantive offenses are the
same for double jeopardy purposes.  This interpretation
of Harris is both unprecedented and mistaken.
  Our double jeopardy cases applying Blockburger have
focused on the statutory elements of the offenses charged,
not on the facts that must be proven under the particular
indictment at issue-an indictment being the closest
analogue to the court orders in this case.  See, e.g.,
Grady, 495 U. S., at 528 (Scalia, J., dissenting) (-Th[e]
test focuses on the statutory elements of the two crimes
with which a defendant has been charged, not on the
proof that is offered or relied upon to secure a convic-
tion-); Albernaz v. United States, 450 U. S. 333, 338
(1981) (-`the Court's application of the test focuses on the
statutory elements of the offense'-) (quoting Iannelli v.
United States, 420 U. S. 770, 785, n. 17 (1975)); United
States v. Woodward, 469 U. S. 105, 108 (1985) (per
curiam) (looking to the statutory elements of the offense
in applying Blockburger).  By focusing on the facts needed
to show a violation of the specific court orders involved
in this case, and not on the generic elements of the crime
of contempt of court, Justice Scalia's double-jeopardy
analysis bears a striking resemblance to that found in
Grady-not what one would expect in an opinion that
overrules Grady.
  Close inspection of the crimes at issue in Harris reveals,
moreover, that our decision in that case was not a depar-
ture from Blockburger's focus on the statutory elements of
the offenses charged.  In Harris, we held that a conviction
for felony murder based on a killing in the course of an
armed robbery foreclosed a subsequent prosecution for
robbery with a firearm.  Though the felony-murder statute
in Harris did not require proof of armed robbery, it did
include as an element proof that the defendant was
engaged in the commission of some felony.  Harris v.
State, 555 P. 2d 76, 80 (Okla. Crim. App. 1976).  We
construed this generic reference to some felony as incorpo-
rating the statutory elements of the various felonies upon
which a felony-murder conviction could rest.  Cf. Whalen
v. United States, 445 U. S. 684, 694 (1980).  The criminal
contempt provision involved here, by contrast, contains no
such generic reference which by definition incorporates the
statutory elements of assault or drug distribution.
  Unless we are to accept the extraordinary view that the
three-paragraph per curiam in Harris was intended to
overrule sub silentio our previous decisions that looked to
the statutory elements of the offenses charged in applying
Blockburger, we are bound to conclude, as does Justice
Scalia, see ante, at 9, that the ratio decidendi of our
Harris decision was that the two crimes there were akin
to greater and lesser included offenses.  The crimes at
issue here, however, cannot be viewed as greater and
lesser included offenses, either intuitively or logically.  A
crime such as possession with intent to distribute cocaine
is a serious felony that cannot easily be conceived of as
a lesser included offense of criminal contempt, a relatively
petty offense as applied to the conduct in this case.  See
D. C. Code Ann. 33-541(a)(2)(A) (Supp. 1992) (the
maximum sentence for possession with intent to distribute
cocaine is 15 years in prison).  Indeed, to say that crimi-
nal contempt is an aggravated form of that offense defies
common sense.  Even courts that have found a double-
jeopardy bar in cases resembling this one have appreci-
ated how counter-intuitive that notion is.  E.g., United
States v. Haggerty, 528 F. Supp. 1286, 1297 (Colo. 1981).
  But there is a more fundamental reason why the
offenses in this case are not analogous to greater and
lesser included offenses.  A lesser included offense is
defined as one that is -necessarily included- within the
statutory elements of another offense.  See Fed. Rule
Crim. Proc. 31(c); Schmuck v. United States, 489 U. S.
705, 716-717 (1989).  Taking the facts of Harris as an
example, a defendant who commits armed robbery neces-
sarily has satisfied one of the statutory elements of felony
murder.  The same cannot be said, of course, about this
case:  A defendant who is guilty of possession with intent
to distribute cocaine or of assault has not necessarily
satisfied any statutory element of criminal contempt.  Nor,
for that matter, can it be said that a defendant who is
held in criminal contempt has necessarily satisfied any
element of those substantive crimes.  In short, the of-
fenses for which Dixon and Foster were prosecuted in this
case cannot be analogized to greater and lesser included
offenses; hence, they are separate and distinct for double
jeopardy purposes.
  The following analogy, raised by the Government at oral
argument, see Tr. of Oral Arg. 8-9, helps illustrate the
absurd results that Justice Scalia's Harris/Blockburger
analysis could in theory produce.  Suppose that the
offense in question is failure to comply with a lawful
order of a police officer, see, e.g., Ind. Code 9-21-8-1
(Supp. 1992), and that the police officer's order was,
-Don't shoot that man.-  Under Justice Scalia's flawed
reading of Harris, the elements of the offense of failure
to obey a police officer's lawful order would include, for
purposes of Blockburger's same-elements test, the elements
of, perhaps, murder or manslaughter, in effect converting
those felonies into a lesser included offense of the crime
of failure to comply with a lawful order of a police officer.
  In sum, I think that the substantive criminal prosecu-
tions in this case, which followed convictions for criminal
contempt, did not violate the Double Jeopardy Clause, at
least before our decision in Grady.  Under Grady, -the
Double Jeopardy Clause bars a subsequent prosecution if,
to establish an essential element of an offense charged in
that prosecution, the government will prove conduct that
constitutes an offense for which the defendant has already
been prosecuted.-  495 U. S., at 510.  As the Court points
out, see ante, at 14, this case undoubtedly falls within
that expansive formulation: To secure convictions on the
substantive criminal charges in this case, the Government
will have to prove conduct that was the basis for the
contempt convictions.  Forced, then, to confront Grady, I
join the Court in overruling that decision.