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10/31/91 UNITED STATES v. ALVIN J. DIXON

October 31, 1991

UNITED STATES, APPELLANT
v.
ALVIN J. DIXON, APPELLEE; MICHAEL FOSTER, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Curtis E. Von Kann, Trial Judge in No. 88-1375; Hon. Evelyn E.C. Queen, Trial Judge in No. 89-449.

En Banc. Rogers, Chief Judge, Ferren, Terry, Steadman, and Schwelb, Associate Judges, and Newman* and Belson,** Senior Judges.

The opinion of the court was delivered by: Terry

ON REHEARING EN BANC

These consolidated appeals, which present the same issue, arise from trial court rulings on motions to dismiss indictments on the ground of double jeopardy. In one case the motion was granted; in the other it was denied. We hold that both motions should have been granted because both prosecutions were barred by the Double Jeopardy Clause of the Fifth Amendment. Accordingly, we affirm in one case (Dixon) and reverse in the other (Foster). *fn1

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

In January 1989 Foster was charged in a five-count indictment with one count of simple assault, *fn2 one count of assault with intent to kill, *fn3 and three counts of threats to injure another person. *fn4 The two assault charges were based upon the same assaults which underlay Foster's contempt convictions, and the threats charges were based on the same alleged threats for which Foster had been acquitted of contempt. Foster moved to dismiss the indictment on the grounds of double jeopardy and collateral estoppel. The trial court denied the motion, and Foster noted an appeal. *fn5

Appellee Dixon, while on pretrial release pending trial for second-degree murder, was arrested and indicted for possession of cocaine with intent to distribute it (PWID). *fn6 The trial court issued an order directing Dixon to show cause why he should not be held in contempt for violating a condition of his pretrial release, namely, to refrain from committing any criminal offense. At the hearing on the show cause order, the court found beyond a reasonable doubt that Dixon had possessed cocaine with intent to distribute it. Dixon was therefore adjudicated in criminal contempt for violating the conditions of his release and sentenced to 180 days in jail. He then filed a motion in the PWID case to dismiss the indictment on the ground of double jeopardy. The Judge to whom the PWID case had been assigned granted the motion in a published opinion. United States v. Dixon, 117 Daily Wash. L. Rptr. 9 (D.C. Super. Ct. September 26, 1988). From that dismissal the government appeals.

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

I

A. Foster

1. The Contempt Proceedings

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

Within a fairly short time, however, Foster began to violate these orders, particularly the one relating to his wife. On September 22, and again on November 19, Mrs. Foster filed motions to adjudicate Mr. Foster in contempt, asserting that he had violated the terms of the order. The second motion included allegations that on November 6 Foster "grabbed Petitioner and threw her against a parked car" and that on November 12 he "called Petitioner at home and threatened her . . . ." Mrs. Foster filed a third motion on May 24, 1988, alleging additional violations of the CPO. This motion stated that on March 26 Foster "called threatening Petitioner," that on May 17 he "called . . . threatening to kill the Petitioner," and that on May 21 he "threw Petitioner down basement stairs, kicking her body. Respondent also pushed her head into the floor causing head injuries. Petitioner lost consciousness." In all, Mrs. Foster alleged sixteen violations of the CPO. Mrs. Rivas also filed a motion to adjudicate Foster in contempt, alleging six violations of the CPO pertaining to her. *fn7

In August 1988 Judge Murphy presided over a three-day bench trial on the various charges of criminal contempt in the intra-family case. Mrs. Foster and Mrs. Rivas, both represented by counsel, were the petitioners, and Mr. Foster was the respondent. The United States was not a party and was not represented at that trial. *fn8 Eight witnesses testified in support of the contempt motions, including Mrs. Foster, Mrs. Rivas, and other family members. Photographs, medical records, and other items of tangible evidence were also admitted.

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

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


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