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787

Double Jeopardy

Summary punishment for contempt of court under Rule 42(a) of the Federal Rules of Criminal Procedure will not bar a subsequent prosecution for the same act as an independent statutory offense. See United States v. Rollerson, 449 F.2d 1000 (D.C.Cir. 1971) (hurling a water pitcher at prosecutor in open court held punishable both as contempt and assault); United States v. Mirra, 220 F. Supp. 361 (S.D.N.Y. 1963).

The court of appeals in Rollerson declined to decide whether the double jeopardy clause would bar a criminal prosecution following a separate contempt hearing pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. Rollerson, 449 F.2d at 1005 n. 13. But see United States v. Lederer, 140 F.2d 136, 138 (7th Cir. 1944), which ruled that the power of the Attorney General to subsequently prosecute for an independent regulatory violation does not preclude the right of the court to protect the dignity of its injunction through a contempt prosecution on notice and hearing.

In United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court, employing the Blockburger test, held that the prosecution of the defendant for violation of a civil protection order by assaulting his wife did not preclude subsequent prosecution for assault with intent to kill, as that offense required proof of the specific intent to kill which simple assault did not require, and the contempt offense required proof of knowledge of the civil protection order, which the assault with intent to kill offense did not require. However, the double jeopardy clause did bar prosecution of the defendant, who had been found guilty of contempt for violating provisions of the civil protection order for assaulting his wife, on charges of assault.

Contumacious refusals by an individual to testify in successive trials can properly be charged as two counts of criminal contempt without subjecting the defendant to double jeopardy or a multiplicitous indictment. See United States v. Smith, 532 F.2d 158 (10th Cir. 1976).

[cited in USAM 9-39.000]