509 U.S. 688 (1993)

UNITED STATES
v.
DIXON et al.

No. 91-1231.

United States Supreme Court.

Argued December 2, 1992. Decided June 28, 1993. CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

*689 *690 Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Parts III and V, in which Kennedy, J., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which O'Connor and Thomas, JJ., joined, post, p. 713. White, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Stevens, J., joined, and in which Souter, J., joined as to Part I, post, p. 720. Blackmun, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 741. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Stevens, J., joined, post, p. 743.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, James A. Feldman, and Deborah Watson.

James W. Klein argued the cause for respondents. With him on the brief were Elizabeth G. Taylor and Rosemary Herbert.^[*]

*691 Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Parts III and V, in which Justice Kennedy joins.

In both of these cases, respondents were tried for criminal contempt of court for violating court orders that prohibited them from engaging in conduct that was later the subject of a criminal prosecution. We consider whether the subsequent criminal prosecutions are barred by the Double Jeopardy Clause.

I

Respondent Alvin Dixon was arrested for second-degree murder and was released on bond. Consistent with the District of Columbia's bail law authorizing the judicial officer to impose any condition that "will reasonably assure the appearance of the person for trial or the safety of any other person or the community," D. C. Code Ann. § 23-1321(a) (1989), Dixon's release form specified that he was not to commit "any criminal offense," and warned that any violation of the conditions of release would subject him "to revocation of release, an order of detention, and prosecution for contempt of court." See D. C. Code Ann. § 23-1329(a) (1989) (authorizing those sanctions).

While awaiting trial, Dixon was arrested and indicted for possession of cocaine with intent to distribute, in violation of D. C. Code Ann. § 33-541(a)(1) (1988). The court issued an order requiring Dixon to show cause why he should not be held in contempt or have the terms of his pretrial release modified. At the show-cause hearing, four police officers testified to facts surrounding the alleged drug offense; Dixon's counsel cross-examined these witnesses and introduced other evidence. The court concluded that the Government had established "`beyond a reasonable doubt that [Dixon] was in possession of drugs and that those drugs were possessed with the intent to distribute.' " 598 A. 2d 724, 728 (D. C. 1991). The court therefore found Dixon guilty of *692 criminal contempt under § 23-1329(c), which allows contempt sanctions after expedited proceedings without a jury and "in accordance with principles applicable to proceedings for criminal contempt." For his contempt, Dixon was sentenced to 180 days in jail. § 23-1329(c) (maximum penalty of six months' imprisonment and $1,000 fine). He later moved to dismiss the cocaine indictment on double jeopardy grounds; the trial court granted the motion.

Respondent Michael Foster's route to this Court is similar. Based on Foster's alleged physical attacks upon her in the past, Foster's estranged wife Ana obtained a civil protection order (CPO) in Superior Court of the District of Columbia. See D. C. Code Ann. § 16-1005(c) (1989) (CPO may be issued upon a showing of good cause to believe that the subject "has committed or is threatening an intrafamily offense"). The order, to which Foster consented, required that he not "`molest, assault, or in any manner threaten or physically abuse' " Ana Foster; a separate order, not implicated here, sought to protect her mother. 598 A. 2d, at 725-726.

Over the course of eight months, Ana Foster filed three separate motions to have her husband held in contempt for numerous violations of the CPO. Of the 16 alleged episodes, the only charges relevant here are three separate instances of threats (on November 12, 1987, and March 26 and May 17, 1988) and two assaults (on November 6, 1987, and May 21, 1988), in the most serious of which Foster "threw [his wife] down basement stairs, kicking her body[,] . . .pushed her head into the floor causing head injuries, [and Ana Foster] lost consciousness." 598 A. 2d, at 726.

After issuing a notice of hearing and ordering Foster to appear, the court held a 3-day bench trial. Counsel for Ana Foster and her mother prosecuted the action; the United States was not represented at trial, although the United States Attorney was apparently aware of the action, as was the court aware of a separate grand jury proceeding on some of the alleged criminal conduct. As to the assault charges, *693 the court stated that Ana Foster would have "to prove as an element, first that there was a Civil Protection Order, and then [that] . . . the assault as defined by the criminal code, in fact occurred." Tr. in Nos. IF-630-87, IF-631-87 (Aug. 8, 1988), p. 367; accord, id., at 368. At the close of the plaintiffs' case, the court granted Foster's motion for acquittal on various counts, including the alleged threats on November 12 and May 17. Foster then took the stand and generally denied the allegations. The court found Foster guilty beyond a reasonable doubt of four counts of criminal contempt (three violations of Ana Foster's CPO, and one violation of the CPO obtained by her mother), including the November 6, 1987, and May 21, 1988, assaults, but acquitted him on other counts, including the March 26 alleged threats. He was sentenced to an aggregate 600 days' imprisonment. See § 16-1005(f) (authorizing contempt punishment); Super. Ct. of D. C. Intrafamily Rules 7(c), 12(e) (1987) (maximum punishment of six months' imprisonment and $300 fine).

The United States Attorney's Office later obtained an indictment charging Foster with simple assault on or about November 6, 1987 (Count I, violation of § 22-504); threatening to injure another on or about November 12, 1987, and March 26 and May 17, 1988 (Counts II—IV, violation of § 22— 2307); and assault with intent to kill on or about May 21, 1988 (Count V, violation of § 22-501). App. 43-44. Ana Foster was the complainant in all counts; the first and last counts were based on the events for which Foster had been held in contempt, and the other three were based on the alleged events for which Foster was acquitted of contempt. Like Dixon, Foster filed a motion to dismiss, claiming a double jeopardy bar to all counts, and also collateral estoppel as to Counts II—IV. The trial court denied the double jeopardy claim and did not rule on the collateral-estoppel assertion.

The Government appealed the double jeopardy ruling in Dixon, and Foster appealed the trial court's denial of his motion. The District of Columbia Court of Appeals consolidated *694 the two cases, reheard them en banc, and, relying on our recent decision in Grady v. Corbin, 495 U. S. 508 (1990), ruled that both subsequent prosecutions were barred by the Double Jeopardy Clause. 598 A. 2d, at 725. In its petition for certiorari, the Government presented the sole question "[w]hether the Double Jeopardy Clause bars prosecution of a defendant on substantive criminal charges based upon the same conduct for which he previously has been held in criminal contempt of court." Pet. for Cert. I. We granted certiorari, 503 U. S. 1004 (1992).

II

To place these cases in context, one must understand that they are the consequence of a historically anomalous use of the contempt power. In both Dixon and Foster, a court issued an order directing a particular individual not to commit criminal offenses. (In Dixon's case, the court incorporated the entire criminal code; in Foster's case, the criminal offense of simple assault.) That could not have occurred at common law, or in the 19th-century American judicial system.

At common law, the criminal contempt power was confined to sanctions for conduct that interfered with the orderly administration of judicial proceedings. 4 W. Blackstone,

*695 The 1831 amendment of the Judiciary Act still would not have given rise to orders of the sort at issue here, however, since there was a long common-law tradition against judicial orders prohibiting violation of the law. Injunctions, for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to private interest. See, e. g., 3 Blackstone, supra, at *426, n. 1; J. High, Law of Injunctions § 23, pp. 15-17, and notes (1873) (citing English cases); C. Beach, Law of Injunctions §§ 58-59, pp. 71-73 (1895) (same). The interest protected by the criminal or civil prohibition was to be vindicated at law—and though equity might enjoin harmful acts that happened to violate civil or criminal law, it would not enjoin violation of civil or criminal law as such. See, e. g., Sparhawk v. Union Passenger R. Co., 54 Pa. St. 401, 422-424 (1867) (refusing to enjoin railroad's violation of Sunday closing law); Attorney General v. Utica Insurance Co., 2 Johns. Ch. 371, 378 (N. Y. 1817) (refusing to enjoin violation of banking statute).

It is not surprising, therefore, that the double jeopardy issue presented here—whether prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars a subsequent prosecution for the criminal offense—did not arise at common law, or even until quite recently in American cases. See generally Zitter, Contempt Finding as Precluding Substantive Criminal Charges Relating to Same Transaction, 26 A. L. R. 4th 950, 953-956 (1983). English and earlier American cases do report instances in which prosecution for criminal contempt of court—as originally understood—did not bar a subsequent prosecution for a criminal offense based on the same conduct. See, e. g., King v. Lord Ossulston, 2 Str. 1107, 93 Eng. Rep. 1063 (K. B. 1739); State v. Yancy, 4 N. C. 133 (1814). But those contempt prosecutions were for disruption of judicial process, in which the disruptive conduct happened also to be criminal.

The Double Jeopardy Clause, whose application to this new context we are called upon to consider, provides that no *696 person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5. This protection applies both to successive punishments and to successive prosecutions for the same criminal offense. See North Carolina v. Pearce, 395 U. S. 711 (1969). It is well established that criminal contempt, at least the sort enforced through nonsummary proceedings, is "a crime in the ordinary sense." Bloom, supra, at 201. Accord, New Orleans v. Steamship Co., 20 Wall. 387, 392 (1874).

We have held that constitutional protections for criminal defendants other than the double jeopardy provision apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions. See, e. g., Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911) (presumption of innocence, proof beyond a reasonable doubt, and guarantee against self-incrimination); Cooke v. United States, 267 U. S. 517, 537 (1925) (notice of charges, assistance of counsel, and right to present a defense); In re Oliver, 333 U. S. 257, 278 (1948) (public trial). We think it obvious, and today hold, that the protection of the Double Jeopardy Clause likewise attaches. Accord, Menna v. New York, 423 U. S. 61 (1975) (per curiam); Colombo v. New York, 405 U. S. 9 (1972) (per curiam).

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies. See, e. g., Brown v. Ohio, 432 U. S. 161, 168-169 (1977); Blockburger v. United States, 284 U. S. 299, 304 (1932) (multiple punishment); Gavieres v. United States, 220 U. S. 338, 342 (1911) (successive prosecutions). The sameelements test, sometimes referred to as the "Blockburger " test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution. In a case such as Yancy, for example, in which *697 the contempt prosecution was for disruption of judicial business, the same-elements test would not bar subsequent prosecution for the criminal assault that was part of the disruption, because the contempt offense did not require the element of criminal conduct, and the criminal offense did not require the element of disrupting judicial business.^[1]

We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a "same-conduct" test to avoid the double jeopardy bar. The Grady test provides that, "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted," a second prosecution may not be had. 495 U. S., at 510.

III

A

The first question before us today is whether Blockburger analysis permits subsequent prosecution in this new criminal contempt context, where judicial order has prohibited criminal act. If it does, we must then proceed to consider whether Grady also permits it. See Grady, supra, at 516.

We begin with Dixon. The statute applicable in Dixon's contempt prosecution provides that "[a] person who has been conditionally released . . . and who has violated a condition of release shall be subject to . . . prosecution for contempt of court." § 23-1329(a). Obviously, Dixon could not commit an "offence" under this provision until an order setting out conditions was issued. The statute by itself imposes no legal obligation on anyone. Dixon's cocaine possession, although an offense under D. C. Code Ann. § 33-541(a) (1988 and Supp. 1992), was not an offense under § 23-1329 until a *698 judge incorporated the statutory drug offense into his release order.

In this situation, in which the contempt sanction is imposed for violating the order through commission of the incorporated drug offense, the later attempt to prosecute Dixon for the drug offense resembles the situation that produced our judgment of double jeopardy in Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam). There we held that a subsequent prosecution for robbery with a firearm was barred by the Double Jeopardy Clause, because the defendant had already been tried for felony murder based on the same underlying felony. We have described our terse per curiam in Harris as standing for the proposition that, for double jeopardy purposes, "the crime generally described as felony murder" is not "a separate offense distinct from its various elements." Illinois v. Vitale, 447 U. S. 410, 420-421 (1980). Accord, Whalen v. United States, 445 U. S. 684, 694 (1980). So too here, the "crime" of violating a condition of release cannot be abstracted from the "element" of the violated condition. The Dixon court order incorporated the entire governing criminal code in the same manner as the Harris felony-murder statute incorporated the several enumerated felonies. Here, as in Harris, the underlying substantive criminal offense is "a species of lesser-included offense."^[2]Vitale, supra, at 420. Accord, Whalen, supra.

*699 To oppose this analysis, the Government can point only to dictum in In re Debs, 158 U. S. 564, 594, 599-600 (1895), which, to the extent it attempted to exclude certain nonsummary contempt prosecutions from various constitutional protections for criminal defendants, has been squarely rejected by cases such as Bloom, 391 U. S., at 208. The Government also relies upon In re Chapman, 166 U. S. 661 (1897), and Jurney v. MacCracken, 294 U. S. 125 (1935), which recognize Congress' power to punish as contempt the refusal of a witness to testify before it. But to say that Congress can punish such a refusal is not to say that a criminal court can punish the same refusal yet again. Neither case dealt with that issue, and Chapman specifically declined to address it, noting that successive prosecutions (before Congress for contemptuous refusal to testify and before a court for violation of a federal statute making such refusal a crime) were "improbable." 166 U. S., at 672.

Both the Government, Brief for United States 15-17, and Justice Blackmun, post, at 743, contend that the legal obligation in Dixon's case may serve "interests . . . fundamentally different" from the substantive criminal law, because it derives in part from the determination of a court rather than a determination of the legislature. That distinction seems questionable, since the court's power to establish conditions of release, and to punish their violation, was conferred by statute; the legislature was the ultimate source of both the criminal and the contempt prohibition. More importantly, however, the distinction is of no moment for purposes of the Double Jeopardy Clause, the text of which looks to whether the offenses are the same, not the interests that the offenses violate. And this Court stated long ago that criminal contempt, *700 at least in its nonsummary form, "is a crime in every fundamental respect." Bloom, supra, at 201; accord, e. g., Steamship Co., 20 Wall., at 392. Because Dixon's drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violates the Double Jeopardy Clause.

The foregoing analysis obviously applies as well to Count I of the indictment against Foster, charging assault in violation of § 22-504, based on the same event that was the subject of his prior contempt conviction for violating the provision of the CPO forbidding him to commit simple assault under § 22-504.^[3] The subsequent prosecution for assault fails the Blockburger test, and is barred.^[4]

B

The remaining four counts in Foster, assault with intent to kill (Count V; § 22-501) and threats to injure or kidnap (Counts II—IV; § 22-2307), are not barred under Blockburger. As to Count V: Foster's conduct on May 21, 1988, was found to violate the Family Division's order that he not "molest, assault, or in any manner threaten or physically abuse" his wife. At the contempt hearing, the court stated that Ana *701 Foster's attorney, who prosecuted the contempt, would have to prove, first, knowledge of a CPO, and, second, a willful violation of one of its conditions, here simple assault as defined by the criminal code.^[5] See, e. g., 598 A. 2d, at 727-728; In re Thompson, 454 A. 2d 1324, 1326 (D. C. 1982); accord, Parker v. United States, 373 A. 2d 906, 907 (D. C. 1977) (per curiam). On the basis of the same episode, Foster was then indicted for violation of § 22-501, which proscribes assault with intent to kill. Under governing law, that offense requires proof of specific intent to kill; simple assault does not.^[6] See Logan v. United States, 483 A. 2d 664, 672-673 (D. C. 1984). Similarly, the contempt offense required proof of knowledge of the CPO, which assault with intent to kill does not. Applying the Blockburger elements test, the result is clear: These crimes were different offenses, and the subsequent *702 prosecution did not violate the Double Jeopardy Clause.^[7]

Counts II, III, and IV of Foster's indictment are likewise not barred. These charged Foster under § 22-2307 (forbidding anyone to "threate[n] . . . to kidnap any person or to injure the person of another or physically damage the property of any person") for his alleged threats on three separate dates. Foster's contempt prosecution included charges that, on the same dates, he violated the CPO provision ordering that he not "in any manner threaten" Ana Foster. Conviction of the contempt required willful violation of the CPO— which conviction under § 22-2307 did not; and conviction under § 22-2307 required that the threat be a threat to kidnap, to inflict bodily injury, or to damage property—which conviction of the contempt (for violating the CPO provision that Foster not "in any manner threaten") did not.^[8] Each *703 offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.

IV

Having found that at least some of the counts at issue here are not barred by the Blockburger test, we must consider whether they are barred by the new, additional double jeopardy test we announced three Terms ago in Grady v. Corbin. ^[9] They undoubtedly are, since Grady prohibits "a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution [here, assault as an element of assault with intent to kill, or threatening as an element of threatening bodily injury], the government will *704 prove conduct that constitutes an offense for which the defendant has already been prosecuted [here, the assault and the threatening, which conduct constituted the offense of violating the CPO]." 495 U. S., at 510.

We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the "same offence," U. S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct" rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. See, e. g., Gavieres v. United States, 220 U. S., at 345 (in subsequent prosecution, "[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other"). We need not discuss the many proofs of these statements, which were set forth at length in the Grady dissent. See 495 U. S., at 526 (opinion of Scalia, J.). We will respond, however, to the contrary contentions of today's proGrady dissents.

The centerpiece of Justice Souter's analysis is an appealing theory of a "successive prosecution" strand of the Double Jeopardy Clause that has a different meaning from its supposed "successive punishment" strand. We have often noted that the Clause serves the function of preventing both successive punishment and successive prosecution, see, e. g., North Carolina v. Pearce, 395 U. S. 711 (1969), but there is no authority, except Grady, for the proposition that it has different meanings in the two contexts. That is perhaps because it is embarrassing to assert that the single term "same offence" (the words of the Fifth Amendment at issue here) has two different meanings—that what is the same offense is yet not the same offense. Justice Souter provides no authority whatsoever (and we are aware of none) for the bald assertion that "we have long held that [the government] *705 must sometimes bring its prosecutions for [separate] offenses together." Post, at 747. The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U. S. 436 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the Government "must . . . bring its prosecutions. . . together." It is entirely free to bring them separately, and can win convictions in both. Of course the collateralestoppel issue is not raised in this case.

Justice Souter relies upon four cases to establish the existence of some minimal antecedents to Grady. Post, at 749-758. The fountainhead of the "same-conduct" rule, he asserts, is In re Nielsen, 131 U. S. 176 (1889). That is demonstrably wrong. Nielsen simply applies the common proposition, entirely in accord with Blockburger, that prosecution for a greater offense (cohabitation, defined to require proof of adultery) bars prosecution for a lesser included offense (adultery). That is clear from the Nielsen Court's framing of the question ("Being of opinion, therefore, that habeas corpus was a proper remedy for the petitioner, if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished, that question is now to be considered," 131 U. S., at 185 (emphasis added)), from its legal analysis, id., at 186-189, and from its repeated observations that cohabitation required proof of adultery, id., at 187, 189.^[10]

*706 His second case comes almost a century later. Brown v. Ohio, 432 U. S. 161 (1977), contains no support for his position except a footnote that cites Nielsen for the proposition that "[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Brown, supra, at 166-167, n. 6. Not only is this footnote the purest dictum, but it flatly contradicts the text of the opinion which, on the very next page, describes Nielsen as the first Supreme Court case to endorse the Blockburger rule. Brown, supra, at 168. Quoting that suspect dictum multiple times, see post, at 748, 754, cannot convert it into case law. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 463, n. 11 (1993) (emphasizing "the need to distinguish an opinion's holding from its dicta"). The holding of Brown, like that of Nielsen, rests squarely upon the existence of a lesser included offense. 432 U. S., at 162 (setting out question presented).

The third case is Harris, which Justice Souter asserts was a reaffirmation of what he contends was the earlier holding in Nielsen, that the Blockburger test is "insufficien[t] for determining when a successive prosecution [is] barred," and that conduct, and not merely elements of the offense, must be the object of inquiry. Post, at 755. Surely not. Harris never uses the word "conduct," and its entire discussion focuses on the elements of the two offenses. See, e. g., 433 U. S., at 682-683, n. (to prove felony murder, "it was necessary for all the ingredients of the underlying felony" to be proved). Far from validating Justice Souter's extraordinarily implausible reading of Nielsen, Harris plainly rejects that reading, treating the earlier case as having focused (like Blockburger ) upon the elements of the offense. Immediately *707 after stating that conviction for felony murder, a "greater crime," "cannot be had without conviction of the lesser crime," the Harris Court quotes Nielsen `s statement that "`a person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents.' " 433 U. S., at 682-683, quoting from 131 U. S., at 188. It is clear from that context that Harris regarded "incidents included" to mean "offenses included"—a reference to defined crimes rather than to conduct.

Finally, Justice Souter misdescribes Vitale. Despite his bold assertion to the contrary, see post, at 757, Vitale unquestionably reads Harris as merely an application of the double jeopardy bar to lesser and greater included offenses.^[11] Justice Souter instead elevates the statement in Vitale that, on certain hypothetical facts, the petitioner would have a "substantial" "claim" of double jeopardy on a Grady -type theory, see post, at 756-757, into a holding that the petitioner would win on that theory. Post, at 757, 763. No Justice, the Vitale dissenters included, has ever construed this passage as answering, rather than simply raising, the question on which we later granted certiorari in Grady. See 447 U. S., at 426 (Stevens, J., dissenting) (in addition to finding the same-conduct claim "substantial," dissent would find it "dispositive"). See also Grady, 495 U. S., at 510 (Vitale "suggested" same-conduct test adopted in Grady ).

In contrast to the above-discussed dicta relied upon by Justice Souter, there are two pre-Grady (and postNielsen ) cases that are directly on point. In both Gavieres v. United States, 220 U. S., at 343, and Burton v. United States, 202 U. S. 344, 379-381 (1906), the Court upheld subsequent *708 prosecutions after concluding that the Blockburger test (and only the Blockburger test) was satisfied.^[12] These cases are incompatible with the belief that Nielsen had created an additional requirement beyond the "elements" standard.^[13] Totally ignored by Justice Souter are the *709 many early American cases construing the Double Jeopardy Clause, which support only an "elements" test. See Grady, supra, at 533-535 (Scalia, J., dissenting).^[14]

But Grady was not only wrong in principle; it has already proved unstable in application. Less than two years after it came down, in United States v. Felix, 503 U. S. 378 (1992), we were forced to recognize a large exception to it. There we concluded that a subsequent prosecution for conspiracy to manufacture, possess, and distribute methamphetamine was not barred by a previous conviction for attempt to manufacture the same substance. We offered as a justification for avoiding a "literal" (i. e., faithful) reading of