Double Jeopardy Same Offense Test

being put in jeopardy twice for the "same offense" under the "same elements" test formulated in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932) In Blockburger, the Supreme Court established the rule that absent any expressed legislative intent, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. It is settled by subsequent Supreme Court cases applied in our own jurisprudence that this test involves a comparison of the statutory elements of the offenses, not the facts and evidence underlying each charge. Byrd v. United States, 598 A.2d 386, 389 (D.C. 1991)(en banc). See also, e.g., Silver v. United States, 726 A.2d 191, 194 (D.C. 1999)(applying test); Hanna v. United States, 666 A.2d 845, 852 (D.C. 1995)(same). Indeed, the law is to the contrary. It is true that the Supreme Court, in a majority opinion by Justice Brennan, briefly adopted a conceptually related "same conduct" test in Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990). However, Grady was soon overruled by United States v. Dixon, 509 U.S. 688, 704, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993), in which the Court concluded that the test "lacked constitutional roots" and was "wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. " Dixon makes clear that the Double Jeopardy Clause does not distinguish between multiple charges brought in a single trial and successive prosecutions. The Dixon court found "no authority whatsoever" for the "bald assertion" that the government is sometimes obligated to prosecute separate offenses together, id. concluding that collateral estoppel "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 bot. see Ashe v. Swenson, 397 U.S. 436, 448-460, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970)(Brennan J., concurring). The majority opinion in Ashe addresses the collateral estoppel effect of the Double Jeopardy Clause in successive prosecutions