United States v. Suazo ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1982
UNITED STATES,
Appellee,
v.
INYEMAR MANUEL SUAZO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Edward S. MacColl, with whom Thompson, MacColl, & Bass LLC,
P.A. was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John J. Farley, Acting United States Attorney, was on brief, for
appellee.
September 20, 2021
LYNCH, Circuit Judge. Inyemar Manuel Suazo brings this
interlocutory appeal from the denial of his motion to dismiss his
federal New Hampshire prosecution on double jeopardy grounds. He
purports to include in this interlocutory appeal the rejection of
arguments raised in another motion to dismiss and a due process
argument. We hold that his double jeopardy rights never attached
in the earlier Maine criminal proceedings, and we therefore affirm
the denial of his motion to dismiss on double jeopardy grounds.
Because we lack jurisdiction over the other arguments he attempts
to present, we dismiss those portions of his appeal without
prejudice.
I. Background and Procedural History
On March 2, 2018, Suazo, along with Julio Mejia and Enyel
Mejia-Pimental, was indicted in the District of Maine for
conspiracy to distribute, and to possess with intent to distribute,
400 grams or more of fentanyl and cocaine. A superseding
indictment, issued on March 28, 2018, detailed more specifics of
the alleged conspiracy, stating it began no later than April 7,
2016 and continued until March 14, 2018 in the Districts of Maine,
New Hampshire, and Massachusetts.
The government requested pretrial detention, relying on
the presumption of detention set forth in 18 U.S.C. § 3142. Suazo
was detained in Maine from approximately March 26, 2018 to February
27, 2019, and thereafter was released on bail. On December 2,
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2019, the parties selected but did not empanel a jury for a trial
set to begin December 9, 2019. This trial never began and no jury
was ever empaneled.
On December 4, 2019, the government moved for bail
revocation. It alleged that Suazo had violated a condition of his
release to "avoid all contact . . . with any person who is or may
be a victim or witness in the investigation or prosecution," by
having contact with Julio Mejia, who was also charged in the
indictment. The government sought, and was granted, a warrant for
Suazo's arrest. After Suazo's arrest, he moved to continue the
December 9, 2019 trial date. The district court allowed the motion
and continued the trial to February 3, 2020.
At the December 4 bail revocation hearing, Special Agent
Steven Galbadis of the Drug Enforcement Administration testified
that Mejia had told him that Suazo had approached Mejia on November
30, 2019, shown him a picture of Mejia's cooperation agreement on
his phone, and told Mejia that if he testified against him he would
post the cooperation agreement on the internet. Galbadis testified
that Mejia told him that Mejia and Suazo met again the next day
and Suazo again said that he would post the cooperation agreement
online. On cross-examination, Galbadis stated that he was not
aware of Suazo coming in contact with any witness in the case other
than Mejia. Finding that the government had presented clear and
convincing evidence that Suazo had violated a condition of release,
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18 U.S.C. § 3148(b)(1)(B), and that Suazo was unlikely to abide by
the conditions of release, 18 U.S.C. § 3148(b)(2)(B), the Maine
district court revoked Suazo's release.
On January 31, 2020, the United States filed a Rule 48(a)
motion to dismiss the superseding indictment on the grounds that
"as of this date, the admissible portion of the available evidence
would not permit a properly instructed jury to find beyond a
reasonable doubt that the defendant is guilty of the charge
alleged." In response, Suazo filed a motion for a judgment of
acquittal or dismissal with prejudice. Suazo argued that, given
his lengthy pretrial detention and the government's admission that
it could not prove its case, due process required an acquittal or
dismissal with prejudice rather than a dismissal without
prejudice.
The Maine district court rejected Suazo's argument,
giving the government the benefit of a presumption of good faith
in its Rule 48(a) motion, which the court found Suazo had not
rebutted. In its decision, the district court noted the
government's statement that witnesses had abandoned their
cooperation agreements in advance of trial; that, contrary to
Suazo's argument, the government had not stated that it could never
prove its case; and that the government had been prepared to go to
trial in December 2019 before Suazo moved to continue the trial
after his arrest for improper contact with a co-defendant. The
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district court granted the government's motion to dismiss without
prejudice and denied Suazo's motion for acquittal. Suazo appealed
the dismissal and this court found that no extraordinary
circumstances were present to warrant departure from the usual
rule that defendants lack standing to appeal the dismissal of
indictments, and dismissed the appeal.1 United States v. Suazo,
No. 20-1288 (1st Cir. Dec. 7, 2020). A jury was never sworn in
the Maine case before it was dismissed.
On January 31, 2020, the same day that the government
moved to voluntarily dismiss the superseding indictment in Maine,
the United States filed a criminal complaint against Suazo alleging
one count of distribution of fentanyl and one count of conspiracy,
and aiding and abetting a conspiracy, to distribute fentanyl, in
the New Hampshire district court. With respect to the conspiracy
count, Count Two, the government specified that the conspiracy
took place "[o]n or about January 18, 2018" in New Hampshire and
Massachusetts and that the conspiracy involved 40 or more grams of
fentanyl. The complaint listed no co-conspirators or additional
specifics of the alleged conspiracy. On July 22, 2020 a grand
jury issued an indictment setting forth the same charges and
information.
1 The court there also stated in reference to the instant
appeal, "[t]his conclusion implies no views as to the issues raised
in separate Appeal 20-1982, which will be adjudicated in the
ordinary course".
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Suazo filed a motion to dismiss the New Hampshire
indictment as impermissibly vague as to both counts, and to dismiss
Count Two as duplicitous to the extent that it charged both
conspiracy and aiding and abetting a conspiracy. He then moved to
dismiss Count Two on double jeopardy grounds, arguing that the
government should be required to show that the conspiracy charged
in the New Hampshire indictment differs from the conspiracy charged
in the Maine indictment. At a hearing on October 7, 2020, the New
Hampshire district court denied both of Suazo's motions to dismiss.
During the hearing, the government specified that the entire
conspiracy took place within a few days of the date given in the
indictment. The court ordered the government to produce a bill of
particulars, which it did on October 14, 2020, naming four other
alleged members of the conspiracy.
Suazo now appeals the denial of his motion to dismiss on
double jeopardy grounds and purports to appeal from other denials
set forth below.
II. Analysis
"The availability of double jeopardy protection is a
constitutional question reviewable de novo." United States v.
Fornia-Castillo, 408 F.3d 52, 68 (1st Cir. 2005) (citing United
States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998)). Defendants
generally cannot immediately appeal interlocutory orders in
criminal cases. United States v. Keene, 287 F.3d 229, 232 (1st
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Cir. 2002). An exception applies where a defendant can "mount a
colorable claim that further proceedings in the trial court will
constitute double jeopardy." Id. (citing Abney v. United States,
431 U.S. 651, 662 (1977)). The Double Jeopardy Clause, U.S. Const.
amend. V, cl. 2, protects not only against double punishment but
also against being "twice put to trial for the same offense."
Abney, 431 U.S. at 661. The rights it protects would be
"significantly undermined" if a defendant had to wait until the
conclusion of a trial to appeal. Id. at 660. Jurisdiction is
therefore proper to hear Suazo's appeal of his double jeopardy
claim at this early stage.
The Fifth Amendment's prohibition on double jeopardy is
premised on the principle that "the State with all its resources
and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal, and . . . enhancing the
possibility that even though innocent he may be found guilty.”
Keene, 287 F.3d at 232 (quoting Green v. United States, 355 U.S.
184, 187-88 (1957)) (alteration in original). A defendant's double
jeopardy rights do not attach until the defendant is put to trial.
See United States v. Rosado-Cancel, 917 F.3d 66, 68 (1st Cir. 2019)
(citing Serfass v. United States, 420 U.S. 377, 388 (1975)). A
trial commences for double jeopardy attachment purposes "when a
jury is sworn or empanelled [sic] or, in a bench trial, when the
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judge begins to hear evidence." United States v. Bonilla Romero,
836 F.2d 39, 42 (1st Cir. 1987) (citing Willhauck v. Flanagan, 448
U.S. 1323, 1325-26 (1980)); see also United States v. Tobin, 552
F.3d 29, 32 (1st Cir. 2009) ("This is mechanical and perhaps
arbitrary, but it is the line that the Supreme Court has drawn and
the circuits have followed.").
It is "[p]erhaps the most fundamental rule in the history
of double jeopardy jurisprudence" that "'[a] verdict of
acquittal . . . could not be reviewed, on error or otherwise,
without putting [a defendant] twice in jeopardy, and thereby
violating the Constitution.'" United States v. Martin Linen Supply
Co., 430 U.S. 564, 571 (1977) (quoting United States v. Ball, 163
U.S. 662, 671 (1896)) (alterations in original). Whether a
judgment of acquittal has been entered "is not to be controlled by
the form of the judge's action." Id.; see also United States v.
Bravo-Fernandez, 790 F.3d 41, 60 (1st Cir. 2015) ("Whether an order
counts as an 'acquittal,' . . . is a question of substance and not
of name."). Rather, the question is "whether the ruling of the
judge, whatever its label, actually represents a resolution,
correct or not, of some or all of the factual elements of the
offense charged." Martin Linen, 430 U.S. at 571. A dismissal
without prejudice is not an adjudication on the merits. See United
States v. Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983).
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Suazo acknowledges that a jury was never sworn in the
Maine case. He argues that the dismissal in the Maine trial should
be treated as an acquittal for double jeopardy purposes. He
acknowledges that under our precedents a dismissal without
prejudice constitutes neither a decision on the merits nor an
acquittal. He nevertheless argues that the Due Process and Double
Jeopardy Clauses mandate an evidentiary hearing to determine
whether the government dismissed the Maine indictment in good faith
and whether the conspiracies charged in the Maine and New Hampshire
indictments are actually different conspiracies. This is because,
he contends, the government dismissed the case under false
pretenses. He argues his view that the government had initially
had him detained pretrial in part by claiming it had overwhelming
evidence of his guilt; the government never identified which
witnesses refused to testify; the government never explained how
its witnesses, including Mejia, could not be called to testify,
given the government's grant of immunity and subpoena power; and
Galbadis testified that Suazo had not reached out to other co-
defendants. The crux of Suazo's argument is that the government
abused his rights by subjecting him to lengthy pretrial detention
pursuant to the Maine indictment that it ultimately voluntarily
dismissed, only to bring (he argues) the same conspiracy charge
the very same day in a different district.
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As Suazo admits, a jury was never sworn, so jeopardy did
not attach in that way. His arguments that the Maine dismissal
was actually an acquittal are meritless, and the law clearly
requires that we affirm the denial of his double jeopardy claim.
Double jeopardy did not constructively attach as a result of the
Maine district court's ruling. In arguing that the law should be
extended to recognize a new form of double jeopardy, which attaches
when a district court wrongly decides that the government acted in
good faith in requesting voluntary dismissal under Rule 48(a),
Suazo commits two errors. First, there is no such doctrine under
double jeopardy law and we flatly reject the argument. Second, he
essentially asks this court to allow a further appeal of the Maine
district court's decision to dismiss the indictment. We have
already declined to review the district court decision, see United
States v. Suazo, No. 20-1288 (1st Cir. Dec. 7, 2020), and will not
do so now under the guise of a double jeopardy claim where it is
clear that jeopardy has not attached.2
In his reply brief, Suazo cites several cases where
courts (outside this circuit) dismissed second indictments or
overturned convictions because they determined prosecutors had
2 We need not here decide whether the conspiracy charged
in the New Hampshire case was the same as the conspiracy charged
in the Maine case because double jeopardy did not attach either by
the commencement of a trial or constructively through the district
court's dismissal of the Maine indictment.
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brought multiple indictments in order to harass the defendants.
These cases do not support his double jeopardy claim; instead,
they reinforce the proposition that Rule 48(a) protects defendants
from prosecutorial harassment. See United States v. Derr, 726
F.2d 617, 618-19 (10th Cir. 1984) (finding prosecution's request
for voluntary dismissal because it would "best meet the ends of
justice" was insufficient justification for dismissal under Rule
48(a)); United States v. Salinas, 693 F.2d 348, 352-53 (5th Cir.
1982) (finding prosecution's voluntary dismissal of initial
indictment in order to get a more favorable jury on a superseding
indictment sufficient to overcome presumption of good faith in
initial Rule 48(a) dismissal); United States v. Fields, 475 F.
Supp. 903, 907-08 (D.D.C. 1979) (dismissing second indictment with
prejudice where initial indictment was sought only to secure
defendant's cooperation as a witness). None of these cases Suazo
cites rely on the Double Jeopardy Clause.
Suazo asks us to extend double jeopardy protections,
but, as the cases he cites show, the law already bars prosecutorial
harassment. His claims are better characterized as claims of
prosecutorial misconduct or harassment than double jeopardy. Such
claims cannot be raised by way of an interlocutory appeal and are,
in that respect, different from double jeopardy claims. See United
States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 264-65
(1982) (holding that court of appeals lacked jurisdiction to hear
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interlocutory appeal of order denying motion to dismiss for
prosecutorial vindictiveness).
Therefore, the double jeopardy claim is the only claim
over which we have interlocutory jurisdiction. Accordingly, we do
not delve into any of Suazo's claims of prosecutorial misconduct,
unfairness, or vagueness. See Abney, 431 U.S. at 663 (no
interlocutory jurisdiction for appeal of motion to dismiss for
insufficiency of indictment); see also United States v.
Brizendine, 659 F.2d 215, 222 (D.C. Cir. 1981) ("If the appellants'
due process claims are upheld on appeal after final judgment, the
court can provide effective relief by ordering the indictment
dismissed . . . , striking any additional charges that were
improperly brought against the accused, requiring correction of
the sentence, or reversing and remanding for reindictment and a
new trial.")
We affirm the denial of the motion to dismiss on double
jeopardy grounds and dismiss without prejudice the appeal as to
the remaining arguments for lack of jurisdiction.
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