United States v. Diaz-Rosado ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1551
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ R. DÍAZ-ROSADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Richard C. Klugh on brief for appellant.
John A. Mathews II, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.
May 16, 2017
BARRON, Circuit Judge. On August 15, 2013, José Díaz-
Rosado ("Díaz") was indicted in the United States District Court
for the Southern District of Florida for his role in planning and
organizing a maritime smuggling operation involving over 1,000
kilograms of cocaine. Five days later, Díaz was indicted
again -- this time, in the United States District Court for the
District of Puerto Rico -- for his role in planning and organizing
a maritime smuggling operation involving over 1,000 kilograms of
cocaine. Díaz contends that the Double Jeopardy Clause of the
United States Constitution bars his prosecution on the Puerto Rico
charges because the Florida charges already encompass the conduct
for which he was indicted in Puerto Rico. For the reasons set
forth below, we reject this challenge and affirm the decision of
the District Court to deny Díaz's motion to dismiss the Puerto
Rico indictment on double jeopardy grounds.
I.
Because Díaz's double jeopardy challenge to the Puerto
Rico indictment hinges in part on the procedural history of the
Florida case, we first need to describe the two indictments and
their subsequent travel in some detail. We will then be well
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positioned to explain why we are unpersuaded that the Puerto Rico
indictment must be dismissed on double jeopardy grounds.
A.
On August 6, 2012, federal agents intercepted a vessel
carrying approximately 1,032 kilograms of cocaine off the coast of
Guayama, Puerto Rico.1 The vessel was registered to Díaz, who had
rented a dock for it in Fajardo, Puerto Rico. The government later
determined that Díaz also hired the vessel's two-man crew: Jorge
Suárez-Albelo and Joel Perpiña-Quiles. Although Díaz was not on
board at the time of its seizure, he and another individual were
responsible for following behind the vessel in a separate boat.
Roughly five months later, on December 30, 2012, federal
authorities intercepted a second vessel off the coast of St. Croix,
United States Virgin Islands -- this one carrying approximately
1,157 kilograms of cocaine. This vessel had a different two-man
crew: José De León and Wilson Concepción. Díaz had purchased this
second vessel. He also had directed an associate -- who later
became a confidential source of the Broward County, Florida,
Sherriff's Office -- to purchase two outboard motors for it.
The December seizure formed the basis for a one-count
indictment filed against Díaz in the United States District Court
1 We recite these uncontested facts as laid out in the
Magistrate Judge's report and recommendation, the pre-sentence
report accompanying Díaz's Florida guilty plea, and the
prosecutor's statements at Díaz's change-of-plea hearing.
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for the Southern District of Florida on August 15, 2013. Díaz was
charged with one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(ii). Díaz pleaded guilty several
months later.
During sentencing, the Florida district court relied on
both the August and December seizures as evidence that Díaz was
responsible for trafficking 2,189 kilograms of cocaine. The
Florida district court also applied a four-level sentencing
enhancement under § 3B1.1(a) of the United States Sentencing
Guidelines for acting as the organizer or leader of a criminal
activity involving five or more participants, and a two-level
sentencing enhancement under § 3C1.1 of the Guidelines for
obstruction of justice for encouraging the confidential source to
lie to government investigators. Díaz was initially sentenced to
life in prison.
Five days after Díaz was indicted in Florida, the
government filed a two-count indictment against him in the United
States District Court for the District of Puerto Rico. Based on
the August seizure, the Puerto Rico indictment charged Díaz with
one count of conspiracy to import more than five kilograms of
cocaine into the United States, in violation of 21 U.S.C. §§ 952,
960, and 963, and one count of conspiracy to possess with intent
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to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. §§ 846 and 841(b)(1)(A)(ii).
Díaz moved to dismiss the Puerto Rico indictment the
same day he entered his plea of guilty in the Florida case. Díaz
contended that the conduct charged in the Puerto Rico indictment
-- in particular, Díaz's participation in the events leading up to
the August seizure -- had already been charged in the Florida case
and thus that dismissal of the Puerto Rico indictment was required
by the Fifth Amendment's Double Jeopardy Clause.
The District Court did not rule on that motion right
away. Instead, the District Court held that motion in abeyance
pending the resolution of the Florida proceedings.
With the Puerto Rico case on hold, Díaz pursued an appeal
of his sentence in the Florida proceedings to the Eleventh Circuit.
In that appeal, he contended, among other things, that the Florida
district court erred in applying the four-level leadership
enhancement, and in failing to apply a two-level downward
adjustment for acceptance of responsibility, pursuant to § 3E1.1
of the Guidelines. United States v. Díaz-Rosado, 615 Fed. Appx.
569, 572 (11th Cir. 2015).
On June 25, 2015, the Eleventh Circuit vacated and
remanded the sentence. Id. at 569. That court concluded, first,
that "no evidence was provided to support [Díaz's] leadership role
with respect to the four crewmen" -- Suárez, Perpiña, De León, and
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Concepción -- and second, that the confidential source could not
be "considered a participant." Id. at 579. On this basis, the
Eleventh Circuit then remanded the case to the Florida district
court for reconsideration of its decision to apply the leadership
enhancement, directing the district court also to reconsider its
decision not to apply the downward adjustment for acceptance of
responsibility. Id. at 581. Upon remand, Díaz was sentenced on
February 18, 2016 to 240 months of imprisonment.2
B.
Several days later, the proceedings in the federal
district court in Puerto Rico resumed. The District Court referred
the motion to dismiss the indictment to a magistrate judge. The
Magistrate Judge issued a report and recommendation recommending
2 The Eleventh Circuit upheld the Florida district court in
two other respects. First, Díaz-Rosado held that the District
Court did not plainly err in finding that there was a factual basis
for the plea. 615 Fed. Appx. at 573-74. Second, Díaz-Rosado held
that the Florida district court adequately explained the charges
against Díaz and thus did not plainly err during the plea colloquy.
Id. at 574-75. On remand, the parties agreed that Díaz was
eligible for a two-level downward adjustment pursuant to the so-
called "safety-valve" provisions laid out in 18 U.S.C. § 3553(f),
and §§ 2D1.1(b)(17) and 5C1.2 of the Guidelines. In sentencing
Díaz a second time, the Florida district court did not apply the
four-level leadership enhancement, nor did it apply the two-level
downward adjustment for acceptance of responsibility.
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that the District Court deny Díaz's motion to dismiss on April 5,
2016.
The Magistrate Judge found as follows. With respect to
Count One of the Puerto Rico indictment, the Magistrate Judge first
noted that the offense charged therein was not an offense charged
in the Florida case. Accordingly, citing United States v. Ortiz-
Alarcon, 917 F.2d 651, 652 (1st Cir. 1990), the Magistrate Judge
denied Díaz's motion to dismiss Count One. The Magistrate Judge
explained that the elements of the statute Díaz was charged with
violating in that count, 18 U.S.C. § 952, are different from the
elements of the statute Díaz was charged with violating in the
one-count Florida case and therefore his prosecution on Count One
in the Puerto Rico case presented no double jeopardy problem.
With respect to Count Two of the Puerto Rico indictment,
the Magistrate Judge held that the conspiracy for which Díaz was
charged in the Puerto Rico indictment was a separate one from the
conspiracy for which he was charged in the Florida district court.
Applying the five-factor test we laid out in United States v.
Laguna-Estela, 394 F.3d 54, 56 (1st Cir. 2005), the Magistrate
Judge concluded that three of the Laguna-Estela factors -- the
time of the activities, the persons involved, and the evidence
that would be adduced at trial -- favored the government.
First, as to timing, the Magistrate Judge noted that the
conspiracy charged in Puerto Rico "ended in September 2012," and
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therefore "covers a different time period than the conspiracy
alleged in the Florida indictment, which began in October 2012."
Second, as to personnel, the Magistrate Judge emphasized that the
August conspiracy -- the one charged in Puerto Rico -- involved
Suárez and Perpiña, whereas the December conspiracy -- the one
charged in Florida -- involved De León and Concepción. Finally,
as to evidence, the Magistrate Judge noted that there "were two
different drug shipments, involving different time periods and
persons," which "supports a finding that distinct evidence would
have to be adduced in order to establish each of the two
conspiracies." "What is more," the Magistrate Judge held, "because
none of the individuals in the December 2012 conspiracy (apart
from Díaz) were involved in the alleged August 2012 conspiracy,
the government may prove an agreement –– the essential component
of a conspiracy –– between Díaz and the individuals in the August
2012 voyage without resorting to proof of an agreement between
Díaz and the individuals involved in the December 2012 voyage."
The Magistrate Judge, however, held that the remaining
two Laguna-Estela factors -- the places involved and the fact that
the two statutory provisions under which Díaz was charged were the
same -- did weigh in favor of Díaz. The Magistrate Judge noted
that "either the 'Dominican Republic or Puerto Rico' were the
'final destination' for the shipments" charged in both
indictments. (citation omitted). And, the Magistrate Judge also
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noted that Count Two of the Puerto Rico indictment and the one
count of the Florida indictment both "alleged violations of the
same statutory provisions," thus tipping the fifth Laguna-Estela
factor in Díaz's direction. But, after weighing these five
factors, the Magistrate Judge ultimately concluded that the
conspiracies charged in the two indictments were separate ones
insofar as the conduct charged in the two indictments involved
distinct time periods, personnel, and evidence, and recommended
that the District Court deny Díaz's motion to dismiss Count Two of
the Puerto Rico indictment on double jeopardy grounds.
The Magistrate Judge's report and recommendation
informed Díaz that he had fourteen days to file objections. The
report and recommendation also notified Díaz that "[f]ailure to
file timely and specific objections . . . [would constitute] a
waiver of the right to appellate review." Díaz, however, did not
file any objections to the report and recommendation. Accordingly,
on April 26, 2016, the District Court adopted the Magistrate
Judge's report and recommendation that Díaz's motion to dismiss be
denied and directed that the parties proceed with trial
preparation.
Díaz then filed this timely interlocutory appeal. We
agree with the parties that we have jurisdiction to hear the appeal
pursuant to the Supreme Court's decision in Abney v. United States,
431 U.S. 651, 661-62 (1977), which made clear that a "double
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jeopardy challenge to [an] indictment must be reviewable" before
the defendant is to stand trial on that indictment. United States
v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir. 2004) (noting that,
while ordinarily a "defendant cannot pursue an immediate appeal
from an interlocutory order in a criminal case," defendants may
nevertheless "immediate[ly] appeal[] from denials of a motion to
dismiss" if the appeal is "premised on colorable double jeopardy
grounds").
II.
As this case comes to us, it appears that Díaz waived
his right to bring the challenge he now advances by failing to
file objections to the Magistrate Judge's report and
recommendation. See United States v. Lugo Guerrero, 524 F.3d 5,
14 (1st Cir. 2008) (holding that the defendant "waived his right
to . . . appeal because he failed to object to the recommendation
of the magistrate's report"); see also Thomas v. Arn, 474 U.S.
140, 142 (1985) ("The question presented is whether a court of
appeals may exercise its supervisory powers to establish a rule
that the failure to file objections to the magistrate's report
waives the right to appeal the district court's judgment. We hold
that it may."); Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir. 1992)
("Failure to raise objections to the Report and Recommendation
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waives the party's right to review in the district court and those
claims not preserved by such objection are precluded on appeal.").
Díaz contends that his double jeopardy claim is exempt
from the ordinary application of these waiver rules because his
guilty plea in the Florida case does not now foreclose him from
bringing this double jeopardy challenge. It is by no means clear,
however, that, under United States v. Broce, 488 U.S. 563, 571
(1989), Díaz's failure to object to the Magistrate Judge's report
and recommendation did not thereby waive his right to bring this
challenge. See id. (holding that "when [the defendants] pleaded
guilty to two charges of conspiracy on the explicit premise of two
agreements which started at different times and embraced separate
objectives, they conceded guilt to two separate offenses," and
therefore could not subsequently "challenge the theory of the
indictments and . . . attempt to show the existence of only one
conspiracy"); see also United States v. Stefanidakis, 678 F.3d 99-
100 (1st Cir. 2012). Nevertheless, even assuming that Díaz has
not waived his right to bring this challenge, we conclude, as we
now explain, that this interlocutory appeal fails on the merits.
A.
Díaz purports to challenge both counts of the Puerto
Rico indictment on double jeopardy grounds. But, as Díaz does not
dispute the District Court's conclusion that Count One of the
Puerto Rico indictment did not present a double jeopardy problem
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because it charged an offense that was not charged in the Florida
case, we affirm and proceed to consider his challenge regarding
Count Two of the Puerto Rico indictment.3
The government contends that we review the District
Court's ruling under Laguna-Estela for abuse of discretion. See
Toribio-Lugo, 375 F.3d at 38 ("The baseline standard of review
applicable to a denial of a motion to dismiss on double jeopardy
grounds following the declaration of a mistrial is abuse of
discretion."). Laguna-Estela itself, however, seems to have
applied a clear-error standard of review, 394 F.3d at 57. That
case notwithstanding, we held in United States v. Fornia-Castillo,
408 F.3d 52, 68 (1st Cir. 2005) -- decided several months
afterwards -- that "[t]he availability of double jeopardy
protection is a constitutional question reviewable de novo." Here,
because our conclusion holds irrespective of the standard of
review, rather than choose among the various standards, we apply
the more defendant-friendly standard of de novo review that Díaz
contends is applicable. For even on de novo review, we disagree
with Díaz that the District Court's denial of Díaz's motion to
dismiss must be reversed under Laguna-Estela.
3 Because the District Court adopted the unobjected-to
Magistrate Judge's report and recommendation, our references to
the District Court's reasoning and conclusions encompass the
Magistrate Judge's report and recommendation.
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Díaz first contends that there is a substantial overlap
between the evidence at issue in the Florida case and the evidence
that would be adduced at trial here, given the "obvious relatedness
of the conduct." For that reason, he argues, the fourth Laguna-
Estela factor -- whether "the same evidence [would] be used to
prove the two conspiracies," 394 F.3d at 57 -- favors him, rather
than the government, as the District Court concluded. But, Díaz
points to no specific facts in the record before the District Court
that suggest that the District Court incorrectly applied or weighed
this fourth Laguna-Estela factor. And while Díaz also argues that
unidentified "principal players" in the two seizures at issue were
the same -- and thus that the second, personnel-based Laguna-
Estela factor also favors him -- that assertion, without more, is
insufficient to meet his burden of "presenting evidence to
establish a prima facie nonfrivolous double jeopardy claim,"
Laguna-Estela, 394 F.3d at 56 (quoting United States v. Booth, 673
F.2d 27, 30-31 (1st Cir. 1982)), even if we assume that Díaz
preserved this argument below.4 Accordingly, Díaz provides no
4 Below, Díaz stated the following: "The facts of the Puerto
Rico case occur right in the middle of the time frame of the
conspiracy of the Southern District case, refer to the same alleged
conduct . . . and occurred in Puerto Rico. The facts coincide in
place, time, geographic area and factual description." He thus
made no reference to any high-level individuals common to both
conspiracies.
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basis on which the District Court's ruling may be reversed under
the framework we established in Laguna-Estela.
B.
Díaz does make a number of other arguments in support of
his contention that the District Court erroneously denied his
motion to dismiss. None have merit.
Díaz argues that, during the sentencing phase of the
Florida proceedings, the government itself relied on evidence from
the August seizure (the one charged in the Puerto Rico indictment)
to demonstrate his responsibility for the December seizure (the
one charged in the Florida case), thus making clear that Díaz
participated in only one "overarching conspiracy." But, assuming
favorably to Díaz that our review is de novo, we disagree.
The Supreme Court has explicitly rejected the argument
"that double jeopardy principles bar a later prosecution or
punishment for criminal activity where that activity has been
considered at sentencing for a separate crime." Witte v. United
States, 515 U.S. 389, 398 (1995). Thus, the fact that the
government presented evidence to the Florida district court
concerning the seizure for which Díaz was charged in this case
does not suffice to show that the crimes charged in the two cases
are the same for double jeopardy purposes.
Díaz also contends that the motion to dismiss must be
granted based on two aspects of the record that he identifies for
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the first time on appeal. Specifically, he contends that: (1) the
Florida and Puerto Rico indictments were coordinated, and
therefore represented the culmination of a "joint investigation"
between law enforcement authorities in Florida and Puerto Rico and
(2) the government opposed Díaz's request that his defense in the
Florida case be handled by a former federal prosecutor in Puerto
Rico because the Puerto Rico case and the Florida case were
"essentially the same." But, Díaz made no reference to these facts
in his motion to dismiss before the Magistrate Judge, and he did
not object before the District Court to the Magistrate Judge's
report and recommendation. Thus, our review is, at best, for plain
error. See United States v. Catalán-Roman, 585 F.3d 453, 472 (1st
Cir. 2009), as amended (Dec. 23, 2009) (holding that a double
jeopardy claim not raised below is subject to plain error review).
Díaz must therefore show that "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Stefanidakis, 678 F.3d at 99 (quoting United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
We are, however, hard pressed to see how, taking Díaz's
characterization of the record as true, the fact that the two
prosecutions were similar enough to be handled by the same team of
prosecutors in and of itself shows that the two conspiracies at
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issue here are, in fact, one conspiracy under the Double Jeopardy
Clause. And Díaz offers no basis on which to conclude that the
District Court's contrary ruling, notwithstanding these facts, was
an error, let alone a clear or obvious one. Thus, we reject this
challenge, too.
Finally, Díaz points to the Eleventh Circuit's decision
vacating and remanding his sentence in the Florida case as one
that requires us to dismiss the indictment on double jeopardy
grounds. But the Eleventh Circuit was plainly not, in so ruling,
passing on whether the Puerto Rico and Florida cases involved the
same conspiracy or different ones. As we have already noted, the
Eleventh Circuit merely overruled the Florida district court's
decision to apply a four-level leadership enhancement to Díaz for
the conspiracy charged in that case (whatever its scope), and
instructed the lower court to reconsider its decision not to apply
a two-level downward adjustment for acceptance of responsibility.
Díaz-Rosado, 615 Fed. Appx. at 571 (finding "no merit in [Díaz's]
challenge to his conviction," and "revers[ing] his sentence and
remand[ing] for resentencing"). For this reason, Díaz's final
challenge must also be rejected.
III.
We affirm the judgment of the District Court.
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