DocketNumber： 93-2380
Filed Date： 4/20/1995
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-2380
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER CARABALLO-CRUZ,
Defendant, Appellant.
__________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________
__________________________
Selya, Cyr and Stahl,
Circuit Judges. ______________
__________________________
Miguel A.A. Nogueras-Castro, Assistant Federal Public _____________________________
Defender, with whom Benicio Sanchez Rivera, Federal Public ________________________
Defender, was on brief, for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with _________________________
whom Guillermo Gil, United States Attorney, was on brief, for _____________
appellee.
_________________________
April 20, 1995
_________________________
SELYA, Circuit Judge. Defendant-appellant Walter SELYA, Circuit Judge. ______________
Caraballo-Cruz appeals his conspiracy conviction on double
jeopardy grounds. His claim has merit. Consequently, we
reverse.
I I
This appeal has its origins in an earlier case. In May
1992, a federal grand jury charged appellant with conspiracy to
possess 29 kilograms of cocaine, intending to distribute the
drug, in violation of 21 U.S.C. 841(a)(1) and 846. On July
16, 1992, a petit jury found him guilty as charged. The district
court thereafter imposed sentence and we affirmed the judgment.
United States v. Caraballo-Cruz, No. 92-2316 (1st Cir. Feb. 10, ______________ ______________
1994) (unpublished opinion).
Appellant's travail was not limited to the 1992
indictment. On June 18, 1993, the grand jury returned a second,
far broader indictment. The new indictment contained a master
conspiracy count (count 1) and 47 subsidiary counts. The master
conspiracy count charged 30 defendants, including appellant, with
conspiracy to possess and distribute some 2,000 kilograms of
cocaine in violation of 21 U.S.C. 841(a)(1) and 846.
Appellant, who was not indicted on any other charge, promptly
moved to dismiss count 1. He asseverated that the master
conspiracy portrayed therein encompassed the narrower conspiracy
described in the earlier indictment, and, therefore, that the
government's nascent attempt to prosecute him anew for his role
in the master conspiracy transgressed the Double Jeopardy Clause.
2
On August 20, 1993, the district court denied
appellant's motion to dismiss without prejudice to its renewal at
trial.1 But no trial ever occurred. Instead, appellant entered
into a conditional plea agreement in which he reserved his double
jeopardy claim. The district court accepted a conditional guilty
plea, Fed. R. Crim. P. 11(a)(2), and imposed sentence. On
December 7, 1993, in accordance with the condition of his plea
agreement, Caraballo-Cruz filed a notice of appeal.
II II
The Fifth Amendment to the United States Constitution
states in relevant part: "No person [shall] be subject for the
same offence to be twice put in jeopardy of life or limb . . . ."
This constitutional shield embodies three separate safeguards:
it protects against a second prosecution for the same offense
after an acquittal; it protects against a second prosecution for
the same offense after a conviction; and it protects against
multiple punishments for the same offense. See North Carolina v. ___ ______________
Pearce, 395 U.S. 711, 717 (1969); United States v. Ortiz-Alarcon, ______ _____________ _____________
917 F.2d 651, 653 (1st Cir. 1990), cert. denied, 500 U.S. 926 _____ ______
(1991). In the papers accompanying his motion to dismiss,
Caraballo-Cruz set forth in considerable detail the basis for his
belief that the most recent conspiracy charge fell squarely
within the proscription of the second buckler of this tripartite
____________________
1The court acknowledged that the issue was nonfrivolous but
declined to decide it "without having the benefit of the evidence
that will be presented against the defendant at trial." The
court noted that, depending on what the trial disclosed, "a
renewed request [for dismissal] may prosper."
3
shield. He repeats these arguments in his brief on appeal,
asserting that the conspiracies described in the two indictments
are, in law and in fact, the same offense.
While the appellant's position is consistent and
predictable, the government's response is exotic. Even though
the prosecution attempted to meet the double jeopardy initiative
head-on before the district court, its appellate brief is
confined to a pair of peripheral issues. First, the government
contends that we lack appellate jurisdiction because the double
jeopardy issue was never decided on the merits by the court
below. Second, it maintains that appellant's guilty plea waived
the issue. These assertions contain more growl than bite.
III III
To guard against the constitutional insult that double
jeopardy entails, a court faced with a colorable successive
prosecution claim must hear and determine the matter in advance
of trial. See United States v. Liotard, 817 F.2d 1074, 1079 (3d ___ _____________ _______
Cir. 1987); United States v. Booth, 673 F.2d 27, 30 (1st Cir.), _____________ _____
cert. denied, 456 U.S. 978 (1982). The reason for this rule is _____ ______
apparent: if the right to be free from a second trial is not
vindicated before that trial commences, then the right is no
right at all, but a cruel illusion. See Liotard, 817 F.2d at ___ _______
1080; see also Robinson v. Neil, 409 U.S. 505, 509 (1973) ___ ____ ________ ____
(explaining that the Double Jeopardy Clause is distinctive
because "its practical result is to prevent a trial from taking
place at all"). In a successive prosecution case, the guarantee
4
against double jeopardy "would be lost if the accused were forced
to `run the gauntlet' a second time" before being placed on
trial. Abney v. United States, 431 U.S. 651, 662 (1977). _____ _____________
The case at hand fits neatly within this doctrinal
framework. Confronted with a timely motion to dismiss that
limned a patently nonfrivolous successive prosecution claim,2
the lower court denied the motion without prejudice to its
renewal after the presentation of evidence at trial. See supra _____ ___ ____________ __ ________ __ _____ ___ _____
note 1. The Double Jeopardy Clause prohibits such temporizing.
And, moreover, inasmuch as the district court's failure to decide
the double jeopardy claim on the merits stemmed from the court's
mistaken view of the law rather than from any lack of diligence
on appellant's part, the government's jurisdictional argument
founders.
IV IV
The government's waiver argument fares no better.
Though an unconditional guilty plea typically subsumes all
nonjurisdictional defects occurring earlier in the case,
insulating previous rulings from appellate review, see United ___ ______
States v. Cordero, 42 F.3d 697, 698 (1st Cir. 1994), that ______ _______
____________________
2While we need not reach the merits of the double jeopardy
claim, see infra Part V, that claim has much to commend it: both ___ _____
indictments charged the defendant with violating the same
statutes; the described conspiracies overlapped temporally (the
first indictment charged a conspiracy taking place in May 1992,
whereas the second indictment charged a conspiracy running from
September 1991 to March 1993); the five purported coconspirators
identified in the first indictment were among those named in the
second indictment; both conspiracies involved importing cocaine
from Colombia into Puerto Rico; and in both instances contraband
was destined for transshipment.
5
principle is inapposite where, as here, the government and the
defendant enter (and the district court approves) a conditional ___________
plea agreement that expressly preserves the defendant's right to
raise a particular issue on appeal. This conclusion flows
irresistibly from the language of the Criminal Rules, which
provide in pertinent part that:
With the approval of the court and the
consent of the government, a defendant may
enter a conditional plea of guilty . . .,
reserving in writing the right, on appeal
from the judgment, to review of the adverse
determination of any specified pretrial
motion.
Fed. R. Crim. P. 11(a)(2). The import of this rule is open and
obvious: it is designed to "ensure careful attention to any
conditional plea," to "identify precisely what pretrial issues
have been preserved for appellate review," and to husband scarce
judicial resources by permitting a defendant fully to litigate
hoarded issues while at the same time lessening the burden on
busy district courts and sparing the sovereign the expense of
trial. Fed. R. Crim. P. 11 advisory committee's note.
The agreement that led to appellant's plea in this case
makes reference to Rule 11(a)(2) and contains an express written
reservation of the right to appeal from the denial of the motion
to dismiss.3 In short, it scrupulously follows the protocol
required by the rule. Hence, the government's execution of the
____________________
3After referencing Rule 11(a)(2), the plea agreement stated
that "this plea is conditioned upon defendant's reserving the
right to appeal the Order denying defendant's motion to dismiss
the indictment on double jeopardy grounds."
6
agreement (by not one, but two, Assistant United States
Attorneys) represented its considered acquiescence in the
defendant's right to hawk his double jeopardy defense on appeal
notwithstanding his guilty plea. See id.; see also United States ___ ___ ___ ____ _____________
v. Ramos, 961 F.2d 1003, 1005-06 (1st Cir.) (holding that the _____
entry of a conditional guilty plea preserves specifically
described rulings for review and waives all other
nonjurisdictional errors), cert. denied, 113 S. Ct. 364 (1992); _____ ______
United States v. Simmons, 763 F.2d 529, 533 (2d Cir. 1985) ______________ _______
(similar). Having secured a plea by means of this accommodation,
the government cannot now retract its acquiescence. After all,
"[h]aving one's cake and eating it, too, is not in fashion in
this circuit." United States v. Tierney, 760 F.2d 382, 388 (1st ______________ _______
Cir.), cert. denied, 474 U.S. 843 (1985). _____ ______
Should any doubt remain and we see none the Supreme
Court's opinion in Doggett v. United States, 112 S. Ct. 2686 _______ _____________
(1992), supplies the sockdolager. There, the government advanced
substantially the same argument as it advances here, asserting
that, by pleading guilty, the defendant waived any right to
appeal his claim that a delayed arrest had prejudiced his
defense. See id. at 2694 n.3. The Court rejected this argument ___ ___
out of hand. It noted that Doggett had tendered a conditional
guilty plea under Rule 11(a)(2), and that the plea agreement
memorialized "the Government's explicit consent to his
reservation of the right to appeal" the denial of his motion to
dismiss. Id. Accordingly, Doggett could not be barred "from ___
7
pursuing as effective an appeal as he could have raised had he
not pleaded guilty." Id. So it is here.4 ___
V V
In its opposition to the appellant's motion to dismiss
in the district court, the government attempted to parse the
factors required to determine when successive conspiracy counts
should be construed as charging the same offense for purposes of
double jeopardy analysis. See, e.g., United States v. Cloutier, ___ ____ _____________ ________
966 F.2d 24, 28 (1st Cir. 1992) (elucidating multi-pronged test
for determining whether two successive conspiracy counts charge
the same offense within the purview of the Double Jeopardy
Clause); United States v. David, 940 F.2d 722, 734 (1st Cir. _____________ _____
1991) (similar), cert. denied, 502 U.S. 1046 (1992); cf. United _____ ______ ___ ______
States v. Gomez-Pabon, 911 F.2d 847, 860 (1st Cir. 1990) ______ ___________
(elucidating test in analogous context), cert. denied, 498 U.S. _____ ______
1074 (1991). On appeal, however, the government fails either to
renew this challenge or to address the substantive issue in any
meaningful way. Instead, the government declares, without
further elaboration, that the "underlying offenses are not the
same." Government's Brief at 11. An enigmatic reference of this
sort, totally devoid of developed argumentation, is like a month-
____________________
4The government's reliance on United States v. Broce, 488 _____________ _____
U.S. 563 (1989), is mislaid. In Broce, the defendant admitted _____
guilt on two separate conspiracy counts. On review, the Supreme
Court held the defendant's double jeopardy defense to be
"foreclosed by the guilty pleas and the judgments of conviction."
Id. at 565. Unlike this case, Broce's pleas were neither ___
conditional nor qualified in any comparable way. Hence, Broce is _____
inapposite.
8
old ketchup bottle: it may look full, but is surpassingly
difficult to get anything out of it.
We believe it is apodictic that "issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895 _____________ _______
F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). To be _____ ______
sure, the usual office of this rule in criminal cases is to
negate consideration of skeletal arguments advanced by the __ ___
defendant. See, e.g., United States v. Innamorati, 996 F.2d 456, _________ ___ ____ _____________ __________
468 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993); Zannino, 895 _____ ______ _______
F.2d at 17. But in fairness, what is sauce for the defendant's
goose is sauce for the government's gander. Thus, the rule
applies with undiminished vigor when, as now, a prosecutor
attempts to rely on fleeting references to unsubstantiated
conclusions in lieu of structured argumentation. See, e.g., ___ ____
United States v. Rodriguez Cortes, 949 F.2d 532, 542 (1st Cir. ______________ ________________
1991); United States v. Doe, 878 F.2d 1546, 1554 (1st Cir. 1989); _____________ ___
United States v. Serrano, 870 F.2d 1, 7 n.5 (1st Cir. 1989). _____________ _______
On this record, then, we must hold the government to
its default and credit appellant's argument that the two
conspiracies constitute one and the same offense.
VI VI
We need go no further. Appellant fully preserved his
defense of double jeopardy, and the government has articulated no
credible reason to suppose either that the charged crimes are
constitutionally distinct or that the defense is otherwise
9
flawed. Consequently, the judgment of conviction must be
Reversed. Reversed. ________
10
united-states-v-miguel-a-serrano-dba-ponce-developers-inc-united , 870 F.2d 1 ( 1989 )
United States v. Cordero Garcia , 42 F.3d 697 ( 1994 )
United States v. Pedro Ortiz-Alarcon , 917 F.2d 651 ( 1990 )
United States v. William Cloutier , 966 F.2d 24 ( 1992 )
United States v. Fabio Rodriguez Cortes, United States v. ... , 949 F.2d 532 ( 1991 )
united-states-v-shmuel-david-united-states-of-america-v-jaime-toro , 940 F.2d 722 ( 1991 )
United States v. Charles Simmons , 763 F.2d 529 ( 1985 )
Robinson v. Neil , 93 S. Ct. 876 ( 1973 )
United States v. Liotard, Russell , 817 F.2d 1074 ( 1987 )
united-states-v-luis-e-gomez-pabon-united-states-v-wilfredo , 911 F.2d 847 ( 1990 )
united-states-v-john-doe-aka-lynn-m-obrien-united-states-of-america , 878 F.2d 1546 ( 1989 )
united-states-v-kenneth-innamorati-united-states-v-william-thompson , 996 F.2d 456 ( 1993 )
North Carolina v. Pearce , 89 S. Ct. 2072 ( 1969 )
Abney v. United States , 97 S. Ct. 2034 ( 1977 )