United States v. Santiago-Colon

United States Court of Appeals
For the First Circuit
No. 16-2509
UNITED STATES OF AMERICA,
Appellant,
v.
DAVID SANTIAGO-COLÓN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
John P. Taddei, Attorney, Appellate Section Criminal
Division, U.S. Department of Justice, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, Trevor N. McFadden, Acting
Principal Deputy Assistant Attorney General, Rosa E. Rodríguez-
Vélez, United States Attorney, and Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Section, were
on brief, for appellant.
Andrew S. McCutcheon, Assistant Federal Public Defender, with
whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellee.
February 28, 2019
TORRUELLA, Circuit Judge. The United States appeals the
district court's order granting David Santiago-Colón's
("Santiago") motion to suppress identification evidence, giving
preclusive effect to a Puerto Rico Court of Appeals's order
suppressing this same evidence in a local proceeding for different
offenses. According to the district court, inasmuch as Puerto
Rico and the United States are a single sovereign for purposes of
the Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,
136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's
final judgment suppressing identification evidence, even though
federal prosecutors "did not participate in the [Puerto Rico] court
criminal proceedings against Santiago." United States v.
Santiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so
ruling, the district court deviated from our on-point precedent
holding that suppression of evidence by a Puerto Rico court does
not require a federal court to suppress that same evidence unless
federal prosecutors were a party, or were in privity with a party,
to the suppression hearing in the Puerto Rico court, United States
v. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was
not the case here. Sánchez Valle, moreover, did not change the
law in this area. Accordingly, we reverse and vacate the district
court's suppression order.
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I. Background
A. Factual Background
On January 13, 2013, Puerto Rico Police Department Agent
Carlos Sepúlveda-Rivera ("Sepúlveda") was off-duty at La Casita,
a bar in Villalba, Puerto Rico, when he got into an altercation
with two men. Sepúlveda and the two men exchanged gunfire. After
the men shot Sepúlveda four times, he was transported to the
hospital for treatment of his injuries. Sergeant Pedro Quiles-
Torres ("Quiles") interviewed Sepúlveda at the hospital later that
day. During his interview, Sepúlveda provided a description of
his two assailants. 1 Based on the descriptions provided by
Sepúlveda and a review of the security video footage of La Casita,
1 According to the government, on the same evening the shootout
occurred, Sepúlveda provided a description of the shooters'
physical characteristics and attire. He described one of his
assailants, later identified as Santiago, as slim, tall, wearing
a jacket, a black sweater, and short blue pants. Sepúlveda also
stated that, although he could not remember their names, he knew
both assailants. Sepúlveda explained that he knew Santiago
because he played basketball for the team of La Sierra, the
neighborhood where Sepúlveda resides, and that he was called
"Cabezón" (Spanish for "Big Head"). Sepúlveda also stated that
Santiago was either the son-in-law or former son-in-law of the
former mayor of Villalba. Indeed, Santiago's known nickname is
"Cabezón," he played for La Sierra basketball team, and was related
to the former mayor of Villalba. As to the second assailant,
later identified as Richard Cartagena-Suárez, Sepúlveda provided
a physical description, described his clothing at the time of the
incident, and stated that he knew him because Sepúlveda had
previously assisted in the individual's arrest for an unrelated
offense.
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local law enforcement agents identified Santiago and Richard
Cartagena-Suárez ("Cartagena") as the shooters. The next day,
Quiles showed two photo arrays to Sepúlveda, each of them
containing nine photos. One array included Santiago's photo, and
the other one included Cartagena's. Sepúlveda picked Santiago and
Cartagena from the photo arrays.
B. Local Case
Puerto Rico prosecutors charged Santiago with attempted
first-degree murder, carrying and using a firearm without a
license, and discharging or pointing a firearm, in violation of
Puerto Rico law. Santiago moved to suppress Sepúlveda's
identification of him on the grounds that it was obtained in
contravention of the Puerto Rico Rules of Criminal Procedure. The
local prosecution opposed. The local trial court held a three-
day evidentiary hearing, in which four witnesses (including
Sepúlveda and Quiles) testified. After the local trial court
denied suppression, Santiago appealed to the Puerto Rico Court of
Appeals. The Puerto Rico Court of Appeals then reversed and
suppressed the identification evidence. It noted some
contradictions in Sepúlveda's testimony, concluded that
Sepúlveda's identification of Santiago "and the photographic line
up led by Sergeant Quiles were not trustworthy pursuant to the
criteria established by . . . [the Puerto Rico] Supreme Court in
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Pueblo v. Hernández González," 2009 WL 197570 (2009)
(untranslated), and remanded the case to the local trial court.
See App. at 65, 84, May 18, 2017, No. 16-2509 (certified
translation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL
5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto
Rico Supreme Court declined to intervene, and the case was later
dismissed.
C. Federal Case
Based on the January 13, 2013 incident, a federal grand
jury returned an indictment on June 4, 2015, charging Santiago
with being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved
to suppress Sepúlveda's out-of-court identification and to prevent
Sepúlveda from identifying him in court. He argued that the
identification procedure had been unduly suggestive, that the
Puerto Rico Court of Appeals had already considered and rejected
the testimony of Sepúlveda and Quiles -- "the only witnesses who
[could] provide material testimony on the issues relevant to the
case at bar" -- and that said determination was final. Urging the
court to apply a standard like the one used when reviewing habeas
2 Santiago was indicted after the Puerto Rico Court of Appeals
issued its opinion suppressing his identification, but before the
local case was dismissed.
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corpus petitions, Santiago argued that "disagreement alone is not
enough" for a federal court to ignore a state court's credibility
determination. Rather, "[t]he federal court must conclude not
only that the state court's determination was wrong, but that it
was unreasonable in light of the evidence presented." Because,
according to Santiago, the Puerto Rico Court of Appeals's decision
was not unreasonable, he urged the district court to "defer" to
the "findings made by Puerto Rico's courts," suppress Sepúlveda's
out-of-court identification of Santiago, and preclude Sepúlveda
from identifying Santiago in court.
The government opposed the motion, arguing that Santiago
had failed to show that "the identification procedure was
impermissibly suggestive under federal law" and that, in fact, the
procedure was reliable. The government also noted that the Puerto
Rico Court of Appeals, in reversing the trial court, failed to
give due deference to the trial judge's findings of fact and
therefore misapplied Puerto Rico law. Additionally, the
government pointed out that Sepúlveda knew the perpetrators before
the shootout and identified Santiago by his nickname, supporting
the reliability of the identification.
On October 4, 2016, without holding a hearing, the
district court granted Santiago's "request to suppress
identification." That order was followed by an opinion entered
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the same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,
the district court noted that in Sánchez Valle the U.S. Supreme
Court held that "for purposes of the Double Jeopardy Clause, the
[Puerto Rico] and United States governments constitute a single
sovereign, in as much [sic] as the former's power to prosecute
derives from the latter's." Id. at 297. The district court
concluded that it "must give the [Puerto Rico] court suppression
findings and judgment preclusive effect" because "[n]ot doing so
would ignore the constitutional reality that indeed [Puerto Rico]
and [the] United States are but one sovereign when it comes to
criminally prosecuting individuals." Id. at 298. It further
noted that, although federal prosecutors "did not participate in
the [Puerto Rico] court criminal proceedings against [Santiago],
their local counterparts in fact did" and "[t]heir authority to do
so ultimately emanates from the United States." Id. (citing
Sánchez Valle, 136 S. Ct. at 1863). The district court's order
set a pre-trial conference for November 9, 2016 "to discuss if the
Government ha[d] independent evidence to proceed with its
prosecution, or if it will appeal the Court's suppression order."3
On November 10, 2016, the district court held the pre-
trial conference. At the beginning of the conference, the
3 That pre-trial conference was later rescheduled for November 10,
2016.
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district court stated that it believed "there[] [was] a basis" for
filing an interlocutory appeal. The government argued that the
district court's suppression of Santiago's identification was
contrary to binding First Circuit precedent applying collateral
estoppel principles, including Bonilla Romero, 836 F.2d 39, and
United States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and
that Sánchez Valle did not change the law. The district court
rejected the government's arguments and clarified that the court's
decision was not based on collateral estoppel, but "on an
assumption that it's the same sovereign." According to the
district court, because under Sánchez Valle Puerto Rico and the
United States are "a single sovereign," the Puerto Rico court's
suppression findings and judgment have preclusive effect on a
subsequent federal prosecution and bind the district court.4
The court then inquired whether the government had
independent evidence to proceed to trial. The government
responded that even though the court had suppressed Sepúlveda's
out-of-court identification of Santiago, it "would like to proceed
to trial" with the in-court identification, because Sepúlveda knew
4 In the district court's words, although the local court's
decision "may be a wrong ruling . . . it's still a ruling that's
final," it "binds the [f]ederal [g]overnment," and precludes
relitigation of the issue in federal court even if the district
court "disagree[s] with [the ruling]."
-8-
Santiago prior to the January 13th incident and before he saw the
photo array. The government also indicated that it could use the
security video footage allegedly showing Santiago at the crime
scene. Santiago responded that he thought the district court had
suppressed both the out-of-court identification (product of the
photo array) as well as any in-court identification because the
Puerto Rico Court of Appeals had allegedly suppressed both
identifications. After reviewing again the decision from the
Puerto Rico Court of Appeals, the district court concluded that
the Puerto Rico Court of Appeals had suppressed both Sepúlveda's
out-of-court and in-court identifications of Santiago, and
resolved to do the same. The court further stated that it would
"supplement" its suppression order.
The district court noted that if the government had no
independent evidence to identify Santiago at trial, the "course to
proceed would be for the government to file a notice of appeal,"
because the issue was "definitely capable of repetition," would
"continue happening," and was "appealable interlocutorily."
Additionally, it noted that "[t]his may be the best case to do
it." Santiago agreed that the government "should go up to the
First Circuit to clarify th[e] issue."
Consistent with its statements during the pre-trial
conference, later that day the district court entered an order
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supplementing its October 4th order by clarifying that its
suppression order was "based on the single sovereign doctrine and
not on collateral estoppel" and "extend[ed] to both the in-court
identification by . . . Sepúlveda . . . , as well as the photo
identification." On December 2, 2016, the government filed its
notice of appeal, stating that it was appealing from the order
entered on November 10, 2016. On November 15, 2017, the government
filed a certification under 18 U.S.C. § 3731 with the district
court, in which the United States Attorney certified that "the
appeal is not taken for the purpose of delay and that the evidence
[suppressed] is a substantial proof of a fact material in the
proceeding."
On appeal, the government claims the district court's
order suppressing any in-court identification of Santiago as the
shooter should be reversed because it is contrary to First Circuit
precedent, which has held that whether suppression of evidence by
a local court has preclusive effect in a federal proceeding is an
issue of collateral estoppel, not double jeopardy. It further
claims that, under collateral estoppel principles, the suppression
of the identification evidence was improper because the two
prosecuting authorities were not in privity.5
5 The government does not appeal the suppression of Sepúlveda's
out-of-court identification of Santiago.
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II. Discussion
A. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731
Certification Requirement
Santiago claims that this court lacks jurisdiction to
entertain this appeal because the government filed an untimely
notice of appeal and failed to comply with the certification
requirements under 18 U.S.C. § 3731. We address each procedural
challenge in turn.
i. Standard of Review and Applicable Law
This court must verify that it has appellate
jurisdiction before addressing the merits of any appeal. Espinal-
Domínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).
"Jurisdiction is a question of law subject to de novo review."
United States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).
The Criminal Appeals Act establishes in relevant part
that:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court
suppressing or excluding evidence . . ., not made after
the defendant has been put in jeopardy and before the
verdict or finding on an indictment or information, if
the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay
and that the evidence is a substantial proof of a fact
material in the proceeding.
. . .
The appeal in all such cases shall be taken within thirty
days after the decision, judgment or order has been
rendered and shall be diligently prosecuted.
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The provisions of this section shall be liberally
construed to effectuate its purposes.
18 U.S.C. § 3731.
The government is allowed to take an interlocutory
appeal from suppression and exclusion orders in certain
circumstances to remedy the "imbalance created by the
peculiarities of criminal procedure." United States v. Watson,
386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who
had unsuccessfully sought suppression of evidence before trial
could appeal the denial of the suppression if he was convicted,
double jeopardy principles preclude the government from appealing
a pre-trial order suppressing evidence in the event of an
unfavorable verdict at trial. Id. Because "Congress became
concerned about both this disparity and the lack of uniform
standards of admissibility that resulted from it," id., it amended
the Criminal Appeals Act in 1968 to allow the government to appeal
a pre-trial suppression or exclusion order, id. at 308-09. In
1970, Congress further amended the Criminal Appeals Act to remedy
the courts' then-narrow interpretation of § 3731 and to include an
explicit "command to construe the statute liberally," id. at 309,
which this court has construed "as a cue to put substance ahead of
form" in deciding whether it has jurisdiction to entertain an
appeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st
-12-
Cir. 1981) (noting that "the liberal construction provision"
dictates "a practical, rather than formalistic, application").
ii. Timeliness Issue
Santiago argues that the government's notice of appeal
was untimely because it was filed more than thirty days after the
district court entered its October 4th order. According to
Santiago, on October 4, 2016, the district court granted his motion
to suppress, which sought to suppress not only Sepúlveda's out-
of-court identification of him (the photo array), but also sought
to prevent Sepúlveda from identifying him in court. Santiago
argues that the government, however, failed to file a notice of
appeal, or request clarification or reconsideration of the order,
until after the thirty-day window provided in 18 U.S.C. § 3731 had
expired.
Santiago acknowledges that "when the lower court changes
matters of substance, or resolves a genuine ambiguity" in an
otherwise appealable order, "the period within which an appeal
must be taken . . . begin[s] to run anew," see Fed. Trade Comm'n
v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12
(1952), but argues that such is not the case here. He contends
that while the government attempts to draw a distinction between
the October 4th and November 10th orders -- characterizing the
former as suppressing only the out-of-court identification and the
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latter as further suppressing any in-court identification by
Sepúlveda -- such distinction is inappropriate because the order
on November 10th did not materially change the October 4th order.
The November 10th order, Santiago insists, merely reiterated that
the prior suppression ruling included both the out-of-court and
the in-court identifications, which does not serve to start the
clock anew for appellate purposes.
In response, the government argues that the notice of
appeal was timely because it was filed within thirty days of the
November 10th order, which it characterizes as a "'supplement[al]'
suppression order" that "materially amended the original October 4
orders by suppressing evidence that was not covered by the original
orders."
The government states that neither the Puerto Rico Court
of Appeals's opinion nor the district court's October 4th order
"specifically addressed whether Agent Sepúlveda would be
prohibited from identifying Santiago" at trial. According to the
government, the "ambiguous" language of the Puerto Rico Court of
Appeals's opinion and the district court's October 4th order, in
conjunction with the district court's simultaneous scheduling of
a pre-trial conference to discuss whether the government had
independent evidence to proceed with its prosecution, as well as
federal case law suggesting that suppression of an out-of-court
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identification by a witness does not necessarily preclude an in-
court identification by the same witness, led it to believe that
only the photo array evidence had been suppressed. The government
submits that the October 4th order was so ambiguous that the
district court had to re-read the Puerto Rico Court of Appeals's
opinion in order to determine whether its October 4th order also
encompassed the in-court identification. The government further
argues that if the October 4th order had been clear, as Santiago
claims, "it would have been unnecessary for the district court to
'issue a supplement[al] order clarifying' its original ruling" and
that the order itself stated that it was a "supplement" to the
October 4th order, which "extend[ed]" suppression to in-court
identification.
We are persuaded by the government's arguments. The
October 4th order did not specify the scope of the suppression,
and the Puerto Rico Court of Appeals's opinion, on which the
district court relied, was ambiguous as to whether it also
precluded Sepúlveda from identifying Santiago in court. In fact,
the opinion of the Puerto Rico Court of Appeals gave the impression
that only the photographic lineup identification had been
suppressed.6
6 The Puerto Rico Court of Appeals's opinion stated as follows:
[P]etitioners filed a Motion to Suppress Identification
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In addition, as the government contends, suppression of
a photographic lineup identification does not necessarily require
exclusion of an in-court identification provided that the
prosecution can "establish by clear and convincing evidence that
the in-court identification[] w[as] based upon observations of the
suspect other than the lineup identification." Moore v. Illinois,
434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,
388 U.S. 218, 240 (1967)). Hence, this supports the government's
understanding that only the out-of-court identification had been
suppressed, and Sepúlveda could identify Santiago in court based
on his knowledge of Santiago prior to the photo array.
Furthermore, as the government argues, the district
court's scheduling of a pre-trial conference to discuss whether
the government had additional evidence to proceed to trial, as
well as the events that transpired during that pre-trial
. . . alleg[ing] that . . . they were identified through
photographs the day after the facts . . . [and] . . .
that the process was 'severely vitiated' [in] that it
did not comply with the provisions of Rule 252.2 of
[Puerto Rico] Criminal Procedure Rules. . . . [W]e
conclude that the identification that Agent Sepúlveda
Rivera made of . . . Santiago . . . and the photographic
line up [sic] led by Sergeant Quiles were not trustworthy
pursuant to the criteria established by our Supreme
Court in Pueblo v. Hernández González. . . . [Thus, the
trial court's] resolution is vacated and set aside and
in its consequence, the suppression of the
identification of petitioners is ordered.
App. at 41, 84, May 18, 2017, No. 16-2509.
-16-
conference, also support the government's interpretation that the
October 4th order had not suppressed all of the identification
evidence. At the November 10th conference, the parties disputed
the scope of the October 4th suppression order. When the
government stated that it believed the order had suppressed the
out-of-court identification only, the district court did not
clarify that it had also suppressed the in-court identification.
Instead, the court decided to hear from defense counsel. In fact,
even after defense counsel argued that the October 4th order
"clear[ly]" suppressed both identifications, the court stated as
follows:
[I]f the government wants to proceed to trial, what I
need then is for the government to file a motion and
inform what witnesses are going to testify and if they're
going to identify him in court or not so the defense can
adequately respond. And then I can either -- either
I'll grant it or deny it. And if I deny it and basically
I'm suppressing everything, then the government can
still appeal.
The district court then took a brief recess to review
the opinion from the Puerto Rico Court of Appeals in order to
ascertain the scope of its own suppression order. It was after
reviewing again the opinion from the Puerto Rico Court of Appeals
that the district court stated that it would suppress both
identifications. It found that a "supplement[al] order
clarifying" its original order was warranted. The court deemed
it appropriate to clarify that its ruling was based "on the single
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sovereign doctrine, not on collateral estoppel," and that its
"suppression ruling would include the identification of Agent
Sepúlveda of the defendant, as well as his . . . photo . . .
identification." It is worth noting that the court stated its
suppression ruling "would include," and not that it "included" or
"had included," the in-court identification. Therefore, the
court's chosen language supports the government's contention that
the original order did not include the in-court identification.
The court then proceeded to issue a supplemental order clarifying
its October 4th order to these effects. See Dkt. No. 70,
United States v. Santiago-Colón, 15-cv-00396 ("supplement[ing] its
ruling [of October 4th] . . . to the effect that that the same
[was] based on the single sovereign doctrine and not on collateral
estoppel" and "hold[ing] that its suppression extends to both the
in-court identification by Agent Sepúlveda Rivera, as well as the
photo identification").7
Considering the record as a whole, we hold that the
November 10th order amended or materially changed the October 4th
order, which had the effect of restarting the thirty-day clock.
7 The court used the language "the Court holds" as if it was
determining the scope of the suppression for the first time,
instead of using language such as "clarifies," which would suggest
that the decision had been previously taken. Dkt. No. 70,
United States v. Santiago-Colón, 15-cv-00396 (emphasis added).
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This makes timely the government's notice of appeal of the
November 10th order. See United States v. Cheal, 389 F.3d 35, 53
(1st Cir. 2004) (noting that courts are encouraged "to construe
notices of appeal liberally and examine them in the context of the
record as a whole" (quoting Chamorro v. Puerto Rican Cars, Inc.,
304 F.3d 1, 3 (1st Cir. 2002))).
iii. 18 U.S.C. § 3731 Certification Issue
Santiago also argues that this court lacks jurisdiction
to entertain the interlocutory appeal because the United States
Attorney did not timely file a § 3731 certification with the
district court certifying that the appeal was not taken to delay
the proceedings and that the evidence suppressed is substantial
proof of a material fact. Santiago acknowledges that this court
has not addressed whether certification is a pre-condition to
appellate jurisdiction but argues that we should treat it as such.
He further argues that even if we were to treat non-compliance
with the certification requirement as a "filing irregularity"
governed by Federal Rule of Appellate Procedure 3(a) -- which would
leave any appropriate action, including dismissal of the appeal,
to the court's sound discretion -- we should not condone the
government's "disregard for diligence."
In response, the government acknowledges that it filed
the § 3731 certification belatedly, after Santiago pointed out the
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government's non-compliance with the certification requirement in
his response brief, and apologizes for the late filing.8 But, the
government claims that such late filing does not require dismissal
of the appeal.
The government notes that "[t]he purpose of the
certification requirement is to ensure that the prosecutor
carefully analyzed the case before deciding to appeal" and that,
despite its belated filing of the § 3731 certification, the
government did comply with the substance of § 3731 before it filed
its notice of appeal. It points out that the Solicitor General,
who decides whether the government will seek appellate review in
a given case, "considers a variety of factors, such as the limited
resources of the government and the crowded dockets of the courts,
before authorizing an appeal," and that this deliberative process
was followed here, when the Acting Solicitor General approved
filing an appeal on April 19, 2017. It further points out that
the Criminal Division of the United States Attorney's Office also
"thorough[ly] review[ed]" this case before the government decided
to file its notice of appeal.
8 The government explains that at the time it filed its notice of
appeal, counsel of record was a Special Assistant United States
Attorney ("SAUSA") on detail from the Puerto Rico Department of
Justice who was inexperienced in federal appellate procedures, and
the government first became aware of the missing certification
when Santiago raised the issue in his response brief.
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The government contends that most appellate courts that
have addressed the issue have not treated the certification as a
jurisdictional requirement. Rather, "[t]hey have held that
whether dismissal is an appropriate remedy is a matter that falls
within the court's discretion."
Furthermore, the government points us to United States
v. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court
rejected the argument that dismissal was warranted because the
United States Attorney had not personally signed the § 3731
certification filed with the district court. It notes that in
Crespo-Ríos the court gave weight to the deliberative process the
government underwent before filing its appeal (including review by
the United States Attorney and the Solicitor General), as well as
to Congress's mandate that § 3731 be construed liberally. The
government argues that both considerations are present in this
case and thus urges us to consider the appeal on its merits.
It is uncontested that the government filed its § 3731
certification belatedly. However, in light of Congress's mandate
that 18 U.S.C. § 3731 be "liberally construed to effectuate its
purposes," we decline Santiago's invitation to treat the
certification as a jurisdictional requirement. Instead, we join
most of the circuits that have addressed the issue and leave it to
the court's sound discretion to determine whether dismissal of an
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appeal for failure to comply with the § 3731 certification
requirement is appropriate in a particular case. See, e.g.,
United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per
curiam) (refusing to treat § 3731's certification requirement as
jurisdictional and exercising appellate jurisdiction even though
the United States Attorney's certification was filed after the
defendant-appellee had already filed his brief, because the
Solicitor General had authorized the appeal and there seemed to be
no prejudice resulting from the belated filing); see also
United States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting
that failure to file a timely § 3731 certification does not deprive
the court of jurisdiction over the appeal, but "is a ground for
the court of appeals to act as it considers appropriate") (internal
quotation marks and citation omitted); United States v. Smith,
263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely
file a § 3731 as "an irregularity in perfecting [an] appeal" and
noting that its "sister circuits have consistently held that the
delayed filing of a section 3731 certificate, although disfavored,
does not divest appellate courts of their jurisdiction")
(collecting cases).
Here, we find that dismissal of the appeal is
unwarranted. This case presents an important issue that, as the
district court acknowledged, is "definitely capable of repetition"
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and would "continue happening." In fact, the United States
District Court for the District of Puerto Rico is already split as
to how to resolve this issue of law.9 Moreover, this case presents
a question of law and, as the district court stated, "[t]his may
be the best case to [decide the issue]," which has been fully
briefed. We note that although the government failed to file the
required certification at the time it filed its notice of appeal,
it complied with the substance and purpose of the certification
requirement. As the government explained, before it filed its
brief, the government engaged in the deliberative process to
determine whether the issue should be taken on appeal. Compliance
with the essence of this deliberative process, as well as the
mandate to construe the statute liberally, were determinative
factors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the
government's failure to timely file the § 3731 certification has
in no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting
9 In United States v. Rosado-Cancel, the district court rejected
the defendant's argument that federal firearms charges should be
dismissed under Sánchez-Valle because a Puerto Rico court had
already dismissed parallel Puerto Rico firearms charges for lack
of probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.
Feb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla
Romero, the district court held that "any issue preclusion argument
. . . would . . . fail on lack-of-privity grounds." Id.
10 Santiago claims to have been prejudiced by the government's
belated filing of its § 3731 certification because he has remained
imprisoned during the pendency of the government's appeal. He has
failed, however, to explain how his situation would have been
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that "[i]n exercising their discretion, courts typically consider
a variety of factors, including: when the certificate was filed;
the reason for the failure to timely file it; whether the
government did in fact engage in a conscientious pre-appeal
analysis; whether the government acknowledges that the
certification requirement should be taken seriously; any delay or
prejudice to the defendant; whether the appeal raises important
legal issues needing appellate clarification; and whether the
appeal should be heard in the interest of justice, or for any other
significant reason") (internal quotation marks omitted).
Finding no procedural issue that divests us of
jurisdiction, we now turn to the merits of this appeal.
B. Suppression Issue
The government argues that the district court's
conclusion -- that because Puerto Rico and the United States are
a single sovereign for purposes of the Double Jeopardy Clause,
suppression rulings by Puerto Rico courts are binding in federal
prosecutions -- is unsupported by Sánchez Valle and contrary to
longstanding First Circuit precedent.
different had the government timely complied with the
certification requirement. Thus, Santiago has not shown any
prejudice stemming from the belated filing.
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According to the government, Sánchez Valle does not hold
that Puerto Rico and the United States are the same for purposes
of all criminal law enforcement and procedure. Instead, it
narrowly held that they are a single sovereign for double jeopardy
purposes, which the government posits has no bearing in this case.
The government argues that the doctrine of collateral estoppel is
controlling, as held in "two precedential decisions" which it
claims are still binding: Bonilla Romero, 836 F.2d at 42-43, and
Pérez-Pérez, 72 F.3d at 226. Under a collateral estoppel
analysis, the government urges us to find that the district court
was not collaterally estopped by the local court's suppression
decision because the United States was neither a party, nor in
privity with a party, at the local suppression proceedings.
Santiago agrees with the government that "the doctrine
of collateral estoppel controls this case rather than double
jeopardy." He notes that the district court "conflate[d] the
two," but argues that its ruling is nevertheless "clear."
Santiago further argues that Sánchez Valle confirmed that Puerto
Rico "has what amounts to an agency relationship with the federal
government." Yet, because Bonilla Romero predates Sánchez Valle,
the former "did not fully confront Puerto Rico's agency
relationship with the United States" and thus should not be
controlling. Santiago submits that, in any event, even if Bonilla
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Romero is still good law, it is "factually and legally
distinguishable" from his case.
In Bonilla Romero, this court rejected Santiago's
contention that suppression of evidence by a Puerto Rico court in
a local prosecution necessarily requires suppression of the same
evidence in a subsequent federal prosecution. 836 F.2d at 41-45.
There, Puerto Rico officers had seized two firearms and drugs from
the car and house of the defendant, who was charged with weapons
and drug offenses under Puerto Rico law. Id. at 41. Months
later, based on that same evidence, a grand jury returned an
indictment charging the defendant with federal crimes. Id. After
holding a hearing, the Puerto Rico trial court granted the
defendant's motion to suppress because the local judge "seriously
doubted the veracity" of the officers' testimony. Id. The local
prosecution was subsequently dismissed. Id. The defendant then
sought suppression of the same evidence in the district court.
Id. The district court "held that the federal court was not bound
by the decision of the local court to suppress the evidence" and
ultimately denied the defendant's motion to suppress. Id. After
the defendant was convicted on all federal counts, he appealed the
denial of his motion to suppress, arguing, inter alia, that
allowing the government to relitigate the suppression issue
-26-
violated the Double Jeopardy Clause as well as collateral estoppel
principles. Id.
We rejected both challenges. First, regarding the
double jeopardy challenge, we noted that "jeopardy 'attaches' when
a trial commences; that is, when a jury is sworn or empanelled or,
in a bench trial, when the judge begins to hear evidence." Id.
at 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26
(1980)). Because "jeopardy did not attach as a result of the
suppression of evidence ordered . . . by the Puerto Rico . . .
[c]ourt[,] and the subsequent dismissal of charges under Puerto
Rico law," the litigation of the suppression of evidence issue in
federal court did not violate the defendant's rights under the
Double Jeopardy Clause. Id.
Second, assuming without deciding that the doctrine of
collateral estoppel applied even when jeopardy had not attached,11
we rejected the defendant's contention that "relitigation of the
11 As in Bonilla Romero, this appeal does not require us to decide
whether collateral estoppel is applicable in criminal proceedings
regardless of whether jeopardy has attached. See Bonilla Romero,
836 F.2d at 43. Because both parties urge us to apply the doctrine
of collateral estoppel, and because we would reach the same result
irrespective of whether the doctrine applies, we assume that the
collateral estoppel doctrine is applicable regardless of whether
jeopardy has attached. We further note that, although the
government stated at oral argument that the Supreme Court seems to
be moving away from applying collateral estoppel in criminal cases,
the parties did not brief the issue and, instead, both assumed
that the collateral estoppel doctrine remains applicable.
-27-
suppression was barred by the principle of collateral estoppel" in
that case. Id. at 42-44. We noted that the doctrine of collateral
estoppel requires, inter alia, "that the party to be precluded
from relitigating an issue decided in a previous litigation . . .
either [had been] a party or [had been] in privity with a party to
that prior litigation," and concluded that said requirement was
not satisfied in that case because "the federal prosecutors were
neither a party, nor in privity with a party, to the suppression
hearing in the Puerto Rico Superior Court."12 Id. at 43. We
clarified that "the source of authority of two government entities
is not dispositive of whether they are in privity." Id. at 43.
Thus, "Puerto Rico's sovereignty status as a United States
territory" has no bearing on the determination of whether federal
prosecutors would be bound by a prior suppression of the same
evidence by a Puerto Rico court.13 Id. at 44. Instead, "we must
12 We found that there was no evidence that federal prosecutors
were involved in the local prosecution or that they provided
assistance or advice to local authorities. Id. at 44. We further
noted that "[t]he initial suppression hearing concerned purely
local charges over which the federal enforcement officials had no
authority and thus no interest," and, accordingly, "[f]ederal
prosecutors had no reason to believe that a Puerto Rico Superior
Court judge would be deciding any matters affecting a federal
prosecution." Id.
13 Prior to Bonilla Romero, this court had addressed Puerto Rico's
sovereignty status as a United States territory in United States
v. López Andino, where we held that Puerto Rico was a "separate
sovereign for the limited purpose of the double jeopardy clause."
831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,
-28-
determine whether there was a close or significant relationship
between the federal and Puerto Rico prosecutors during the local
suppression hearing or whether the federal authorities controlled
or actively participated in that hearing such that their interests
in enforcing federal law were sufficiently represented." Id.
In Pérez-Pérez, we reiterated Bonilla Romero's holding
that application of the doctrine of collateral estoppel in criminal
cases requires that "the party to be precluded . . . have been the
same as, or in privity with, the party who lost on that issue in
the prior litigation." 72 F.3d at 226 (citing Bonilla Romero, 836
F.2d at 42-44). We noted that Bonilla Romero had already rejected
the defendant's argument that if the United States and Puerto Rico
were considered a "single sovereign" for double jeopardy purposes,
then they were also in privity under collateral estoppel
principles. Id.
Bonilla Romero directly addresses the issue presently
before us. The district court, however, found that it is no longer
good law in light of Sánchez Valle. It held that because under
Sánchez Valle Puerto Rico and the United States are considered
"one sovereign when it comes to criminally prosecuting
136 S. Ct. at 1868. In Bonilla Romero, we noted that there was
"extensive argument[]" over that conclusion, including
disagreement among members of this court. 836 F.2d at 42 n.2, 44
n.4.
-29-
individuals," it "must give the [Puerto Rico] court suppression
findings and judgment preclusive effect" even when federal
prosecutors "did not participate in the [Puerto Rico] court
criminal proceedings against Santiago." We disagree.
Sánchez Valle is a double jeopardy case. The Double
Jeopardy Clause of the Fifth Amendment protects an individual from
being "twice put in jeopardy of life or limb" for the same offense,
U.S. Const. amend. V., if the prosecutions are brought by the same
sovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,
the Supreme Court faced the issue of whether Puerto Rico and the
United States were the same sovereign for purposes of the Double
Jeopardy Clause, which would in turn determine whether the federal
government and Puerto Rico were barred "from successively
prosecuting a defendant on like charges for the same conduct."
Id. To determine whether Puerto Rico and the United States were
the same or different sovereigns for double jeopardy purposes, the
court performed a "historical, not functional," inquiry, id. at
1871, looking only to "whether the prosecutorial powers of the two
jurisdictions ha[d] independent origins," id. (citing United
States v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they
14 The Court specifically stated that "the 'extent of control'
that 'one prosecuting authority [wields] over the other'" is
irrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in
original).
-30-
did not, because "the oldest roots of Puerto Rico's power to
prosecute lie in federal soil," id. at 1868, inasmuch as "Congress
conferred the authority to create the Puerto Rico Constitution,
which in turn confers the authority to bring criminal charges,"
id. at 1876. Because the prosecutorial authority of both the
federal government and Puerto Rico emanates from a single source
-- Congress -- the two are considered a single sovereign for double
jeopardy purposes and "the two governments cannot 'twice put' [an
individual] 'in jeopardy' for the 'same offence.'" Id. at 1875-77.
There is no doubt that double jeopardy concerns are not
implicated in this case. Santiago's local charges were dismissed
before trial, and thus jeopardy never attached in the local
courts.15 Santiago concedes as much. The district court itself
acknowledged that Sánchez Valle is a case about double jeopardy,
but stated that it would "extend Sánchez Valle to the suppression
context . . . based on the fact that [Puerto Rico and the United
States are] a single sovereign." According to the district court,
although there is no indication in Sánchez Valle that the Supreme
15 Furthermore, the local and federal charges were not for the
same offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) ("The
Double Jeopardy Clause 'protects against a second prosecution for
the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense.'"
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).
-31-
Court intended to extend its analysis of the "notion to
sovereignty" outside of the double jeopardy context, it did not
preclude it either. The district court's holding, however, runs
head-on into the law of the circuit rule.
"The law of the circuit rule (a branch of the stare
decisis doctrine) holds that 'newly constituted panels in a multi-
panel circuit court are bound by prior panel decisions that are
closely on point.'" United States v. Wurie, 867 F.3d 28, 34 (1st
Cir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,
612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are
"extremely narrow and their incidence is hen's-teeth-rare."
San Juan Cable LLC, 612 F.3d at 33. "Such exceptions come into
play only when the holding of the prior panel is 'contradicted by
controlling authority, subsequently announced (say, a decision of
the authoring court en banc, a Supreme Court opinion directly on
point, or a legislative overruling).'" Id. (quoting United States
v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). "An even less
common exception has been recognized in those 'rare instances in
which authority that postdates the original decision, although not
directly controlling, nevertheless offers a sound reason for
believing that the former panel, in light of fresh developments,
would change its collective mind.'" Wurie, 867 F.3d at 34 (quoting
Rodríguez, 527 F.3d at 225).
-32-
Here, there has been no en banc decision from this court
contradicting our holding in Bonilla Romero. There has also been
no statutory overruling. Nor is there a Supreme Court opinion
directly on point contradicting our precedent. We are thus left
to consider the only remaining exception to the law of the circuit
rule -- whether Sánchez Valle, although not directly controlling,
offers a sound reason for believing that the Bonilla Romero panel
would change its collective mind. We find that it does not.
Sánchez Valle, which had nothing to do with collateral
estoppel, and where the Supreme Court emphasized the narrowness of
its holding, held that Puerto Rico and the United States are a
single sovereign for purposes of the Double Jeopardy Clause because
the source of authority of both prosecutorial powers derive from
the same source. Although Puerto Rico and the United States had
not been considered a single sovereign in the context of a criminal
proceeding at the time that Bonilla Romero and Pérez-Pérez were
decided, this court nevertheless considered in Bonilla Romero the
possible effect of deeming Puerto Rico and the United States a
single sovereign and rejected that the "source of authority of
[the] two governmental entities" could be "dispositive of whether
they are in privity." Bonilla Romero, 836 F.2d at 43.
We held, both in Bonilla Romero and in Pérez-Pérez, that
Puerto Rico's sovereign status as a United States territory "does
-33-
not determine whether the federal prosecutors are bound by a
pretrial suppression order issued by a Puerto Rico court."
Bonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at
226 (noting that Bonilla Romero rejected that finding that Puerto
Rico and the United States are a "single sovereign" "establishes
an identity between the two governments"). Instead, what
determines whether collateral estoppel is applicable is whether
"the party to be precluded from relitigating an issue decided in
a previous litigation was either a party or in privity with a party
to that prior litigation." Bonilla Romero, 836 F.2d at 43.
Because at the time of Bonilla Romero and Pérez-Pérez we considered
the possibility that Puerto Rico and the United States could be
deemed a single sovereign, and nonetheless rejected that a finding
of single sovereignty would affect our analysis of the issue, we
find no sound reason to believe that the Bonilla Romero panel would
change its collective mind in light of Sánchez Valle.
Accordingly, we conclude that Bonilla Romero is still good law.
Santiago, however, urges us to find his case
distinguishable from Bonilla Romero, arguing that: (1) unlike in
his case, the local decision suppressing the evidence in
Bonilla Romero was not "a final decision from the highest court in
Puerto Rico"; (2) the district court in Bonilla Romero had held a
suppression hearing before the local court entered its order
-34-
suppressing the evidence in the local proceedings; (3) it is
"unclear from the record in Bonilla Romero whether the [local]
court applied relevant federal law in its order granting the motion
to suppress"; and, (4) because Bonilla Romero was decided shortly
after López Andino, 831 F.2d at 1164, we can presume that
López Andino's holding "permeated" Bonilla Romero's rationale; yet
that rationale no longer stands on firm ground after Sánchez Valle.
We find these arguments unpersuasive. Nothing in Bonilla Romero
suggests that the first three factors played any role in this
court's analysis.16 Santiago's last alleged distinction fares no
better in light of Bonilla Romero's explicit statement that "the
source of authority of the two government entities" was also
irrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.
Accordingly, we do not find Santiago's case distinguishable from
Bonilla Romero.
Applying our on-point precedent, we conclude that the
district court erred when it deemed itself bound by the Puerto
16 Furthermore, Santiago's argument that his case is
distinguishable from Bonilla Romero because that case did not
involve "a final decision from the highest court in Puerto Rico"
is misleading. The local decision suppressing the identification
evidence in Santiago's local case, although final, was not a
decision from the highest court in Puerto Rico. In fact, the
Puerto Rico Supreme Court declined to intervene in the case. Thus,
it was a final decision from the local intermediate court. In any
event, how high the case went in the local courts is not relevant
to whether there was privity between the prosecuting authorities.
-35-
Rico Court of Appeals's decision to suppress the identification
evidence without analyzing whether the requirements of collateral
estoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d
at 226. We note that the district court went to great lengths to
clarify that it was not ruling on collateral estoppel grounds, but
that was precisely the analysis that it should have applied. The
district court should have analyzed whether the federal prosecutor
was in privity with the local prosecutors that participated in the
local suppression proceedings. It erred in failing to do so.
As his final plea, Santiago urges us to find that the
government is collaterally estopped from litigating the
suppression issue in the district court. He argues that, although
the federal prosecution was not a party, it was in privity with
the local prosecution when the latter litigated the suppression
issue in Puerto Rico courts. Because the parties do not dispute
the facts on which the privity analysis hinges, we proceed to
analyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing
the privity issue in the first instance).
Santiago posits that the federal prosecution was in
privity with the local prosecution due to the relationship between
local and federal prosecutors. He claims that the federal
prosecution was involved in his local proceedings because the
events of January 13 constituted a violation of his federal
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probation. In support of this assertion, he cites to a filing by
the SAUSA then assigned to the federal case, which stated, "the
United States has been in contact and coordination with the victim
of the attempted murder charges and with the Puerto Rico Police
Department agent who has conducted the investigation into the
alleged crime."17 He further contends that the SAUSA then assigned
to the federal prosecution was on detail from the Puerto Rico
Department of Justice, and that the victim (Sepúlveda) and the
investigating officer (Quiles) involved in the local prosecution
"were backbone[s] of the federal prosecution." In addition,
Santiago submits that the "charging structure . . . also supports
a finding of strategic cooperation between federal and local
prosecutors." In sum, Santiago argues that because "[local] and
federal prosecutors -- two hands of the same sovereign --
simultaneously worked two prosecutions involving the same facts,
the same witnesses, and the same law[,] [t]heir legal relationship
and actions support[] a finding of privity."
We find Santiago's arguments unpersuasive. Although
Santiago argues that Puerto Rico has "what amounts to an agency
relationship" with the United States, Bonilla Romero is clear that
17 This quote, taken from the government's motion for an extension
of time to respond to Santiago's motion to suppress evidence, does
not indicate that the SAUSA had been in contact or coordination
with state prosecutors.
-37-
Puerto Rico's relationship with the United States "is not
dispositive of whether they are in privity." Bonilla Romero,
836 F.2d at 43. Furthermore, the district court explicitly found
that the federal prosecutor did not participate in the local
proceedings against Santiago, and Santiago failed to show that
this factual finding was erroneous, much less clearly erroneous.
See United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.
2014) (noting that on appeal from a district court's suppression
ruling, we review factual findings for clear error). Nor does the
record support Santiago's contention that the federal prosecution
controlled or was involved in the Commonwealth proceedings, which
"concerned purely local charges over which the federal enforcement
officials had no authority and thus no interest." Bonilla Romero,
936 F.2d at 44.
Although shortly after the shootout a United States
Probation Officer filed a motion notifying the district court that
he had been in contact with the victim and the investigating
officer, the motion does not state or imply that a federal
prosecutor (as opposed to a United States Probation Officer) had
been in contact or coordination with state prosecutors. See id.
at 43 ("In this case, the requirement was not satisfied since the
federal prosecutors were neither a party, nor in privity with a
party, to the suppression hearing in the Puerto Rico Superior
-38-
Court.") (emphasis added). It was not until five months after the
local suppression hearing took place that a federal prosecutor
entered an appearance in Santiago's federal probation revocation
proceedings. 18 In addition, although the federal prosecutor
assigned to his case was a SAUSA on detail from the Puerto Rico
Department of Justice, Santiago has offered no evidence that she
was involved in the local suppression proceedings, that she
assisted or gave advice to local authorities, or even discussed
the matter with them. Moreover, this court has clarified that
"the appointment of a state prosecutor as a special federal
prosecutor, subsequent to the state court action, 'does not
retroactively make the federal government a party to an earlier
state court proceeding.'" United States v. Charles, 213 F.3d 10,
21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,
893 (4th Cir. 1988)).
We also find unpersuasive Santiago's argument that
privity can be found because both prosecutions involve the same
facts, witnesses (including the victim and the investigating
officer), or law. Involvement of the same victim and investigating
officer in two prosecutions is to be expected where local and
18 It is understandable that the federal prosecutor would be in
contact with the victim and the agent conducting the investigation
because they would presumably be government witnesses at the
revocation hearing in federal court.
-39-
federal charges are brought for the same underlying events, even
if the local and federal prosecutions are for different offenses
with different elements. In fact, the federal and local
prosecutions in Bonilla Romero involved at least the same facts
and witnesses, yet this court found no privity between the
prosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.
Finally, contrary to Santiago's contention, the timing of the
events -- where federal charges were brought before the local case
was dismissed, and local charges were refiled after Santiago's
federal case was already pending -- suggests that there was no
coordination between the federal and local prosecutions.
In sum, what determines if privity exists is whether
there was "a close or significant relationship between the federal
and Puerto Rico prosecutors during the local suppression
[proceedings] or whether the federal authorities controlled or
actively participated in [those proceedings] such that their
interests in enforcing federal law were sufficiently represented."
Id. at 44. Because nothing suggests this happened in Santiago's
case, we find that there was no privity between the two prosecuting
authorities and, thus, collateral estoppel is not applicable.
III. Conclusion
For the foregoing reasons, we reverse and vacate the
district court's order and find that, because there was no privity
-40-
between the two prosecuting authorities, collateral estoppel is
inapplicable. We remand the case to the district court for
proceedings consistent with this decision.
Reversed, Vacated and Remanded.
-41-