UNITED STATES of America, Appellee, v. Hector Luis LOPEZ ANDINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Israel MENDEZ SANTIAGO, Defendant, Appellant.
Nos. 86-1583, 86-1584
United States Court of Appeals, First Circuit
Decided Oct. 28, 1987.
833 F.2d 1164
Heard July 30, 1987.
The normal rule is that issues of negligence are not to be resolved by summary judgment. 6-Pt.2 J. Moore & J. Wicker, Moore‘s Federal Practice ¶ 56.17[42], at 56-946 (1987); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2729, at 194 (2d ed. 1983). This rule is premised on the fact that negligence and reasonableness are particularly elusive concepts, and that parties therefore should not be deprived of an opportunity to put all their evidence before a jury for factual evaluation. See, e.g., Gauck v. Meleski, 346 F.2d 433, 437 (5th Cir.1965). Here, however, as the district court found, 656 F.Supp. at 1126, the parties have agreed that there is no dispute over material facts. Indeed, appellant has asserted that, even if summary judgment for the government was reversed, the only additional evidence it would seek to introduce is on the issue of damages. And, appellant has no right to a jury trial. See
Because we find that the due care exception to the FTCA applies, it is unnecessary to reach the other claims of statutory and common law immunity raised by the government.
Affirmed.
Costs awarded to appellee.
John T. Burns, by Appointment of the Court, for defendant, appellant Israel Mendez Santiago.
Frank D. Allen, Jr., Civil Rights Div., Dept. of Justice, with whom Jessica Dunsay Silver, Civil Rights Div., Dept. of Justice, Wm. Bradford Reynolds, Asst. Atty. Gen., Washington, D.C., and Jose A. Quiles, Acting U.S. Atty., Hato Rey, P.R., were on brief, for appellee.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
BOWNES, Circuit Judge.
Defendants-appellants Hector Luis Lopez Andino and Israel Mendez Santiago, formerly members of the Puerto Rico Police, were convicted in district court of civil rights violations for assaulting and beating three men, one of whom died. Appellants make five arguments in challenging their convictions: (1) that the United States statutes under which they were convicted are inapplicable to Puerto Rico; (2) that their convictions violated the constitutional bar on double jeopardy because appellants previously had been convicted in Puerto Rico
I. SUMMARY OF THE EVIDENCE
The government‘s evidence described an incident in which officers of the law brutalized three citizens. Two eyewitnesses, as well as the victims of the assault, testified to the following. At about 4:00 P.M. on December 19, 1982, Angel Carmona Ortiz and Juan Ramon Figueroa Serrano met with Ruben Padilla Rios in a field near a housing project in Bayamon, Puerto Rico. Padilla Rios had come there to buy drugs. As the meeting broke up, two police officers—appellant Lopez Andino, who was a sergeant, and Luis Ernesto Ortiz Maldonado—approached with revolvers in hand. The three men were forced to lie face down in tall grass, and Lopez Andino instructed Ortiz Maldonado to go and bring a third officer, appellant Mendez Santiago. When he returned with Mendez Santiago, Ortiz Maldonado was carrying a nightstick.
The officers then subjected the men to an ordeal of physical abuse lasting about thirty minutes. Lopez Andino and Mendez Santiago interrogated them, asking about whether they had drugs, and repeatedly beat them with the nightstick. The men also were forced to beat each other with the stick. Lopez Andino and Mendez Santiago kicked the men as they lay on the ground, and, at one point, these two officers jumped on Figueroa Serrano‘s back. Finally, the victims were told to walk deeper into the brush, and the officers left by another route.
Figueroa Serrano died the evening of the assault. According to the autopsy report, the cause of his death was severe thoracic abdominal trauma resulting from blows received to his thoracic and abdominal cavities.
The indictment charging the defendants had four counts. Count I was for violating
Appellant Mendez Santiago contends that the United States statutes under which he was convicted,
Just as we saw no reason to withhold from the people of Puerto Rico the protection
III. DOUBLE JEOPARDY
Appellant Mendez Santiago argues that the federal prosecution violated the constitutional proscription that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
We note initially that “[s]uccessive prosecutions are barred by the Fifth Amendment only if the two offenses for which the defendant is prosecuted are the ‘same’ for double jeopardy purposes.” Heath v. Alabama, 474 U.S. 82, 87, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). Separate statutory offenses with different aims, each requiring proof of a fact not required by the other, are not the same offenses for purposes of double jeopardy. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Christensen, 732 F.2d 20, 23 (1st Cir.1984). Unlike the local law provisions regarding crimes against the person for which appellants previously had been convicted, a violation of
For the purposes of this appeal, however, it does not matter whether or not the local and federal prosecutions were for different offenses. According to the “dual sovereignty” doctrine, successive prosecutions are not prohibited by the fifth amendment if they are brought by separate sovereigns. As the Supreme Court recently described it, “[t]he dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences’ and is subject to prosecution and punishment for both.” Heath v. Alabama, 106 S.Ct. at 437.
The question before us, therefore, is whether Puerto Rico and the United States are “dual sovereigns” for double jeopardy purposes. Prosecuting entities are considered to be separate for double jeopardy purposes when they derive their power from different sources. Heath v. Alabama, 106 S.Ct. at 437; United States v.Wheeler, 435 U.S. 313, 319-22, 98 S.Ct. 1079, 1083-85, 55 L.Ed.2d 303 (1978). It is well settled that when states enact and enforce their own criminal laws, they are acting pursuant to their own sovereign power, not that of the national government. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). Puerto Rico‘s status is not that of a state in the federal union, but, its criminal laws, like those of a state, emanate from a different source than the federal laws.
Although the legal relationship between Puerto Rico and the United States is far from clear and fraught with controversy, it is established that Puerto Rico is to be treated as a state for purposes of the double jeopardy clause. In 1950 Congress enacted legislation “so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.”
The offenses for which appellants were prosecuted in superior court were against the Commonwealth, which for double jeopardy purposes is treated as a state. Therefore, the fifth amendment did not prohibit the federal prosecution.
IV. JOINT REPRESENTATION
Each appellant argues that his representation by the same attorney that represented the other defendants deprived him of his constitutional right “to have the Assistance of Counsel for his defence.”
There are inherent risks involved when multiple defendants are represented by the same attorney.
Even before the adoption of Rule 44(c), district courts in this circuit were required to take certain steps to ensure that multiple defendants sharing counsel were adequately represented. United States v. Foster, 469 F.2d 1, 4-5 (1st Cir.1972); see United States v. Elkins, 774 F.2d 530, 541 (1st Cir.1985). Our supervisory rule requires district courts to warn defendants of the risks of joint representation and to inquire whether they have discussed these risks with their attorney. Also, we have instructed the courts to inquire of defendants “whether they understand that they may retain separate counsel, or if qualified, may have such counsel appointed by the court and paid for by the government.” United States v. Foster, 469 F.2d at 5. If adequate warnings are not given, the burden is on the government to show that no prejudice resulted from the joint representation. Id.
The court also asked counsel whether they knew of any potential conflicts. Counsel for the government responded in the negative. Counsel for defendants also said he saw no conflicts. He told the court he had advised his clients of a number of problems with joint representation: that the government‘s case may not be equally strong against all defendants; that the strategy may be different than if each defendant had his own counsel; and that their counsel would be in a very bad position to entertain conversations with the government about one defendant testifying against the others. Mendez Lebron told the court he had even discussed these matters with defendants’ families. He said that despite his warnings, all three defendants insisted that he represent them. Defendants told the court that they agreed with what their counsel reported.
In light of this, there is no basis for the assertion that the trial court failed to inquire into the risks of joint representation and make defendants aware of such risks. The record does not indicate, however, that defendants were advised that they had a right to separate representation, and that this could be provided at government expense if they qualified. Based on the court‘s inquiries about whether defendants wanted the same counsel, and defendants’ insistence on having Mendez Lebron represent them, it could be argued that the court at least strongly implied that defendants were entitled to separate counsel. Nevertheless, because it is not crystal clear that defendants were made aware of the availability of separate counsel, we examine the probability of prejudice to defendants by the joint representation.
There is nothing to indicate that, although their present counsel have raised the matter, any of the defendants wanted to become a government witness, or that the government was willing to make such an arrangement. Cf. United States v. Donahue, 560 F.2d 1039, 1044 (1st Cir.1977) (prejudice not improbable when one of the two defendants being jointly represented manifested a desire to testify on his own behalf, the evidence was weaker against him than against the other defendant, and he might have been able to divorce himself from his codefendant). As the government points out, Ortiz Maldonado, who apparently was the least culpable of the three officers involved, was in the best position to strike a bargain for his testimony, but he does not appeal.
According to Lopez Andino, defense counsel opted to try to get Ortiz Maldonado acquitted at the expense of himself and Mendez Santiago. It is possible, of course, that counsel representing multiple defendants could attempt to obtain an acquittal, or at least leniency, for one defendant by emphasizing the role played by another. But we have carefully reviewed the record and see no basis for concluding that counsel defended any one defendant less diligently than the others. The government‘s evidence, which included the testimony of two eyewitnesses, was very strong. Trial counsel vigorously cross-examined the government‘s witnesses, attempting to raise doubts about their ability to perceive and recall the events. He also put on witnesses in an attempt to raise a doubt about whether Figueroa Sorrano‘s death was the result of the beatings and thus obtain acquittals on the more serious charges of death resulting from the civil rights violations.
Because Ortiz Maldonado is not a party to this appeal, and Lopez Andino was the senior officer at the scene, Mendez Santiago would be the one logically to claim he was not a willing participant. The weight of the evidence, however, makes such a claim untenable. Among other incriminating evidence, there was testimony that Mendez Santiago beat Figueroa Serrano with the nightstick and jumped repeatedly on his back. In short, there is nothing in the record to indicate that a claim of unwilling participation would be something other than pure fabrication.
Unfounded speculation is not an adequate reason for concluding that appellants were denied their right to counsel. There would be cause for greater concern if the court had not conducted a hearing at which defendants insisted on joint representation despite being told that there were risks in such an arrangement. But “we must take care not to provide a windfall to a defendant, who has been found guilty of a serious crime, simply because of some attenuated hypothesis of prejudice woven by counsel after conviction. Joint representation, after all, may sometimes be quite beneficial to a defendant and may at other times be of little consequence to the adequacy of a defendant‘s representation.” United States v. Martorano, 620 F.2d 912, 916 (1st Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980). Although cautionary steps must be taken to protect a defendant‘s right to counsel, courts must allow defendants to choose joint representation when they know the risks involved and insist on it. We hold that defendants were not deprived of their right to counsel.
V. THE JURY INSTRUCTIONS
Appellants raise two arguments regarding the jury instructions. The first is that the court failed to instruct the jury on the elements of the offenses with which defendants were charged. Although there was no objection by defense counsel, it is clear that such an omission would constitute plain error and require reversal. The origin of this contention, apparently, was a clerical error in the preparation of the record. According to the transcript initially prepared for this appeal, the charge contained no instructions on the elements of the offenses charged. In response to a motion by the government to correct the record pursuant to
At oral argument, appellate counsel for defendants Lopez Andino and Mendez Santiago questioned whether the supplemental record was an accurate record of the jury instructions given. Counsel were given two weeks to file a supplemental brief and a copy of the transcript of the Rule 10(e) hearing. Despite the fact that they were filed late, we have read carefully the supplemental briefs, one of which contains as an appendix the transcript of the Rule 10(e) hearing. We find that the supplemental transcript is an accurate record of the jury instructions given at the close of the trial. Our finding is based on what was established at the Rule 10(e) hearing.
Mendez Lebron, trial counsel for the defendants, was at the Rule 10(e) hearing. He stated that he remembered the conference on jury instructions and that he informed the court he had no objections to the government‘s proposed instructions on the elements of the offenses. He also stated that he had “no doubt” that the court instructed the jury in accord with those instructions.
Assistant United States Attorney Flanagan stated that at the instructions conference the court denied the prosecutor‘s request for a lesser included defense instruction and then asked defense counsel if he had any objection to the government‘s proposed instructions. After defense counsel stated that he had none, the court said it would give them.
The trial judge was emphatic in stating that he remembered giving the instructions proposed by the government and that defense counsel had said at the instructions conference that he had no objection to them.
The court denied defense counsel‘s request to have the court reporter read the pertinent portion of her courtroom notes because she had stated that the supplemental transcript was an accurate transcription of her notes. The notes have been retained in the clerk‘s safe pending final disposition of the case.
Although there is a possibility, as appellate defense counsel argue, that the court reporter doctored the record, we think it extremely unlikely. This means that someone would have had to furnish her with a copy of the government‘s proposed instructions before she typed the supplemental transcript. There is nothing in the transcript of the Rule 10(e) hearing to suggest this. We also note that appellate defense counsel did not seek to question the court reporter at the hearing.3
Appellants’ second argument regarding the jury instructions is that the court committed error by not instructing the jury on lesser included offenses. This argument founders on two grounds: first, trial counsel did not ask the court to instruct the jury on lesser included offenses; and two, he told the court, after the charge had been given, that he had no objections to it.
A “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). A defendant, however, also is entitled to forgo the instruction for strategic reasons. Look v. Amaral, 725 F.2d 4, 9 (1st Cir.1984). In this case, the government wanted to have lesser included offense instructions given on Counts I and II, which charged that death resulted from the conspiracy and assault against Figueroa Serrano, but the court denied the request. The court may have concluded that defense counsel intentionally did not ask for such instructions in the hope that, if he raised doubt about whether Figueroa Serrano‘s death resulted from the assault, de-
VI. CONCLUSION
We hold that the statutes under which appellants were convicted are applicable to Puerto Rico, and that the court, therefore, had jurisdiction over appellants. Because Puerto Rico is a sovereign separate from the United States for purposes of double jeopardy, these prosecutions were not barred by prior convictions in Puerto Rico Superior Court. With respect to appellants’ representation by the same counsel, even though the court‘s inquiry into the issue may have fallen short of what technically was required, no prejudice resulted from appellants having been jointly represented, and, therefore, any error would not suffice to upset the verdicts. Finally, we find no reversible error regarding the jury instructions or the district court‘s ruling that allowed the record to be supplemented with instructions that had been given to the jury but not typed initially as part of the transcript.
Affirmed.
TORRUELLA, Circuit Judge (concurring).
I concur in the result of this opinion and in most of its language, but cannot agree with certain portions of Part III which refer to the constitutional status of Puerto Rico. First, the statements contained in the objected section are unnecessary to reach the conclusion in this case, which I believe is otherwise correct. More importantly, the conclusion reached regarding Puerto Rico‘s sovereignty status for purposes of the double jeopardy clause is erroneous. If we were required to decide that issue, I would be forced to vote that a double jeopardy impediment does exist to the federal prosecution.
The majority should and could have avoided the quagmire of Puerto Rican status litigation by limiting its discourse on double jeopardy to a ruling, as it tentatively indicates, ante p. 1167, that separate Puerto Rico/federal offenses are involved. It would have correctly concluded under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), that the charges against appellants in the Commonwealth courts (aggravated assault and involuntary manslaughter, 33 L.P.R.A. §§ 4032(f), 4005 (1983 & Supp. 1986)), and those in this forum (conspiracy to violate civil rights and deprivation of rights under color of law,
The majority, unnecessarily to my view, has decided that no double jeopardy exists in this case because Puerto Rico is a “dual sovereign” with the United States for double jeopardy purposes. Such a conclusion is incorrect because Puerto Rico is constitutionally a territory, thus lacking that separate sovereignty which would allow consecutive Puerto Rico/federal prosecutions for what would otherwise be the same offenses. See Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937).
Not the least of the majority‘s errors stem from the fact that it overlooks that the
Although some events subsequent to the passage of P.L. 600 have tended to overlook and obscure the facts,5 the legislative history of that Act leaves no doubt that even though its passage signaled the grant of internal self-government to Puerto Rico, no change was intended by Congress or Puerto Rico authorities in the territory‘s constitutional status or in Congress’ continuing plenary power over Puerto Rico pursuant to the Territory Clause of the Constitution.6 See People v. Balzac, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). In the hearings which culminated in the passage of P.L. 600, Antonio Fernós Isern, Puerto Rico‘s Resident Commissioner before Congress, expressly stated that the bill “would not change the status of the island of Puerto Rico relative to the United States.... It would not alter the powers of sovereignty over Puerto Rico under the terms of the Treaty of Paris.” Hearings Before the House Committee on Public Lands on H.R. 7674 and S. 3336, 81st Cong., 2d Sess. 63 (1950). He and Luis Muñoz Marín, Puerto Rico‘s senior statesman and driving force in seeking this grant of local autonomy, also expressed this interpretation of P.L. 600 by stating their understanding that Congress would retain authority to revoke or modify Puerto Rico‘s Constitution.7 In accord with this view, the Secretary of the Interior, the Senate report accompanying the Senate version of P.L. 600, S. 3336, and the Senators who sponsored S. 3336 all explicitly stated that the new bill would not affect the underlying relationship between Puerto Rico and the United States.8 Furthermore, the report accompanying the draft of the bill which became P.L. 600 also indicated that the measure did not change Puerto Rico‘s fundamental relationship to the United States. H.R.Rep. No. 2275, 81st Cong., 2d Sess., 3 (1950).9
After P.L. 600 was enacted, Puerto Rico drafted a constitution which was then presented by the President to Congress for approval. H.R.Doc. No. 435, 82d Cong., 2d Sess. (1952). In urging its approval Resident Commissioner Fernós testified before
After several intervening debates and hearings, the constitution enacted by Puerto Rico was approved, but only after it was amended by Congress, by the elimination of Section 20 thereof. Conference Report, H.R.Rep. 2350, 82d Cong., 2d Sess., 1-3 (1952). The amended constitution became
This process has led a noted constitutional scholar to state that:
“Though the formal title has been changed, in constitutional theory Puerto Rico remains a territory. This means that Congress continues to possess plenary but unexercised authority over Puerto Rico. Constitutionally, Congress may repeal Public Law 600, annul the Constitution of Puerto Rico and veto any insular legislation which it deems unwise or improper. From the perspective of constitutional law the compact between Puerto Rico and Congress may be unilaterally altered by the Congress. The compact is not a contract in a commercial sense. It expresses a method Congress chose to use in place of direct legislation .... Constitutionally, the most meaningful view of the Puerto Rican Constitution is that it is a statute of the Congress which involves a partial and non-permanent abdication of Congress’ territorial power.”
Helfeld, Congressional Intent and Attitude Toward Public Law 600 and the Constitution of the Commonwealth of Puerto Rico, 21 Rev.Jur.U.P.R. 255 (1952).
Several independent factors are available to indicate that federal power over Puerto Rico‘s internal affairs remained after 1952, although it was exercised to a much lesser degree than pre-1952. Even after 1952, this Court of Appeals continued to serve as Puerto Rico‘s court of last resort just as it had pre-1952. See
Perhaps more significantly, however, several courts ruled that the legislative history of P.L. 600 showed no intent to make a change in Puerto Rico‘s territorial status. Americana of Puerto Rico v. Kaplus, 368 F.2d 431, 436 (3d Cir.1966) (“Puerto Rico is
If Mora v. Mejias, supra, and other cases from this circuit12 cast some doubt regarding Puerto Rico‘s post-1952 constitutional status and Congress’ continuing plenary power over Puerto Rico, this doubt should have been dissipated by the Supreme Court‘s rulings in Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1977) and Harris v. Rosario, 446 U.S. 651, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980). In those cases, in the course of sustaining the validity of Congressional legislation which discriminated against Puerto Rico and its residents, the Court affirmed the continuing validity of Downes v. Bidwell and People v. Balzac,13 and reaffirmed the existence of Congress’ post-1952 plenary power over Puerto Rico pursuant to the Territory Clause of the Constitution. Califano, 435 U.S. at 3 n. 4, 98 S.Ct. at 907 n. 4; Harris, 446 U.S. at 651-52, 653-56, 100 S.Ct. at 1929-30, 1930-32 (Marshall, J., dissenting). See also Puerto Rico v. Branstad, — U.S. —, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987) (Scalia, J., concurring).
Because Puerto Rico, notwithstanding P.L. 600, is still constitutionally a territory, Puerto Rico v. Shell Co. prevents the application of the “dual sovereignty” doctrine. That principle is applicable only where separate political entities which derive their power from different sources are involved. Shell Co., supra; Health v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); United States v. Wheeler, 435 U.S. 313, 319-22, 98 S.Ct. 1079, 1083-85, 55 L.Ed.2d 303 (1978); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). In Shell Co. the Court held that a territory derived its authority from Congress and therefore was not a sovereign for double jeopardy purposes.
Although, as the majority points out, there is no question but that in enacting P.L. 600 Congress intended to grant Puerto Rico autonomy over local matters, Examining Board v. Flores de Otero, 426 U.S. 572, 594, 96 S.Ct. 2264, 2277, 49 L.Ed.2d 65 (1976) (“[a] degree of autonomy and independence normally associated with States of the Union“), and “sovereignty over matters not ruled by the Constitution“; Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8, 102 S.Ct. 2194, 2199, 72 L.Ed.2d 628 (1982), it is significant that the Supreme Court has never joined these two catch phrases to say that Puerto Rico has a degree of sovereignty similar to that of the States.
Furthermore, I do not believe that quoting these catch phrases, which if carefully analyzed in context appear to be mere dicta, is substantively helpful. The Court had utilized such characterizations of Puerto Rico‘s local autonomy long before P.L. 600 was enacted and the succeeding events took place. In fact in the Shell case, the Court stated that the
In a unanimous opinion written by Chief Justice Burger in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), the Court ruled that the double jeopardy clause, as applied through the Fourteenth Amendment, bars successive prosecutions by a state and municipality for the same alleged crime. The Court stated:
... [T]he apt analogy to the relationship between municipal and state governments is to be found in the relationship between the government of a Territory and the Government of the United States. The legal consequence of that relationship was settled in Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907), where this Court held that a prosecution in a court of the United States is a bar to a subsequent prosecution in a territorial court, since both are arms of the same sovereign. [citing also Puerto Rico v. Shell, supra].
Id. at 393, 90 S.Ct. at 1188. The Court concluded that “[i]n this context a ‘dual sovereignty’ theory is an anachronism.” Id. at 395, 90 S.Ct. at 1189.
In United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), also a unanimous opinion, the Court recognized as separate sovereigns for double jeopardy purposes, Indian tribes, because the tribes originally were separate sovereignties as nations, the vestiges of which sovereignty they still retained. Id. at 323, 98 S.Ct. at 1086. The Court differentiated the federal/tribal situation from the state/municipal and federal/territorial scenarios. Although it specifically recognized that Congress had given Puerto Rico “an autonomy similar to that of the states ...,” id. at 319-20 n. 13, 98 S.Ct. at 1084 n. 13, it “reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are ‘creations emanating from the same sovereignty.‘” Id. at 318, 98 S.Ct. at 1083. The Court similarly noted its holding in Waller prohibiting successive state municipal prosecutions “despite the fact that state law treated the two as separate sovereigns.” Id. at 318-19, 98 S.Ct. at 1083.
The important point in all this, one which I believe is overlooked by the majority, is that it makes no difference how the legislature, whether state or federal, has treated the political subdivision; rather it is the source from which the political entity derives its authority that determines who is sovereign. What differentiates Grafton, Shell and Waller from the cases establishing the “dual sovereignty” exception to the double jeopardy clause is “not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken.” Id. at 320, 98 S.Ct. at 1084 (emphasis supplied). “City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone.” Id. at 322, 98 S.Ct. at 1085. They thus are not separate sovereigns for double jeopardy purposes.14
As previously indicated, I would have avoided reaching these constitutional issues by ruling pursuant to Blockburger that separate Puerto Rico/federal crimes are involved in the present cases. Since such a result allows me to agree with the outcome reached by the majority, however, I concur with the affirmance of the conviction.
Notes
§ 241. Conspiracy against rights of citizens
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
....
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.
§ 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.
It is our hope and it is the hope of the Government, I think, not to interfere with the relationship but nevertheless the basic power inherent in the Congress of the United States, which no one can take away, is in Congress. Hearings before the Senate Committee on Interior and Insular Affairs on S.J. Res. 151, 82d Cong., 2d Sess., 40-47 (1952). Numerous statements appear on the record by members of Congress supporting this view and to the effect that no change was envisioned in the constitutional status of Puerto Rico. Id. at 37 (Senator Guy Gordon); id. at 40-47 (Senator O‘Mahoney); id. at 49 (Senator Long).