United States v. Reyes-CorreaUnited States v. Reyes-Correa
Julio César Alejandro Serrano for appellant.
Kelley Brooke Hostetler, Attorney, Criminal Appellate Section, United States Department of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.
* Of the Federal Circuit, sitting by designation.
I.
The undisputed facts are as follows. An officer of the Puerto Rico police, Anthony Hernandez, reported observing Reyes engaging in drug transactions on November 18 and 19 of 2015 at the Fernando Luis García Housing Project in Utuado, Puerto Rico.1 Based on those reported observations, Puerto Rico police officers the next day obtained a warrant and searched Reyes‘s apartment in the complex, where they found forty-one baggies of crack cocaine.
A number of weeks later, in January of 2016, Reyes was charged in a local court in Puerto Rico with possession with intent to distribute under Article 401 of the Puerto Rico Controlled Substances Act on the basis of his alleged conduct at the Fernando Luis García Housing Project. See
About sixteen months after entering his guilty plea for that offense, on July 13, 2017, Reyes was then named in a federal indictment in the United States District Court for the District of Puerto Rico. That indictment alleged that Reyes and twenty-six co-defendants were participants in a decade-long drug conspiracy involving the trafficking of crack cocaine and other drugs near two public housing projects in Utuado, Puerto Rico, one of which was the Fernando Luis García Public Housing Project.
The federal indictment charged Reyes with five drug-related federal offenses, including, of particular note here, conspiracy to possess with intent to distribute controlled substances in violation of
“The Double Jeopardy Clause of the Fifth Amendment [to the United States Constitution] prohibits more than one prosecution for the ‘same offence.‘” Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1867 (2016). The United States Supreme Court has long held -- and has recently reaffirmed -- that separate sovereigns may separately prosecute the same defendant for the same criminal conduct without violating the defendant‘s double jeopardy rights. See Gamble v. United States, 139 S. Ct. 1960, 1964 (2019). But, the Court has also recently held that the Puerto Rico government and the United States federal government are not separate sovereigns for double jeopardy purposes. See Sánchez Valle, 136 S. Ct. at 1873. Thus, those two governments may not “successively prosecute a single defendant for the same criminal conduct.” Id. at 1868.
Based on Sánchez Valle, Reyes moved to dismiss on double jeopardy grounds the
II.
The same sovereign may not “target . . . identical criminal conduct through equivalent criminal laws.” Sánchez Valle, 136 S. Ct. at 1870. Two laws “are not the same if they each ‘require[] proof of [an additional] fact which the other does not.‘” United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (alteration-s in original) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)); see also Gamble, 139 S. Ct. at 1980 (noting “the long-settled rule that an ‘offence’ for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct“).
A.
The parties agree that Article 406 sets forth distinct “attempt” and “conspiracy” crimes as a matter of Puerto Rico law, and Reyes does not dispute that, for double jeopardy purposes, “[c]onspiracy to commit an unlawful act and attempt to commit an unlawful act are distinct offenses,” as they encompass non-overlapping elements. United States v. George, 752 F.2d 749, 756 (1st Cir. 1985). Compare
In addition, the government contends that, although Reyes was initially charged under Article 401 in Puerto Rico court with “knowingly or intentionally . . . possess[ing] with the intent to . . . distribute . . . a controlled substance,”
In front of the District Court, however, the government did not premise its defense against Reyes‘s double jeopardy challenge on the fact that the judgment of conviction for his Article 406 conviction was not clear in these respects. The government did not at any point develop an argument disputing Reyes‘s contention that he had been convicted of conspiring to
The government advanced this contention primarily by arguing that Reyes‘s involvement in the alleged federal drug conspiracy charged in the federal
In its brief on appeal, the government continued to rely chiefly on this same argument. Specifically, it argued that “Reyes‘s return to his old ways after his original conviction” required us to conclude that “the federal drug trafficking conspiracy charge[] filed after Reyes‘s Puerto Rico drug conviction does not run afoul of the Double Jeopardy Clause.”
Shortly before argument in our Court, however, the government -- commendably -- filed a Letter of Clarification. In it, the government conceded that it could not “state with certainty that any witness will be able to testify that Reyes‘s participation” in the alleged federal drug conspiracy charged in the
The government has not abandoned altogether, however, the contention that, even if the Article 406 conviction was for a conspiracy offense, and even if that conspiracy offense was for possession with intent to distribute a controlled substance in violation of Article 401, the Double Jeopardy Clause does not preclude Reyes‘s prosecution for the federal conspiracy count that charges him with violating
The government argues in its brief to us that, even if the Article 406 conviction was for conspiring to commit possession with intent to distribute a controlled substance in violation of Article 401, it is not the same offense as a legal matter as the federal conspiracy offense set forth in
To support this fact-based contention, the government points out that the
Differences in participants, places, objectives, times, and conduct all may bear on the question of whether two charged conspiracies are factually distinct, such that they are not for the same offense for double jeopardy purposes even though the statutory offense charged is the same as a legal matter. See United States v. Pérez-González, ___ F.3d ___, ___ (1st Cir. 2020) [No. 17-1754, slip op. at 7-8]; United States v. Laguna-Estela, 394 F.3d 54, 57-59 (1st Cir. 2005); United States v. Broce, 488 U.S. 563, 570-71 (1989). In addition, the fact that there is some factual overlap between two charged conspiracies does not, in and of itself, preclude a determination that they are factually distinct for double jeopardy purposes. See, e.g., Pérez-González, ___ F.3d at ___ [slip op. at 7-8]; Laguna-Estela, 394 F.3d at 57-59.
Nonetheless, the same sovereign may not “carv[e] up a single conspiracy to commit several crimes into separate prosecutions” and thereby create distinct offenses that may be prosecuted successively. Booth, 673 F.2d at 29; see also United States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996) (recognizing “the danger that, in conspiracy cases, the government might comply with the letter of Blockburger while evading its spirit by partitioning a single conspiracy into separate prosecutions“); Brown v. Ohio, 432 U.S. 161, 169 (1977) (“The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its
As we have noted, the government has dropped the argument that the
Consistent with this conclusion, the government itself concedes that the conduct that formed the basis of Reyes‘s Article 406 conviction is “relevant conduct” to the federal
For these reasons, we are not persuaded by the government‘s contention that, due to factual distinctions between the conspiracy charged in the federal count under
B.
There remains, then, only the government‘s efforts to challenge the premise of Reyes‘s double jeopardy challenge, which is that his Article 406 conviction was for conspiracy to possess with intent to distribute a controlled substance in violation of Article 401 rather than for some other offense that is distinct -- legally -- from the federal conspiracy offense for which he has been charged in the count of the federal indictment that is brought pursuant to
The government did assert below, as it does on appeal, that Reyes‘s conviction under Article 406, even if formally for the conspiracy variant of that offense, was not for a “real conspiracy” but rather only reflected a “negotiating tactic” employed by the parties during plea bargaining. But, the government does not dispute that Reyes must have been convicted based on some facts that would support the crime. See Díaz Díaz v. Alcaide, 1 P.R. Offic. Trans. 1146, 1158 (1973) (holding that, before entering a guilty plea, the judge must “ascertain that the defendant is aware of what his offense is and of the facts charged against him“). Accordingly, the assertion that the conviction was not for a conspiracy offense -- even if formally it was -- because any such conspiracy was not “real” is too speculative to have any force.
We also find unpersuasive the government‘s attempt to ward off the double jeopardy challenge by circling back to the fact that the judgment is not clear on its face as to the precise nature of Reyes‘s Article 406 conviction. Here, the government points to the two respects in which that is so that we earlier identified.
First, the government points out that the judgment of conviction does not by terms clarify whether, insofar as the Article 406 conviction was for the conspiracy variant of that offense, it must be understood to have been for conspiring to violate Article 401, which criminalizes possession with intent to distribute a controlled substance, see
It is not clear to us that the Article 406 conviction would be for a legally distinct offense -- for double jeopardy purposes -- from the offense that he faces in the federal indictment for violating
The government below did not develop any argument that the Article 406 conviction was not for a conspiracy to violate Article 401 but was instead for a conspiracy to violate some other statutory provision, such as Article 404. Indeed, it appears to have argued that his Article 406 conviction was for conspiring to violate Article 401. And, given that Reyes had been charged originally with violating Article 401 and not Article 404, there is little more than unfounded speculation behind the new contention that the Article 406 offense was not for conspiracy to possess with the intent to distribute a controlled substance in violation of Article 401 but instead was for conspiracy to engage in simple possession of such a substance in violation of Article 404.
As such, this argument -- given how speculative it necessarily is -- cannot suffice to refute Reyes‘s adequately supported contention that the fact of his Article 406 conviction, following the Article 401 charge, gives rise to a nonfrivolous, prima facie case that he was convicted of the same offense that he is now charged with in the
This same course of reasoning leads us to reject the government‘s equally speculative
We thus find it hard to see how the government can now persuasively make the case that -- just based on the face of the judgment of conviction -- the record does not even show that Reyes has made a prima facie case for concluding that double jeopardy bars the federal prosecution precisely based on the Article 406 conviction having been for conspiring to violate Article 401 rather than for attempting to violate it. After all, given what the record shows about where the Article 406 offense occurred and when, as well as the fact that the offense originally charged was for a completed course of conduct and the record shows there was evidence that Reyes was involved in completed, rather than merely attempted, drug possession crimes, there is much reason to think (sufficient for a prima facie case) that the conviction was for the conspiracy rather than the attempt variant of the offense that Article 406 sets forth, even if the judgment of conviction does not itself so state.
Nor, as we have noted, did the government in its briefing on appeal point to anything in the record, beyond the face of the judgment‘s silence, to support the assertion that the case for finding the Article 406 conviction to have been for the conspiracy rather than the attempt variant was too flimsy to ground a prima facie case for applying the double jeopardy bar to the
At oral argument, the government advanced one last argument in support of the contention that Reyes‘s double jeopardy challenge fails. This time, it suggested not just that -- despite its earlier characterizations of the Article 406 conviction as being for a conspiracy to violate Article 401 -- the record failed to make clear the nature of the Article 406 conviction. This time, the government suggested that, contrary to those earlier characterizations, the record actually tended to show that Reyes was convicted of the attempt rather than the conspiracy variant of Article 406.
We may accept for present purposes that in a case in which the judgment of conviction does not itself clarify the nature of an offense but the record as a whole does, we may look to that record to determine the offense of conviction, whether for purposes of assessing if a defendant has made a prima facie case that a follow-on prosecution is barred by the Double Jeopardy Clause or for purposes of determining if the government has rebutted such a prima facie case. But, as we have noted, the government did not press this record-based argument for deeming the Article 406 conviction to be for the attempt rather than the conspiracy variant of that offense in front of the District Court or in its brief to us. In fact, on appeal, the government asserted in its brief that “[t]he Puerto Rico court documents . . . did not shed any light as to” whether “Reyes pleaded guilty to” “conspiracy or attempt” without at any point suggesting that the evidence favored
We thus decline the invitation to reject Reyes‘s double jeopardy challenge on this newly raised, undeveloped, and (yet again) speculative ground. After all, as Reyes pointed out at oral argument, it is hardly clear from the record that he was convicted of the attempt rather than the conspiracy variant of the Article 406 offense. As he notes, the evidence showed that his drug crime was completed, and there are indications that a defendant may not be convicted of the attempt variant of this offense for having committed a completed crime. See
III.
For these reasons, we agree with Reyes that he has met his burden to make a prima facie case that he has been prosecuted twice “for the same conduct under equivalent criminal laws,” Sánchez Valle, 136 S. Ct. at 1876, and that the government has failed to meet its burden to rebut it. We therefore reverse the District Court‘s denial of the motion to dismiss the indictment for the conspiracy count under