UNITED STATES, Appellee, v. INYEMAR MANUEL SUAZO, Defendant, Appellant.
No. 20-1982
United States Court of Appeals For the First Circuit
September 20, 2021
Hon. Paul J. Barbadoro, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Before Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Edward S. MacColl, with whom Thompson, MacColl, & Bass LLC, P.A. was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, was on brief, for appellee.
I. Background and Procedural History
On March 2, 2018, Suazo, along with Julio Mejia and Enyel Mejia-Pimental, was indicted in the District of Maine for conspiracy to distribute, and to possess with intent to distribute, 400 grams or more of fentanyl and cocaine. A superseding indictment, issued on March 28, 2018, detailed more specifics of the alleged conspiracy, stating it began no later than April 7, 2016 and continued until March 14, 2018 in the Districts of Maine, New Hampshire, and Massachusetts.
The government requested pretrial detention, relying on the presumption of detention set forth in
On December 4, 2019, the government moved for bail revocation. It alleged that Suazo had violated a condition of his release to “avoid all contact . . . with any person who is or may be a victim or witness in the investigation or prosecution,” by having contact with Julio Mejia, who was also charged in the indictment. The government sought, and was granted, a warrant for Suazo‘s arrest. After Suazo‘s arrest, he moved to continue the December 9, 2019 trial date. The district court allowed the motion and continued the trial to February 3, 2020.
At the December 4 bail revocation hearing, Special Agent Steven Galbadis of the Drug Enforcement Administration testified that Mejia had told him that Suazo had approached Mejia on November 30, 2019, shown him a picture of Mejia‘s cooperation agreement on his phone, and told Mejia that if he testified against him he would post the cooperation agreement on the internet. Galbadis testified that Mejia told him that Mejia and Suazo met again the next day and Suazo again said that he would post the cooperation agreement online. On cross-examination, Galbadis stated that he was not aware of Suazo coming in contact with any witness in the case other than Mejia. Finding that the government had presented clear аnd convincing evidence that Suazo had violated a condition of release,
On January 31, 2020, the United States filed a Rule 48(a) motion to dismiss the superseding indictment on the grounds that “as of this date, the admissible portion of the avаilable evidence would not permit a properly instructed jury to find beyond a reasonable doubt that the defendant is guilty of the charge alleged.” In response, Suazo filed a motion for a judgment of acquittal or dismissal with prejudice. Suazo argued that, given his lengthy pretrial detention and thе government‘s admission that it could not prove its case, due process
The Maine district court rejected Suazo‘s argument, giving the government the benefit of a presumption of good faith in its Rule 48(a) motion, whiсh the court found Suazo had not rebutted. In its decision, the district court noted the government‘s statement that witnesses had abandoned their cooperation agreements in advance of trial; that, contrary to Suazo‘s argument, the government had not stated that it could never prove its сase; and that the government had been prepared to go to trial in December 2019 before Suazo moved to continue the trial after his arrest for improper contact with a co-defendant. The district court granted the government‘s motion to dismiss without prejudice and denied Suаzo‘s motion for acquittal. Suazo appealed the dismissal and this court found that no extraordinary circumstances were present to warrant departure from the usual rule that defendants lack standing to appeal the dismissal of indictments, and dismissed the appeal.1 United States v. Suazo, No. 20-1288 (1st Cir. Dec. 7, 2020). A jury was never swоrn in the Maine case before it was dismissed.
On January 31, 2020, the same day that the government moved to voluntarily dismiss the superseding indictment in Maine, the United States filed a criminal complaint against Suazo alleging one count of distribution of fentanyl and one count of conspiracy, and aiding and abetting a conspiracy, to distribute fentanyl, in the New Hampshire district court. With respect to the conspiracy count, Count Two, the government specified that the conspiracy took place “[o]n or about January 18, 2018” in New Hampshire and Massachusetts and that the conspiracy involved 40 or more grams of fentanyl. The complaint listed no co-conspirators or additional specifics of the alleged conspiracy. On July 22, 2020 a grand jury issued an indictment setting forth the same charges and information.
Suazo filed a motion to dismiss the New Hampshire indictment as impermissibly vague as to both counts, and to dismiss Count Two as duplicitous to the extent that it charged both conspiracy and aiding and abetting a conspiracy. He then moved to dismiss Count Two on double jeopardy grounds, arguing that the government should be required to show that the conspiracy charged in the New Hamрshire indictment differs from the conspiracy charged in the Maine indictment. At a hearing on October 7, 2020, the New Hampshire district court denied both of Suazo‘s motions to dismiss. During the hearing, the government specified that the entire conspiracy took place within a few days of the date given in the indictment. The court ordered the government to produce a bill of particulars, which it did on October 14, 2020, naming four other alleged members of the conspiracy.
Suazo now appeals the denial of his motion to dismiss on double jeopardy grounds and purports to appeal from other denials set forth below.
II. Analysis
“The availability of double jeopardy protection is a constitutional question reviewable de novo.” United States v. Fornia-Castillo, 408 F.3d 52, 68 (1st Cir. 2005) (citing United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998)). Defendants generally cannot immediately appeal interlocutory
The Fifth Amendment‘s prohibition on double jeopardy is premised on the principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal, and . . . enhancing the possibility that even though innocent he may be found guilty.” Keene, 287 F.3d at 232 (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)) (alteration in original). A defendant‘s double jeopardy rights do not attach until the defendant is put to trial. See United States v. Rosado-Cancel, 917 F.3d 66, 68 (1st Cir. 2019) (citing Serfass v. United States, 420 U.S. 377, 388 (1975)). A trial commences for double jeopardy attachment purposes “when a jury is sworn or empanelled [sic] or, in a bench trial, when the judge begins to hear evidence.” United States v. Bonilla Romero, 836 F.2d 39, 42 (1st Cir. 1987) (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 (1980)); see also United States v. Tobin, 552 F.3d 29, 32 (1st Cir. 2009) (“This is mechanical and perhaps arbitrary, but it is the line that the Supreme Court has drawn and the circuits have followed.“).
It is “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence” that “‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and therеby violating the Constitution.‘” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (quoting United States v. Ball, 163 U.S. 662, 671 (1896)) (alterations in original). Whether a judgment of acquittal has been entered “is not to be controlled by the form of the judge‘s action.” Id.; see also United States v. Bravo-Fernandez, 790 F.3d 41, 60 (1st Cir. 2015) (“Whether an order counts as an ‘acquittal,’ . . . is a question of substance and not of name.“). Rather, the question is “whether the ruling of the judge, whatevеr its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Martin Linen, 430 U.S. at 571. A dismissal without prejudice is not an adjudication on the merits. See United States v. Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983).
Suazo acknowledges that a jury was never sworn in the Maine case. He argues that the dismissal in the Maine trial should be treated as an acquittal for double jeopardy purposes. He acknowledges that under our precedents a dismissal without prejudice constitutes neither a decision on the merits nor an acquittal. He nevertheless argues that the Due Process and Double Jeopardy Clauses mandate an evidentiary hearing to determine whether the government dismissed the Maine indictment in good faith and whether the
As Suazo admits, a jury was never sworn, so jeopardy did not attach in that way. His arguments that the Maine dismissal was actually an acquittal are meritless, and the lаw clearly requires that we affirm the denial of his double jeopardy claim. Double jeopardy did not constructively attach as a result of the Maine district court‘s ruling. In arguing that the law should be extended to recognize a new form of double jeopardy, which attaches when a district cоurt wrongly decides that the government acted in good faith in requesting voluntary dismissal under Rule 48(a), Suazo commits two errors. First, there is no such doctrine under double jeopardy law and we flatly reject the argument. Second, he essentially asks this court to allow a further appeal of the Mainе district court‘s decision to dismiss the indictment. We have already declined to review the district court decision, see United States v. Suazo, No. 20-1288 (1st Cir. Dec. 7, 2020), and will not do so now under the guise of a double jeopardy claim where it is clear that jeopardy has not attached.2
In his reply brief, Suazo cites several cases where courts (outside this circuit) dismissed second indictments or overturned convictions because they determined prosecutors had brought multiple indictments in order to harass the defendants. These cases do not support his double jeopardy claim; instead, they reinforce the prоposition that Rule 48(a) protects defendants from prosecutorial harassment. See United States v. Derr, 726 F.2d 617, 618-19 (10th Cir. 1984) (finding prosecution‘s request for voluntary dismissal because it would “best meet the ends of justice” was insufficient justification for dismissal under Rule 48(a)); United States v. Salinas, 693 F.2d 348, 352-53 (5th Cir. 1982) (finding prosecution‘s voluntary dismissal of initial indictment in order to get a more favorable jury on a superseding indictment sufficient to overcome presumption of good faith in initial Rule 48(a) dismissal); United States v. Fields, 475 F. Supp. 903, 907-08 (D.D.C. 1979) (dismissing second indictment with prejudice where initial indictment was sought only to secure defendant‘s cooperation as a witness). None of these cases Suazo citеs rely on the Double Jeopardy Clause.
Suazo asks us to extend double jeopardy protections, but, as the cases he cites show, the law already bars prosecutorial harassment. His claims are better characterized as claims of prosecutorial
Therefore, the double jeopardy claim is the only claim over which we have interlocutory jurisdiction. Accordingly, we do not delve into any of Suazo‘s claims of prosecutorial misconduct, unfairness, or vaguenеss. See Abney, 431 U.S. at 663 (no interlocutory jurisdiction for appeal of motion to dismiss for insufficiency of indictment); see also United States v. Brizendine, 659 F.2d 215, 222 (D.C. Cir. 1981) (“If the appellants’ due process claims are upheld on appeal after final judgment, the court can provide effective relief by ordering the indictment dismissed . . . , striking any additional charges that were improperly brought against the accused, requiring correction of the sentence, or reversing and remanding for reindictment and a new trial.“)
We affirm the denial of the motion to dismiss on double jeopardy grounds and dismiss without prejudice the appeal as to the remaining arguments for lack of jurisdiction.