United States v. Caraballo Cruz

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-2380

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                WALTER CARABALLO-CRUZ,

                                Defendant, Appellant.

                              __________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                              __________________________

                                Selya, Cyr and Stahl,

                                   Circuit Judges.
                                   ______________

                              __________________________

               Miguel  A.A.  Nogueras-Castro,   Assistant  Federal   Public
               _____________________________
          Defender,  with  whom  Benicio  Sanchez  Rivera,  Federal  Public
                                 ________________________
          Defender, was on brief, for appellant.
               Jose  A.  Quiles-Espinosa, Senior  Litigation  Counsel, with
               _________________________
          whom  Guillermo Gil,  United States  Attorney, was on  brief, for
                _____________
          appellee.

                              _________________________
                                    April 20, 1995
                              _________________________



SELYA,  Circuit  Judge.     Defendant-appellant  Walter
                    SELYA,  Circuit  Judge.
                            ______________

          Caraballo-Cruz  appeals  his  conspiracy  conviction   on  double

          jeopardy  grounds.    His  claim  has  merit.   Consequently,  we

          reverse.

                                          I
                                          I

                    This appeal has its origins in an earlier case.  In May

          1992, a federal grand  jury charged appellant with  conspiracy to

          possess  29 kilograms  of  cocaine, intending  to distribute  the

          drug, in  violation of 21 U.S.C.     841(a)(1) and 846.   On July

          16, 1992, a petit jury found him guilty as charged.  The district

          court thereafter  imposed sentence and we  affirmed the judgment.

          United  States v. Caraballo-Cruz, No. 92-2316  (1st Cir. Feb. 10,
          ______________    ______________

          1994) (unpublished opinion).  

                    Appellant's  travail   was  not  limited  to  the  1992

          indictment.   On June 18, 1993, the grand jury returned a second,

          far broader indictment.   The new  indictment contained a  master

          conspiracy  count (count 1) and 47 subsidiary counts.  The master

          conspiracy count charged 30 defendants, including appellant, with

          conspiracy  to possess  and  distribute some  2,000 kilograms  of

          cocaine  in  violation  of  21   U.S.C.      841(a)(1)  and  846.

          Appellant, who  was not indicted  on any  other charge,  promptly

          moved  to  dismiss  count 1.    He  asseverated  that the  master

          conspiracy portrayed therein encompassed the  narrower conspiracy

          described  in the  earlier indictment,  and, therefore,  that the

          government's nascent attempt to  prosecute him anew for  his role

          in the master conspiracy transgressed the Double Jeopardy Clause.

2



On  August   20,  1993,   the  district   court  denied

          appellant's motion to dismiss without prejudice to its renewal at

          trial.1   But no trial ever occurred.  Instead, appellant entered

          into a conditional plea agreement in which he reserved his double

          jeopardy claim.  The district court accepted a conditional guilty

          plea,  Fed. R.  Crim.  P. 11(a)(2),  and  imposed sentence.    On

          December  7, 1993, in accordance  with the condition  of his plea

          agreement, Caraballo-Cruz filed a notice of appeal.

                                          II
                                          II

                    The Fifth Amendment  to the United States  Constitution

          states in relevant part:   "No person [shall] be subject  for the

          same offence to be twice put in jeopardy of life or limb . . . ."

          This  constitutional shield  embodies three  separate safeguards:

          it  protects against a  second prosecution  for the  same offense

          after an  acquittal; it protects against a second prosecution for

          the  same  offense after  a conviction;  and it  protects against

          multiple punishments for the same offense.  See North Carolina v.
                                                      ___ ______________

          Pearce, 395 U.S. 711, 717 (1969); United States v. Ortiz-Alarcon,
          ______                            _____________    _____________

          917 F.2d  651, 653 (1st  Cir. 1990),  cert. denied, 500  U.S. 926
                                                _____ ______

          (1991).    In the  papers  accompanying  his motion  to  dismiss,

          Caraballo-Cruz set forth in considerable detail the basis for his

          belief  that  the most  recent  conspiracy  charge fell  squarely

          within the proscription of the second buckler  of this tripartite
                              
          ____________________

               1The court acknowledged that  the issue was nonfrivolous but
          declined to decide it "without having the benefit of the evidence
          that  will be  presented against  the defendant  at trial."   The
          court noted  that,  depending on  what  the trial  disclosed,  "a
          renewed request [for dismissal] may prosper."

                                          3



shield.    He repeats  these arguments  in  his brief  on appeal,

          asserting that the conspiracies  described in the two indictments

          are, in law and in fact, the same offense.

                    While   the  appellant's  position  is  consistent  and

          predictable, the  government's response  is exotic.   Even though

          the prosecution attempted to  meet the double jeopardy initiative

          head-on  before  the  district  court,  its  appellate  brief  is

          confined  to a pair  of peripheral issues.  First, the government

          contends that  we lack appellate jurisdiction  because the double

          jeopardy  issue  was never  decided on  the  merits by  the court

          below.  Second, it maintains  that appellant's guilty plea waived

          the issue.  These assertions contain more growl than bite.

                                         III
                                         III

                    To guard  against the constitutional insult that double

          jeopardy  entails,  a court  faced  with  a colorable  successive

          prosecution claim must hear  and determine the matter  in advance

          of trial.   See United States v. Liotard, 817 F.2d 1074, 1079 (3d
                      ___ _____________    _______

          Cir. 1987); United States v.  Booth, 673 F.2d 27, 30  (1st Cir.),
                      _____________     _____

          cert.  denied, 456 U.S. 978 (1982).   The reason for this rule is
          _____  ______

          apparent:   if the  right to be  free from a  second trial is not

          vindicated  before that  trial  commences, then  the right  is no

          right at all,  but a cruel  illusion.  See  Liotard, 817 F.2d  at
                                                 ___  _______

          1080;  see  also  Robinson v.  Neil,  409  U.S.  505, 509  (1973)
                 ___  ____  ________     ____

          (explaining  that  the  Double  Jeopardy  Clause  is  distinctive

          because "its practical result  is to prevent a trial  from taking

          place  at all").  In a successive prosecution case, the guarantee

4



against double jeopardy "would be lost if the accused were forced

          to  `run  the gauntlet'  a second  time"  before being  placed on

          trial.  Abney v. United States, 431 U.S. 651, 662 (1977).
                  _____    _____________

                    The  case at  hand  fits neatly  within this  doctrinal

          framework.   Confronted  with a  timely  motion to  dismiss  that

          limned  a patently  nonfrivolous  successive prosecution  claim,2

          the  lower  court  denied the  motion  without  prejudice to  its

          renewal after the presentation  of evidence at trial.   See supra
                  _____ ___ ____________  __ ________ __ _____    ___ _____

          note 1.   The Double Jeopardy Clause  prohibits such temporizing.

          And, moreover, inasmuch as the district court's failure to decide

          the  double jeopardy claim on the merits stemmed from the court's

          mistaken view of  the law rather than from  any lack of diligence

          on  appellant's  part, the  government's  jurisdictional argument

          founders.

                                          IV
                                          IV

                    The  government's  waiver  argument  fares  no  better.

          Though  an  unconditional  guilty  plea  typically  subsumes  all

          nonjurisdictional   defects  occurring   earlier  in   the  case,

          insulating  previous rulings  from  appellate review,  see United
                                                                 ___ ______

          States  v.  Cordero,  42 F.3d  697,  698  (1st  Cir. 1994),  that
          ______      _______
                              
          ____________________

               2While we need not  reach the merits of the  double jeopardy
          claim, see infra Part V, that claim has much to commend it:  both
                 ___ _____
          indictments  charged  the  defendant  with  violating  the   same
          statutes;  the described conspiracies  overlapped temporally (the
          first indictment  charged a conspiracy taking place  in May 1992,
          whereas the  second indictment charged a  conspiracy running from
          September 1991 to March  1993); the five purported coconspirators
          identified  in the first indictment were among those named in the
          second indictment;  both conspiracies involved  importing cocaine
          from  Colombia into Puerto Rico; and in both instances contraband
          was destined for transshipment. 

                                          5



principle is inapposite  where, as here,  the government and  the

          defendant enter  (and the district court  approves) a conditional
                                                                ___________

          plea agreement that expressly  preserves the defendant's right to

          raise a  particular  issue  on appeal.    This  conclusion  flows

          irresistibly  from  the language  of  the  Criminal Rules,  which

          provide in pertinent part that:

                    With  the  approval  of  the  court  and  the
                    consent  of the  government, a  defendant may
                    enter  a conditional  plea of  guilty .  . .,
                    reserving  in  writing the  right,  on appeal
                    from the  judgment, to review of  the adverse
                    determination   of  any   specified  pretrial
                    motion.

          Fed. R. Crim.  P. 11(a)(2).  The import of this  rule is open and

          obvious:   it  is designed  to "ensure  careful attention  to any

          conditional  plea," to  "identify precisely what  pretrial issues

          have been preserved for appellate review," and  to husband scarce

          judicial resources  by permitting  a defendant fully  to litigate

          hoarded issues while  at the  same time lessening  the burden  on

          busy district  courts and  sparing the sovereign  the expense  of

          trial.  Fed. R. Crim. P. 11 advisory committee's note.

                    The agreement that led to appellant's plea in this case

          makes reference to Rule 11(a)(2)  and contains an express written

          reservation of the  right to appeal from the denial of the motion

          to  dismiss.3   In short,  it scrupulously  follows  the protocol

          required by the rule.   Hence, the government's execution  of the

                              
          ____________________

               3After referencing Rule 11(a)(2), the plea  agreement stated
          that  "this plea  is conditioned  upon defendant's  reserving the
          right to appeal  the Order denying defendant's motion  to dismiss
          the indictment on double jeopardy grounds."  

                                          6



agreement  (by   not  one,  but  two,   Assistant  United  States

          Attorneys)   represented  its  considered   acquiescence  in  the

          defendant's  right to hawk his double  jeopardy defense on appeal

          notwithstanding his guilty plea.  See id.; see also United States
                                            ___ ___  ___ ____ _____________

          v. Ramos, 961  F.2d 1003,  1005-06 (1st Cir.)  (holding that  the
             _____

          entry   of  a  conditional  guilty  plea  preserves  specifically

          described   rulings   for   review    and   waives   all    other

          nonjurisdictional errors),  cert. denied, 113 S.  Ct. 364 (1992);
                                      _____ ______

          United  States v.  Simmons,  763 F.2d  529,  533 (2d  Cir.  1985)
          ______________     _______

          (similar).  Having secured a plea by means of this accommodation,

          the government cannot  now retract its acquiescence.   After all,

          "[h]aving  one's cake and  eating it, too,  is not in  fashion in

          this circuit."  United  States v. Tierney, 760 F.2d 382, 388 (1st
                          ______________    _______

          Cir.), cert. denied, 474 U.S. 843 (1985).
                 _____ ______

                    Should any doubt remain   and we see none   the Supreme

          Court's  opinion in  Doggett v.  United States,  112 S.  Ct. 2686
                               _______     _____________

          (1992), supplies the sockdolager.  There, the government advanced

          substantially the  same argument  as it advances  here, asserting

          that,  by  pleading guilty,  the  defendant waived  any  right to

          appeal  his  claim  that  a delayed  arrest  had  prejudiced  his

          defense.  See  id. at 2694 n.3.  The Court rejected this argument
                    ___  ___

          out of hand.   It noted that  Doggett had tendered a  conditional

          guilty plea  under  Rule 11(a)(2),  and that  the plea  agreement

          memorialized   "the   Government's   explicit  consent   to   his

          reservation of the right to  appeal" the denial of his motion  to

          dismiss.   Id.    Accordingly, Doggett could  not be barred "from
                     ___

7



pursuing as effective an  appeal as he  could have raised had  he

          not pleaded guilty."  Id.  So it is here.4
                                ___

                                          V
                                          V

                    In its opposition to  the appellant's motion to dismiss

          in the  district  court, the  government attempted  to parse  the

          factors required to  determine when successive  conspiracy counts

          should  be construed as charging the same offense for purposes of

          double  jeopardy analysis.  See, e.g., United States v. Cloutier,
                                      ___  ____  _____________    ________

          966 F.2d 24,  28 (1st Cir. 1992)  (elucidating multi-pronged test

          for determining whether  two successive conspiracy counts  charge

          the  same  offense within  the  purview  of the  Double  Jeopardy

          Clause);  United States  v. David,  940 F.2d  722, 734  (1st Cir.
                    _____________     _____

          1991)  (similar), cert. denied, 502  U.S. 1046 (1992); cf. United
                            _____ ______                         ___ ______

          States  v.  Gomez-Pabon,  911  F.2d  847,  860  (1st  Cir.  1990)
          ______      ___________

          (elucidating test  in analogous context), cert.  denied, 498 U.S.
                                                    _____  ______

          1074  (1991).  On appeal, however, the government fails either to

          renew this challenge or  to address the substantive issue  in any

          meaningful  way.    Instead,  the  government  declares,  without

          further elaboration,  that the  "underlying offenses are  not the

          same."  Government's Brief at 11.  An enigmatic reference of this

          sort, totally devoid of developed argumentation, is like a month-

                              
          ____________________

               4The government's  reliance on  United States v.  Broce, 488
                                               _____________     _____
          U.S.  563 (1989), is mislaid.   In Broce,  the defendant admitted
                                             _____
          guilt  on two separate conspiracy counts.  On review, the Supreme
          Court  held  the  defendant's   double  jeopardy  defense  to  be
          "foreclosed by the guilty pleas and the judgments of conviction."
          Id.  at  565.   Unlike  this  case,  Broce's  pleas were  neither
          ___
          conditional nor qualified in any comparable way.  Hence, Broce is
                                                                   _____
          inapposite.

                                          8



old  ketchup bottle:    it may  look  full, but  is  surpassingly

          difficult to get anything out of it.

                    We believe it is apodictic that "issues adverted  to in

          a perfunctory  manner, unaccompanied by some  effort at developed

          argumentation, are deemed waived."  United States v. Zannino, 895
                                              _____________    _______

          F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).  To be
                                 _____ ______

          sure,  the usual  office of  this rule  in  criminal cases  is to

          negate  consideration  of  skeletal  arguments  advanced  by  the
                                                                    __  ___

          defendant.  See, e.g., United States v. Innamorati, 996 F.2d 456,
          _________   ___  ____  _____________    __________

          468 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993); Zannino, 895
                          _____ ______                         _______

          F.2d at 17.  But  in fairness, what is sauce for  the defendant's

          goose  is  sauce for  the government's  gander.   Thus,  the rule

          applies  with  undiminished  vigor  when, as  now,  a  prosecutor

          attempts  to  rely  on  fleeting  references  to  unsubstantiated

          conclusions  in lieu  of  structured argumentation.   See,  e.g.,
                                                                ___   ____

          United  States v. Rodriguez Cortes,  949 F.2d 532,  542 (1st Cir.
          ______________    ________________

          1991); United States v. Doe, 878 F.2d 1546, 1554 (1st Cir. 1989);
                 _____________    ___

          United States v. Serrano, 870 F.2d 1, 7 n.5 (1st Cir. 1989).
          _____________    _______

                    On this record,  then, we must  hold the government  to

          its  default  and  credit   appellant's  argument  that  the  two

          conspiracies constitute one and the same offense.

                                          VI
                                          VI

                    We need go no further.   Appellant fully preserved  his

          defense of double jeopardy, and the government has articulated no

          credible reason to  suppose either  that the  charged crimes  are

          constitutionally  distinct  or  that  the  defense  is  otherwise

9



flawed.  Consequently, the judgment of conviction must be

Reversed.
          Reversed.
          ________

10