United States v. Colon Osorio

• Court: Court of Appeals for the First Circuit
• Decided: November 30, 1993
• Docket: 93-1373
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1373

                              UNITED STATES OF AMERICA,

                                      Appellant,

                                          v.

                                LUIS A. COLON-OSORIO,

                                      Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                      Aldrich and Coffin, Senior Circuit Judges.
                                          _____________________

                                 ____________________

            Kathleen A.  Felton, Attorney,  Department of  Justice, with  whom
            ___________________
        Daniel F. Lopez-Romo, United States  Attorney, and Miguel A.  Pereira,
        ____________________                               __________________
        Assistant United States Attorney, were on brief for appellant.
            Linda Backiel for appellee.
            _____________

____________________

                                  November 30, 1993
                                 ____________________

COFFIN,  Senior Circuit  Judge.  On  December 9,  1992, Luis
                        _____________________

          Colon Osorio was convicted  of two counts of failure to appear as

          ordered  before a court  in Connecticut.   A month  later, on the

          same  day that  Colon Osorio  received a  sentence  calculated to

          effect his immediate release from prison, the government unsealed

          a new criminal complaint charging him as a fugitive in possession

          of  firearms.   The  district  court dismissed  these  charges on

          double  jeopardy  grounds  because   the  government's  proof  of

          fugitive status  would necessarily rely  on the same  conduct for

          which Colon Osorio had  been punished in the first  prosecution. 

          The case on which  the district court primarily relied,  Grady v.
                                                                   _____

          Corbin, 110 S. Ct.  2084 (1990), has  since been overruled.   See
          ______                                                        ___

          United  States  v. Dixon,  113 S.  Ct.  2849 (1993).    Under the
          ______________     _____

          Supreme   Court's   current   formulation   of   double  jeopardy

          jurisprudence, we are obliged to reverse.

                                      I.  Facts
                                          _____

               Luis  Colon  Osorio  is  a  member  of  Los  Macheteros,  an

          organization dedicated  to the independence  of Puerto Rico.   In

          1985, along  with seventeen other members of  Los Macheteros, and

          two non-members,  Colon Osorio  was arrested  in Puerto  Rico and

          charged  with aiding and abetting and  conspiring in the planning

          and execution of a 1983 robbery of $7 million from  a Wells Fargo

          depository in West Hartford, Connecticut.1

____________________

               1For further  factual background on the  Wells Fargo robbery
          case, as well as a detailed analysis of the legal issues the case
          involved, see United States v. Maldonado-Rivera, 922 F.2d 934 (2d
                        _____________    ________________
          Cir. 1990).

                                         -2-

Colon Osorio was detained without bail for seventeen months,

          and  then  ordered released  to the  District  of Puerto  Rico in

          December  1986.   On September  24, 1990,  Colon Osorio  issued a

          communique  stating that he was  "going underground to rejoin the

          clandestine  struggle" for the  independence of  Puerto Rico.   A

          criminal  complaint alleging violation of conditions of pre-trial

          release  was  filed  the following  day,  and  an arrest  warrant

          issued. 

               A Connecticut district court  ordered Colon Osorio to appear

          for a hearing on the government's  motion to forfeit his bond  on

          December 17,  1990.  He failed to appear.  The same court ordered

          him to appear for jury selection in the criminal trial on January

          13, 1992.  He failed to appear a second time.  On March 17, 1992,

          Colon Osorio was arrested in Puerto Rico, allegedly in possession

          of a  semi-automatic pistol, ammunition, and a live hand grenade,

          as  well as  cocaine  and  marijuana.    He  was  transferred  to

          Connecticut  and charged  with two  counts  of failure  to appear

          following release on bail, pursuant  to 18 U.S.C.   3146(a).2   A

          jury convicted him  of these charges on December 9,  1992 and, on

          January 29, 1993, he was sentenced to 318 days imprisonment.  

               In  the interim,  between  conviction  and  sentencing,  two

          events  occurred.   First, on  January 19,  1993,  the government

          dismissed the indictments against  Colon Osorio stemming from the

____________________

               2This statute provides: "Whoever, having been released under
          this chapter  knowingly . . .  fails to appear before  a court as
          required  by conditions  of release  . . .  shall be  punished as
          provided in subsection (b) of this section."

                                         -3-

Wells  Fargo bank robbery  case.  Second,  on the day  before his

          sentencing,  the United  States brought  a criminal  complaint in

          Puerto Rico, unsealed the next day, charging him  with possession

          of  the firearms and drugs  allegedly confiscated at  the time of

          his  arrest in Puerto  Rico.   The subsequent  indictment charged

          Colon Osorio  with three counts  of possession of a  firearm as a

          fugitive from justice,  in violation of  18 U.S.C.    922(g)(2),3

          and  two  counts of  possession  of  a  controlled substance,  in

          violation of 21 U.S.C.   844(a).

               The  district  court  dismissed  the  fugitive-in-possession

          charges on double  jeopardy grounds.  The  court first determined

          that 18 U.S.C.   3146(a)(1), the failure to appear provision, was

          a "species of  lesser-included offense" of 18 U.S.C.   922(g)(2),

          making the second prosecution  an impermissible repetition of the

          first  one.    Alternatively, the  court  found  that  the second

          prosecution  was barred  by  Grady v.  Corbin,  110 S.  Ct.  2084
                                       _____     ______

          (1990),  in which  the Supreme  Court held  that to  establish an

          essential element of an offense  charged in a second prosecution,

          the  government could not rely on conduct for which the defendant

          already had been  prosecuted.  The district  court concluded that

          the  government would have to  rely on the  conduct proving Colon

____________________

               3This statute provides: "It shall be unlawful for any person
          . . . who is a fugitive from  justice . . . to ship or  transport
          in interstate or  foreign commerce,  or possess  in or  affecting
          commerce, any firearm or ammunition; or to receive any firearm or
          ammunition which has been shipped or transported in interstate or
          foreign commerce."

                                         -4-

Osorios's failure  to appear  in  order to  establish the  flight

          element of the section 922(g)(2) offense.4

               On appeal, the government  contends that the Supreme Court's

          recent opinion in United States v. Dixon, 113 S. Ct. 2849 (1993),
                            _____________    _____

          controls the  resolution of this  case.   It points out  that the

          Dixon Court  flatly overruled  Grady v. Corbin,  thus undermining
          _____                          _____    ______

          one of the district  court's bases for finding a  double jeopardy

          bar  to the  second  prosecution.   Additionally, the  government

          argues that applying the traditional double jeopardy analysis set

          forth in Blockburger v.  United States, 284 U.S. 299  (1932), and
                   ___________     _____________

          reaffirmed in  Dixon, compels the  conclusion that there  are two
                         _____

          separate   offenses,    permitting   the   fugitive-in-possession

          prosecution to proceed.

               Colon  Osorio  recognizes that  Grady  v.  Corbin no  longer
                                               _____      ______

          supports his claim of  double jeopardy, but his reading  of Dixon
                                                                      _____

          otherwise differs from  the government's.   He claims that  Dixon
                                                                      _____

          bolsters the  district court's  conclusion that his  bail jumping

          offense  is  completely  included in  the  fugitive-in-possession

____________________

               4The district court also noted  a potential venue problem if
          a single trial had  been sought for both violations.   Opinion at
          9, n.10.   The government notes that  an exception to  the double
          jeopardy bar on  subsequent prosecutions may lie where  the State
          is unable to  proceed on the  more serious  charge at the  outset
          because the additional facts necessary to sustain the charge have
          not  yet been discovered or occurred, despite the exercise of due
          diligence, see  Brown v. Ohio, 432 U.S. 161, 169, n.7 (1977), and
                     ___  _____    ____
          urges us to extend this exception to embrace legal impediments as
          well,  such as  where venue  restrictions prevent  the government
          from  joining all  charges in  a single  district.   However, the
          government cites  no authority  which supports  this proposition.
          Because  we find no double jeopardy bar to the second prosecution
          under section 922(g)(2), we need not reach this issue.  

                                         -5-

charge,  and that  his prosecution for  that charge  is therefore

          barred on double jeopardy grounds.

               Whether  principles  of  double  jeopardy bar  a  subsequent

          prosecution is an  issue for  plenary review.   United States  v.
                                                          _____________

          Aguilar-Avanceta, 957 F.2d 18, 21 (1st Cir. 1992).  
          ________________

                               II.  Double Jeopardy Law
                                    ___________________

               The Double  Jeopardy Clause of the  Fifth Amendment provides

          that no person shall "be subject for the same offence to be twice

          put in jeopardy of  life or limb . .  . ."  U.S. Const.  amend V.

          Under this clause, a defendant is protected from both  successive

          prosecutions  and  multiple  punishments  for  the same  criminal

          offense.   See  North Carolina  v. Pearce,  395 U.S.  711 (1969);
                     ___  ______________     ______

          United States v.  Rivera Martinez,  931 F.2d 148,  152 (1st  Cir.
          _____________     _______________

          1991).

               In Blockburger  v. United States,  284 U.S. 299  (1932), the
                  ___________     _____________

          Supreme Court  ruled that  punishment for two  statutory offenses

          arising  out of  the same  criminal act  or transaction  does not

          violate double  jeopardy if "each  provision requires proof  of a

          fact which  the other does not."   Blockburger, 284 U.S.  at 304.
                                             ___________

          The Blockburger  test focuses on  the statutory elements  of each
              ___________

          offense.  "If  each requires proof of a fact  that the other does

          not,  the  Blockburger  test   is  satisfied,  notwithstanding  a
                     ___________

          substantial  overlap  in  the  proof  offered  to  establish  the

          crimes."   Ianelli  v.  United States,  420  U.S. 770,  785  n.17
                     _______      _____________

          (1975);  see also United  States v. Felix, 112  S. Ct. 1377, 1382
                   ___ ____ ______________    _____

          (1992).

-6-

In Brown v. Ohio,  432 U.S. 161, 166-67 (1977),  the Supreme
                  _____    ____

          Court acknowledged  that the  Blockburger test  was not  the only
                                        ___________

          standard used to  determine whether successive prosecutions  were

          the "same offence" for double jeopardy purposes.  The Brown Court
                                                                _____

          noted that in some circumstances where a second prosecution would

          require relitigation  of factual  issues already resolved  by the

          first, successive prosecutions  were barred, notwithstanding  the

          fact that  the two offenses involved  were sufficiently different

          to  permit   the  imposition   of  consecutive   sentences  under

          Blockburger. The Court pointed  to Ashe v. Swenson, 397  U.S. 436
          ___________                        ____    _______

          (1976), and In re  Nielsen, 131 U.S. 176 (1889), to  support this
                      ______________

          proposition.    In  Ashe,  the  Court  ruled  that principles  of
                              ____

          collateral estoppel embodied in the Double Jeopardy Clause barred

          a second prosecution for robbery of one person when the defendant

          had  been  acquitted of  robbery of  another  person in  the same

          incident.  In In re Nielsen, the Court held that a conviction for
                        _____________

          cohabiting with two  wives over  a two and  one-half year  period

          barred  a subsequent  prosecution for  adultery with  one of  the

          wives on  the day  following the  end of  that period.   Although

          strict application of Blockburger would have permitted imposition
                                ___________

          of consecutive  sentences, in both  cases, the  Court found  that

          these  separate  offenses were  the  "same"  for double  jeopardy

          purposes, and barred the second prosecutions.  Brown, 432 U.S. at
                                                         _____

          166-67 n.6.

               In 1990, in Grady v. Corbin, 110 S. Ct. at  2084, the Court,
                           _____    ______

          reviewing over a century of double jeopardy jurisprudence, looked

-7-

to  Ashe and  In  re Nielsen  as  evidence that  double  jeopardy
              ____      ______________

          analysis  must  extend  beyond  Blockburger.    The  Grady  Court
                                          ___________          _____

          recognized   a  distinction   between  multiple   punishment  and

          successive prosecution cases, noting that successive prosecutions

          raised concerns  beyond punishment which justified  a more robust

          standard by which to review double jeopardy for these cases.  

               The  Grady  majority asserted  that,  in  cases of  multiple
                    _____

          punishment,  the purpose  of the  Double  Jeopardy Clause  was to

          prevent  the   sentencing  court   from  prescribing   a  greater

          punishment than that authorized by the legislature.  110 S. Ct at

          2091.  In  that context,  Blockburger functioned as  a "`rule  of
                                    ___________

          statutory  construction,'  a  guide  to  determining  whether the

          legislature intended multiple punishments."  Id. at 2091 (quoting
                                                       ___

          Missouri  v. Hunter,  459 U.S.  359, 366  (1983)).   By contrast,
          ________     ______

          successive   prosecutions   raised   concerns  beyond   excessive

          punishment, such  as questions  of finality, harassment,  and the

          risk  of  erroneous conviction.    In  this  context, the  Double

          Jeopardy  Clause   also  served  as   a  check  on   the  state's

          prosecutorial  power,  insuring that  the  state,  "with all  its

          resources  and   power,"  did  not  misuse   its  authority  over

          individual defendants.  Id. (quoting Green v. United  States, 355
                                  ___          _____    ______________

          U.S. 184, 187 (1957)).    

               Under Grady, to determine whether the Double Jeopardy Clause
                     _____

          barred  a  subsequent  prosecution,  a court  first  applied  the

          traditional Blockburger  test.   If  the  subsequent  prosecution
                      ___________

          survived the Blockburger test,  the court then determined whether
                       ___________

-8-

establishing an  essential element of an offense  charged in that

          prosecution would  require the  government to prove  conduct that

          constitutes  an offense for which the  defendant already has been

          prosecuted.   110 S. Ct. at 2093.   If so, the second prosecution

          was barred.  Id. 
                       ___

               In Dixon v. United States, 113 S. Ct. 2849 (1993), the Court
                  _____    _____________

          renounced  Grady's  "same conduct"  test  and  affirmed that  the
                     _____

          Blockburger   analysis  governs  both   multiple  punishment  and
          ___________

          successive  prosecution  cases.5   Writing  for  a 5-4  majority,

          Justice Scalia,  in Dixon,  essentially adopted the  reasoning of
                              _____

          his  dissent in Grady to  argue that Grady's  "same conduct" rule
                          _____                _____

          lacked  constitutional roots,  and  was wholly  inconsistent with

          Supreme Court  precedent  and  the  common-law  understanding  of

          double jeopardy.   113 S. Ct.  at 2860.   In his view,  the Grady
                                                                      _____

          Court  had  overstated the  limitations  of  the Double  Jeopardy

          Clause, in practice embracing  a requirement that would  have all

          charges arising  from a  single criminal transaction  tried in  a

          single proceeding.   Grady,  110 S.  Ct. at 2102.   The  Court in
                               _____

          Dixon  thus   narrowed  the   scope  of  inquiry   in  successive
          _____

          prosecution cases.    

                              III.  Application of Dixon
                                    ____________________

               Applying the  Dixon/Blockburger  "same elements" test to the
                             _________________

          facts  of this case compels the conclusion that the defendant may

          be prosecuted  for being  a fugitive  in  possession of  firearms
                              
          ____________________

               5In  the three  years  since Grady,  the composition  of the
                                            _____
          Court changed, resulting in  a shift in the majority  view of the
          history and precedent underlying the Double Jeopardy Clause.

                                         -9-

under 18 U.S.C.   922(g)(2) despite his earlier conviction  under

          18 U.S.C.   3146 for  failure to appear.  To secure  a conviction

          under section 3146(a)(1), the government must prove that  (1) the

          defendant has been released on bail pending trial, sentencing, or

          appeal;  (2) the defendant was required to appear before a court;

          and  (3) the defendant knowingly failed to appear.  The fugitive-

          in-possession charge requires proof (1) that  a defendant fled to

          avoid  prosecution for a crime; (2) that he knowingly possessed a

          firearm; and (3) that  the firearm was possessed in  or affecting

          commerce.

               Each  statute clearly  requires proof  of elements  that the

          other  does not.  Under section 3146, for example, the government

          must  prove that defendant was released on bail, and was required

          to appear before a court.  These elements  are not required under

          section  922(g), as  a  person may  be  a fugitive  from  justice

          without having been released on bail,  and without being required

          to  appear  before a  court.   Section  922(g) requires  that the

          defendant  possess a firearm, which is not a required element for

          a violation of section 3146(a).  Therefore, prosecution for these

          two offenses is not barred by Blockburger/Dixon.
                                        _________________

               The district court made  this same observation, but rejected

          the  technical  comparison  of  the  statutes'  elements  as  too

          cursory.  The court found that this case was comparable to Harris
                                                                     ______

          v.  Oklahoma, 433 U.S. 682 (1977) (per curiam), where the Supreme
              ________

          Court  held  that  a  prosecution  for robbery  with  a  firearm,

          following defendant's  conviction for felony murder  based on the

-10-

robbery, was  barred by double jeopardy principles.   The Supreme

          Court  later explained  this result  by noting  that, for  double

          jeopardy  purposes,  it did  not  consider  "the crime  generally

          described as felony  murder as a  separate offense distinct  from

          its various elements."   Illinois  v. Vitale, 447  U.S. 410,  420
                                   ________     ______

          (1980).  Rather, robbery with a firearm was a "species of lesser-

          included offense" of the  felony murder for which  Harris already

          had been prosecuted.  Id.  
                                ___

               Relying on  Harris, the  district court  found that,  on the
                           ______

          specific facts of this case, section 3146(a)(1) was a "species of

          lesser-included  offense"  of  section  922(g)(2).     The  court

          explained that in order to prosecute Colon Osorio for a violation

          of section 922(g)(2),  the government must show that Colon Osorio

          was a fugitive from  justice, which, in turn, required  a showing

          that  he fled to avoid prosecution.  In this case, the government

          would rely on proof of the  same conduct which comprised proof of

          his bail jumping offense under section 3146: that he  was on bail

          for  an indictment in Connecticut; that he was required to appear

          before a court; and that he failed to appear.   Noting that these

          were all the "elements necessary  in the previous prosecution for

          violations of  section 3146(a)(1)," the district  court held that

          section  3146  was  a  "species of  lesser-included  offense"  of

          section  922(g)(2) and,  therefore, that  Blockburger barred  the
                                                    ___________

          government from prosecuting Colon Osorio under this section.

               The district court's analogy lacks force in the aftermath of

          Dixon.   In the  first place,  Harris'  status is  unclear.   The
          _____                          ______

-11-

Supreme  Court  in Grady  had pointed  to  Harris to  support its
                             _____                   ______

          argument that Blockburger was not the exclusive test to vindicate
                        ___________

          the   Double  Jeopardy   Clause's  protection   against  multiple

          prosecutions.   Grady,  110  S. Ct.  at  2092.   The  Dixon Court
                          _____                                 _____

          overruled   this   proposition,   holding   that   both  multiple

          prosecution  and multiple  punishment  cases are  to be  assessed

          under the identical standard, Blockburger's "same elements" test.
                                        ___________

          Dixon,  113 S. Ct.  at 2856, 2860.   A  majority  of the justices
          _____

          criticized  an  interpretation  of   Harris  which  supports  the
                                               ______

          proposition  that  the   Blockburger  test  is  insufficient   to
                                   ___________

          determine whether  a successive  prosecution is barred,  and that

          conduct, not merely statutory elements, must be the object of the

          double  jeopardy  inquiry.   Id. at  2861.   These  same justices
                                       ___

          disagreed, however,  over Harris'  application, leaving open  the
                                    ______

          possibility that  a majority could still view Harris as providing
                                                        ______

          an exception to the Blockburger approach.  See 113 S.Ct. at 2866-
                              ___________            ___

          67  (Rehnquist, C.J., concurring and dissenting); id. at 2857 n.2
                                                            ___

          (Scalia, J.).6 
                              
          ____________________

               6Dixon involved  the question of whether  defendants who had
                _____
          been  prosecuted for  criminal  contempt of  court for  violating
          court orders subsequently could  be tried for crimes  arising out
          of  the  same  conduct which  was  the  subject  of the  contempt
          prosecution.   While a majority  of the Court  joined to reaffirm
          Blockburger's application to successive prosecution cases, and to
          ___________
          overrule  Grady  v.  Corbin's  "same  conduct"  test,  there  was
                    _____      ______
          significant disagreement  among this same majority  regarding the
          effect  of this change.   Chief Justice Rehnquist,  in an opinion
          joined by  Justices O'Connor and Thomas, focused his criticism on
          Justice  Scalia's  application  of  Harris.   He  contended  that
                                              ______
          Justice  Scalia  improperly invoked  Harris.   In looking  to the
                                               ______
          facts that had  to be proven to show a  violation of the specific
          court orders  at issue, and  not to the  generic elements of  the
          crime   of  contempt   of  court,   Justice  Scalia   effectively

                                         -12-

In  any event, this case is distinguishable from Harris.  In
                                                                ______

          Harris, the  Court barred  a second  prosecution for  the offense
          ______

          that had been used to  establish an element of the felony  murder

          offense for which the defendant was convicted.  By contrast, bail

          jumping is  not an offense on  which the government will  rely to
                      ___

          establish Colon Osorio's fugitive  status.  The government merely

          will  rely  on the  same conduct  that  the government  proved to
                                   _______

          establish Colon Osorio's bail jumping offense. 

               Indeed, the district court's  analysis is precisely what the

          Dixon  Court rejected.  Under Dixon, the fact that the government
          _____                         _____

          will  attempt  to  prove that  Colon  Osorio  was  a fugitive  by

          referring  to  the same  conduct used  to  prove the  elements of

          failure to  appear does  not offend  the Double Jeopardy  Clause.

          The  same actions can  constitute an  offense under  two distinct

          statutes and can be  prosecuted separately under each statute  as

          long as  the statutes do not  define a single offense  within the

          meaning of  Blockburger.  United  States v. White, 1  F.3d 13, 17
                      ___________   ______________    _____

          (D.C.  Cir. 1993); see also Blockburger, 284 U.S. at 304 (quoting
                             ___ ____ ___________

          Morey v. Commonwealth, 108 Mass. 433 (1871)).
          _____    ____________

The district court's decision therefore must be REVERSED.
          _________________________________________________________

____________________

          resurrected the  Grady analysis that the Court had just rejected.
                           _____
          Dixon, 113  S. Ct.  at 2866-67  (Rehnquist, C.J.,  concurring and
          _____
          dissenting).  See also  id. at 2857 n.2 (Scalia,  J., criticizing
                        ___ ____  ___
          Chief  Justice  Rehnquist's  interpretation of  his  analysis  of
          Harris).   Therefore, whether Harris still  provides an exception
          ______                        ______
          to Blockburger remains unclear post-Dixon.
             ___________                      _____

                                         -13-