USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1234
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR GUZMAN, a/k/a HECTOR GUZMAN RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED SATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
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Before
Selya and Cummings,* Circuit Judges,
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and Coffin, Senior Circuit Judge.
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Gabriel Hernandez Rivera on brief, and Hector Guzman Rivera,
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pro se ipso, on supplemental brief, for appellant.
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John C. Keeney, Acting Assistant Attorney General, Theresa
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M.B. Van Vliet and Philip Urofsky, Criminal Division, U.S. Dept.
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of Justice, and Guillermo Gil, United States Attorney, on brief
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for appellee.
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June 7, 1996
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*Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal raises, inter alia,
SELYA, Circuit Judge.
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the question whether defendant-appellant Hector Guzman Rivera
(Guzman) was twice put in jeopardy for the same offense, thus
violating his Fifth Amendment rights. Discerning neither a
constitutional flaw nor any other significant error, we affirm
the judgment below.
I. BACKGROUND
I. BACKGROUND
The indictment in this case arises out of an aborted
drug smuggle that took the appellant by sea from Puerto Rico to
the island of St. Maarten in the Netherlands Antilles.1
According to the appellant's uncontradicted allegations, Victor
Ayala, an agent of the United States Drug Enforcement
Administration (DEA), followed the LEE MARY (captained by the
appellant) to St. Maarten in August 1990, and then surveilled it
for two days. At this juncture Dutch authorities boarded the
ship, searched her, seized seventy-three kilograms of cocaine,
and detained several persons. The appellant alleges that Ayala
joined in the search, but the United States maintains that he
merely observed it from his surveillance post. At any rate, it
is undisputed that after the search had begun Ayala informed the
Dutch authorities of Guzman's involvement. Local police ran
Guzman to ground nearby and arrested him.
The Dutch government charged Guzman with a crime
involving possession of the cocaine stashed on board the LEE
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1Further details of the failed drug-smuggling operation can
be found in our opinion in United States v. LaBoy-Delgado, ___
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F.3d ___ (1st Cir. 1996) [No. 95-1863].
2
MARY. He was tried, convicted, and sentenced to a ten-year term
of immurement in St. Maarten. He escaped in May of 1992.
Approximately seven months later the DEA arrested him in Puerto
Rico when he attempted to sell heroin to an undercover agent.
After being found guilty of that crime he was sentenced to 147
months' imprisonment.
The appellant's troubles were not yet behind him: in
November of 1993, federal authorities in Puerto Rico indicted
several individuals (including Guzman) for the attempted smuggle
that had occurred in the summer of 1990. The charges against the
appellant included conspiring to possess, with intent to
distribute, in excess of five kilograms of cocaine, see 21 U.S.C.
___
841(a)(1) & 846; attempting to import cocaine into the United
States, see id. 952, 960, & 963; and aiding and abetting the
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commission of certain charged offenses, see 18 U.S.C. 2.
___
In due season the district court denied motions to
dismiss the indictment which posited, inter alia, that the
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bringing of charges violated the Double Jeopardy Clause, U.S.
Const. amend. V, cl.2, and that the delay in procuring the
indictment countervailed the Speedy Trial Act, 18 U.S.C. 3161-
3174. Rather than entrust his fate to a jury, the appellant
entered into a plea agreement with the government pursuant to
which he pleaded guilty to possession of cocaine with intent to
distribute. All other charges against him were dropped. The
district court imposed a sentence of seventy months in prison,
directing that the term run consecutive to the previously imposed
3
heroin-trafficking sentence. This appeal ensued.
II. ANALYSIS
II. ANALYSIS
In addition to the double jeopardy claim which has
been extensively briefed by Guzman's appellate counsel Guzman
himself advances four other assignments of error in a
supplemental pro se brief. We address all five claims.
A. Double Jeopardy.
A. Double Jeopardy.
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The appellant contends that the offense of conviction
in this case and the offense for which he was convicted in St.
Maarten are one and the same, thus triggering double jeopardy
concerns. Even though both cases involve the appellant's
possession of the identical seventy-three kilos of cocaine,
destined for importation into the United States via St. Maarten,
a towering obstacle looms: the two sets of charges were brought
by different governments. The black-letter rule is that
prosecutions undertaken by separate sovereign governments, no
matter how similar they may be in character, do not raise the
specter of double jeopardy as that constitutional doctrine is
commonly understood. See Heath v. Alabama, 474 U.S. 82, 88
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(1985); United States v. Lopez Andino, 831 F.2d 1164, 1167 (1st
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Cir. 1987), cert. denied, 486 U.S. 1034 (1988). This rule
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derives from the tenet that 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
can be prosecuted and punished for both. Heath, 474 U.S. at 88.
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The appellant concedes the general validity of this
4
"dual sovereign" rule, and recognizes that, if applicable in this
instance, it shields the United States from the successive
prosecution prong of the Double Jeopardy Clause. He argues
nonetheless that the shield is unavailable here because the
United States government orchestrated the St. Maarten
investigation and superintended the ensuing prosecution, thus
effectively merging the two sovereigns into one for double
jeopardy purposes.
The argument is not entirely without basis. In Bartkus
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v. Illinois, 359 U.S. 121, 131-33 (1959), the Supreme Court
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upheld the second of two convictions of a defendant who had been
prosecuted by two sovereigns the federal government and a state
for the same conduct. The Court indicated, however, that under
very limited circumstances successive prosecutions by separate
sovereigns might transgress the Double Jeopardy Clause. See id.
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at 123-24. Bartkus was not such a case because, there, the
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record did
not support the claim that the State of
Illinois in bringing its prosecution was
merely a tool of the federal authorities, who
thereby avoided the prohibition of the Fifth
Amendment against a retrial of a federal
prosecution after an acquittal. It does not
sustain a conclusion that the state
prosecution was a sham and a cover for a
federal prosecution, and thereby in essential
fact another federal prosecution.
Id.
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This language strongly suggests that defendants
prosecuted by two sovereign governments for the same conduct may
on occasion be able to invoke double jeopardy protection. While
5
some courts have brushed aside this language as dictum and hinted
that the Bartkus exception to the dual sovereign rule may not
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exist at all, see United States v. Paiz, 905 F.2d 1014, 1024 n.13
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(7th Cir. 1990), cert. denied, 499 U.S. 924 (1991); United States
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v. Patterson, 809 F.2d 244, 247 n.2 (5th Cir. 1987), most courts
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have treated the Bartkus intimation as good law. See, e.g.,
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United States v. Certain Real Property and Premises Known as 38
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Whalers Cove Dr., 954 F.2d 29, 38 (2d Cir. 1992), cert. denied,
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506 U.S. 815 (1992); United States v. Raymer, 941 F.2d 1031, 1037
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(10th Cir. 1991); United States v. Louisville Edible Oil Prods.,
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Inc., 926 F.2d 584, 587-88 (6th Cir. 1991); In re Kunstler, 914
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F.2d 505, 517 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991);
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United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir. 1987);
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United States v. Lane, 891 F. Supp. 8, 10 (D. Me. 1995); United
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States v. Bouthot, 685 F. Supp. 286, 294 (D. Mass. 1988).
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We find the gravitational pull of Bartkus irresistible.
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Indeed, we think that the exception is compelled by the bedrock
principles of dual sovereignty. See United States v. Liddy, 542
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F.2d 76, 79 (D.C. Cir. 1976) ("Bartkus, as we view it, stands for
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the proposition that federal authorities are proscribed from
manipulating state processes to accomplish that which they cannot
constitutionally do themselves. To hold otherwise would, of
course, result in a mockery of the dual sovereignty concept that
underlies our system of criminal justice.").
We emphasize that the Bartkus exception is narrow. It
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is limited to situations in which one sovereign so thoroughly
6
dominates or manipulates the prosecutorial machinery of another
that the latter retains little or no volition in its own
proceedings. See, e.g., United States v. Baptista-Rodriguez, 17
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F.3d 1354, 1361 (11th Cir. 1994); Whalers Cove, 954 F.2d at 38;
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Raymer, 941 F.2d at 1037; Kunstler, 914 F.2d at 517; Liddy, 542
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F.2d at 79.
Some courts have suggested that a defendant who seeks
shelter under the Bartkus exception bears the burden of proving
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that one sovereign dominated the other's acts. See, e.g.,
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Raymer, 941 F.2d at 1037; Liddy, 542 F.2d at 79. Nevertheless,
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this court has erected a framework that dictates a somewhat
different allocation of the burden. Under this matrix, the
defendant must proffer evidence sufficient to establish a prima
facie case that the two prosecutions were for the same offense.
If the defendant meets his entry-level burden by making an
adequate evidentiary showing to that effect, the devoir of
persuasion shifts to the government to prove that the offenses
are not identical.2 See United States v. Garcia-Rosa, 876 F.2d
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209, 229 (1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990);
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United States v. Booth, 673 F.2d 27, 30-31 (1st Cir.), cert.
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2Although a double jeopardy claim of the successive
prosection type is admittedly in the nature of an affirmative
defense to an indictment, there is nothing unorthodox about
requiring the government to bear the ultimate burden of proof
vis-a-vis the existence of an alleged constitutional violation
once sufficient evidence is adduced to put the question
legitimately into issue. See, e.g., United States v. Rodriguez,
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858 F.2d 809, 813-15 (1st Cir. 1988) (holding that if a defendant
identifies record evidence from which a jury could conclude that
the defendant was entrapped, the government must bear the burden
of proving that no entrapment occurred).
7
denied, 456 U.S. 978 (1982); see also United States v. Schinnell,
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80 F.3d 1064, 1066 (5th Cir. 1996) (employing same paradigm);
United States v. Inmon, 568 F.2d 326, 331-32 (3d Cir. 1977)
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(same); United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974)
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(same), cert. denied, 420 U.S. 995 (1975).
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In the Bartkus context, the question whether a
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defendant is being twice prosecuted for the same offense turns in
part on the applicability of the dual sovereign rule. See Heath,
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474 U.S. at 88. Thus, the defendant must produce some evidence
tending to prove that the rule should not apply because one
sovereign was a pawn of the other, with the result that the
notion of two supposedly independent prosecutions is merely a
sham. If the defendant proffers evidence sufficient to support
such a finding in effect, a prima facie case the government
must shoulder the burden of proving that one sovereign did not
orchestrate both prosecutions, or, put another way, that one
sovereign was not a tool of the other. See, e.g., United States
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v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990) (applying burden-
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shifting matrix in the Bartkus context).3
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3There is some controversy in the circuits over whether this
procedural matrix applies unreservedly both to interlocutory
review of double jeopardy claims and to direct appeals following
convictions. Compare United States v. Dortch, 5 F.3d 1056, 1060-
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61 (7th Cir. 1993) (holding that the defendant bears the burden
of proof on posttrial review), cert. denied, 114 S.Ct. 1077
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(1994) and United States v. Bendis, 681 F.2d 561, 564 (9th Cir.
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1981) (same), cert. denied, 459 U.S. 973 (1982) with United
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States v. Loyd, 743 F.2d 1555, 1563 (11th Cir. 1984) (applying
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standard burden-shifting framework to posttrial review); United
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States v. Adamo, 742 F.2d 927, 946-47 (6th Cir. 1984) (same),
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cert. denied, 469 U.S. 1193 (1985); United States v. Kalish, 690
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F.2d 1144, 1147 (5th Cir. 1982) (same), cert. denied, 459 U.S.
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8
In this case, it is crystal clear that the appellant
did not offer enough evidence to carry his entry-level burden.
Factually, his claim comes down to this: he asserts that Agent
Ayala traveled to St. Maarten, surveilled the LEE MARY, alerted
the St. Maarten police to the appellant's presence, participated
in the shipboard search (a fact that the United States contests),
and testified at the ensuing trial. Nothing in the appellant's
proffer remotely suggests that the Dutch authorities were merely
handmaidens of the DEA or that the Dutch prosecution was in
reality a prosecution undertaken sub rosa by the United States
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government. Even if all the appellant's facts stripped, of
course, of opprobrious epithets and unsupported conclusions are
taken at face value, those facts show nothing more than the
rendering of routine intergovernmental assistance. Cooperative
law enforcement efforts between independent sovereigns are
commendable, and, without more, such efforts will not furnish a
legally adequate basis for invoking the Bartkus exception to the
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dual sovereign rule. See Whalers Cove, 954 F.2d at 38; Paiz, 905
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F.2d at 1024.
Viewed against this legal and factual mise en sc ne,
the indictment in this case did not constitute a second
prosecution for the same offense within the purview of the Fifth
Amendment. Consequently, the district court did not err in
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1108 (1983); Mallah, 503 F.2d at 986 (same). See also Garcia-
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Rosa, 876 F.2d at 229 n.17 (noting the uncertainty). Since we
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hold that the appellant did not satisfy his entry-level burden,
we need not take sides on this controversial issue today.
9
denying the motion to dismiss the indictment on double jeopardy
grounds.
B. Speedy Trial Act.
B. Speedy Trial Act.
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The baseline premise of the Speedy Trial Act is the
requirement that a defendant has a right to be tried promptly
following his indictment or initial appearance before a judicial
officer (whichever first occurs). See United States v. Staula,
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80 F.3d 596, 600 (1st Cir. 1996). Juxtaposed with this
requirement is the requirement that, once arrested, a suspect
must be indicted or otherwise formally charged within thirty days
of his arrest. See 18 U.S.C. 3161(b). The appellant suggests
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two reasons why the government's actions in this case run afoul
of this latter proscription. Neither reason is persuasive.
1. The first iteration of the appellant's speedy trial
1.
claim embodies a repullulation of his double jeopardy analysis.
He asseverates that since the United States orchestrated his
arrest in St. Maarten, 18 U.S.C. 3161(b) required the United
States to indict him within thirty days of that arrest. This
asseveration elevates hope over reason, and we need not linger
long in dispatching it.
The Speedy Trial Act, in terms, applies only to the
conduct of the United States. Because we already have held that
the United States did not control, dominate, or manipulate the
actions of the Dutch authorities in respect to Guzman's arrest
and prosecution in St. Maarten, see supra Part II(A), the claim
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that the date of that arrest affected the movement of the speedy
10
trial clock in this case is without foundation. Arrest or
indictment by one sovereign does not engage the statutory
guarantee of a speedy trial in respect to a subsequent indictment
by a different sovereign. See United States v. MacDonald, 456
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U.S. 1, 10 n.11 (1982).
2. The second iteration of the appellant's speedy
2.
trial claim takes a somewhat divergent slant. He asserts that,
when he was arrested in Puerto Rico for heroin trafficking, the
United States knew of his 1990 involvement with the ill-fated
cocaine smuggle and, hence, the government was obliged to charge
him within thirty days of that arrest, see 18 U.S.C. 3161(b),
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or in the alternative, to seek a detainer from the Bureau of
Prisons (which had custody of him at the time), see id.
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3161(j)(1). This assertion is equally devoid of merit.
In the first place, the Speedy Trial Act requires that
a person arrested for a crime must be charged by indictment or
information within thirty days of his arrest "in connection with
such charges." Id. 3161(b). In this situation, the heroin-
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trafficking incident that led to the appellant's December 1992
arrest had no connection with his activity in St. Maarten two-
and-one-half years earlier. It follows, therefore, that since
the authorities did not arrest the appellant in 1992 for a crime
related to his St. Maarten conduct, the Speedy Trial Act did not
require that he be charged with the cocaine-smuggling crime
within thirty days of that arrest. See United States v. Orbino,
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981 F.2d 1035, 1036-37 (9th Cir. 1992), cert. denied, 114 S. Ct.
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11
256 (1993); United States v. Savage, 863 F.2d 595, 597-98 (8th
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Cir. 1988), cert. denied, 490 U.S. 1082 (1989).
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In the second place, 18 U.S.C. 3161(j)(1) applies
only to a person who has been "charged with an offense." In this
instance, the appellant was not charged with the offenses of
conspiracy to possess with intent to distribute and attempted
importation until the end of 1993. Until it brought such a
charge, the government had no obligation to file a detainer with
the Bureau of Prisons.4
C. Plea Agreement.
C. Plea Agreement.
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The appellant contends that the government breached the
plea agreement. He tells us that the U.S. Attorney's office
promised it would not oppose a recommendation for a concurrent
sentence, but the prosecutor instead argued successfully for a
consecutive sentence.
This contention is baseless.5 The plea agreement
signed by the appellant specifically, explicitly, and
unambiguously states: "The United States and the defendant agree
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4To cinch matters, the law is pellucid that the dismissal of
an indictment is not a suitable remedy for a violation of 18
U.S.C. 3161(j)(1). See United States v. Wickham, 30 F.3d 1252,
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1255 (9th Cir. 1994); United States v. Dawn, 900 F.2d 1132, 1135-
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36 (7th Cir.), cert. denied, 498 U.S. 949 (1990); United States
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v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985).
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5As an initial matter, we note that the appellant did not
raise the issue of the government's alleged breach before the
district court. The question of procedural default vis-a-vis
claims involving breached plea agreements has divided the courts
of appeals. See United States v. Gonzalez-Perdomo, 980 F.2d 13,
___ _____________ ________________
15-16 (1st Cir. 1992) (collecting cases). We need not enter this
thicket today because we find the appellant's claim of breach to
be without basis.
12
that the sentence to be imposed in this case shall run
consecutive to any other sentence of imprisonment that the
defendant is currently serving." The plea agreement also
contains an integration clause that provides: "This written
agreement constitutes the complete plea agreement between the
United States, the defendant, and the defendant's counsel. The
United States has made no promises or representations except as
set forth in writing in this plea agreement." The questionnaire
that the appellant completed in advance of the change-of-plea
colloquy is consistent with these understandings.6 The
appellant has made no allegation that he was coerced into signing
the plea agreement, that he was misled as to its contents, or
that the questionnaire is bogus.
In short, the appellant identifies nothing that would
justify an objectively reasonable expectation that the plea
agreement meant anything other than what it plainly says. Since
the government abided faithfully by the clear terms of its
written agreement, we have no warrant to set aside the sentence
imposed by the district court. See United States v. Hogan, 862
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F.2d 386, 388 (1st Cir. 1988).
D. Ineffective Assistance of Counsel.
D. Ineffective Assistance of Counsel.
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The appellant claims that his trial counsel provided
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6The record does not contain a transcript of the change-of-
plea hearing. We must assume, therefore, that the appellant's
answers to the judge's questions did not differ from the written
questionnaire. See, e.g., Moore v. Murphy, 47 F.3d 8, 10-11 (1st
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Cir. 1995) (explaining that the appellant must bear the onus of
an incomplete record on appeal); Real v. Hogan, 828 F.2d 58, 60
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(1st Cir. 1987) (similar).
13
him with ineffective assistance by failing to (1) file
appropriate pretrial motions, (2) notify the sentencing court of
health problems afflicting his family, and (3) make a proper
request for the return of property. The rule is firmly settled
in this circuit that "fact-specific claims of ineffective
assistance cannot make their debut on direct review of criminal
convictions." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.
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1993) (explaining the rule and collecting cases), cert. denied,
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114 S. Ct. 1839 (1994). While we have made occasional exceptions
to the rule in certain idiosyncratic circumstances, see, e.g.,
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United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),
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cert. denied, 502 U.S. 1079 (1992), this case does not fall
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within the isthmian confines of any recognized exception.
Because the appellant did not present this claim of ineffective
assistance to the lower court, we decline to consider it.7
E. Seizure of Property.
E. Seizure of Property.
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Under the Criminal Rules, a person deprived of property
"may move the district court for the district in which the
property was seized for the return of the property on the ground
that such person is entitled to lawful possession of the
property." Fed. R. Crim. P. 41(e). Acting pro se, Guzman made
such a motion below; in it, he claimed entitlement to certain
items allegedly seized from him at the time of his initial arrest
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7Of course, our disposition does not prejudice the
appellant's right to raise a claim of ineffective assistance of
counsel in a petition for postconviction relief under 28 U.S.C.
2255. See Mala, 7 F.3d at 1064.
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14
in St. Maarten. He also claimed entitlement to a tool box,
together with its contents, alleging that the tool box was inside
a car, belonging to his sister, that federal authorities seized
in Puerto Rico. The district court found that the property
seized in St. Maarten was taken not by the United States but by
the Netherlands Antilles, and that, therefore, the court lacked
jurisdiction to order its return.8 However, the district court
did not rule on the appellant's motion insofar as it pertained to
the tool box's confiscation. The appellant did not ask for
reconsideration based on this oversight. He nevertheless
attempts to appeal from the court's failure to direct that the
tool box be returned.
The government's brief misses the appellant's point.
It contends, correctly, that Guzman never made a claim of
ownership referable to the car, and thus does not have standing
to contest its seizure. Cf. United States v. One Parcel of Real
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Property . . . Known as Plat 20, Lot 17, 960 F.2d 200, 206 n.3
_________________________________________
(1st Cir. 1992) (noting that a person who does not claim
ownership cannot contest the civil forfeiture of property);
United States v. One Parcel of Real Property . . . Known as 116
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Emerson Street, 942 F.2d 74, 78 (1st Cir. 1991) (same). But this
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observation does not in any way trump the appellant's insistence
that he owns, and is entitled to the return of, the tool box and
its contents.
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8On appeal, the appellant does not challenge this ruling,
and we do not address it.
15
Although the appellant's point is arguable, it is
separable from, and has no effect upon, the appellant's
conviction and sentence. A defendant may bring an independent
civil action for the return of property even if the underlying
criminal case has been closed. See United States v. Garcia, 65
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F.3d 17, 19-20 (4th Cir. 1995); United States v. Giraldo, 45 F.3d
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509, 511 (1st Cir. 1995); United States v. Giovanelli, 998 F.2d
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116, 118-19 (2d Cir. 1993). Since such a complaint serves as the
functional equivalent of a Rule 41(e) motion, we perceive no need
to prolong this case in order to pursue the point (especially in
view of the fact that the district court made no findings in
regard to the tool box). We therefore deny Guzman's request for
relief vis-a-vis the tool box, without prejudice to his right to
bring a separate civil action to compel its return. See United
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States v. $8,850, 461 U.S. 555, 569 (1983).
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III. CONCLUSION
III. CONCLUSION
We need go no further. For aught that appears, Guzman
was lawfully prosecuted, justly convicted, and appropriately
sentenced. His conviction and sentence must therefore be
Affirmed.
Affirmed.
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16