United States v. Ramirez Burgos

• Court: Court of Appeals for the First Circuit
• Decided: January 5, 1995
• Docket: 94-1738
• Status: Published

Opinion

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

No. 94-1738
                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                JULIO RAMIREZ-BURGOS,

                                      Appellant.

                                                    
                                  __________________

ERRATA SHEET

The opinion of this  Court, issued January 5, 1995, is amended as
        follows:

             Page 5, l.11:  "Ramirez" in place of "Ramirez"
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UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________

        No. 94-1738

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                JULIO RAMIREZ-BURGOS,

                                      Appellant.

                                                     
                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
                                          __________________________

                                                     
                                 ____________________

Before

                               Torruella, Chief Judge,
                                          ___________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                                                     
                                 ____________________

Olga M. Shepard for appellant.
             _______________
             Juan  A. Pedrosa,  Assistant United  States  Attorney, with  whom
             ________________
        Guillermo Gil, United States Attorney, was on brief for appellee.
        _____________

____________________

                                   January 5, 1995
                                                     
                                 ____________________



CYR,  Circuit Judge.   Defendant  Julio  Ramirez Burgos
                    CYR,  Circuit Judge
                          _____________

          brought  this appeal from  an interlocutory district  court order

          rejecting his  pretrial motion to  dismiss Count III in  a three-

          count indictment.  Counts I  and II charge separate  carjackings,

          in  violation of  18 U.S.C.    2119, and  Count III  charges that

          Ramirez used or carried a firearm during crimes of violence, viz.
                                                                       ___

          the carjackings alleged in  Counts I and II,  in violation of  18

          U.S.C.   924(c).  Ramirez claims  that the government may not try

          him on  either Count  I or  Count II  and on  Count III,  without
                                                ___

          violating the Double Jeopardy Clause of the United States Consti-

          tution, because the identical evidential elements are required to

          establish  a carjacking charge and the   924(c) violation charged

          in Count  III.1  After denying  the motion to dismiss  Count III,

          the district court  stayed further proceedings pending  an inter-

          locutory appeal.

                    The Supreme Court  has admonished that the  final judg-

          ment rule,  see 28 U.S.C.    1291, "is strongest in  the criminal
                      ___

          context," Flanagan v.  United States, 465  U.S. 259, 265  (1984),
                    ________     _____________

          since  the "'delays and  disruptions attendant  upon intermediate

          appeal are especially inimical to the effective and fair adminis-

          tration of the criminal law.'"   Abney v. United States, 431 U.S.
                                           _____    _____________

          651, 657 (1977) (quoting DiBella  v. United States, 369 U.S. 121,
                                   _______     _____________

          126 (1962)).   We must  therefore determine whether  the district

          court  order  is  immediately appealable  under  the  "collateral
                              
          ____________________

               1We express no view whatever on the relevance or correctness
          of Ramirez's assumption.   See Blockburger v.  United States, 284
                                     ___ ___________     _____________
          U.S. 299 (1932). 

                                          3



order" doctrine.  See Cohen  v. Beneficial Industrial Loan Corp.,
                            ___ _____     ________________________________

          337 U.S. 541, 545 (1949)  (holding that a recognized exception to

          the final judgment rule exists  for a "small class [of interlocu-

          tory  orders] which finally  determine claims of  right separable

          from,  and collateral  to,  rights asserted  in  the action,  too

          important to  be denied review  and too independent of  the cause

          itself  to require that appellate consideration be deferred until

          the whole case is adjudicated.")

                    The  Double Jeopardy  Clause safeguards  against (i)  a

          second prosecution  following acquittal  or final  conviction for

          the  same offense  and  (ii) multiple  punishments  for the  same

          offense.   United States  v. Rivera-Martinez,  931 F.2d 148,  152
                     _____________     _______________

          (1st Cir.),  cert. denied,  112 S. Ct.  184 (1991)  (citing North
                       _____ ______                                   _____

          Carolina v. Pearce, 395 U.S. 711, 717 (1969)).  The Supreme Court
          ________    ______

          held in Abney  that an order denying a pretrial motion to dismiss
                  _____

          based on  a claim  of former jeopardy  is immediately  appealable

          under the collateral order doctrine.   Abney, 431 U.S. at 659-61.
                                                 _____

          The  Court reasoned  that  only  an  interlocutory  appeal  could

          protect the defendant from the "strain, public embarrassment, and

          expense of a criminal trial more than once for the same offense."

          Id. at 661.  Abney,  nevertheless, is not carte blanche authority
          ___          _____

          for all interlocutory  appeals brought under the  Double Jeopardy

          banner, since  some such claims  do not meet the  requirements of

          the "collateral order"  doctrine.  The interlocutory  order chal-

          lenged by Ramirez falls into the latter category, since it simply

          disallowed  a  "multiple  punishment"  claim  masquerading  as  a

4



"former jeopardy" claim.

                    We believe the  Abney branch of the  "collateral order"
                                    _____

          exception to the  final judgment rule is limited  to the "special

          circumstances  permeating"  former jeopardy  claims.   Abney, 431
                                      ______ ________            _____

          U.S. at 663 (emphasis added).  

                    Ramirez argues that  a simultaneous trial on  Count III

          and  Counts I/II  would entail  "former  jeopardy" because  these

          counts require identical elements of proof.  However, the Supreme

          Court has  distinguished between  the "double  jeopardy" problems

          posed  by a  simultaneous trial  and by  successive trials.   See
                                                                        ___

          United States v. Halper, 490 U.S. 435 (1989).   In a simultaneous
          _____________    ______

          trial, the  multiple punishment  inquiry focuses  on whether  the

          legislature  has  authorized  multiple  punishments,  as  it  may

          lawfully do.   Ohio v. Johnson, 467 U.S. 493, 499-500 (1984).  In
                         ____    _______

          successive trials, on the other hand, "the Double Jeopardy Clause

          protects against the  possibility that the Government  is seeking

          the second punishment  because it is dissatisfied  with the sanc-

          tion obtained in the first proceeding."  Halper, 490 U.S. at 451,
                                                   ______

          n.10.  

                    The Halper Court foreclosed Ramirez's multiple  punish-
                        ______

          ment  claim.   There, the  Court  held that  a civil  proceeding,

          punitive in nature,  which followed a criminal trial  on the same

          set of facts, violated the  Double Jeopardy Clause.  Id.  at 448.
                                                               ___

          The Court nevertheless  stated that  its ruling  did not  prevent

          "the  Government from seeking  and obtaining both  the full civil

          penalty and  the full  range of  statutorily authorized  criminal

5



penalties in  the same  proceeding.  In  a single  proceeding the

          multiple  punishment issue would be limited  to ensuring that the

          total  punishment did not exceed  that authorized by the legisla-

          ture."  Id. at 450.
                  ___

6



In United  States v. Sorren,  605 F.2d 1211,  1215 (1st
                       ______________    ______

          Cir.  1979),  we  indicated that  our  analysis  of interlocutory

          appellate jurisdiction  turns upon  whether the  implicated right

          was "incapable of vindication on  appeal."  The challenge  raised

          in the  instant interlocutory appeal  can be fully  vindicated on

          appeal from  a final  judgment of conviction  and sentence.   See
                                                                        ___

          United States v. Abreu, 952  F.2d 1458, 1465 (1st Cir.) (vacating
          _____________    _____

          sentence in post-conviction appeal based upon multiple punishment

          claim), cert.  denied, 112 S. Ct. 1695  (1992);  Rivera-Martinez,
                  _____  ______                            _______________

          931 F.2d at  153 (same).  An interlocutory appeal  in the present
                                    

          case would  not serve the  purposes envisioned in  Abney, because
                                                             _____

          Ramirez would have to stand trial on the remaining counts even if

          Count III  were dismissed.   See United  States v.  McHenry, 1993
                                       ___ ______________     _______

          U.S. App. LEXIS 12553, at *2 (6th Cir. May 19,  1993) (interlocu-

          tory appeal  of double  jeopardy claim raised  in   924(c)  and  

          2119  context; dismissed for lack of jurisdiction); United States
                                                              _____________

          v. Witten, 965  F.2d 774, 775-76 (9th Cir.  1992) (similar).  The
             ______

          Supreme Court has  emphasized "the crucial distinction  between a

          right not be tried and a right whose remedy requires the dismiss-

          al of charges.  The former necessarily falls into the category of

          rights that  can be  enjoyed only if  vindicated prior  to trial.

          The  latter does not."  United  States v. Hollywood Motor Car Co.
                                  ______________    _______________________

          Inc., 458 U.S. 263, 269 (1982).
          ____

7



As  we lack  appellate jurisdiction,  the interlocutory

          appeal must be dismissed.2  

                    Appeal dismissed for lack of jurisdiction.
                    Appeal dismissed for lack of jurisdiction.
                    ______ _________ ___ ____ __ ____________

____________________

               2At this juncture,  we take no position on whether Congress,
          by  its enactment  of  18  U.S.C.    924(c),  intended  "multiple
          punishments."

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