U.S. v. Bonilla Romero, 87-1052

• Citation: 836 F.2d 39
• Decision Date: 15 September 1987
• Docket Number: No. 87-1052,87-1052
• Parties: UNITED STATES of America, Appellee, v. Felipe BONILLA ROMERO, a/k/a "Felo Bonilla," Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 39

836 F.2d 39

UNITED STATES of America, Appellee, v. Felipe BONILLA ROMERO, a/k/a "Felo Bonilla," Defendant, Appellant.

No. 87-1052.

United States Court of Appeals, First Circuit.

Heard Sept. 15, 1987.

Decided Dec. 30, 1987.

Rehearing and Rehearing En Banc Denied Feb. 17, 1988.

Frank A. Ortiz with whom Francisco M. Lopez-Romo, San Juan, P.R., was on brief, for defendant, appellant.

Juan A. Pedrosa, Asst. U.S. Atty., Criminal Div., San Juan, P.R., with whom Jose A. Quiles, Acting U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Felipe Bonilla Romero appeals his conviction and subsequent sentence on four counts of federal drug and firearm violations. We affirm.

During a surveillance of Bonilla's home on September 18, 1985, a Puerto Rico government agent witnessed evidence of two drug transactions. The agent subsequently saw Bonilla leave his home by car in possession of a pistol and communicated this fact to other Puerto Rico officers. These officers arrested appellant and, during a search of his car, found the pistol and small amounts of cocaine and heroin. He was then arraigned on weapons and drug charges under Puerto Rico law and released on bail.

The following day a warrant for the search of Bonilla's home was issued on the basis of affidavits of two officers involved in the previous day's surveillance and arrest and the evidence seized during the arrest. Appellant's home was searched, another gun and approximately one-tenth of a kilogram of heroin and cocaine were found, and appellant again was arrested. He was arraigned on further weapons and drug charges under Puerto Rico law.

Five months later, on February 19, 1986, appellant was indicted on the basis of this evidence in the United States District Court for the District of Puerto Rico on one count of possession with intent to distribute heroin and one count of possession with intent to distribute cocaine, both pursuant to 21 U.S.C. Sec. 841(a)(1), and on two counts of receiving firearms in interstate commerce by a known felon. A fifth count, not at issue here, was later dismissed.

After a suppression hearing conducted at the end of April, 1986, a judge of the Superior Court of Puerto Rico announced he would grant appellant's motion to suppress, for purposes of the local prosecution, the evidence seized on September 18 and 19. The judge seriously doubted the veracity of the officers whose testimony was presented to support the warrantless search of Bonilla's car and whose affidavits were the basis of the search warrant used to search his home. The local prosecution subsequently was dismissed and the decision to suppress is on appeal to the Supreme Court of Puerto Rico.

Appellant was not similarly successful in federal district court. The district judge there held that the federal court was not bound by the decision of the local court to suppress the evidence. He held a hearing de novo on the matter and denied appellant's motion to suppress, 639 F.Supp. 1021. At a subsequent bench trial, Bonilla was convicted on all four counts. He received the maximum sentence allowed by statute of fifteen years each, to run consecutively, on the heroin and cocaine charges, and concurrent five year sentences on each of the two firearms charges.

Appellant's allegations can be grouped into five issues. He alleges (1) the government was allowed to relitigate a suppression of evidence issue in violation of the double jeopardy clause; (2) the relitigation of the issue was violative of collateral estoppel principles; (3) he was denied a fair hearing on the suppression issue; (4) the district court abused its discretion in failing to suppress the evidence; and (5) the imposition of the consecutive maximum sentences on the two drug charges was contrary to statute and subjected him to cruel and unusual punishment. We address each allegation in turn below.

Double Jeopardy

Appellant contends the district court was precluded from hearing the federal charges against him due to the restrictions imposed by the double jeopardy clause of the fifth amendment of the United States Constitution. He concedes that his trial in the Puerto Rico Superior Court never commenced, yet argues that the dismissal of charges there prior to trial was equivalent to a dismissal for insufficiency of evidence during trial. Since the latter recently has been held to be a bar to further prosecution, see Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), he argues further prosecution of the charges against him is similarly barred. Appellant maintains that "there is no rational distinction" for double jeopardy purposes between a dismissal due to the exclusion of indispensable evidence after a pretrial hearing, and dismissal during trial after a successful objection to the introduction of the same evidence. He suggests that the double jeopardy clause demands the same outcome regardless of whether a defendant has ever been put to trial.

The double jeopardy clause, however, is not a game rule designed to ensure uniformity of result regardless of pretrial strategy or rules of procedure. Rather, the basic principle underlying the constitutional prohibition against double jeopardy is that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). See also Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). A defendant who successfully argues a pretrial motion is not subjected to the "embarrassment, expense and ordeal" of a trial. See Serfass, 420 U.S. at 391, 95 S.Ct. at 1064. Nor does he suffer the "anxiety and insecurity" of having his guilt or innocence finally determined. Indeed, it is only through repeated exposure to trial that the state enhances the possibility that the defendant "even though innocent ... may be found guilty," 355 U.S. at 188, 78 S.Ct. at 223, and it is only at trial that one is truly "put in jeopardy of life or limb." U.S. Const. amend. V.

It is now well-settled law, therefore, that jeopardy "attaches" when a trial commences; that is, when a jury is sworn or empanelled or, in a bench trial, when the judge begins to hear evidence. Willhauck v. Flanagan, 448 U.S. 1323, 1325-26, 101 S.Ct. 10, 11-12, 65 L.Ed.2d 1147 (1980); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); Serfass, 420 U.S. at 388, 95 S.Ct. at 1062; Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1074, 35 L.Ed.2d 425 (1973) (White, J., dissenting). We know of no case, and appellant has referred to none, in which jeopardy has been found to have attached prior to either of these events. ¹ Appellant believes he is asking us "to break new ground"; he is, however, asking us to bring down the house. We decline to do so. We thus hold that jeopardy did not attach as a result of the suppression of evidence ordered after hearing by the Puerto Rico Superior Court and the subsequent dismissal of charges under Puerto Rico law. Therefore, federal officials did not violate appellant's constitutional right not to be put into jeopardy twice for the same crime. ²

Collateral Estoppel

Appellant alternatively argues that, regardless of whether jeopardy attached, relitigation of the suppression issue was barred by the principle of collateral estoppel (now more accurately referred to as "issue preclusion"). It is true that the Supreme Court, in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), held that collateral estoppel principles can be a bar to further litigation of an issue decided in a criminal defendant's favor. However, that holding, involving relitigation of an issue necessarily determined in the defendant's favor as a result of his acquittal after trial on a prior charge, was squarely based on the Fifth Amendment's guarantee against double jeopardy. Id. at 445, 90 S.Ct. at 1195. Since, in this case, jeopardy never attached during the local prosecution, Ashe is not controlling.

One circuit, however, has suggested that collateral estoppel principles prohibit a government entity from relitigating a pretrial suppression order in a criminal case. United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1265-67 (2d Cir.1975) (denial of suppression of evidence upheld on other grounds), cert. denied, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976). In that opinion, while agreeing that Ashe is inapplicable when jeopardy has not attached, Judge Friendly indicated that, in criminal proceedings, collateral estoppel is nonetheless required by due process regardless of whether jeopardy has attached. Id. at 1266. See also United States v. Evans, 655 F.Supp. 243 (E.D.La.1987) (adopting Judge Friendly's suggestion as basis for holding government prohibited from relitigating admissibility of evidence). ³

While recognizing the merits of Judge Friendly's argument, we find it unnecessary to decide this important constitutional issue at this time inasmuch as the requirements of collateral estoppel are not satisfied by the facts of this case. The requirements of that doctrine include, inter alia, that the party to be precluded from relitigating an issue decided in a previous litigation was either a party or in privity with a party to that prior litigation. See generally 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice paragraphs 0.441, 0.443 (2d ed. 1984); Restatement (Second) of Judgments Secs. 27, 39, 41 (1982). In ...