U.S. v. Guzman

• Decision Date: 07 June 1996
• Docket Number: No. 95-1234,95-1234
• Citation: 85 F.3d 823
• Parties: UNITED STATES of America, Appellee, v. Hector GUZMAN, a/k/a Hector Guzman Rivera, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 823

85 F.3d 823

UNITED STATES of America, Appellee, v. Hector GUZMAN, a/k/a Hector Guzman Rivera, Defendant, Appellant.

No. 95-1234.

United States Court of Appeals, First Circuit.

Submitted May 6, 1996.

Decided June 7, 1996.

Gabriel Hernandez Rivera on brief, and Hector Guzman Rivera, pro se ipso, on supplemental brief, for appellant.

John C. Keeney, Acting Assistant Attorney General, Theresa M.B. Van Vliet and Philip Urofsky, Criminal Division, U.S. Dept. of Justice, and Guillermo Gil, United States Attorney, on brief for appellee.

Before SELYA and CUMMINGS, ^* Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

This appeal raises, inter alia, 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

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 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 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 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 heroin-trafficking sentence. This appeal ensued.

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.

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, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); United States v. Lopez Andino, 831 F.2d 1164, 1167 (1st Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100 L.Ed.2d 605 (1988). This rule 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, 106 S.Ct. at 437.

The appellant concedes the general validity of this "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 v. Illinois, 359 U.S. 121, 131-33, 79 S.Ct. 676, 683-84, 3 L.Ed.2d 684 (1959), the Supreme Court 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. at 123-24, 79 S.Ct. at 678-79. Bartkus was not such a case because, there, the 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.

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 some courts have brushed aside this language as dictum and hinted that the Bartkus exception to the dual sovereign rule may not exist at all, see United States v. Paiz, 905 F.2d 1014, 1024 n. 13 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991); United States v. Patterson, 809 F.2d 244, 247 n. 2 (5th Cir.1987), most courts have treated the Bartkus intimation as good law. See, e.g., United States v. Certain Real Property and Premises Known as 38 Whalers Cove Dr., 954 F.2d 29, 38 (2d Cir.1992), cert. denied, 506 U.S 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992); United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.1991); United States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587-88 (6th Cir.1991); In re Kunstler, 914 F.2d 505, 517 (4th Cir.1990), cert. denied, 499 U.S. 969, 111 S.Ct. 1607, 113 L.Ed.2d 669 (1991); United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir.1987); United States v. Lane, 891 F.Supp. 8, 10 (D.Me.1995); United States v. Bouthot, 685 F.Supp. 286, 294 (D.Mass.1988).

We find the gravitational pull of Bartkus irresistible. Indeed, we think that the exception is compelled by the bedrock principles of dual sovereignty. See United States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976) ("Bartkus, as we view it, stands for 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 is limited to situations in which one sovereign so thoroughly 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 F.3d 1354, 1361 (11th Cir.1994); Whalers Cove, 954 F.2d at 38; Raymer, 941 F.2d at 1037; Kunstler, 914 F.2d at 517; Liddy, 542 F.2d at 79.

Some courts have suggested that a defendant who seeks shelter under the Bartkus exception bears the burden of proving that one sovereign dominated the other's acts. See, e.g., Raymer, 941 F.2d at 1037; Liddy, 542 F.2d at 79. Nevertheless, 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 209, 229 (1st Cir.1989), cert. denied, 493 U.S. 1030, 110 S.Ct. 742, 107 L.Ed.2d 760 (1990); United States v. Booth, 673 F.2d 27, 30-31 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982); see also United States v. Schinnell, 80 F.3d 1064, 1066 (5th Cir.1996) (employing same paradigm); United States v. Inmon, 568 F.2d 326, 331-32 (3d Cir.1977) (same); United States v. Mallah, 503 F.2d 971, 986 (2d Cir.1974) (same), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).

In the Bartkus context, the...