United States Court of Appeals For the First Circuit

No. 19-1003

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ REYES-CORREA, a/k/a Bondo,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Dyk,* and Barron, Circuit Judges.

Julio César Alejandro Serrano for appellant. Kelley Brooke Hostetler, Attorney, Criminal Appellate Section, United States Department of Justice, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

August 14, 2020

* Of the Federal Circuit, sitting by designation. BARRON, Circuit Judge. José Reyes-Correa ("Reyes") was

indicted in 2017 in the United States District Court for the

District of Puerto Rico for committing a federal drug conspiracy

offense. He moved to dismiss the indictment under the Double

Jeopardy Clause of the United States Constitution based on his

prior conviction in a Commonwealth court for a local drug offense.

The District Court denied the motion, and Reyes filed this

interlocutory appeal challenging that denial. We reverse.

I.

The undisputed facts are as follows. An officer of the

Puerto Rico police, Anthony Hernandez, reported observing Reyes

engaging in drug transactions on November 18 and 19 of 2015 at the

Fernando Luis García Housing Project in Utuado, Puerto Rico.1

Based on those reported observations, Puerto Rico police officers

the next day obtained a warrant and searched Reyes's apartment in

the complex, where they found forty-one baggies of crack cocaine.

A number of weeks later, in January of 2016, Reyes was

charged in a local court in Puerto Rico with possession with intent

to distribute under Article 401 of the Puerto Rico Controlled

Substances Act on the basis of his alleged conduct at the Fernando

Luis García Housing Project. See P.R. Laws Ann. tit. 24,

1 The record suggests that the District Court's reference to the "Fernando L. Alegría housing project" in its order denying the motion to dismiss is an error.

- 2 - § 2401(a)(1). On March 15, 2016, however, Reyes pleaded guilty

based on that same conduct to a different offense: a violation of

Article 406 of the Puerto Rico Controlled Substances Act, which

criminalizes "attempt[ing] or conspir[ing] to commit" any of the

substantive offenses criminalized by the Act, id. § 2406, which

include those set forth by Article 401, see id. § 2401, as well as

those set forth by Article 404, which criminalizes simple

possession of a controlled substance, see id. § 2404(a).

About sixteen months after entering his guilty plea for

that offense, on July 13, 2017, Reyes was then named in a federal

indictment in the United States District Court for the District of

Puerto Rico. That indictment alleged that Reyes and twenty-six

co-defendants were participants in a decade-long drug conspiracy

involving the trafficking of crack cocaine and other drugs near

two public housing projects in Utuando, Puerto Rico, one of which

was the Fernando Luis García Public Housing Project.

The federal indictment charged Reyes with five drug-

related federal offenses, including, of particular note here,

conspiracy to possess with intent to distribute controlled

substances in violation of

. The federal indictment

also charged him with four counts of aiding and abetting possession

with intent to distribute controlled substances in violation of

(a)(1), each for a different drug: heroin, cocaine,

cocaine base, and marijuana, respectively.

- 3 - "The Double Jeopardy Clause of the Fifth Amendment [to

the United States Constitution] prohibits more than one

prosecution for the 'same offence.'" Puerto Rico v. Sánchez Valle,

(2016). The United States Supreme Court has

long held -- and has recently reaffirmed -- that separate

sovereigns may separately prosecute the same defendant for the

same criminal conduct without violating the defendant's double

jeopardy rights. See Gamble v. United States,

(2019). But, the Court has also recently held that the Puerto

Rico government and the United States federal government are not

separate sovereigns for double jeopardy purposes. See Sánchez

Valle,

. Thus, those two governments may not

"successively prosecute a single defendant for the same criminal

conduct."

.

Based on Sánchez Valle, Reyes moved to dismiss on double

jeopardy grounds the § 846 conspiracy count that he faced in his

federal indictment on the ground that his prior Article 406

conviction was for the same criminal conduct that the § 846 count

charged him with committing. The District Court denied the motion

because it determined that "the charges for which [Reyes] was

already convicted and sentenced at the Commonwealth level and the

charges brought in this case are not the same offense." Reyes now

contests that ruling in this timely interlocutory appeal, in which

he seeks the dismissal of the count in the federal indictment that

- 4 - charges him with violating

. See Abney v. United

States,

(1977).

II.

The same sovereign may not "target . . . identical

criminal conduct through equivalent criminal laws." Sánchez

Valle,

. Two laws "are not the same if they

each 'require[] proof of [an additional] fact which the other does

not.'" United States v. Lanoue,

(1st Cir. 1998)

(alteration-s in original) (quoting Blockburger v. United States,

(1932)); see also Gamble,

(noting "the long-settled rule that an 'offence' for double

jeopardy purposes is defined by statutory elements, not by what

might be described in a looser sense as a unit of criminal

conduct").

The key question for us is whether the § 846 count for

conspiracy to possess a controlled substance with an intent to

distribute set forth in the federal indictment charges Reyes with

identical criminal conduct for committing the same criminal

offense for which, in light of his Article 406 conviction, he has

already been prosecuted. "A defendant claiming double jeopardy

has the burden of presenting evidence to establish a prima facie

nonfrivolous double jeopardy claim." United States v. Booth,

(1st Cir. 1982). It is only "[o]nce such a claim is

established" that "the burden shifts to the government to prove by

- 5 - a preponderance of the evidence that the indictments charge

separate offenses."

. Our review is de novo. See

Sampson v. United States,

(1st Cir. 2016).2

A.

The parties agree that Article 406 sets forth distinct

"attempt" and "conspiracy" crimes as a matter of Puerto Rico law,

and Reyes does not dispute that, for double jeopardy purposes,

"[c]onspiracy to commit an unlawful act and attempt to commit an

unlawful act are distinct offenses," as they encompass non-

overlapping elements. United States v. George,

(1st Cir. 1985). Compare

(providing

that "attempt" crimes in Puerto Rico require proof of an act or

omission "unequivocally and instantaneously directed toward

initiating the commission of a crime") and United States v.

Benítez-Beltrán,

(1st Cir. 2018) (noting that a

previous version of the attempt statute, requiring acts or

omissions "unequivocally directed to the execution of an offense,"

seems to require at least a substantial step), with United States

v. Shabani,

(1994) (holding that the federal drug

2The government argues that Reyes has waived his double jeopardy claim "by failing to provide any record citations in support of his argument." But, it points to no cases demanding such a strict waiver rule, and we decline to apply one. The government also contends that Reyes waived his double jeopardy claim by failing to explicitly argue that he satisfied his burden to establish a prima facie claim. Fairly construed, however, much of his brief was devoted to making that precise argument.

- 6 - conspiracy charge at issue under § 846 does not require proof of

an actus reus beyond "the criminal agreement itself"). Moreover,

the parties agree that Reyes's conviction under Article 406 was

not formally recorded as one for the conspiracy rather than the

attempt variant of that offense or vice versa. Thus, the Puerto

Rico judgment of conviction does not in and of itself show -- on

its face -- either that he was convicted of a conspiracy rather

than an attempt offense pursuant to Article 406 or that he was

not.

In addition, the government contends that, although

Reyes was initially charged under Article 401 in Puerto Rico court

with "knowingly or intentionally . . . possess[ing] with the

intent to . . . distribute . . . a controlled substance,"

(a)(1), the judgment for his Article 406

conviction does not specify -- on its face -- the substantive

offense that he was convicted of either attempting or conspiring

to commit. Here, too, Reyes does not take issue with the

government's characterization of the judgment.

In front of the District Court, however, the government

did not premise its defense against Reyes's double jeopardy

challenge on the fact that the judgment of conviction for his

Article 406 conviction was not clear in these respects. The

government did not at any point develop an argument disputing

Reyes's contention that he had been convicted of conspiring to

- 7 - violate Article 401. Instead, it argued that, even accepting that

Reyes's Article 406 conviction was for the conspiracy variant of

that offense and that the substantive offense that he was convicted

of conspiring to commit in violation of Article 406 was an Article

401 offense, there still was no double jeopardy bar to the federal

government prosecuting Reyes under

for conspiring

to possess with intent to distribute controlled substances.

The government advanced this contention primarily by

arguing that Reyes's involvement in the alleged federal drug

conspiracy charged in the federal § 846 count continued after his

arrest for the conduct that led to his Article 406 conviction. On

that basis, the government contended that his prosecution for the

federal § 846 offense was not for the identical criminal conduct

that he already had been prosecuted for under Puerto Rico law.

In its brief on appeal, the government continued to rely

chiefly on this same argument. Specifically, it argued that

"Reyes's return to his old ways after his original conviction"

required us to conclude that "the federal drug trafficking

conspiracy charge[] filed after Reyes's Puerto Rico drug

conviction does not run afoul of the Double Jeopardy Clause."

Shortly before argument in our Court, however, the

government -- commendably -- filed a Letter of Clarification. In

it, the government conceded that it could not "state with certainty

that any witness will be able to testify that Reyes's

- 8 - participation" in the alleged federal drug conspiracy charged in

the § 846 count "continued past his [Puerto Rico] arrest" for the

conduct that ultimately led to his Article 406 conviction. The

government instead stated that it was no longer "relying on any

argument that his post-arrest conduct defeats his double jeopardy

claim." Thus, this ground for rejecting Reyes's double jeopardy

challenge is now off the table.

The government has not abandoned altogether, however,

the contention that, even if the Article 406 conviction was for a

conspiracy offense, and even if that conspiracy offense was for

possession with intent to distribute a controlled substance in

violation of Article 401, the Double Jeopardy Clause does not

preclude Reyes's prosecution for the federal conspiracy count that

charges him with violating

. But, we are not

persuaded by the arguments that the government puts forth for so

concluding.

The government argues in its brief to us that, even if

the Article 406 conviction was for conspiring to commit possession

with intent to distribute a controlled substance in violation of

Article 401, it is not the same offense as a legal matter as the

federal conspiracy offense set forth in

, insofar

as that offense punishes a conspiracy to commit possession with

intent to distribute a controlled substance. But, the two

statutory offenses are defined in nearly identical language, and

- 9 - the government fails to identify a substantive difference between

them. Compare

(establishing

penalties for "[a]ny person who . . . conspires to commit any

offense defined in this chapter") and

§ 2401(a)(1) ("[I]t shall

be unlawful for any person knowingly or intentionally . . . [t]o

. . . possess with the intent to . . . distribute . . . a

controlled substance."), with

(establishing

penalties for "[a]ny person who . . . conspires to commit any

offense defined in this subchapter") and

§ 841(a)(1) ("[I]t

shall be unlawful for any person knowingly or intentionally . . .

to . . . possess with intent to . . . distribute . . . a controlled

substance."). We thus reject this ground for finding no double

jeopardy bar.

The government separately contends that, assuming both

that Reyes's Article 406 conviction was for conspiring to possess

with intent to distribute a controlled substance in violation of

Article 401 and that such an Article 406 offense is not legally

distinct from the corresponding drug conspiracy offense that

sets forth, there still is no double jeopardy bar

here. The government argues that this is the case because the

actual conspiracy that Reyes pleaded guilty to being a participant

in under Article 406 is factually distinct from the conspiracy

that he is charged with being a participant in under the federal

- 10 - count that charges him with violating

. But, here,

too, we are not persuaded.

To support this fact-based contention, the government

points out that the § 846 count in Reyes's federal indictment

alleged that twenty-six co-conspirators were involved in the

federal drug conspiracy in which he was charged with being a

participant and that none of those co-conspirators were mentioned

in the Puerto Rico proceedings that resulted in his Article 406

conviction. The government also highlights both the fact that the

§ 846 count in the federal indictment identified an additional

housing project to the one referenced in the Commonwealth court

proceedings that resulted in Reyes's Article 406 conviction and

the fact that the ten-year drug conspiracy alleged in the § 846

count of the federal indictment started well before and ended long

after the brief incident involving his possession of crack cocaine

at the Fernando Luis García Housing Project in 2015 that led to

his Article 406 conviction. Furthermore, the government claims

that, in support of the § 846 charge in the federal indictment, it

has evidence that establishes not just Reyes's possession of crack

cocaine in his apartment in 2015 but also evidence of "Reyes's

participation in the federal conspiracy over a course of years."

Finally, the government emphasizes that, unlike the Commonwealth

court conviction, which was premised only on Reyes's connection to

the crack cocaine found in his apartment in 2015, the federal

- 11 - indictment alleged the existence of a conspiracy to possess with

intent to distribute not only crack cocaine but also other drugs

as well.

Differences in participants, places, objectives, times,

and conduct all may bear on the question of whether two charged

conspiracies are factually distinct, such that they are not for

the same offense for double jeopardy purposes even though the

statutory offense charged is the same as a legal matter. See

United States v. Pérez-González, ___ F.3d ___, ___ (1st Cir. 2020)

[No. 17-1754, slip op. at 7-8]; United States v. Laguna-Estela,

(1st Cir. 2005); United States v. Broce,

(1989). In addition, the fact that there is some

factual overlap between two charged conspiracies does not, in and

of itself, preclude a determination that they are factually

distinct for double jeopardy purposes. See, e.g., Pérez-González,

___ F.3d at ___ [slip op. at 7-8]; Laguna-Estela,

-

59.

Nonetheless, the same sovereign may not "carv[e] up a

single conspiracy to commit several crimes into separate

prosecutions" and thereby create distinct offenses that may be

prosecuted successively. Booth,

; see also United

States v. Morris,

(1st Cir. 1996) (recognizing

"the danger that, in conspiracy cases, the government might comply

with the letter of Blockburger while evading its spirit by

- 12 - partitioning a single conspiracy into separate prosecutions");

Brown v. Ohio,

(1977) ("The Double Jeopardy

Clause is not such a fragile guarantee that prosecutors can avoid

its limitations by the simple expedient of dividing a single crime

into a series of temporal or spatial units."). The prohibition

against evading the double jeopardy bar by carving up a single

conspiracy presents a problem for the government here.

As we have noted, the government has dropped the argument

that the

count in the federal indictment is

predicated on conduct by Reyes that post-dates his Article 406

conviction. What remains of its contention that the conspiracies

are not factually the same has little substance. Rather, the

circumstances that link the two conspiracies here -- an overlap in

time, a substantial overlap in location, intertwined objectives,

and what we infer to be a high likelihood of the same underlying

criminal organization operating out of the same housing project

due to the close connections between these other factors -- suffice

to show that Reyes has made out a prima facie case that the federal

charge is for the same offense as the Commonwealth one. See Pérez-

González, ___ F.3d at ___ [slip op. at 7-8]; Laguna-Estela,

.

Consistent with this conclusion, the government itself

concedes that the conduct that formed the basis of Reyes's Article

406 conviction is "relevant conduct" to the federal § 846 charge

- 13 - and thus that evidence grounding that Puerto Rico conviction would

also be evidence supporting his conviction on that federal charge.

See Laguna-Estela,

. Moreover, the evidence that

Reyes may have been engaged in conduct that demonstrates his

participation in the federal conspiracy that predates his Article

406 conviction, at least as it has been described by the

government, fails to show that the conspiracy that he was convicted

of participating in under Article 406 was not just a piece of that

same federal conspiracy. Thus, that evidence fails to address the

concern that the government is carving up a single conspiracy to

evade double jeopardy constraints. See Booth,

.

For these reasons, we are not persuaded by the

government's contention that, due to factual distinctions between

the conspiracy charged in the federal count under

and any conspiracy offense for which Reyes was prosecuted under

Article 406, Reyes failed to make a nonfrivolous, prima facie case

that his Article 406 conviction is preclusive, for double jeopardy

purposes, of his prosecution for the

count of his

federal indictment. Nor, for these same reasons, are we persuaded

that, based on the claimed factual distinctions between the

conspiracies at issue, the government has met its burden to

overcome that prima facie case.

- 14 - B.

There remains, then, only the government's efforts to

challenge the premise of Reyes's double jeopardy challenge, which

is that his Article 406 conviction was for conspiracy to possess

with intent to distribute a controlled substance in violation of

Article 401 rather than for some other offense that is distinct

-- legally -- from the federal conspiracy offense for which he has

been charged in the count of the federal indictment that is brought

pursuant to

. But, here as well, we do not find

the government's arguments to have merit.

The government did assert below, as it does on appeal,

that Reyes's conviction under Article 406, even if formally for

the conspiracy variant of that offense, was not for a "real

conspiracy" but rather only reflected a "negotiating tactic"

employed by the parties during plea bargaining. But, the

government does not dispute that Reyes must have been convicted

based on some facts that would support the crime. See Díaz Díaz

v. Alcaide,

, 1158 (1973) (holding that,

before entering a guilty plea, the judge must "ascertain that the

defendant is aware of what his offense is and of the facts charged

against him"). Accordingly, the assertion that the conviction was

not for a conspiracy offense -- even if formally it was -- because

any such conspiracy was not "real" is too speculative to have any

force.

- 15 - We also find unpersuasive the government's attempt to

ward off the double jeopardy challenge by circling back to the

fact that the judgment is not clear on its face as to the precise

nature of Reyes's Article 406 conviction. Here, the government

points to the two respects in which that is so that we earlier

identified.

First, the government points out that the judgment of

conviction does not by terms clarify whether, insofar as the

Article 406 conviction was for the conspiracy variant of that

offense, it must be understood to have been for conspiring to

violate Article 401, which criminalizes possession with intent to

distribute a controlled substance, see

(a)(1), rather than some other substantive offense that

would render that conviction legally distinct from the offense he

faces in the federal § 846 count. In that connection, the

government now posits -- though it did not below -- that Reyes may

have pleaded guilty to conspiring to commit an offense under

Article 404 of the Puerto Rico Controlled Substances Act, which

prohibits simple possession of controlled substances, see id.

§ 2404(a), rather than to conspiring to commit the Article 401

offense for possession with the intent to distribute that he was

originally charged with committing, see id. § 2401(a)(1).

It is not clear to us that the Article 406 conviction

would be for a legally distinct offense -- for double jeopardy

- 16 - purposes -- from the offense that he faces in the federal

indictment for violating

even if the Article 406

conviction was for conspiring to violate Article 404 rather than

Article 401. See Lanoue,

(summarizing the

Blockburger test for determining whether two offenses are the same

for double jeopardy purposes). But, even assuming that the two

offenses then would be legally distinct, this contention still has

no merit.

The government below did not develop any argument that

the Article 406 conviction was not for a conspiracy to violate

Article 401 but was instead for a conspiracy to violate some other

statutory provision, such as Article 404. Indeed, it appears to

have argued that his Article 406 conviction was for conspiring to

violate Article 401. And, given that Reyes had been charged

originally with violating Article 401 and not Article 404, there

is little more than unfounded speculation behind the new contention

that the Article 406 offense was not for conspiracy to possess

with the intent to distribute a controlled substance in violation

of Article 401 but instead was for conspiracy to engage in simple

possession of such a substance in violation of Article 404.

As such, this argument -- given how speculative it

necessarily is -- cannot suffice to refute Reyes's adequately

supported contention that the fact of his Article 406 conviction,

following the Article 401 charge, gives rise to a nonfrivolous,

- 17 - prima facie case that he was convicted of the same offense that he

is now charged with in the § 846 count of the federal indictment

that he seeks to dismiss. See Booth,

. Nor, quite

obviously, can such a speculative contention suffice to permit the

government to meet its burden to overcome that prima facie case,

once made.

This same course of reasoning leads us to reject the

government's equally speculative contention that Reyes's double

jeopardy challenge must fail because the judgment does not clarify

that his Article 406 conviction was for the conspiracy variant of

that offense, rather than for the attempt variant of it. Indeed,

the government did not suggest below -- nor does it suggest in its

brief to us on appeal -- that the record fails to accord with the

notion that his Commonwealth conviction was for an Article 406

conspiracy to commit an Article 401 offense. To the contrary, the

government repeatedly characterized the conviction below as if it

understood it to have been for the conspiracy variant.

We thus find it hard to see how the government can now

persuasively make the case that -- just based on the face of the

judgment of conviction -- the record does not even show that Reyes

has made a prima facie case for concluding that double jeopardy

bars the federal prosecution precisely based on the Article 406

conviction having been for conspiring to violate Article 401 rather

than for attempting to violate it. After all, given what the

- 18 - record shows about where the Article 406 offense occurred and when,

as well as the fact that the offense originally charged was for a

completed course of conduct and the record shows there was evidence

that Reyes was involved in completed, rather than merely attempted,

drug possession crimes, there is much reason to think (sufficient

for a prima facie case) that the conviction was for the conspiracy

rather than the attempt variant of the offense that Article 406

sets forth, even if the judgment of conviction does not itself so

state.

Nor, as we have noted, did the government in its briefing

on appeal point to anything in the record, beyond the face of the

judgment's silence, to support the assertion that the case for

finding the Article 406 conviction to have been for the conspiracy

rather than the attempt variant was too flimsy to ground a prima

facie case for applying the double jeopardy bar to the

count. Moreover, insofar as the government means for this

newly developed characterization of the conviction to provide a

basis for concluding that it can meet its burden to overcome that

prima facie case, it is far too speculative to do so.

At oral argument, the government advanced one last

argument in support of the contention that Reyes's double jeopardy

challenge fails. This time, it suggested not just that -- despite

its earlier characterizations of the Article 406 conviction as

being for a conspiracy to violate Article 401 -- the record failed

- 19 - to make clear the nature of the Article 406 conviction. This time,

the government suggested that, contrary to those earlier

characterizations, the record actually tended to show that Reyes

was convicted of the attempt rather than the conspiracy variant of

Article 406.

We may accept for present purposes that in a case in

which the judgment of conviction does not itself clarify the nature

of an offense but the record as a whole does, we may look to that

record to determine the offense of conviction, whether for purposes

of assessing if a defendant has made a prima facie case that a

follow-on prosecution is barred by the Double Jeopardy Clause or

for purposes of determining if the government has rebutted such a

prima facie case. But, as we have noted, the government did not

press this record-based argument for deeming the Article 406

conviction to be for the attempt rather than the conspiracy variant

of that offense in front of the District Court or in its brief to

us. In fact, on appeal, the government asserted in its brief that

"[t]he Puerto Rico court documents . . . did not shed any light as

to" whether "Reyes pleaded guilty to" "conspiracy or attempt"

without at any point suggesting that the evidence favored an

"attempt" reading of Reyes's Commonwealth crime.

We thus decline the invitation to reject Reyes's double

jeopardy challenge on this newly raised, undeveloped, and (yet

again) speculative ground. After all, as Reyes pointed out at

- 20 - oral argument, it is hardly clear from the record that he was

convicted of the attempt rather than the conspiracy variant of the

Article 406 offense. As he notes, the evidence showed that his

drug crime was completed, and there are indications that a

defendant may not be convicted of the attempt variant of this

offense for having committed a completed crime. See

("Attempt exists when a person acts or incurs

in omissions unequivocally and instantaneously directed toward

initiating the commission of a crime that is not consummated due

to circumstances beyond the control of the person." (emphasis

added)); see also Beazer E., Inc. v. Mead Corp.,

, 437

n.11 (3d Cir. 2005) ("[T]he appellee 'waives, as a practical matter

anyway, any objections not obvious to the court to specific points

urged by the [appellant].'" (second alteration in original)

(quoting Hardy v. City Optical Inc.,

(7th Cir.

1994))); Conduragis v. Prospect Chartercare, LLC,

,

518 n.2 (1st Cir. 2018) ("[E]xcept in extraordinary circumstances,

arguments not raised in a party's initial brief and instead raised

for the first time at oral argument are considered waived."

(quoting United States v. Pulido,

, 60 n.4 (1st Cir.

2009))).

III.

For these reasons, we agree with Reyes that he has met

his burden to make a prima facie case that he has been prosecuted

- 21 - twice "for the same conduct under equivalent criminal laws,"

Sánchez Valle,

, and that the government has

failed to meet its burden to rebut it. We therefore reverse the

District Court's denial of the motion to dismiss the indictment

for the conspiracy count under

.

- 22 -