United States Court of Appeals For the First Circuit

No. 20-1982

UNITED STATES,

Appellee,

v.

INYEMAR MANUEL SUAZO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Chief Judge, Selya and Lynch, Circuit Judges.

Edward S. MacColl, with whom Thompson, MacColl, & Bass LLC, P.A. was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, was on brief, for appellee.

September 20, 2021 LYNCH, Circuit Judge. Inyemar Manuel Suazo brings this

interlocutory appeal from the denial of his motion to dismiss his

federal New Hampshire prosecution on double jeopardy grounds. He

purports to include in this interlocutory appeal the rejection of

arguments raised in another motion to dismiss and a due process

argument. We hold that his double jeopardy rights never attached

in the earlier Maine criminal proceedings, and we therefore affirm

the denial of his motion to dismiss on double jeopardy grounds.

Because we lack jurisdiction over the other arguments he attempts

to present, we dismiss those portions of his appeal without

prejudice.

I. Background and Procedural History

On March 2, 2018, Suazo, along with Julio Mejia and Enyel

Mejia-Pimental, was indicted in the District of Maine for

conspiracy to distribute, and to possess with intent to distribute,

400 grams or more of fentanyl and cocaine. A superseding

indictment, issued on March 28, 2018, detailed more specifics of

the alleged conspiracy, stating it began no later than April 7,

2016 and continued until March 14, 2018 in the Districts of Maine,

New Hampshire, and Massachusetts.

The government requested pretrial detention, relying on

the presumption of detention set forth in

. Suazo

was detained in Maine from approximately March 26, 2018 to February

27, 2019, and thereafter was released on bail. On December 2,

- 2 - 2019, the parties selected but did not empanel a jury for a trial

set to begin December 9, 2019. This trial never began and no jury

was ever empaneled.

On December 4, 2019, the government moved for bail

revocation. It alleged that Suazo had violated a condition of his

release to "avoid all contact . . . with any person who is or may

be a victim or witness in the investigation or prosecution," by

having contact with Julio Mejia, who was also charged in the

indictment. The government sought, and was granted, a warrant for

Suazo's arrest. After Suazo's arrest, he moved to continue the

December 9, 2019 trial date. The district court allowed the motion

and continued the trial to February 3, 2020.

At the December 4 bail revocation hearing, Special Agent

Steven Galbadis of the Drug Enforcement Administration testified

that Mejia had told him that Suazo had approached Mejia on November

30, 2019, shown him a picture of Mejia's cooperation agreement on

his phone, and told Mejia that if he testified against him he would

post the cooperation agreement on the internet. Galbadis testified

that Mejia told him that Mejia and Suazo met again the next day

and Suazo again said that he would post the cooperation agreement

online. On cross-examination, Galbadis stated that he was not

aware of Suazo coming in contact with any witness in the case other

than Mejia. Finding that the government had presented clear and

convincing evidence that Suazo had violated a condition of release,

- 3 -

(b)(1)(B), and that Suazo was unlikely to abide by

the conditions of release,

(b)(2)(B), the Maine

district court revoked Suazo's release.

On January 31, 2020, the United States filed a Rule 48(a)

motion to dismiss the superseding indictment on the grounds that

"as of this date, the admissible portion of the available evidence

would not permit a properly instructed jury to find beyond a

reasonable doubt that the defendant is guilty of the charge

alleged." In response, Suazo filed a motion for a judgment of

acquittal or dismissal with prejudice. Suazo argued that, given

his lengthy pretrial detention and the government's admission that

it could not prove its case, due process required an acquittal or

dismissal with prejudice rather than a dismissal without

prejudice.

The Maine district court rejected Suazo's argument,

giving the government the benefit of a presumption of good faith

in its Rule 48(a) motion, which the court found Suazo had not

rebutted. In its decision, the district court noted the

government's statement that witnesses had abandoned their

cooperation agreements in advance of trial; that, contrary to

Suazo's argument, the government had not stated that it could never

prove its case; and that the government had been prepared to go to

trial in December 2019 before Suazo moved to continue the trial

after his arrest for improper contact with a co-defendant. The

- 4 - district court granted the government's motion to dismiss without

prejudice and denied Suazo's motion for acquittal. Suazo appealed

the dismissal and this court found that no extraordinary

circumstances were present to warrant departure from the usual

rule that defendants lack standing to appeal the dismissal of

indictments, and dismissed the appeal.1 United States v. Suazo,

No. 20-1288 (1st Cir. Dec. 7, 2020). A jury was never sworn in

the Maine case before it was dismissed.

On January 31, 2020, the same day that the government

moved to voluntarily dismiss the superseding indictment in Maine,

the United States filed a criminal complaint against Suazo alleging

one count of distribution of fentanyl and one count of conspiracy,

and aiding and abetting a conspiracy, to distribute fentanyl, in

the New Hampshire district court. With respect to the conspiracy

count, Count Two, the government specified that the conspiracy

took place "[o]n or about January 18, 2018" in New Hampshire and

Massachusetts and that the conspiracy involved 40 or more grams of

fentanyl. The complaint listed no co-conspirators or additional

specifics of the alleged conspiracy. On July 22, 2020 a grand

jury issued an indictment setting forth the same charges and

information.

1 The court there also stated in reference to the instant appeal, "[t]his conclusion implies no views as to the issues raised in separate Appeal 20-1982, which will be adjudicated in the ordinary course".

- 5 - Suazo filed a motion to dismiss the New Hampshire

indictment as impermissibly vague as to both counts, and to dismiss

Count Two as duplicitous to the extent that it charged both

conspiracy and aiding and abetting a conspiracy. He then moved to

dismiss Count Two on double jeopardy grounds, arguing that the

government should be required to show that the conspiracy charged

in the New Hampshire indictment differs from the conspiracy charged

in the Maine indictment. At a hearing on October 7, 2020, the New

Hampshire district court denied both of Suazo's motions to dismiss.

During the hearing, the government specified that the entire

conspiracy took place within a few days of the date given in the

indictment. The court ordered the government to produce a bill of

particulars, which it did on October 14, 2020, naming four other

alleged members of the conspiracy.

Suazo now appeals the denial of his motion to dismiss on

double jeopardy grounds and purports to appeal from other denials

set forth below.

II. Analysis

"The availability of double jeopardy protection is a

constitutional question reviewable de novo." United States v.

Fornia-Castillo,

(1st Cir. 2005) (citing United

States v. Lanoue,

(1st Cir. 1998)). Defendants

generally cannot immediately appeal interlocutory orders in

criminal cases. United States v. Keene,

(1st

- 6 - Cir. 2002). An exception applies where a defendant can "mount a

colorable claim that further proceedings in the trial court will

constitute double jeopardy."

(citing Abney v. United States,

(1977)). The Double Jeopardy Clause, U.S. Const.

amend. V, cl. 2, protects not only against double punishment but

also against being "twice put to trial for the same offense."

Abney,

. The rights it protects would be

"significantly undermined" if a defendant had to wait until the

conclusion of a trial to appeal.

. Jurisdiction is

therefore proper to hear Suazo's appeal of his double jeopardy

claim at this early stage.

The Fifth Amendment's prohibition on double jeopardy is

premised on the principle 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 . . . enhancing the

possibility that even though innocent he may be found guilty.”

Keene,

(quoting Green v. United States,

(1957)) (alteration in original). A defendant's double

jeopardy rights do not attach until the defendant is put to trial.

See United States v. Rosado-Cancel,

(1st Cir. 2019)

(citing Serfass v. United States,

(1975)). A

trial commences for double jeopardy attachment purposes "when a

jury is sworn or empanelled [sic] or, in a bench trial, when the

- 7 - judge begins to hear evidence." United States v. Bonilla Romero,

(1st Cir. 1987) (citing Willhauck v. Flanagan,

(1980)); see also United States v. Tobin,

(1st Cir. 2009) ("This is mechanical and perhaps

arbitrary, but it is the line that the Supreme Court has drawn and

the circuits have followed.").

It is "[p]erhaps the most fundamental rule in the history

of double jeopardy jurisprudence" that "'[a] verdict of

acquittal . . . could not be reviewed, on error or otherwise,

without putting [a defendant] twice in jeopardy, and thereby

violating the Constitution.'" United States v. Martin Linen Supply

Co.,

(1977) (quoting United States v. Ball,

(1896)) (alterations in original). Whether a

judgment of acquittal has been entered "is not to be controlled by

the form of the judge's action." Id.; see also United States v.

Bravo-Fernandez,

(1st Cir. 2015) ("Whether an order

counts as an 'acquittal,' . . . is a question of substance and not

of name."). Rather, the question is "whether the ruling of the

judge, whatever its label, actually represents a resolution,

correct or not, of some or all of the factual elements of the

offense charged." Martin Linen,

. A dismissal

without prejudice is not an adjudication on the merits. See United

States v. Moller-Butcher,

(1st Cir. 1983).

- 8 - Suazo acknowledges that a jury was never sworn in the

Maine case. He argues that the dismissal in the Maine trial should

be treated as an acquittal for double jeopardy purposes. He

acknowledges that under our precedents a dismissal without

prejudice constitutes neither a decision on the merits nor an

acquittal. He nevertheless argues that the Due Process and Double

Jeopardy Clauses mandate an evidentiary hearing to determine

whether the government dismissed the Maine indictment in good faith

and whether the conspiracies charged in the Maine and New Hampshire

indictments are actually different conspiracies. This is because,

he contends, the government dismissed the case under false

pretenses. He argues his view that the government had initially

had him detained pretrial in part by claiming it had overwhelming

evidence of his guilt; the government never identified which

witnesses refused to testify; the government never explained how

its witnesses, including Mejia, could not be called to testify,

given the government's grant of immunity and subpoena power; and

Galbadis testified that Suazo had not reached out to other co-

defendants. The crux of Suazo's argument is that the government

abused his rights by subjecting him to lengthy pretrial detention

pursuant to the Maine indictment that it ultimately voluntarily

dismissed, only to bring (he argues) the same conspiracy charge

the very same day in a different district.

- 9 - As Suazo admits, a jury was never sworn, so jeopardy did

not attach in that way. His arguments that the Maine dismissal

was actually an acquittal are meritless, and the law clearly

requires that we affirm the denial of his double jeopardy claim.

Double jeopardy did not constructively attach as a result of the

Maine district court's ruling. In arguing that the law should be

extended to recognize a new form of double jeopardy, which attaches

when a district court wrongly decides that the government acted in

good faith in requesting voluntary dismissal under Rule 48(a),

Suazo commits two errors. First, there is no such doctrine under

double jeopardy law and we flatly reject the argument. Second, he

essentially asks this court to allow a further appeal of the Maine

district court's decision to dismiss the indictment. We have

already declined to review the district court decision, see United

States v. Suazo, No. 20-1288 (1st Cir. Dec. 7, 2020), and will not

do so now under the guise of a double jeopardy claim where it is

clear that jeopardy has not attached.2

In his reply brief, Suazo cites several cases where

courts (outside this circuit) dismissed second indictments or

overturned convictions because they determined prosecutors had

2 We need not here decide whether the conspiracy charged in the New Hampshire case was the same as the conspiracy charged in the Maine case because double jeopardy did not attach either by the commencement of a trial or constructively through the district court's dismissal of the Maine indictment.

- 10 - brought multiple indictments in order to harass the defendants.

These cases do not support his double jeopardy claim; instead,

they reinforce the proposition that Rule 48(a) protects defendants

from prosecutorial harassment. See United States v. Derr,

(10th Cir. 1984) (finding prosecution's request

for voluntary dismissal because it would "best meet the ends of

justice" was insufficient justification for dismissal under Rule

48(a)); United States v. Salinas,

(5th Cir.

1982) (finding prosecution's voluntary dismissal of initial

indictment in order to get a more favorable jury on a superseding

indictment sufficient to overcome presumption of good faith in

initial Rule 48(a) dismissal); United States v. Fields,

(D.D.C. 1979) (dismissing second indictment with

prejudice where initial indictment was sought only to secure

defendant's cooperation as a witness). None of these cases Suazo

cites rely on the Double Jeopardy Clause.

Suazo asks us to extend double jeopardy protections,

but, as the cases he cites show, the law already bars prosecutorial

harassment. His claims are better characterized as claims of

prosecutorial misconduct or harassment than double jeopardy. Such

claims cannot be raised by way of an interlocutory appeal and are,

in that respect, different from double jeopardy claims. See United

States v. Hollywood Motor Car Co., Inc.,

(1982) (holding that court of appeals lacked jurisdiction to hear

- 11 - interlocutory appeal of order denying motion to dismiss for

prosecutorial vindictiveness).

Therefore, the double jeopardy claim is the only claim

over which we have interlocutory jurisdiction. Accordingly, we do

not delve into any of Suazo's claims of prosecutorial misconduct,

unfairness, or vagueness. See Abney,

(no

interlocutory jurisdiction for appeal of motion to dismiss for

insufficiency of indictment); see also United States v.

Brizendine,

(D.C. Cir. 1981) ("If the appellants'

due process claims are upheld on appeal after final judgment, the

court can provide effective relief by ordering the indictment

dismissed . . . , striking any additional charges that were

improperly brought against the accused, requiring correction of

the sentence, or reversing and remanding for reindictment and a

new trial.")

We affirm the denial of the motion to dismiss on double

jeopardy grounds and dismiss without prejudice the appeal as to

the remaining arguments for lack of jurisdiction.

- 12 -