United States v. Guzman Rivera

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1234

UNITED STATES OF AMERICA,

Appellee,

v.

HECTOR GUZMAN, a/k/a HECTOR GUZMAN RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED SATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior U.S. District Judge]

Before

Selya and Cummings,* Circuit Judges,

and Coffin, Senior Circuit Judge.

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.

June 7, 1996

*Of the Seventh Circuit, sitting by designation.

SELYA, Circuit Judge. This appeal raises, inter alia,
SELYA, Circuit Judge.

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
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

1Further details of the failed drug-smuggling operation can
be found in our opinion in United States v. LaBoy-Delgado,

F.3d (1st Cir. 1996) [No. 95-1863].

2

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

3

heroin-trafficking sentence. This appeal ensued.

II. ANALYSIS
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.
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

(1985); United States v. Lopez Andino, 831 F.2d 1164, 1167 (1st

Cir. 1987), cert. denied, 486 U.S. 1034 (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.

The appellant concedes the general validity of this

4

"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 (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. 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

5

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 (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 (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 (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

6

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 (1990);

United States v. Booth, 673 F.2d 27, 30-31 (1st Cir.), cert.

2Although a double jeopardy claim of the successive
prosection type is admittedly in the nature of an affirmative
defense to an indictment, there is nothing unorthodox about
requiring the government to bear the ultimate burden of proof
vis-a-vis the existence of an alleged constitutional violation
once sufficient evidence is adduced to put the question
legitimately into issue. See, e.g., United States v. Rodriguez,

858 F.2d 809, 813-15 (1st Cir. 1988) (holding that if a defendant
identifies record evidence from which a jury could conclude that
the defendant was entrapped, the government must bear the burden
of proving that no entrapment occurred).

7

denied, 456 U.S. 978 (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 (1975).

In the Bartkus context, the question whether a

defendant is being twice prosecuted for the same offense turns in

part on the applicability of the dual sovereign rule. See Heath,

474 U.S. at 88. Thus, the defendant must produce some evidence

tending to prove that the rule should not apply because one

sovereign was a pawn of the other, with the result that the

notion of two supposedly independent prosecutions is merely a

sham. If the defendant proffers evidence sufficient to support

such a finding in effect, a prima facie case the government

must shoulder the burden of proving that one sovereign did not

orchestrate both prosecutions, or, put another way, that one

sovereign was not a tool of the other. See, e.g., United States

v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990) (applying burden-

shifting matrix in the Bartkus context).3

3There is some controversy in the circuits over whether this
procedural matrix applies unreservedly both to interlocutory
review of double jeopardy claims and to direct appeals following
convictions. Compare United States v. Dortch, 5 F.3d 1056, 1060-

61 (7th Cir. 1993) (holding that the defendant bears the burden
of proof on posttrial review), cert. denied, 114 S.Ct. 1077

(1994) and United States v. Bendis, 681 F.2d 561, 564 (9th Cir.

1981) (same), cert. denied, 459 U.S. 973 (1982) with United

States v. Loyd, 743 F.2d 1555, 1563 (11th Cir. 1984) (applying

standard burden-shifting framework to posttrial review); United

States v. Adamo, 742 F.2d 927, 946-47 (6th Cir. 1984) (same),

cert. denied, 469 U.S. 1193 (1985); United States v. Kalish, 690

F.2d 1144, 1147 (5th Cir. 1982) (same), cert. denied, 459 U.S.

8

In this case, it is crystal clear that the appellant

did not offer enough evidence to carry his entry-level burden.

Factually, his claim comes down to this: he asserts that Agent

Ayala traveled to St. Maarten, surveilled the LEE MARY, alerted

the St. Maarten police to the appellant's presence, participated

in the shipboard search (a fact that the United States contests),

and testified at the ensuing trial. Nothing in the appellant's

proffer remotely suggests that the Dutch authorities were merely

handmaidens of the DEA or that the Dutch prosecution was in

reality a prosecution undertaken sub rosa by the United States

government. Even if all the appellant's facts stripped, of

course, of opprobrious epithets and unsupported conclusions are

taken at face value, those facts show nothing more than the

rendering of routine intergovernmental assistance. Cooperative

law enforcement efforts between independent sovereigns are

commendable, and, without more, such efforts will not furnish a

legally adequate basis for invoking the Bartkus exception to the

dual sovereign rule. See Whalers Cove, 954 F.2d at 38; Paiz, 905

F.2d at 1024.

Viewed against this legal and factual mise en sc ne,

the indictment in this case did not constitute a second

prosecution for the same offense within the purview of the Fifth

Amendment. Consequently, the district court did not err in

1108 (1983); Mallah, 503 F.2d at 986 (same). See also Garcia-

Rosa, 876 F.2d at 229 n.17 (noting the uncertainty). Since we

hold that the appellant did not satisfy his entry-level burden,
we need not take sides on this controversial issue today.

9

denying the motion to dismiss the indictment on double jeopardy

grounds.

B. Speedy Trial Act.
B. Speedy Trial Act.

The baseline premise of the Speedy Trial Act is the

requirement that a defendant has a right to be tried promptly

following his indictment or initial appearance before a judicial

officer (whichever first occurs). See United States v. Staula,

80 F.3d 596, 600 (1st Cir. 1996). Juxtaposed with this

requirement is the requirement that, once arrested, a suspect

must be indicted or otherwise formally charged within thirty days

of his arrest. See 18 U.S.C. 3161(b). The appellant suggests

two reasons why the government's actions in this case run afoul

of this latter proscription. Neither reason is persuasive.

1. The first iteration of the appellant's speedy trial
1.

claim embodies a repullulation of his double jeopardy analysis.

He asseverates that since the United States orchestrated his

arrest in St. Maarten, 18 U.S.C. 3161(b) required the United

States to indict him within thirty days of that arrest. This

asseveration elevates hope over reason, and we need not linger

long in dispatching it.

The Speedy Trial Act, in terms, applies only to the

conduct of the United States. Because we already have held that

the United States did not control, dominate, or manipulate the

actions of the Dutch authorities in respect to Guzman's arrest

and prosecution in St. Maarten, see supra Part II(A), the claim

that the date of that arrest affected the movement of the speedy

10

trial clock in this case is without foundation. Arrest or

indictment by one sovereign does not engage the statutory

guarantee of a speedy trial in respect to a subsequent indictment

by a different sovereign. See United States v. MacDonald, 456

U.S. 1, 10 n.11 (1982).

2. The second iteration of the appellant's speedy
2.

trial claim takes a somewhat divergent slant. He asserts that,

when he was arrested in Puerto Rico for heroin trafficking, the

United States knew of his 1990 involvement with the ill-fated

cocaine smuggle and, hence, the government was obliged to charge

him within thirty days of that arrest, see 18 U.S.C. 3161(b),

or in the alternative, to seek a detainer from the Bureau of

Prisons (which had custody of him at the time), see id.

3161(j)(1). This assertion is equally devoid of merit.

In the first place, the Speedy Trial Act requires that

a person arrested for a crime must be charged by indictment or

information within thirty days of his arrest "in connection with

such charges." Id. 3161(b). In this situation, the heroin-

trafficking incident that led to the appellant's December 1992

arrest had no connection with his activity in St. Maarten two-

and-one-half years earlier. It follows, therefore, that since

the authorities did not arrest the appellant in 1992 for a crime

related to his St. Maarten conduct, the Speedy Trial Act did not

require that he be charged with the cocaine-smuggling crime

within thirty days of that arrest. See United States v. Orbino,

981 F.2d 1035, 1036-37 (9th Cir. 1992), cert. denied, 114 S. Ct.

11

256 (1993); United States v. Savage, 863 F.2d 595, 597-98 (8th

Cir. 1988), cert. denied, 490 U.S. 1082 (1989).

In the second place, 18 U.S.C. 3161(j)(1) applies

only to a person who has been "charged with an offense." In this

instance, the appellant was not charged with the offenses of

conspiracy to possess with intent to distribute and attempted

importation until the end of 1993. Until it brought such a

charge, the government had no obligation to file a detainer with

the Bureau of Prisons.4

C. Plea Agreement.
C. Plea Agreement.

The appellant contends that the government breached the

plea agreement. He tells us that the U.S. Attorney's office

promised it would not oppose a recommendation for a concurrent

sentence, but the prosecutor instead argued successfully for a

consecutive sentence.

This contention is baseless.5 The plea agreement

signed by the appellant specifically, explicitly, and

unambiguously states: "The United States and the defendant agree

4To cinch matters, the law is pellucid that the dismissal of
an indictment is not a suitable remedy for a violation of 18
U.S.C. 3161(j)(1). See United States v. Wickham, 30 F.3d 1252,

1255 (9th Cir. 1994); United States v. Dawn, 900 F.2d 1132, 1135-

36 (7th Cir.), cert. denied, 498 U.S. 949 (1990); United States

v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985).

5As an initial matter, we note that the appellant did not
raise the issue of the government's alleged breach before the
district court. The question of procedural default vis-a-vis
claims involving breached plea agreements has divided the courts
of appeals. See United States v. Gonzalez-Perdomo, 980 F.2d 13,

15-16 (1st Cir. 1992) (collecting cases). We need not enter this
thicket today because we find the appellant's claim of breach to
be without basis.

12

that the sentence to be imposed in this case shall run

consecutive to any other sentence of imprisonment that the

defendant is currently serving." The plea agreement also

contains an integration clause that provides: "This written

agreement constitutes the complete plea agreement between the

United States, the defendant, and the defendant's counsel. The

United States has made no promises or representations except as

set forth in writing in this plea agreement." The questionnaire

that the appellant completed in advance of the change-of-plea

colloquy is consistent with these understandings.6 The

appellant has made no allegation that he was coerced into signing

the plea agreement, that he was misled as to its contents, or

that the questionnaire is bogus.

In short, the appellant identifies nothing that would

justify an objectively reasonable expectation that the plea

agreement meant anything other than what it plainly says. Since

the government abided faithfully by the clear terms of its

written agreement, we have no warrant to set aside the sentence

imposed by the district court. See United States v. Hogan, 862

F.2d 386, 388 (1st Cir. 1988).

D. Ineffective Assistance of Counsel.
D. Ineffective Assistance of Counsel.

The appellant claims that his trial counsel provided

6The record does not contain a transcript of the change-of-
plea hearing. We must assume, therefore, that the appellant's
answers to the judge's questions did not differ from the written
questionnaire. See, e.g., Moore v. Murphy, 47 F.3d 8, 10-11 (1st

Cir. 1995) (explaining that the appellant must bear the onus of
an incomplete record on appeal); Real v. Hogan, 828 F.2d 58, 60

(1st Cir. 1987) (similar).

13

him with ineffective assistance by failing to (1) file

appropriate pretrial motions, (2) notify the sentencing court of

health problems afflicting his family, and (3) make a proper

request for the return of property. The rule is firmly settled

in this circuit that "fact-specific claims of ineffective

assistance cannot make their debut on direct review of criminal

convictions." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.

1993) (explaining the rule and collecting cases), cert. denied,

114 S. Ct. 1839 (1994). While we have made occasional exceptions

to the rule in certain idiosyncratic circumstances, see, e.g.,

United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),

cert. denied, 502 U.S. 1079 (1992), this case does not fall

within the isthmian confines of any recognized exception.

Because the appellant did not present this claim of ineffective

assistance to the lower court, we decline to consider it.7

E. Seizure of Property.
E. Seizure of Property.

Under the Criminal Rules, a person deprived of property

"may move the district court for the district in which the

property was seized for the return of the property on the ground

that such person is entitled to lawful possession of the

property." Fed. R. Crim. P. 41(e). Acting pro se, Guzman made

such a motion below; in it, he claimed entitlement to certain

items allegedly seized from him at the time of his initial arrest

7Of course, our disposition does not prejudice the
appellant's right to raise a claim of ineffective assistance of
counsel in a petition for postconviction relief under 28 U.S.C.
2255. See Mala, 7 F.3d at 1064.

14

in St. Maarten. He also claimed entitlement to a tool box,

together with its contents, alleging that the tool box was inside

a car, belonging to his sister, that federal authorities seized

in Puerto Rico. The district court found that the property

seized in St. Maarten was taken not by the United States but by

the Netherlands Antilles, and that, therefore, the court lacked

jurisdiction to order its return.8 However, the district court

did not rule on the appellant's motion insofar as it pertained to

the tool box's confiscation. The appellant did not ask for

reconsideration based on this oversight. He nevertheless

attempts to appeal from the court's failure to direct that the

tool box be returned.

The government's brief misses the appellant's point.

It contends, correctly, that Guzman never made a claim of

ownership referable to the car, and thus does not have standing

to contest its seizure. Cf. United States v. One Parcel of Real

Property . . . Known as Plat 20, Lot 17, 960 F.2d 200, 206 n.3

(1st Cir. 1992) (noting that a person who does not claim

ownership cannot contest the civil forfeiture of property);

United States v. One Parcel of Real Property . . . Known as 116

Emerson Street, 942 F.2d 74, 78 (1st Cir. 1991) (same). But this

observation does not in any way trump the appellant's insistence

that he owns, and is entitled to the return of, the tool box and

its contents.

8On appeal, the appellant does not challenge this ruling,
and we do not address it.

15

Although the appellant's point is arguable, it is

separable from, and has no effect upon, the appellant's

conviction and sentence. A defendant may bring an independent

civil action for the return of property even if the underlying

criminal case has been closed. See United States v. Garcia, 65

F.3d 17, 19-20 (4th Cir. 1995); United States v. Giraldo, 45 F.3d

509, 511 (1st Cir. 1995); United States v. Giovanelli, 998 F.2d

116, 118-19 (2d Cir. 1993). Since such a complaint serves as the

functional equivalent of a Rule 41(e) motion, we perceive no need

to prolong this case in order to pursue the point (especially in

view of the fact that the district court made no findings in

regard to the tool box). We therefore deny Guzman's request for

relief vis-a-vis the tool box, without prejudice to his right to

bring a separate civil action to compel its return. See United

States v. $8,850, 461 U.S. 555, 569 (1983).

III. CONCLUSION
III. CONCLUSION

We need go no further. For aught that appears, Guzman

was lawfully prosecuted, justly convicted, and appropriately

sentenced. His conviction and sentence must therefore be

Affirmed.
Affirmed.

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