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.
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§ 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 21 U.S.C. § 846. The federal indictment
also charged him with four counts of aiding and abetting possession
with intent to distribute controlled substances in violation of 21
U.S.C. § 841(a)(1), each for a different drug: heroin, cocaine,
cocaine base, and marijuana, respectively.
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"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,
136 S. Ct. 1863, 1867 (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, 139 S. Ct. 1960,
1964 (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, 136 S. Ct. at 1873. Thus, those two governments may not
"successively prosecute a single defendant for the same criminal
conduct." Id. at 1868.
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
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charges him with violating 21 U.S.C. § 846. See Abney v. United
States, 431 U.S. 651, 659 (1977).
II.
The same sovereign may not "target . . . identical
criminal conduct through equivalent criminal laws." Sánchez
Valle, 136 S. Ct. at 1870. Two laws "are not the same if they
each 'require[] proof of [an additional] fact which the other does
not.'" United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998)
(alteration-s in original) (quoting Blockburger v. United States,
284 U.S. 299, 304 (1932)); see also Gamble, 139 S. Ct. at 1980
(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, 673
F.2d 27, 30 (1st Cir. 1982). It is only "[o]nce such a claim is
established" that "the burden shifts to the government to prove by
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a preponderance of the evidence that the indictments charge
separate offenses." Id. at 31. Our review is de novo. See
Sampson v. United States, 832 F.3d 37, 44 (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, 752 F.2d 749, 756
(1st Cir. 1985). Compare P.R. Laws Ann. tit. 33, § 4663 (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, 892 F.3d 462, 468 (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, 513 U.S. 10, 16 (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.
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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," P.R.
Laws Ann. tit. 24, § 2401(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
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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 21 U.S.C. § 846 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
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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 21 U.S.C. § 846. 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 21 U.S.C. § 846, 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
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the government fails to identify a substantive difference between
them. Compare P.R. Laws Ann. tit. 24, § 2406 (establishing
penalties for "[a]ny person who . . . conspires to commit any
offense defined in this chapter") and id. § 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 21 U.S.C. § 846 (establishing
penalties for "[a]ny person who . . . conspires to commit any
offense defined in this subchapter") and id. § 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
21 U.S.C. § 846 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
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count that charges him with violating 21 U.S.C. § 846. 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
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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,
394 F.3d 54, 57-59 (1st Cir. 2005); United States v. Broce, 488
U.S. 563, 570-71 (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, 394 F.3d at 57-
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, 673 F.2d at 29; see also United
States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996) (recognizing
"the danger that, in conspiracy cases, the government might comply
with the letter of Blockburger while evading its spirit by
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partitioning a single conspiracy into separate prosecutions");
Brown v. Ohio, 432 U.S. 161, 169 (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 21 U.S.C. § 846 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, 394
F.3d at 57-59.
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
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and thus that evidence grounding that Puerto Rico conviction would
also be evidence supporting his conviction on that federal charge.
See Laguna-Estela, 394 F.3d at 58. 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, 673 F.2d at 29.
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 21 U.S.C. § 846
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 21 U.S.C. § 846 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.
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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 21 U.S.C. § 846. 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, 1 P.R. Offic. Trans. 1146, 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.
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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 P.R. Laws Ann. tit. 24,
§ 2401(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
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purposes -- from the offense that he faces in the federal
indictment for violating 21 U.S.C. § 846 even if the Article 406
conviction was for conspiring to violate Article 404 rather than
Article 401. See Lanoue, 137 F.3d at 661 (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,
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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, 673 F.2d at 30. 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
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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 21 U.S.C.
§ 846 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
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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
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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 P.R. Laws
Ann. tit. 33, § 4663 ("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., 412 F.3d 429, 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., 39 F.3d 765, 771 (7th Cir.
1994))); Conduragis v. Prospect Chartercare, LLC, 909 F.3d 516,
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, 566 F.3d 52, 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
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twice "for the same conduct under equivalent criminal laws,"
Sánchez Valle, 136 S. Ct. at 1876, 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 21 U.S.C. § 846.
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