United States Court of Appeals
For the First Circuit
No. 04-1554
UNITED STATES,
Appellee,
v.
JULIO LAGUNA-ESTELA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Fusté,* District Judge.
María Teresa Arsuaga-Byrne, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. García, United States Attorney, was on brief for appellee.
January 12, 2005
*
Of the District of Puerto Rico, sitting by designation.
FUSTE, District Judge. Defendant-appellant, Julio
Laguna-Estela was indicted and prosecuted in case 99-CR-72-ORL-
19DAB, in the United States District Court, Middle District of
Florida, Orlando Division. The indictment alleged that Mr. Laguna,
beginning in a date unknown and continuing through on or about
November 12, 1998, was involved in a conspiracy to possess with
intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1)
& 846. On December 21, 2000, Mr. Laguna pleaded guilty to Count
One of the indictment pursuant to a plea agreement.
According to the statement of facts in Mr. Laguna’s plea
agreement, as well as Mr. Laguna’s statements made at his change of
plea hearing, over the course of approximately two years, a group
of individuals headed by Rafael Ramírez and José Irizarry brought
multi-ounce quantities of heroin into the Middle District of
Florida for distribution in Orange and Osceola Counties.
Mr. Laguna was paid $200 for each delivery made and distributed
approximately 792 grams of heroin in connection with the scheme.
On March 26, 2001, Mr. Laguna was sentenced to a forty-
six-month term of imprisonment and a supervised release term of
three years for participation in the Florida drug conspiracy.
On March 5, 2002, a grand jury sitting in the District of
Puerto Rico issued a ten-count indictment charging Mr. Laguna and
nine other co-defendants with conspiracy to possess with intent to
distribute narcotics pursuant to 21 U.S.C. §§ 841(a)(1) and 846.
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The indictment charged that from on or about the month of September
1998 and up to and including August 11, 1999, in the District of
Puerto Rico and elsewhere, the defendants conspired to knowingly
and intentionally possess with the intent to distribute heroin and
cocaine. On March 26, 2002, Mr. Laguna was arrested and appeared
initially before a magistrate judge. The magistrate judge ordered
Mr. Laguna temporarily held without bail and appointed a federal
public defender to represent him. On April 1, 2002, Mr. Laguna was
arraigned and entered a plea of not guilty. On April 9, 2002,
Mr. Laguna was ordered detained, pending trial.
On July 17, 2003, Mr. Laguna filed a motion to have the
prosecution declared in violation of the Double Jeopardy Clause of
the United States Constitution, alleging that he was being charged
in Puerto Rico with the same offense for which he was convicted in
Florida. On October 1, 2003, the magistrate judge issued a report
and recommendation denying Mr. Laguna’s motion to dismiss the
indictment and finding that the facts giving rise to Mr. Laguna’s
Florida conviction were sufficiently distinct from the facts
underlying the conspiracy charge in the Puerto Rico prosecution to
avoid a double jeopardy violation.
On October 10, 2003, Mr. Laguna objected to the
magistrate’s report and recommendation, arguing that he had not
been afforded an evidentiary hearing in which to rebut the
government’s evidence. On December 1, 2003, Judge García-Gregory
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held an evidentiary hearing during which the government presented
the testimony of cooperating co-defendant Jesús Tocuyo-González,
who had pleaded guilty pursuant to a plea and cooperation
agreement. On January 7, 2004, the evidentiary hearing was
continued and Mr. Laguna took the stand to present his testimony.
On March 15, 2004, the district court issued an opinion
and order adopting the magistrate judge’s report and
recommendation. The court found that Mr. Laguna failed to
establish a prima facie nonfrivolous double jeopardy claim and that
even if he had, the government met its burden of proving by a
preponderance of the evidence that the indictments charged separate
offenses. On March 22, 2004, Mr. Laguna filed an interlocutory
appeal.
I.
Double Jeopardy Framework
The Double Jeopardy Clause of the Fifth Amendment
provides that no person shall “be subject for the same offence to
be twice put in jeopardy of life or limb.” U.S. Const. Amend. IV.
No person may be subject to a second prosecution following an
acquittal or conviction or to multiple punishments for the same
offense. United States v. Patel, 370 F.3d 108, 114 (1st Cir.
2004); United States v. Stoller, 78 F.3d 710, 714 (1st Cir. 1996).
Thus, if two conspiracy charges are based on a defendant’s
participation in one single conspiracy, the Double Jeopardy Clause
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bars the second prosecution. See, e.g., United States v. Collazo-
Aponte, 216 F.3d 163, 197-98 (1st Cir. 2000).
“A defendant claiming double jeopardy has the burden of
presenting evidence to establish a prima facie nonfrivolous double
jeopardy claim. Once such a claim is established, the burden shifts
to the government to prove by a preponderance of the evidence that
the indictments charge separate offenses.” United States v. Booth,
673 F.2d 27, 30-31 (1st Cir. 1982); see, e.g., United States v.
Sturman, 679 F.2d 840, 844 (11th Cir. 1982) (“It is undisputed that
the burden of going forward by putting the double jeopardy claim in
issue is and should be on the defendant. It is similarly reasonable
to require the defendant to tender a prima facie nonfrivolous
double jeopardy claim before the possibility of a shift of the
burden of persuasion to the government comes into play.”).
In most double jeopardy cases, courts use the “same
evidence” test articulated in Blockburger v. United States, 284
U.S. 299, 304 (1932), to decide whether two offenses are the same
offense for double jeopardy purposes. Booth, 673 F.2d at 29. This
test ordinarily requires a determination whether each offense
requires an element of proof that the other does not. See, e.g.,
United States v. LiCausi, 167 F.3d 36, 46 (1st Cir. 1999).
In conspiracy cases, a more nuanced form of the same
evidence test is applied because of the possibility that the
government literally could comply with it while actually carving up
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a single conspiracy to commit several crimes into separate
prosecutions. In order to determine whether two charged
conspiracies that allege violations of the same substantive statute
are the same offense for the purpose of double jeopardy, the First
Circuit has identified five factors that must be considered: “(a)
the time during which the activities occurred; (b) the persons
involved; (c) the places involved; (d) whether the same evidence
was used to prove the two conspiracies; and (e) whether the same
statutory provision was involved in both conspiracies.” United
States v. Gómez-Pabón, 911 F.2d 847, 860 (1st Cir. 1990) (citing
United States v. García-Rosa, 876 F.2d 209, 228 (1st Cir. 1989));
United States v. Fisher, 3 F.3d 456, 461 (1st Cir. 1993); Collazo-
Aponte, 216 F.3d at 198; Booth, 673 F.2d at 29. Based on these
factors, we must determine whether it was clearly erroneous for the
district court to have concluded that Mr. Laguna failed to make a
prima facie showing of a nonfrivolous double jeopardy claim. See
Fisher, 3 F.3d at 460-61.
A. Time of the Activities
The Puerto Rico conspiracy allegedly spanned from
September 1998 until August 11, 1999. The indictment in the
Florida case charges a conspiracy which ended on or about November
12, 1998, suggesting that the time of the two conspiracies
overlapped by only two months. However, when we properly consider
Mr. Laguna’s plea agreement, it seems that the actual overlap may
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be significantly greater. Mr. Laguna’s plea agreement in the
Florida case stipulates that the scheme to possess and distribute
heroin spanned the years 1998 and 1999 and that Mr. Laguna was
involved in a number of drug transactions “[o]n several occasions
during this time period.” It is apparent that, although the
Florida indictment only charged conduct through November 12, 1998,
Mr. Laguna ultimately pled guilty to conduct which occurred during
a time period spanning the remainder of 1998 and an unidentifiable
number of months in 1999. Based on these vague descriptions, the
extent of the overlap in the two charged conspiracies is
unascertainable, but clearly greater than suggested by the
indictments.
B. Persons Involved
Of the fifteen defendants indicted in the Florida case
and the ten defendants indicted in the Puerto Rico case, only
Mr. Laguna is common to both. Thus, the persons involved in the
two conspiracies are substantially different. See United States v.
Hart, 933 F.2d 80, 86 (finding it probative of two separate
conspiracies where the defendant was the only common party to both
indictments); Booth, 673 F.2d at 29 (finding that ten common
defendants of the twenty-four charged in a Maine indictment and the
nineteen charged in the Florida indictment was insufficient to find
that the persons in the two conspiracies were substantially
similar); United States v. Smith, 82 F.3d 1261, 1269 (3d Cir. 1996)
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(“When the evidence indicates that the activities of the alleged
conspiracies are not interdependent or mutually supportive and that
there are major participants in each conspiracy who lack knowledge
of, or any interest in, the activities of the other, this factor
weighs heavily in favor of a conclusion that two conspiracies
exist.”).
C. Places Involved
The government relies on the fact that Mr. Laguna’s plea
agreement in the Florida case refers only to his involvement in the
scheme to possess and distribute heroin in the vicinity of Orange
and Osceola Counties, Florida. However, Mr. Laguna’s presentence
report, written over a year before Mr. Laguna was indicted in the
Puerto Rico case, contains a copy of Mr. Laguna’s written statement
in which he writes that he agreed to make deliveries of drugs in
Puerto Rico.1 Further, Mr. Laguna testified that his involvement
with Mr. Ramírez, both before and after Mr. Ramírez was arrested,
involved drug transactions between Florida and Puerto Rico. Thus,
location is common to both conspiracies.
D. Evidence Used
The evidence on which the government plans to rely in the
present cases involves the testimony of co-defendant Tocuyo. Based
on Tocuyo’s testimony, the government plans to prove that
1
Mr. Laguna’s presentence report for the Florida case is
dated February 15, 2001. Mr. Laguna was indicted in the Puerto
Rico case on March 5, 2002.
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Mr. Laguna worked as a main supplier in the conspiracy and had
other co-conspirators, like Tocuyo, working for him. On the
contrary, in the Florida case, Mr. Laguna worked as a courier, or
mule, and delivered heroin under the direction of Mr. Ramírez and
Mr. Irizarry. In addition, the Florida drug scheme involved only
heroin distribution, whereas the present case charges a conspiracy
to distribute both heroin and cocaine. But see Gómez-Pabón, 911
F.2d at 861 (finding that although the drug involved in Count Two
was marijuana and that in Count Three was cocaine, this distinction
did not establish two separate conspiracies).
Further, when questioned, Tocuyo testified that in the
Florida case, he knew only Mr. Irizarry, Mr. Ramírez, and
Mr. Irizarry’s wife. In contrast, Tocuyo testified that he knew
almost all of the co-defendants charged in the indictment in the
present case. Further, the government asserts that it plans to
present tape recorded conversations as evidence in the present case
which fail to mention, with the exception of Mr. Laguna, any of the
co-conspirators in the Florida scheme. Thus, from this vantage
point in the proceedings, and relying on the government’s
allegations of what they will offer at trial, it seems that the
evidence used to support the two separate conspiracies is distinct.
E. Same Statutory Provision
Both conspiracies are brought under the same statutory
provisions, 21 U.S.C. §§ 841(a)(1) & 846. However, “the overlap of
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statutory provision for each [indictment] does not belie the
separateness of the conspiracies established by the other four
factors.” Hart, 933 F.2d at 86.
II.
Conclusion
Upon weighing the five factors outlined above, and upon
considering the totality of the circumstances presented by this
case, we find that Mr. Laguna has failed to carry his burden of
proving that there exists a nonfrivolous double jeopardy claim.
Without the benefit of the facts and evidence unearthed by a full-
fledged trial and with only a hue available from the rainbow of
facts and evidence on which the government will eventually rely, we
conclude that Mr. Laguna has not shown that the charges presently
brought against him in Puerto Rico are the same to which he already
pleaded guilty in Florida. As such, Judge García-Gregory properly
denied Mr. Laguna’s motion to dismiss the charges brought against
him on the ground of double jeopardy.
We make clear, however, and as the government’s counsel
conceded during oral argument, that Mr. Laguna retains the right to
later reassert his double jeopardy claim if it is found that the
evidence on which the government ultimately relies is substantially
similar to that used in the Florida case. United States v.
Stricklin, 591 F.2d 1112, 1119 (5th Cir. 1979) (“Even if the
government does carry its burden of persuasion and the defendant's
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motion to dismiss is denied, the District Court may later vacate
its finding of no prior jeopardy as the evidence develops at trial
if the defendant renews his motion and the evidence shows that
there was, in fact, prior jeopardy. The ruling by the District
Court on the pretrial motion merely decides whether or not, upon
the evidence then before the court, double jeopardy appears. On an
[interlocutory] appeal, the correctness of that ruling, alone, will
be reviewed. Neither the District Court's nor the Circuit Court's
pretrial decision will be binding as res judicata, law of the case,
collateral estoppel, or any other theoretical bar as to the double
jeopardy issue in the case.”). Judgment of the district court is
affirmed.
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United States v. Laguna-Estela
Court: Court of Appeals for the First Circuit
Date filed: 2005-01-12
Citations: 394 F.3d 54
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