United States v. Ramirez Burgos

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1738
UNITED STATES OF AMERICA,

Appellee,

v.

JULIO RAMIREZ-BURGOS,

Appellant.

ERRATA SHEET

The opinion of this Court, issued January 5, 1995, is amended as
follows:

Page 5, l.11: "Ramirez" in place of "Ramirez"

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1738

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO RAMIREZ-BURGOS,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Olga M. Shepard for appellant.

Juan A. Pedrosa, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, was on brief for appellee.

January 5, 1995

CYR, Circuit Judge. Defendant Julio Ramirez Burgos
CYR, Circuit Judge

brought this appeal from an interlocutory district court order

rejecting his pretrial motion to dismiss Count III in a three-

count indictment. Counts I and II charge separate carjackings,

in violation of 18 U.S.C. 2119, and Count III charges that

Ramirez used or carried a firearm during crimes of violence, viz.

the carjackings alleged in Counts I and II, in violation of 18

U.S.C. 924(c). Ramirez claims that the government may not try

him on either Count I or Count II and on Count III, without

violating the Double Jeopardy Clause of the United States Consti-

tution, because the identical evidential elements are required to

establish a carjacking charge and the 924(c) violation charged

in Count III.1 After denying the motion to dismiss Count III,

the district court stayed further proceedings pending an inter-

locutory appeal.

The Supreme Court has admonished that the final judg-

ment rule, see 28 U.S.C. 1291, "is strongest in the criminal

context," Flanagan v. United States, 465 U.S. 259, 265 (1984),

since the "'delays and disruptions attendant upon intermediate

appeal are especially inimical to the effective and fair adminis-

tration of the criminal law.'" Abney v. United States, 431 U.S.

651, 657 (1977) (quoting DiBella v. United States, 369 U.S. 121,

126 (1962)). We must therefore determine whether the district

court order is immediately appealable under the "collateral

1We express no view whatever on the relevance or correctness
of Ramirez's assumption. See Blockburger v. United States, 284

U.S. 299 (1932).

3

order" doctrine. See Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 545 (1949) (holding that a recognized exception to

the final judgment rule exists for a "small class [of interlocu-

tory orders] which finally determine claims of right separable

from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until

the whole case is adjudicated.")

The Double Jeopardy Clause safeguards against (i) a

second prosecution following acquittal or final conviction for

the same offense and (ii) multiple punishments for the same

offense. United States v. Rivera-Martinez, 931 F.2d 148, 152

(1st Cir.), cert. denied, 112 S. Ct. 184 (1991) (citing North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The Supreme Court

held in Abney that an order denying a pretrial motion to dismiss

based on a claim of former jeopardy is immediately appealable

under the collateral order doctrine. Abney, 431 U.S. at 659-61.

The Court reasoned that only an interlocutory appeal could

protect the defendant from the "strain, public embarrassment, and

expense of a criminal trial more than once for the same offense."

Id. at 661. Abney, nevertheless, is not carte blanche authority

for all interlocutory appeals brought under the Double Jeopardy

banner, since some such claims do not meet the requirements of

the "collateral order" doctrine. The interlocutory order chal-

lenged by Ramirez falls into the latter category, since it simply

disallowed a "multiple punishment" claim masquerading as a

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"former jeopardy" claim.

We believe the Abney branch of the "collateral order"

exception to the final judgment rule is limited to the "special

circumstances permeating" former jeopardy claims. Abney, 431

U.S. at 663 (emphasis added).

Ramirez argues that a simultaneous trial on Count III

and Counts I/II would entail "former jeopardy" because these

counts require identical elements of proof. However, the Supreme

Court has distinguished between the "double jeopardy" problems

posed by a simultaneous trial and by successive trials. See

United States v. Halper, 490 U.S. 435 (1989). In a simultaneous

trial, the multiple punishment inquiry focuses on whether the

legislature has authorized multiple punishments, as it may

lawfully do. Ohio v. Johnson, 467 U.S. 493, 499-500 (1984). In

successive trials, on the other hand, "the Double Jeopardy Clause

protects against the possibility that the Government is seeking

the second punishment because it is dissatisfied with the sanc-

tion obtained in the first proceeding." Halper, 490 U.S. at 451,

n.10.

The Halper Court foreclosed Ramirez's multiple punish-

ment claim. There, the Court held that a civil proceeding,

punitive in nature, which followed a criminal trial on the same

set of facts, violated the Double Jeopardy Clause. Id. at 448.

The Court nevertheless stated that its ruling did not prevent

"the Government from seeking and obtaining both the full civil

penalty and the full range of statutorily authorized criminal

5

penalties in the same proceeding. In a single proceeding the

multiple punishment issue would be limited to ensuring that the

total punishment did not exceed that authorized by the legisla-

ture." Id. at 450.

6

In United States v. Sorren, 605 F.2d 1211, 1215 (1st

Cir. 1979), we indicated that our analysis of interlocutory

appellate jurisdiction turns upon whether the implicated right

was "incapable of vindication on appeal." The challenge raised

in the instant interlocutory appeal can be fully vindicated on

appeal from a final judgment of conviction and sentence. See

United States v. Abreu, 952 F.2d 1458, 1465 (1st Cir.) (vacating

sentence in post-conviction appeal based upon multiple punishment

claim), cert. denied, 112 S. Ct. 1695 (1992); Rivera-Martinez,

931 F.2d at 153 (same). An interlocutory appeal in the present

case would not serve the purposes envisioned in Abney, because

Ramirez would have to stand trial on the remaining counts even if

Count III were dismissed. See United States v. McHenry, 1993

U.S. App. LEXIS 12553, at *2 (6th Cir. May 19, 1993) (interlocu-

tory appeal of double jeopardy claim raised in 924(c) and

2119 context; dismissed for lack of jurisdiction); United States

v. Witten, 965 F.2d 774, 775-76 (9th Cir. 1992) (similar). The

Supreme Court has emphasized "the crucial distinction between a

right not be tried and a right whose remedy requires the dismiss-

al of charges. The former necessarily falls into the category of

rights that can be enjoyed only if vindicated prior to trial.

The latter does not." United States v. Hollywood Motor Car Co.

Inc., 458 U.S. 263, 269 (1982).

7

As we lack appellate jurisdiction, the interlocutory

appeal must be dismissed.2

Appeal dismissed for lack of jurisdiction.
Appeal dismissed for lack of jurisdiction.

2At this juncture, we take no position on whether Congress,
by its enactment of 18 U.S.C. 924(c), intended "multiple
punishments."

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