
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1373                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                LUIS A. COLON-OSORIO,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Kathleen A.  Felton, Attorney,  Department of  Justice, with  whom            ___________________        Daniel F. Lopez-Romo, United States  Attorney, and Miguel A.  Pereira,        ____________________                               __________________        Assistant United States Attorney, were on brief for appellant.            Linda Backiel for appellee.            _____________                                 ____________________                                  November 30, 1993                                 ____________________               COFFIN,  Senior Circuit  Judge.  On  December 9,  1992, Luis                        _____________________          Colon Osorio was convicted  of two counts of failure to appear as          ordered  before a court  in Connecticut.   A month  later, on the          same  day that  Colon Osorio  received a  sentence  calculated to          effect his immediate release from prison, the government unsealed          a new criminal complaint charging him as a fugitive in possession          of  firearms.   The  district  court dismissed  these  charges on          double  jeopardy  grounds  because   the  government's  proof  of          fugitive status  would necessarily rely  on the same  conduct for          which Colon Osorio had  been punished in the first  prosecution.           The case on which  the district court primarily relied,  Grady v.                                                                   _____          Corbin, 110 S. Ct.  2084 (1990), has  since been overruled.   See          ______                                                        ___          United  States  v. Dixon,  113 S.  Ct.  2849 (1993).    Under the          ______________     _____          Supreme   Court's   current   formulation   of   double  jeopardy          jurisprudence, we are obliged to reverse.                                      I.  Facts                                          _____               Luis  Colon  Osorio  is  a  member  of  Los  Macheteros,  an          organization dedicated  to the independence  of Puerto Rico.   In          1985, along  with seventeen other members of  Los Macheteros, and          two non-members,  Colon Osorio  was arrested  in Puerto  Rico and          charged  with aiding and abetting and  conspiring in the planning          and execution of a 1983 robbery of $7 million from  a Wells Fargo          depository in West Hartford, Connecticut.1                                        ____________________               1For further  factual background on the  Wells Fargo robbery          case, as well as a detailed analysis of the legal issues the case          involved, see United States v. Maldonado-Rivera, 922 F.2d 934 (2d                        _____________    ________________          Cir. 1990).                                         -2-               Colon Osorio was detained without bail for seventeen months,          and  then  ordered released  to the  District  of Puerto  Rico in          December  1986.   On September  24, 1990,  Colon Osorio  issued a          communique  stating that he was  "going underground to rejoin the          clandestine  struggle" for the  independence of  Puerto Rico.   A          criminal  complaint alleging violation of conditions of pre-trial          release  was  filed  the following  day,  and  an arrest  warrant          issued.                A Connecticut district court  ordered Colon Osorio to appear          for a hearing on the government's  motion to forfeit his bond  on          December 17,  1990.  He failed to appear.  The same court ordered          him to appear for jury selection in the criminal trial on January          13, 1992.  He failed to appear a second time.  On March 17, 1992,          Colon Osorio was arrested in Puerto Rico, allegedly in possession          of a  semi-automatic pistol, ammunition, and a live hand grenade,          as  well as  cocaine  and  marijuana.    He  was  transferred  to          Connecticut  and charged  with two  counts  of failure  to appear          following release on bail, pursuant  to 18 U.S.C.   3146(a).2   A          jury convicted him  of these charges on December 9,  1992 and, on          January 29, 1993, he was sentenced to 318 days imprisonment.                 In  the interim,  between  conviction  and  sentencing,  two          events  occurred.   First, on  January 19,  1993,  the government          dismissed the indictments against  Colon Osorio stemming from the                                        ____________________               2This statute provides: "Whoever, having been released under          this chapter  knowingly . . .  fails to appear before  a court as          required  by conditions  of release  . . .  shall be  punished as          provided in subsection (b) of this section."                                         -3-          Wells  Fargo bank robbery  case.  Second,  on the day  before his          sentencing,  the United  States brought  a criminal  complaint in          Puerto Rico, unsealed the next day, charging him  with possession          of  the firearms and drugs  allegedly confiscated at  the time of          his  arrest in Puerto  Rico.   The subsequent  indictment charged          Colon Osorio  with three counts  of possession of a  firearm as a          fugitive from justice,  in violation of  18 U.S.C.    922(g)(2),3          and  two  counts of  possession  of  a  controlled substance,  in          violation of 21 U.S.C.   844(a).               The  district  court  dismissed  the  fugitive-in-possession          charges on double  jeopardy grounds.  The  court first determined          that 18 U.S.C.   3146(a)(1), the failure to appear provision, was          a "species of  lesser-included offense" of 18 U.S.C.   922(g)(2),          making the second prosecution  an impermissible repetition of the          first  one.    Alternatively, the  court  found  that  the second          prosecution  was barred  by  Grady v.  Corbin,  110 S.  Ct.  2084                                       _____     ______          (1990),  in which  the Supreme  Court held  that to  establish an          essential element of an offense  charged in a second prosecution,          the  government could not rely on conduct for which the defendant          already had been  prosecuted.  The district  court concluded that          the  government would have to  rely on the  conduct proving Colon                                        ____________________               3This statute provides: "It shall be unlawful for any person          . . . who is a fugitive from  justice . . . to ship or  transport          in interstate or  foreign commerce,  or possess  in or  affecting          commerce, any firearm or ammunition; or to receive any firearm or          ammunition which has been shipped or transported in interstate or          foreign commerce."                                         -4-          Osorios's failure  to appear  in  order to  establish the  flight          element of the section 922(g)(2) offense.4               On appeal, the government  contends that the Supreme Court's          recent opinion in United States v. Dixon, 113 S. Ct. 2849 (1993),                            _____________    _____          controls the  resolution of this  case.   It points out  that the          Dixon Court  flatly overruled  Grady v. Corbin,  thus undermining          _____                          _____    ______          one of the district  court's bases for finding a  double jeopardy          bar  to the  second  prosecution.   Additionally, the  government          argues that applying the traditional double jeopardy analysis set          forth in Blockburger v.  United States, 284 U.S. 299  (1932), and                   ___________     _____________          reaffirmed in  Dixon, compels the  conclusion that there  are two                         _____          separate   offenses,    permitting   the   fugitive-in-possession          prosecution to proceed.               Colon  Osorio  recognizes that  Grady  v.  Corbin no  longer                                               _____      ______          supports his claim of  double jeopardy, but his reading  of Dixon                                                                      _____          otherwise differs from  the government's.   He claims that  Dixon                                                                      _____          bolsters the  district court's  conclusion that his  bail jumping          offense  is  completely  included in  the  fugitive-in-possession                                        ____________________               4The district court also noted  a potential venue problem if          a single trial had  been sought for both violations.   Opinion at          9, n.10.   The government notes that  an exception to  the double          jeopardy bar on  subsequent prosecutions may lie where  the State          is unable to  proceed on the  more serious  charge at the  outset          because the additional facts necessary to sustain the charge have          not  yet been discovered or occurred, despite the exercise of due          diligence, see  Brown v. Ohio, 432 U.S. 161, 169, n.7 (1977), and                     ___  _____    ____          urges us to extend this exception to embrace legal impediments as          well,  such as  where venue  restrictions prevent  the government          from  joining all  charges in  a single  district.   However, the          government cites  no authority  which supports  this proposition.          Because  we find no double jeopardy bar to the second prosecution          under section 922(g)(2), we need not reach this issue.                                           -5-          charge,  and that  his prosecution for  that charge  is therefore          barred on double jeopardy grounds.               Whether  principles  of  double  jeopardy bar  a  subsequent          prosecution is an  issue for  plenary review.   United States  v.                                                          _____________          Aguilar-Avanceta, 957 F.2d 18, 21 (1st Cir. 1992).            ________________                               II.  Double Jeopardy Law                                    ___________________               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 V.          Under this clause, a defendant is protected from both  successive          prosecutions  and  multiple  punishments  for  the same  criminal          offense.   See  North Carolina  v. Pearce,  395 U.S.  711 (1969);                     ___  ______________     ______          United States v.  Rivera Martinez,  931 F.2d 148,  152 (1st  Cir.          _____________     _______________          1991).               In Blockburger  v. United States,  284 U.S. 299  (1932), the                  ___________     _____________          Supreme Court  ruled that  punishment for two  statutory offenses          arising  out of  the same  criminal act  or transaction  does not          violate double  jeopardy if "each  provision requires proof  of a          fact which  the other does not."   Blockburger, 284 U.S.  at 304.                                             ___________          The Blockburger  test focuses on  the statutory elements  of each              ___________          offense.  "If  each requires proof of a fact  that the other does          not,  the  Blockburger  test   is  satisfied,  notwithstanding  a                     ___________          substantial  overlap  in  the  proof  offered  to  establish  the          crimes."   Ianelli  v.  United States,  420  U.S. 770,  785  n.17                     _______      _____________          (1975);  see also United  States v. Felix, 112  S. Ct. 1377, 1382                   ___ ____ ______________    _____          (1992).                                         -6-               In Brown v. Ohio,  432 U.S. 161, 166-67 (1977),  the Supreme                  _____    ____          Court acknowledged  that the  Blockburger test  was not  the only                                        ___________          standard used to  determine whether successive prosecutions  were          the "same offence" for double jeopardy purposes.  The Brown Court                                                                _____          noted that in some circumstances where a second prosecution would          require relitigation  of factual  issues already resolved  by the          first, successive prosecutions  were barred, notwithstanding  the          fact that  the two offenses involved  were sufficiently different          to  permit   the  imposition   of  consecutive   sentences  under          Blockburger. The Court pointed  to Ashe v. Swenson, 397  U.S. 436          ___________                        ____    _______          (1976), and In re  Nielsen, 131 U.S. 176 (1889), to  support this                      ______________          proposition.    In  Ashe,  the  Court  ruled  that principles  of                              ____          collateral estoppel embodied in the Double Jeopardy Clause barred          a second prosecution for robbery of one person when the defendant          had  been  acquitted of  robbery of  another  person in  the same          incident.  In In re Nielsen, the Court held that a conviction for                        _____________          cohabiting with two  wives over  a two and  one-half year  period          barred  a subsequent  prosecution for  adultery with  one of  the          wives on  the day  following the  end of  that period.   Although          strict application of Blockburger would have permitted imposition                                ___________          of consecutive  sentences, in both  cases, the  Court found  that          these  separate  offenses were  the  "same"  for double  jeopardy          purposes, and barred the second prosecutions.  Brown, 432 U.S. at                                                         _____          166-67 n.6.               In 1990, in Grady v. Corbin, 110 S. Ct. at  2084, the Court,                           _____    ______          reviewing over a century of double jeopardy jurisprudence, looked                                         -7-          to  Ashe and  In  re Nielsen  as  evidence that  double  jeopardy              ____      ______________          analysis  must  extend  beyond  Blockburger.    The  Grady  Court                                          ___________          _____          recognized   a  distinction   between  multiple   punishment  and          successive prosecution cases, noting that successive prosecutions          raised concerns  beyond punishment which justified  a more robust          standard by which to review double jeopardy for these cases.                 The  Grady  majority asserted  that,  in  cases of  multiple                    _____          punishment,  the purpose  of the  Double  Jeopardy Clause  was to          prevent  the   sentencing  court   from  prescribing   a  greater          punishment than that authorized by the legislature.  110 S. Ct at          2091.  In  that context,  Blockburger functioned as  a "`rule  of                                    ___________          statutory  construction,'  a  guide  to  determining  whether the          legislature intended multiple punishments."  Id. at 2091 (quoting                                                       ___          Missouri  v. Hunter,  459 U.S.  359, 366  (1983)).   By contrast,          ________     ______          successive   prosecutions   raised   concerns  beyond   excessive          punishment, such  as questions  of finality, harassment,  and the          risk  of  erroneous conviction.    In  this  context, the  Double          Jeopardy  Clause   also  served  as   a  check  on   the  state's          prosecutorial  power,  insuring that  the  state,  "with all  its          resources  and   power,"  did  not  misuse   its  authority  over          individual defendants.  Id. (quoting Green v. United  States, 355                                  ___          _____    ______________          U.S. 184, 187 (1957)).                   Under Grady, to determine whether the Double Jeopardy Clause                     _____          barred  a  subsequent  prosecution,  a court  first  applied  the          traditional Blockburger  test.   If  the  subsequent  prosecution                      ___________          survived the Blockburger test,  the court then determined whether                       ___________                                         -8-          establishing an  essential element of an offense  charged in that          prosecution would  require the  government to prove  conduct that          constitutes  an offense for which the  defendant already has been          prosecuted.   110 S. Ct. at 2093.   If so, the second prosecution          was barred.  Id.                        ___               In Dixon v. United States, 113 S. Ct. 2849 (1993), the Court                  _____    _____________          renounced  Grady's  "same conduct"  test  and  affirmed that  the                     _____          Blockburger   analysis  governs  both   multiple  punishment  and          ___________          successive  prosecution  cases.5   Writing  for  a 5-4  majority,          Justice Scalia,  in Dixon,  essentially adopted the  reasoning of                              _____          his  dissent in Grady to  argue that Grady's  "same conduct" rule                          _____                _____          lacked  constitutional roots,  and  was wholly  inconsistent with          Supreme Court  precedent  and  the  common-law  understanding  of          double jeopardy.   113 S. Ct.  at 2860.   In his view,  the Grady                                                                      _____          Court  had  overstated the  limitations  of  the Double  Jeopardy          Clause, in practice embracing  a requirement that would  have all          charges arising  from a  single criminal transaction  tried in  a          single proceeding.   Grady,  110 S.  Ct. at 2102.   The  Court in                               _____          Dixon  thus   narrowed  the   scope  of  inquiry   in  successive          _____          prosecution cases.                                  III.  Application of Dixon                                    ____________________               Applying the  Dixon/Blockburger  "same elements" test to the                             _________________          facts  of this case compels the conclusion that the defendant may          be prosecuted  for being  a fugitive  in  possession of  firearms                                        ____________________               5In  the three  years  since Grady,  the composition  of the                                            _____          Court changed, resulting in  a shift in the majority  view of the          history and precedent underlying the Double Jeopardy Clause.                                         -9-          under 18 U.S.C.   922(g)(2) despite his earlier conviction  under          18 U.S.C.   3146 for  failure to appear.  To secure  a conviction          under section 3146(a)(1), the government must prove that  (1) the          defendant has been released on bail pending trial, sentencing, or          appeal;  (2) the defendant was required to appear before a court;          and  (3) the defendant knowingly failed to appear.  The fugitive-          in-possession charge requires proof (1) that  a defendant fled to          avoid  prosecution for a crime; (2) that he knowingly possessed a          firearm; and (3) that  the firearm was possessed in  or affecting          commerce.               Each  statute clearly  requires proof  of elements  that the          other  does not.  Under section 3146, for example, the government          must  prove that defendant was released on bail, and was required          to appear before a court.  These elements  are not required under          section  922(g), as  a  person may  be  a fugitive  from  justice          without having been released on bail,  and without being required          to  appear  before a  court.   Section  922(g) requires  that the          defendant  possess a firearm, which is not a required element for          a violation of section 3146(a).  Therefore, prosecution for these          two offenses is not barred by Blockburger/Dixon.                                        _________________               The district court made  this same observation, but rejected          the  technical  comparison  of  the  statutes'  elements  as  too          cursory.  The court found that this case was comparable to Harris                                                                     ______          v.  Oklahoma, 433 U.S. 682 (1977) (per curiam), where the Supreme              ________          Court  held  that  a  prosecution  for robbery  with  a  firearm,          following defendant's  conviction for felony murder  based on the                                         -10-          robbery, was  barred by double jeopardy principles.   The Supreme          Court  later explained  this result  by noting  that, for  double          jeopardy  purposes,  it did  not  consider  "the crime  generally          described as felony  murder as a  separate offense distinct  from          its various elements."   Illinois  v. Vitale, 447  U.S. 410,  420                                   ________     ______          (1980).  Rather, robbery with a firearm was a "species of lesser-          included offense" of the  felony murder for which  Harris already          had been prosecuted.  Id.                                  ___               Relying on  Harris, the  district court  found that,  on the                           ______          specific facts of this case, section 3146(a)(1) was a "species of          lesser-included  offense"  of  section  922(g)(2).     The  court          explained that in order to prosecute Colon Osorio for a violation          of section 922(g)(2),  the government must show that Colon Osorio          was a fugitive from  justice, which, in turn, required  a showing          that  he fled to avoid prosecution.  In this case, the government          would rely on proof of the  same conduct which comprised proof of          his bail jumping offense under section 3146: that he  was on bail          for  an indictment in Connecticut; that he was required to appear          before a court; and that he failed to appear.   Noting that these          were all the "elements necessary  in the previous prosecution for          violations of  section 3146(a)(1)," the district  court held that          section  3146  was  a  "species of  lesser-included  offense"  of          section  922(g)(2) and,  therefore, that  Blockburger barred  the                                                    ___________          government from prosecuting Colon Osorio under this section.               The district court's analogy lacks force in the aftermath of          Dixon.   In the  first place,  Harris'  status is  unclear.   The          _____                          ______                                         -11-          Supreme  Court  in Grady  had pointed  to  Harris to  support its                             _____                   ______          argument that Blockburger was not the exclusive test to vindicate                        ___________          the   Double  Jeopardy   Clause's  protection   against  multiple          prosecutions.   Grady,  110  S. Ct.  at  2092.   The  Dixon Court                          _____                                 _____          overruled   this   proposition,   holding   that   both  multiple          prosecution  and multiple  punishment  cases are  to be  assessed          under the identical standard, Blockburger's "same elements" test.                                        ___________          Dixon,  113 S. Ct.  at 2856, 2860.   A  majority  of the justices          _____          criticized  an  interpretation  of   Harris  which  supports  the                                               ______          proposition  that  the   Blockburger  test  is  insufficient   to                                   ___________          determine whether  a successive  prosecution is barred,  and that          conduct, not merely statutory elements, must be the object of the          double  jeopardy  inquiry.   Id. at  2861.   These  same justices                                       ___          disagreed, however,  over Harris'  application, leaving open  the                                    ______          possibility that  a majority could still view Harris as providing                                                        ______          an exception to the Blockburger approach.  See 113 S.Ct. at 2866-                              ___________            ___          67  (Rehnquist, C.J., concurring and dissenting); id. at 2857 n.2                                                            ___          (Scalia, J.).6                                         ____________________               6Dixon involved  the question of whether  defendants who had                _____          been  prosecuted for  criminal  contempt of  court for  violating          court orders subsequently could  be tried for crimes  arising out          of  the  same  conduct which  was  the  subject  of the  contempt          prosecution.   While a majority  of the Court  joined to reaffirm          Blockburger's application to successive prosecution cases, and to          ___________          overrule  Grady  v.  Corbin's  "same  conduct"  test,  there  was                    _____      ______          significant disagreement  among this same majority  regarding the          effect  of this change.   Chief Justice Rehnquist,  in an opinion          joined by  Justices O'Connor and Thomas, focused his criticism on          Justice  Scalia's  application  of  Harris.   He  contended  that                                              ______          Justice  Scalia  improperly invoked  Harris.   In looking  to the                                               ______          facts that had  to be proven to show a  violation of the specific          court orders  at issue, and  not to the  generic elements of  the          crime   of  contempt   of  court,   Justice  Scalia   effectively                                         -12-               In  any event, this case is distinguishable from Harris.  In                                                                ______          Harris, the  Court barred  a second  prosecution for  the offense          ______          that had been used to  establish an element of the felony  murder          offense for which the defendant was convicted.  By contrast, bail          jumping is  not an offense on  which the government will  rely to                      ___          establish Colon Osorio's fugitive  status.  The government merely          will  rely  on the  same conduct  that  the government  proved to                                   _______          establish Colon Osorio's bail jumping offense.                Indeed, the district court's  analysis is precisely what the          Dixon  Court rejected.  Under Dixon, the fact that the government          _____                         _____          will  attempt  to  prove that  Colon  Osorio  was  a fugitive  by          referring  to  the same  conduct used  to  prove the  elements of          failure to  appear does  not offend  the Double Jeopardy  Clause.          The  same actions can  constitute an  offense under  two distinct          statutes and can be  prosecuted separately under each statute  as          long as  the statutes do not  define a single offense  within the          meaning of  Blockburger.  United  States v. White, 1  F.3d 13, 17                      ___________   ______________    _____          (D.C.  Cir. 1993); see also Blockburger, 284 U.S. at 304 (quoting                             ___ ____ ___________          Morey v. Commonwealth, 108 Mass. 433 (1871)).          _____    ____________          The district court's decision therefore must be REVERSED.          _________________________________________________________                                        ____________________          resurrected the  Grady analysis that the Court had just rejected.                           _____          Dixon, 113  S. Ct.  at 2866-67  (Rehnquist, C.J.,  concurring and          _____          dissenting).  See also  id. at 2857 n.2 (Scalia,  J., criticizing                        ___ ____  ___          Chief  Justice  Rehnquist's  interpretation of  his  analysis  of          Harris).   Therefore, whether Harris still  provides an exception          ______                        ______          to Blockburger remains unclear post-Dixon.             ___________                      _____                                         -13-
