          United States Court of Appeals
                     For the First Circuit

No. 16-2509

                    UNITED STATES OF AMERICA,

                           Appellant,

                               v.

                      DAVID SANTIAGO-COLÓN,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     John P. Taddei, Attorney, Appellate Section Criminal
Division, U.S. Department of Justice, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, Trevor N. McFadden, Acting
Principal Deputy Assistant Attorney General, Rosa E. Rodríguez-
Vélez, United States Attorney, and Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Section, were
on brief, for appellant.
     Andrew S. McCutcheon, Assistant Federal Public Defender, with
whom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric
Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellee.


                        February 28, 2019
            TORRUELLA, Circuit Judge.        The United States appeals the

district       court's     order    granting     David        Santiago-Colón's

("Santiago") motion to suppress identification evidence, giving

preclusive effect to a Puerto Rico Court of Appeals's order

suppressing this same evidence in a local proceeding for different

offenses.      According to the district court, inasmuch as Puerto

Rico and the United States are a single sovereign for purposes of

the   Double    Jeopardy     Clause,   Puerto   Rico     v.   Sánchez   Valle,

136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's

final judgment suppressing identification evidence, even though

federal prosecutors "did not participate in the [Puerto Rico] court

criminal    proceedings      against    Santiago."       United    States   v.

Santiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016).                 In so

ruling, the district court deviated from our on-point precedent

holding that suppression of evidence by a Puerto Rico court does

not require a federal court to suppress that same evidence unless

federal prosecutors were a party, or were in privity with a party,

to the suppression hearing in the Puerto Rico court, United States

v. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was

not the case here.         Sánchez Valle, moreover, did not change the

law in this area.        Accordingly, we reverse and vacate the district

court's suppression order.

	


                                       -2-
                              I.     Background

A.     Factual Background

             On January 13, 2013, Puerto Rico Police Department Agent

Carlos Sepúlveda-Rivera ("Sepúlveda") was off-duty at La Casita,

a bar in Villalba, Puerto Rico, when he got into an altercation

with two men.     Sepúlveda and the two men exchanged gunfire.         After

the men shot Sepúlveda four times, he was transported to the

hospital for treatment of his injuries.              Sergeant Pedro Quiles-

Torres ("Quiles") interviewed Sepúlveda at the hospital later that

day.     During his interview, Sepúlveda provided a description of

his    two   assailants. 1   Based    on    the   descriptions   provided   by

Sepúlveda and a review of the security video footage of La Casita,



1  According to the government, on the same evening the shootout
occurred, Sepúlveda provided a description of the shooters'
physical characteristics and attire.     He described one of his
assailants, later identified as Santiago, as slim, tall, wearing
a jacket, a black sweater, and short blue pants. Sepúlveda also
stated that, although he could not remember their names, he knew
both assailants.     Sepúlveda explained that he knew Santiago
because he played basketball for the team of La Sierra, the
neighborhood where Sepúlveda resides, and that he was called
"Cabezón" (Spanish for "Big Head"). Sepúlveda also stated that
Santiago was either the son-in-law or former son-in-law of the
former mayor of Villalba. Indeed, Santiago's known nickname is
"Cabezón," he played for La Sierra basketball team, and was related
to the former mayor of Villalba.      As to the second assailant,
later identified as Richard Cartagena-Suárez, Sepúlveda provided
a physical description, described his clothing at the time of the
incident, and stated that he knew him because Sepúlveda had
previously assisted in the individual's arrest for an unrelated
offense.


                                      -3-
local    law    enforcement      agents    identified         Santiago     and    Richard

Cartagena-Suárez ("Cartagena") as the shooters.                          The next day,

Quiles    showed        two   photo   arrays      to    Sepúlveda,       each    of   them

containing nine photos.           One array included Santiago's photo, and

the other one included Cartagena's.               Sepúlveda picked Santiago and

Cartagena from the photo arrays.

B.    Local Case

               Puerto Rico prosecutors charged Santiago with attempted

first-degree       murder,     carrying     and    using      a   firearm       without   a

license, and discharging or pointing a firearm, in violation of

Puerto     Rico    law.        Santiago     moved       to    suppress      Sepúlveda's

identification of him on the grounds that it was obtained in

contravention of the Puerto Rico Rules of Criminal Procedure.                         The

local prosecution opposed.             The local trial court held a three-

day   evidentiary        hearing,     in   which       four   witnesses     (including

Sepúlveda and Quiles) testified.                  After the local trial court

denied suppression, Santiago appealed to the Puerto Rico Court of

Appeals.       The Puerto Rico Court of Appeals then reversed and

suppressed        the     identification         evidence.          It     noted      some

contradictions           in    Sepúlveda's        testimony,        concluded         that

Sepúlveda's identification of Santiago "and the photographic line

up led by Sergeant Quiles were not trustworthy pursuant to the

criteria established by . . . [the Puerto Rico] Supreme Court in


                                           -4-
Pueblo       v.    Hernández     González,"         2009 WL    197570    (2009)

(untranslated), and remanded the case to the local trial court.

See   App.    at   65,   84,   May   18,    2017,    No.   16-2509   (certified

translation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL

5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)).               The Puerto

Rico Supreme Court declined to intervene, and the case was later

dismissed.

C.    Federal Case

             Based on the January 13, 2013 incident, a federal grand

jury returned an indictment on June 4, 2015, charging Santiago

with being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2             Santiago moved

to suppress Sepúlveda's out-of-court identification and to prevent

Sepúlveda from identifying him in court.                   He argued that the

identification procedure had been unduly suggestive, that the

Puerto Rico Court of Appeals had already considered and rejected

the testimony of Sepúlveda and Quiles -- "the only witnesses who

[could] provide material testimony on the issues relevant to the

case at bar" -- and that said determination was final.               Urging the

court to apply a standard like the one used when reviewing habeas



2  Santiago was indicted after the Puerto Rico Court of Appeals
issued its opinion suppressing his identification, but before the
local case was dismissed.


                                      -5-
corpus petitions, Santiago argued that "disagreement alone is not

enough" for a federal court to ignore a state court's credibility

determination.       Rather, "[t]he federal court must conclude not

only that the state court's determination was wrong, but that it

was unreasonable in light of the evidence presented."             Because,

according to Santiago, the Puerto Rico Court of Appeals's decision

was not unreasonable, he urged the district court to "defer" to

the "findings made by Puerto Rico's courts," suppress Sepúlveda's

out-of-court identification of Santiago, and preclude Sepúlveda

from identifying Santiago in court.

            The government opposed the motion, arguing that Santiago

had   failed    to   show   that   "the    identification   procedure   was

impermissibly suggestive under federal law" and that, in fact, the

procedure was reliable.      The government also noted that the Puerto

Rico Court of Appeals, in reversing the trial court, failed to

give due deference to the trial judge's findings of fact and

therefore      misapplied   Puerto    Rico    law.    Additionally,     the

government pointed out that Sepúlveda knew the perpetrators before

the shootout and identified Santiago by his nickname, supporting

the reliability of the identification.

            On October 4, 2016, without holding a hearing, the

district    court     granted      Santiago's    "request    to   suppress

identification."      That order was followed by an opinion entered


                                     -6-
the same day. Santiago-Colón, 213 F. Supp. 3d 297.          In its opinion,

the district court noted that in Sánchez Valle the U.S. Supreme

Court held that "for purposes of the Double Jeopardy Clause, the

[Puerto Rico] and United States governments constitute a single

sovereign, in as much [sic] as the former's power to prosecute

derives from the latter's."         Id. at 297.       The district court

concluded that it "must give the [Puerto Rico] court suppression

findings and judgment preclusive effect" because "[n]ot doing so

would ignore the constitutional reality that indeed [Puerto Rico]

and [the] United States are but one sovereign when it comes to

criminally prosecuting individuals."           Id. at 298.       It further

noted that, although federal prosecutors "did not participate in

the [Puerto Rico] court criminal proceedings against [Santiago],

their local counterparts in fact did" and "[t]heir authority to do

so ultimately emanates from the United States."                Id. (citing

Sánchez Valle, 136 S. Ct. at 1863).        The district court's order

set a pre-trial conference for November 9, 2016 "to discuss if the

Government   ha[d]    independent    evidence    to    proceed    with   its

prosecution, or if it will appeal the Court's suppression order."3

           On November 10, 2016, the district court held the pre-

trial   conference.     At   the   beginning    of   the   conference,   the


3  That pre-trial conference was later rescheduled for November 10,
2016.


                                    -7-
district court stated that it believed "there[] [was] a basis" for

filing an interlocutory appeal.               The government argued that the

district court's suppression of Santiago's identification was

contrary to binding First Circuit precedent applying collateral

estoppel principles, including Bonilla Romero, 836 F.2d 39, and

United States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and

that Sánchez Valle did not change the law.                   The district court

rejected the government's arguments and clarified that the court's

decision   was    not   based      on   collateral    estoppel,       but   "on    an

assumption that it's the same sovereign."                     According to the

district court, because under Sánchez Valle Puerto Rico and the

United States are "a single sovereign," the Puerto Rico court's

suppression findings and judgment have preclusive effect on a

subsequent federal prosecution and bind the district court.4

           The    court     then   inquired     whether   the   government        had

independent      evidence    to    proceed     to   trial.      The    government

responded that even though the court had suppressed Sepúlveda's

out-of-court identification of Santiago, it "would like to proceed

to trial" with the in-court identification, because Sepúlveda knew



4  In the district court's words, although the local court's
decision "may be a wrong ruling . . . it's still a ruling that's
final," it "binds the [f]ederal [g]overnment," and precludes
relitigation of the issue in federal court even if the district
court "disagree[s] with [the ruling]."


                                        -8-
Santiago prior to the January 13th incident and before he saw the

photo array.     The government also indicated that it could use the

security video footage allegedly showing Santiago at the crime

scene.    Santiago responded that he thought the district court had

suppressed both the out-of-court identification (product of the

photo array) as well as any in-court identification because the

Puerto    Rico   Court    of   Appeals     had   allegedly     suppressed   both

identifications.         After reviewing again the decision from the

Puerto Rico Court of Appeals, the district court concluded that

the Puerto Rico Court of Appeals had suppressed both Sepúlveda's

out-of-court     and     in-court    identifications      of    Santiago,   and

resolved to do the same.         The court further stated that it would

"supplement" its suppression order.

            The district court noted that if the government had no

independent evidence to identify Santiago at trial, the "course to

proceed would be for the government to file a notice of appeal,"

because the issue was "definitely capable of repetition," would

"continue    happening,"       and   was    "appealable      interlocutorily."

Additionally, it noted that "[t]his may be the best case to do

it."     Santiago agreed that the government "should go up to the

First Circuit to clarify th[e] issue."

            Consistent with its statements during the pre-trial

conference, later that day the district court entered an order


                                      -9-
supplementing    its    October   4th   order    by   clarifying     that   its

suppression order was "based on the single sovereign doctrine and

not on collateral estoppel" and "extend[ed] to both the in-court

identification by . . . Sepúlveda . . . , as well as the photo

identification."       On December 2, 2016, the government filed its

notice of appeal, stating that it was appealing from the order

entered on November 10, 2016.      On November 15, 2017, the government

filed a certification under 18 U.S.C. § 3731 with the district

court, in which the United States Attorney certified that "the

appeal is not taken for the purpose of delay and that the evidence

[suppressed] is a substantial proof of a fact material in the

proceeding."

            On appeal, the government claims the district court's

order suppressing any in-court identification of Santiago as the

shooter should be reversed because it is contrary to First Circuit

precedent, which has held that whether suppression of evidence by

a local court has preclusive effect in a federal proceeding is an

issue of collateral estoppel, not double jeopardy.                 It further

claims that, under collateral estoppel principles, the suppression

of   the   identification   evidence    was     improper   because    the   two

prosecuting authorities were not in privity.5


5  The government does not appeal the suppression of Sepúlveda's
out-of-court identification of Santiago.


                                   -10-
                               II.    Discussion

A. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731
   Certification Requirement

                Santiago claims that this court lacks jurisdiction to

entertain this appeal because the government filed an untimely

notice of appeal and failed to comply with the certification

requirements under 18 U.S.C. § 3731.           We address each procedural

challenge in turn.

        i.   Standard of Review and Applicable Law

                This   court   must   verify   that   it   has   appellate

jurisdiction before addressing the merits of any appeal.         Espinal-

Domínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).

"Jurisdiction is a question of law subject to de novo review."

United States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).

                The Criminal Appeals Act establishes in relevant part

that:

        An appeal by the United States shall lie to a court of
        appeals from a decision or order of a district court
        suppressing or excluding evidence . . ., not made after
        the defendant has been put in jeopardy and before the
        verdict or finding on an indictment or information, if
        the United States attorney certifies to the district
        court that the appeal is not taken for purpose of delay
        and that the evidence is a substantial proof of a fact
        material in the proceeding.

        . . .

        The appeal in all such cases shall be taken within thirty
        days after the decision, judgment or order has been
        rendered and shall be diligently prosecuted.

                                      -11-
      The provisions of this section shall                     be    liberally
      construed to effectuate its purposes.

18 U.S.C. § 3731.

           The   government       is    allowed    to   take    an    interlocutory

appeal   from     suppression      and       exclusion      orders     in     certain

circumstances     to     remedy        the     "imbalance      created        by    the

peculiarities of criminal procedure."               United States v. Watson,

386 F.3d 304, 308 (1st Cir. 2004).             While a criminal defendant who

had unsuccessfully sought suppression of evidence before trial

could appeal the denial of the suppression if he was convicted,

double jeopardy principles preclude the government from appealing

a   pre-trial    order   suppressing         evidence    in    the    event    of    an

unfavorable verdict at trial.                Id.    Because "Congress became

concerned about both this disparity and the lack of uniform

standards of admissibility that resulted from it," id., it amended

the Criminal Appeals Act in 1968 to allow the government to appeal

a pre-trial suppression or exclusion order, id. at 308-09.                           In

1970, Congress further amended the Criminal Appeals Act to remedy

the courts' then-narrow interpretation of § 3731 and to include an

explicit "command to construe the statute liberally," id. at 309,

which this court has construed "as a cue to put substance ahead of

form" in deciding whether it has jurisdiction to entertain an

appeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st


                                        -12-
Cir. 1981)    (noting   that   "the    liberal      construction    provision"

dictates "a practical, rather than formalistic, application").

      ii. Timeliness Issue

             Santiago argues that the government's notice of appeal

was untimely because it was filed more than thirty days after the

district court entered its October 4th order.                     According to

Santiago, on October 4, 2016, the district court granted his motion

to suppress, which sought to suppress not only Sepúlveda's out-

of-court identification of him (the photo array), but also sought

to prevent Sepúlveda from identifying him in court.                   Santiago

argues that the government, however, failed to file a notice of

appeal, or request clarification or reconsideration of the order,

until after the thirty-day window provided in 18 U.S.C. § 3731 had

expired.

             Santiago acknowledges that "when the lower court changes

matters of substance, or resolves a genuine ambiguity" in an

otherwise appealable order, "the period within which an appeal

must be taken . . . begin[s] to run anew," see Fed. Trade Comm'n

v.   Minneapolis-Honeywell     Regulator     Co.,    344   U.S.    206,   211-12

(1952), but argues that such is not the case here.                 He contends

that while the government attempts to draw a distinction between

the October 4th and November 10th orders -- characterizing the

former as suppressing only the out-of-court identification and the


                                      -13-
latter   as    further   suppressing   any    in-court   identification   by

Sepúlveda -- such distinction is inappropriate because the order

on November 10th did not materially change the October 4th order.

The November 10th order, Santiago insists, merely reiterated that

the prior suppression ruling included both the out-of-court and

the in-court identifications, which does not serve to start the

clock anew for appellate purposes.

              In response, the government argues that the notice of

appeal was timely because it was filed within thirty days of the

November 10th order, which it characterizes as a "'supplement[al]'

suppression order" that "materially amended the original October 4

orders by suppressing evidence that was not covered by the original

orders."

              The government states that neither the Puerto Rico Court

of Appeals's opinion nor the district court's October 4th order

"specifically      addressed   whether       Agent   Sepúlveda   would    be

prohibited from identifying Santiago" at trial.           According to the

government, the "ambiguous" language of the Puerto Rico Court of

Appeals's opinion and the district court's October 4th order, in

conjunction with the district court's simultaneous scheduling of

a pre-trial conference to discuss whether the government had

independent evidence to proceed with its prosecution, as well as

federal case law suggesting that suppression of an out-of-court


                                   -14-
identification by a witness does not necessarily preclude an in-

court identification by the same witness, led it to believe that

only the photo array evidence had been suppressed.            The government

submits that the October 4th order was so ambiguous that the

district court had to re-read the Puerto Rico Court of Appeals's

opinion in order to determine whether its October 4th order also

encompassed the in-court identification.           The government further

argues that if the October 4th order had been clear, as Santiago

claims, "it would have been unnecessary for the district court to

'issue a supplement[al] order clarifying' its original ruling" and

that the order itself stated that it was a "supplement" to the

October 4th order, which "extend[ed]" suppression to in-court

identification.

            We are persuaded by the government's arguments.                  The

October 4th order did not specify the scope of the suppression,

and the Puerto Rico Court of Appeals's opinion, on which the

district   court     relied,   was   ambiguous    as   to   whether    it   also

precluded Sepúlveda from identifying Santiago in court.                In fact,

the opinion of the Puerto Rico Court of Appeals gave the impression

that    only   the   photographic     lineup     identification       had   been

suppressed.6


6   The Puerto Rico Court of Appeals's opinion stated as follows:

       [P]etitioners filed a Motion to Suppress Identification

                                     -15-
             In addition, as the government contends, suppression of

a photographic lineup identification does not necessarily require

exclusion     of   an   in-court    identification   provided    that   the

prosecution can "establish by clear and convincing evidence that

the in-court identification[] w[as] based upon observations of the

suspect other than the lineup identification."        Moore v. Illinois,

434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,

388 U.S. 218, 240 (1967)).         Hence, this supports the government's

understanding that only the out-of-court identification had been

suppressed, and Sepúlveda could identify Santiago in court based

on his knowledge of Santiago prior to the photo array.

             Furthermore, as the government argues, the district

court's scheduling of a pre-trial conference to discuss whether

the government had additional evidence to proceed to trial, as

well    as   the   events   that    transpired   during   that   pre-trial


       . . . alleg[ing] that . . . they were identified through
       photographs the day after the facts . . . [and] . . .
       that the process was 'severely vitiated' [in] that it
       did not comply with the provisions of Rule 252.2 of
       [Puerto Rico] Criminal Procedure Rules. . . . [W]e
       conclude that the identification that Agent Sepúlveda
       Rivera made of . . . Santiago . . . and the photographic
       line up [sic] led by Sergeant Quiles were not trustworthy
       pursuant to the criteria established by our Supreme
       Court in Pueblo v. Hernández González. . . . [Thus, the
       trial court's] resolution is vacated and set aside and
       in   its    consequence,    the   suppression    of   the
       identification of petitioners is ordered.

App. at 41, 84, May 18, 2017, No. 16-2509.

                                     -16-
conference, also support the government's interpretation that the

October 4th order had not suppressed all of the identification

evidence.       At the November 10th conference, the parties disputed

the    scope    of    the   October   4th    suppression          order.        When    the

government stated that it believed the order had suppressed the

out-of-court         identification   only,      the       district     court    did    not

clarify that it had also suppressed the in-court identification.

Instead, the court decided to hear from defense counsel.                        In fact,

even after defense counsel argued that the October 4th order

"clear[ly]" suppressed both identifications, the court stated as

follows:

       [I]f the government wants to proceed to trial, what I
       need then is for the government to file a motion and
       inform what witnesses are going to testify and if they're
       going to identify him in court or not so the defense can
       adequately respond.    And then I can either -- either
       I'll grant it or deny it. And if I deny it and basically
       I'm suppressing everything, then the government can
       still appeal.

               The district court then took a brief recess to review

the opinion from the Puerto Rico Court of Appeals in order to

ascertain the scope of its own suppression order.                          It was after

reviewing again the opinion from the Puerto Rico Court of Appeals

that   the     district     court   stated      that       it   would   suppress       both

identifications.            It   found      that       a    "supplement[al]        order

clarifying" its original order was warranted.                       The court deemed

it appropriate to clarify that its ruling was based "on the single

                                         -17-
sovereign doctrine, not on collateral estoppel," and that its

"suppression ruling would include the identification of Agent

Sepúlveda of the defendant, as well as his . . . photo . . .

identification."        It is worth noting that the court stated its

suppression ruling "would include," and not that it "included" or

"had   included,"      the   in-court    identification.        Therefore,    the

court's chosen language supports the government's contention that

the original order did not include the in-court identification.

The court then proceeded to issue a supplemental order clarifying

its    October   4th   order   to   these      effects.   See    Dkt.   No.   70,

United States v. Santiago-Colón, 15-cv-00396 ("supplement[ing] its

ruling [of October 4th] . . . to the effect that that the same

[was] based on the single sovereign doctrine and not on collateral

estoppel" and "hold[ing] that its suppression extends to both the

in-court identification by Agent Sepúlveda Rivera, as well as the

photo identification").7

            Considering the record as a whole, we hold that the

November 10th order amended or materially changed the October 4th

order, which had the effect of restarting the thirty-day clock.



7  The court used the language "the Court holds" as if it was
determining the scope of the suppression for the first time,
instead of using language such as "clarifies," which would suggest
that the decision had been previously taken.        Dkt. No. 70,
United States v. Santiago-Colón, 15-cv-00396 (emphasis added).


                                        -18-
This   makes    timely   the   government's   notice   of   appeal   of   the

November 10th order.      See United States v. Cheal, 389 F.3d 35, 53

(1st Cir. 2004) (noting that courts are encouraged "to construe

notices of appeal liberally and examine them in the context of the

record as a whole" (quoting Chamorro v. Puerto Rican Cars, Inc.,

304 F.3d 1, 3 (1st Cir. 2002))).

       iii.    18 U.S.C. § 3731 Certification Issue

              Santiago also argues that this court lacks jurisdiction

to entertain the interlocutory appeal because the United States

Attorney did not timely file a § 3731 certification with the

district court certifying that the appeal was not taken to delay

the proceedings and that the evidence suppressed is substantial

proof of a material fact.        Santiago acknowledges that this court

has not addressed whether certification is a pre-condition to

appellate jurisdiction but argues that we should treat it as such.

He further argues that even if we were to treat non-compliance

with the certification requirement as a "filing irregularity"

governed by Federal Rule of Appellate Procedure 3(a) -- which would

leave any appropriate action, including dismissal of the appeal,

to the court's sound discretion -- we should not condone the

government's "disregard for diligence."

              In response, the government acknowledges that it filed

the § 3731 certification belatedly, after Santiago pointed out the


                                    -19-
government's non-compliance with the certification requirement in

his response brief, and apologizes for the late filing.8             But, the

government claims that such late filing does not require dismissal

of the appeal.

          The    government    notes      that   "[t]he    purpose   of   the

certification    requirement   is    to    ensure   that    the   prosecutor

carefully analyzed the case before deciding to appeal" and that,

despite its belated filing of the § 3731 certification, the

government did comply with the substance of § 3731 before it filed

its notice of appeal.    It points out that the Solicitor General,

who decides whether the government will seek appellate review in

a given case, "considers a variety of factors, such as the limited

resources of the government and the crowded dockets of the courts,

before authorizing an appeal," and that this deliberative process

was followed here, when the Acting Solicitor General approved

filing an appeal on April 19, 2017.          It further points out that

the Criminal Division of the United States Attorney's Office also

"thorough[ly] review[ed]" this case before the government decided

to file its notice of appeal.


8  The government explains that at the time it filed its notice of
appeal, counsel of record was a Special Assistant United States
Attorney ("SAUSA") on detail from the Puerto Rico Department of
Justice who was inexperienced in federal appellate procedures, and
the government first became aware of the missing certification
when Santiago raised the issue in his response brief.


                                    -20-
          The government contends that most appellate courts that

have addressed the issue have not treated the certification as a

jurisdictional    requirement.    Rather,   "[t]hey    have   held    that

whether dismissal is an appropriate remedy is a matter that falls

within the court's discretion."

          Furthermore, the government points us to United States

v. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court

rejected the argument that dismissal was warranted because the

United States Attorney had not personally signed the § 3731

certification filed with the district court.          It notes that in

Crespo-Ríos the court gave weight to the deliberative process the

government underwent before filing its appeal (including review by

the United States Attorney and the Solicitor General), as well as

to Congress's mandate that § 3731 be construed liberally.              The

government argues that both considerations are present in this

case and thus urges us to consider the appeal on its merits.

          It is uncontested that the government filed its § 3731

certification belatedly.    However, in light of Congress's mandate

that 18 U.S.C. § 3731 be "liberally construed to effectuate its

purposes,"   we   decline   Santiago's   invitation     to    treat    the

certification as a jurisdictional requirement.        Instead, we join

most of the circuits that have addressed the issue and leave it to

the court's sound discretion to determine whether dismissal of an


                                 -21-
appeal    for    failure     to   comply     with     the    §   3731     certification

requirement is appropriate in a particular case.                             See, e.g.,

United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per

curiam) (refusing to treat § 3731's certification requirement as

jurisdictional and exercising appellate jurisdiction even though

the United States Attorney's certification was filed after the

defendant-appellee          had   already     filed    his       brief,     because   the

Solicitor General had authorized the appeal and there seemed to be

no   prejudice     resulting        from    the     belated      filing);     see     also

United States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting

that failure to file a timely § 3731 certification does not deprive

the court of jurisdiction over the appeal, but "is a ground for

the court of appeals to act as it considers appropriate") (internal

quotation marks and citation omitted); United States v. Smith,

263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely

file a § 3731 as "an irregularity in perfecting [an] appeal" and

noting that its "sister circuits have consistently held that the

delayed filing of a section 3731 certificate, although disfavored,

does     not    divest      appellate      courts     of     their      jurisdiction")

(collecting cases).

               Here,   we    find    that     dismissal          of   the    appeal     is

unwarranted.       This case presents an important issue that, as the

district court acknowledged, is "definitely capable of repetition"


                                           -22-
and would "continue happening."           In fact, the United States

District Court for the District of Puerto Rico is already split as

to how to resolve this issue of law.9      Moreover, this case presents

a question of law and, as the district court stated, "[t]his may

be the best case to [decide the issue]," which has been fully

briefed.   We note that although the government failed to file the

required certification at the time it filed its notice of appeal,

it complied with the substance and purpose of the certification

requirement.   As the government explained, before it filed its

brief, the government engaged in the deliberative process to

determine whether the issue should be taken on appeal.      Compliance

with the essence of this deliberative process, as well as the

mandate to construe the statute liberally, were determinative

factors in Crespo-Ríos.    645 F.3d at 44 n.6.        Furthermore, the

government's failure to timely file the § 3731 certification has

in no way prejudiced Santiago.10    See Smith, 263 F.3d at 578 (noting


9  In United States v. Rosado-Cancel, the district court rejected
the defendant's argument that federal firearms charges should be
dismissed under Sánchez-Valle because a Puerto Rico court had
already dismissed parallel Puerto Rico firearms charges for lack
of probable cause.    No. 13-731, 2017 WL 543199, at *7 (D.P.R.
Feb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla
Romero, the district court held that "any issue preclusion argument
. . . would . . . fail on lack-of-privity grounds." Id.
10  Santiago claims to have been prejudiced by the government's
belated filing of its § 3731 certification because he has remained
imprisoned during the pendency of the government's appeal. He has
failed, however, to explain how his situation would have been

                                   -23-
that "[i]n exercising their discretion, courts typically consider

a variety of factors, including: when the certificate was filed;

the   reason   for     the      failure    to    timely       file   it;   whether   the

government     did    in   fact       engage    in    a     conscientious   pre-appeal

analysis;      whether          the    government           acknowledges    that     the

certification requirement should be taken seriously; any delay or

prejudice to the defendant; whether the appeal raises important

legal issues needing appellate clarification; and whether the

appeal should be heard in the interest of justice, or for any other

significant reason") (internal quotation marks omitted).

             Finding       no    procedural          issue    that    divests   us    of

jurisdiction, we now turn to the merits of this appeal.

B.    Suppression Issue

             The     government        argues        that     the    district   court's

conclusion -- that because Puerto Rico and the United States are

a single sovereign for purposes of the Double Jeopardy Clause,

suppression rulings by Puerto Rico courts are binding in federal

prosecutions -- is unsupported by Sánchez Valle and contrary to

longstanding First Circuit precedent.




different   had  the   government   timely  complied with  the
certification requirement.    Thus, Santiago has not shown any
prejudice stemming from the belated filing.


                                          -24-
               According to the government, Sánchez Valle does not hold

that Puerto Rico and the United States are the same for purposes

of all criminal law enforcement and procedure.                        Instead, it

narrowly held that they are a single sovereign for double jeopardy

purposes, which the government posits has no bearing in this case.

The government argues that the doctrine of collateral estoppel is

controlling, as held in "two precedential decisions" which it

claims are still binding: Bonilla Romero, 836 F.2d at 42-43, and

Pérez-Pérez,      72     F.3d   at    226.        Under   a   collateral    estoppel

analysis, the government urges us to find that the district court

was not collaterally estopped by the local court's suppression

decision because the United States was neither a party, nor in

privity with a party, at the local suppression proceedings.

               Santiago agrees with the government that "the doctrine

of collateral estoppel controls this case rather than double

jeopardy."       He notes that the district court "conflate[d] the

two,"    but     argues    that      its   ruling    is   nevertheless      "clear."

Santiago further argues that Sánchez Valle confirmed that Puerto

Rico "has what amounts to an agency relationship with the federal

government."       Yet, because Bonilla Romero predates Sánchez Valle,

the     former    "did    not     fully      confront     Puerto   Rico's     agency

relationship with the United States" and thus should not be

controlling.       Santiago submits that, in any event, even if Bonilla


                                           -25-
Romero     is       still   good     law,    it     is   "factually       and      legally

distinguishable" from his case.

               In    Bonilla    Romero,      this     court      rejected    Santiago's

contention that suppression of evidence by a Puerto Rico court in

a local prosecution necessarily requires suppression of the same

evidence in a subsequent federal prosecution.                     836 F.2d at 41-45.

There, Puerto Rico officers had seized two firearms and drugs from

the car and house of the defendant, who was charged with weapons

and drug offenses under Puerto Rico law.                         Id. at 41.        Months

later, based on that same evidence, a grand jury returned an

indictment charging the defendant with federal crimes.                       Id.    After

holding    a    hearing,       the   Puerto    Rico      trial    court     granted   the

defendant's motion to suppress because the local judge "seriously

doubted the veracity" of the officers' testimony.                     Id.       The local

prosecution was subsequently dismissed.                   Id.     The defendant then

sought suppression of the same evidence in the district court.

Id.   The district court "held that the federal court was not bound

by the decision of the local court to suppress the evidence" and

ultimately denied the defendant's motion to suppress.                        Id.    After

the defendant was convicted on all federal counts, he appealed the

denial of his motion to suppress, arguing, inter alia, that

allowing       the    government     to     relitigate     the     suppression       issue




                                            -26-
violated the Double Jeopardy Clause as well as collateral estoppel

principles.     Id.

           We   rejected   both   challenges.   First,   regarding   the

double jeopardy challenge, we noted that "jeopardy 'attaches' when

a trial commences; that is, when a jury is sworn or empanelled or,

in a bench trial, when the judge begins to hear evidence."           Id.

at 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26

(1980)).   Because "jeopardy did not attach as a result of the

suppression of evidence ordered . . . by the Puerto Rico . . .

[c]ourt[,] and the subsequent dismissal of charges under Puerto

Rico law," the litigation of the suppression of evidence issue in

federal court did not violate the defendant's rights under the

Double Jeopardy Clause.     Id.

           Second, assuming without deciding that the doctrine of

collateral estoppel applied even when jeopardy had not attached,11

we rejected the defendant's contention that "relitigation of the


11  As in Bonilla Romero, this appeal does not require us to decide
whether collateral estoppel is applicable in criminal proceedings
regardless of whether jeopardy has attached. See Bonilla Romero,
836 F.2d at 43. Because both parties urge us to apply the doctrine
of collateral estoppel, and because we would reach the same result
irrespective of whether the doctrine applies, we assume that the
collateral estoppel doctrine is applicable regardless of whether
jeopardy has attached. We further note that, although the
government stated at oral argument that the Supreme Court seems to
be moving away from applying collateral estoppel in criminal cases,
the parties did not brief the issue and, instead, both assumed
that the collateral estoppel doctrine remains applicable.


                                   -27-
suppression was barred by the principle of collateral estoppel" in

that case.   Id. at 42-44.   We noted that the doctrine of collateral

estoppel requires, inter alia, "that the party to be precluded

from relitigating an issue decided in a previous litigation . . .

either [had been] a party or [had been] in privity with a party to

that prior litigation," and concluded that said requirement was

not satisfied in that case because "the federal prosecutors were

neither a party, nor in privity with a party, to the suppression

hearing in the Puerto Rico Superior Court."12              Id. at 43.    We

clarified that "the source of authority of two government entities

is not dispositive of whether they are in privity."            Id. at 43.

Thus,   "Puerto   Rico's   sovereignty   status   as   a    United   States

territory" has no bearing on the determination of whether federal

prosecutors would be bound by a prior suppression of the same

evidence by a Puerto Rico court.13       Id. at 44.    Instead, "we must


12  We found that there was no evidence that federal prosecutors
were involved in the local prosecution or that they provided
assistance or advice to local authorities. Id. at 44. We further
noted that "[t]he initial suppression hearing concerned purely
local charges over which the federal enforcement officials had no
authority and thus no interest," and, accordingly, "[f]ederal
prosecutors had no reason to believe that a Puerto Rico Superior
Court judge would be deciding any matters affecting a federal
prosecution." Id.
13 Prior to Bonilla Romero, this court had addressed Puerto Rico's
sovereignty status as a United States territory in United States
v. López Andino, where we held that Puerto Rico was a "separate
sovereign for the limited purpose of the double jeopardy clause."
831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,

                                 -28-
determine whether there was a close or significant relationship

between the federal and Puerto Rico prosecutors during the local

suppression hearing or whether the federal authorities controlled

or actively participated in that hearing such that their interests

in enforcing federal law were sufficiently represented."           Id.

             In Pérez-Pérez, we reiterated Bonilla Romero's holding

that application of the doctrine of collateral estoppel in criminal

cases requires that "the party to be precluded . . . have been the

same as, or in privity with, the party who lost on that issue in

the prior litigation."        72 F.3d at 226 (citing Bonilla Romero, 836

F.2d at 42-44).       We noted that Bonilla Romero had already rejected

the defendant's argument that if the United States and Puerto Rico

were considered a "single sovereign" for double jeopardy purposes,

then   they    were    also   in   privity   under   collateral   estoppel

principles.    Id.

             Bonilla Romero directly addresses the issue presently

before us.    The district court, however, found that it is no longer

good law in light of Sánchez Valle.           It held that because under

Sánchez Valle Puerto Rico and the United States are considered

"one   sovereign       when   it   comes     to   criminally   prosecuting


136 S. Ct. at 1868. In Bonilla Romero, we noted that there was
"extensive   argument[]"   over    that  conclusion,   including
disagreement among members of this court. 836 F.2d at 42 n.2, 44
n.4.


                                    -29-
individuals," it "must give the [Puerto Rico] court suppression

findings   and   judgment      preclusive      effect"    even     when    federal

prosecutors   "did    not    participate      in   the   [Puerto    Rico]    court

criminal proceedings against Santiago."             We disagree.

           Sánchez Valle is a double jeopardy case.                  The Double

Jeopardy Clause of the Fifth Amendment protects an individual from

being "twice put in jeopardy of life or limb" for the same offense,

U.S. Const. amend. V., if the prosecutions are brought by the same

sovereign, Sánchez Valle, 136 S. Ct. at 1870.               In Sánchez Valle,

the Supreme Court faced the issue of whether Puerto Rico and the

United States were the same sovereign for purposes of the Double

Jeopardy Clause, which would in turn determine whether the federal

government    and    Puerto    Rico    were    barred     "from    successively

prosecuting a defendant on like charges for the same conduct."

Id.   To determine whether Puerto Rico and the United States were

the same or different sovereigns for double jeopardy purposes, the

court performed a "historical, not functional," inquiry, id. at

1871, looking only to "whether the prosecutorial powers of the two

jurisdictions    ha[d]      independent    origins,"     id.     (citing    United

States v. Wheeler, 435 U.S. 313, 320 (1978)).14             It held that they


14  The Court specifically stated that "the 'extent of control'
that 'one prosecuting authority [wields] over the other'" is
irrelevant.   Sánchez Valle, 136 S. Ct. at 1870 (alteration in
original).


                                      -30-
did not, because "the oldest roots of Puerto Rico's power to

prosecute lie in federal soil," id. at 1868, inasmuch as "Congress

conferred the authority to create the Puerto Rico Constitution,

which in turn confers the authority to bring criminal charges,"

id. at 1876.     Because the prosecutorial authority of both the

federal government and Puerto Rico emanates from a single source

-- Congress -- the two are considered a single sovereign for double

jeopardy purposes and "the two governments cannot 'twice put' [an

individual] 'in jeopardy' for the 'same offence.'" Id. at 1875-77.

            There is no doubt that double jeopardy concerns are not

implicated in this case.   Santiago's local charges were dismissed

before trial, and thus jeopardy never attached in the local

courts.15   Santiago concedes as much.   The district court itself

acknowledged that Sánchez Valle is a case about double jeopardy,

but stated that it would "extend Sánchez Valle to the suppression

context . . . based on the fact that [Puerto Rico and the United

States are] a single sovereign."   According to the district court,

although there is no indication in Sánchez Valle that the Supreme



15  Furthermore, the local and federal charges were not for the
same offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) ("The
Double Jeopardy Clause 'protects against a second prosecution for
the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction.        And it
protects against multiple punishments for the same offense.'"
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).


                                -31-
Court    intended    to    extend     its       analysis    of        the     "notion    to

sovereignty" outside of the double jeopardy context, it did not

preclude it either.        The district court's holding, however, runs

head-on into the law of the circuit rule.

             "The law of the circuit rule (a branch of the stare

decisis doctrine) holds that 'newly constituted panels in a multi-

panel circuit court are bound by prior panel decisions that are

closely on point.'"        United States v. Wurie, 867 F.3d 28, 34 (1st

Cir.    2017)   (quoting    San     Juan    Cable    LLC        v.    P.R.     Tel.     Co.,

612 F.3d 25, 33 (1st Cir. 2010)).                 Exceptions to this rule are

"extremely      narrow    and    their     incidence       is    hen's-teeth-rare."

San Juan Cable LLC, 612 F.3d at 33.                "Such exceptions come into

play only when the holding of the prior panel is 'contradicted by

controlling authority, subsequently announced (say, a decision of

the authoring court en banc, a Supreme Court opinion directly on

point, or a legislative overruling).'"              Id. (quoting United States

v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)).                           "An even less

common exception has been recognized in those 'rare instances in

which authority that postdates the original decision, although not

directly   controlling,         nevertheless      offers    a        sound    reason    for

believing that the former panel, in light of fresh developments,

would change its collective mind.'"              Wurie, 867 F.3d at 34 (quoting

Rodríguez, 527 F.3d at 225).


                                         -32-
          Here, there has been no en banc decision from this court

contradicting our holding in Bonilla Romero.    There has also been

no statutory overruling.    Nor is there a Supreme Court opinion

directly on point contradicting our precedent.     We are thus left

to consider the only remaining exception to the law of the circuit

rule -- whether Sánchez Valle, although not directly controlling,

offers a sound reason for believing that the Bonilla Romero panel

would change its collective mind.     We find that it does not.

          Sánchez Valle, which had nothing to do with collateral

estoppel, and where the Supreme Court emphasized the narrowness of

its holding, held that Puerto Rico and the United States are a

single sovereign for purposes of the Double Jeopardy Clause because

the source of authority of both prosecutorial powers derive from

the same source.   Although Puerto Rico and the United States had

not been considered a single sovereign in the context of a criminal

proceeding at the time that Bonilla Romero and Pérez-Pérez were

decided, this court nevertheless considered in Bonilla Romero the

possible effect of deeming Puerto Rico and the United States a

single sovereign and rejected that the "source of authority of

[the] two governmental entities" could be "dispositive of whether

they are in privity."   Bonilla Romero, 836 F.2d at 43.

          We held, both in Bonilla Romero and in Pérez-Pérez, that

Puerto Rico's sovereign status as a United States territory "does


                               -33-
not determine whether the federal prosecutors are bound by a

pretrial    suppression        order    issued       by    a   Puerto      Rico   court."

Bonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at

226 (noting that Bonilla Romero rejected that finding that Puerto

Rico and the United States are a "single sovereign" "establishes

an    identity    between      the     two    governments").              Instead,     what

determines whether collateral estoppel is applicable is whether

"the party to be precluded from relitigating an issue decided in

a previous litigation was either a party or in privity with a party

to that prior litigation."                  Bonilla Romero, 836 F.2d at 43.

Because at the time of Bonilla Romero and Pérez-Pérez we considered

the possibility that Puerto Rico and the United States could be

deemed a single sovereign, and nonetheless rejected that a finding

of single sovereignty would affect our analysis of the issue, we

find no sound reason to believe that the Bonilla Romero panel would

change     its    collective         mind     in     light     of    Sánchez         Valle.

Accordingly, we conclude that Bonilla Romero is still good law.

            Santiago,       however,         urges        us   to    find     his      case

distinguishable from Bonilla Romero, arguing that: (1) unlike in

his    case,     the   local    decision           suppressing      the     evidence     in

Bonilla Romero was not "a final decision from the highest court in

Puerto Rico"; (2) the district court in Bonilla Romero had held a

suppression hearing before the local court entered its order


                                            -34-
suppressing the evidence in the local proceedings; (3) it is

"unclear from the record in Bonilla Romero whether the [local]

court applied relevant federal law in its order granting the motion

to suppress"; and, (4) because Bonilla Romero was decided shortly

after   López   Andino,   831   F.2d   at   1164,   we   can   presume   that

López Andino's holding "permeated" Bonilla Romero's rationale; yet

that rationale no longer stands on firm ground after Sánchez Valle.

We find these arguments unpersuasive.         Nothing in Bonilla Romero

suggests that the first three factors played any role in this

court's analysis.16   Santiago's last alleged distinction fares no

better in light of Bonilla Romero's explicit statement that "the

source of authority of the two government entities" was also

irrelevant to the analysis.       Bonilla Romero, 836 F.2d at 43-44.

Accordingly, we do not find Santiago's case distinguishable from

Bonilla Romero.

           Applying our on-point precedent, we conclude that the

district court erred when it deemed itself bound by the Puerto


16    Furthermore,   Santiago's   argument   that   his   case  is
distinguishable from Bonilla Romero because that case did not
involve "a final decision from the highest court in Puerto Rico"
is misleading. The local decision suppressing the identification
evidence in Santiago's local case, although final, was not a
decision from the highest court in Puerto Rico.       In fact, the
Puerto Rico Supreme Court declined to intervene in the case. Thus,
it was a final decision from the local intermediate court. In any
event, how high the case went in the local courts is not relevant
to whether there was privity between the prosecuting authorities.


                                   -35-
Rico Court of Appeals's decision to suppress the identification

evidence without analyzing whether the requirements of collateral

estoppel were satisfied.       See id.; see also Pérez-Pérez, 75 F.3d

at 226.   We note that the district court went to great lengths to

clarify that it was not ruling on collateral estoppel grounds, but

that was precisely the analysis that it should have applied.             The

district court should have analyzed whether the federal prosecutor

was in privity with the local prosecutors that participated in the

local suppression proceedings.       It erred in failing to do so.

              As his final plea, Santiago urges us to find that the

government      is   collaterally    estopped     from    litigating     the

suppression issue in the district court.         He argues that, although

the federal prosecution was not a party, it was in privity with

the local prosecution when the latter litigated the suppression

issue in Puerto Rico courts.        Because the parties do not dispute

the facts on which the privity analysis hinges, we proceed to

analyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing

the privity issue in the first instance).

              Santiago posits that the federal prosecution was in

privity with the local prosecution due to the relationship between

local   and    federal   prosecutors.      He   claims   that   the   federal

prosecution was involved in his local proceedings because the

events of January 13 constituted a violation of his federal


                                    -36-
probation.    In support of this assertion, he cites to a filing by

the SAUSA then assigned to the federal case, which stated, "the

United States has been in contact and coordination with the victim

of the attempted murder charges and with the Puerto Rico Police

Department agent who has conducted the investigation into the

alleged crime."17   He further contends that the SAUSA then assigned

to the federal prosecution was on detail from the Puerto Rico

Department of Justice, and that the victim (Sepúlveda) and the

investigating officer (Quiles) involved in the local prosecution

"were backbone[s] of the federal prosecution."               In addition,

Santiago submits that the "charging structure . . . also supports

a finding of strategic cooperation between federal and local

prosecutors."    In sum, Santiago argues that because "[local] and

federal   prosecutors   --   two   hands   of   the   same   sovereign   --

simultaneously worked two prosecutions involving the same facts,

the same witnesses, and the same law[,] [t]heir legal relationship

and actions support[] a finding of privity."

             We find Santiago's arguments unpersuasive.          Although

Santiago argues that Puerto Rico has "what amounts to an agency

relationship" with the United States, Bonilla Romero is clear that


17 This quote, taken from the government's motion for an extension
of time to respond to Santiago's motion to suppress evidence, does
not indicate that the SAUSA had been in contact or coordination
with state prosecutors.


                                   -37-
Puerto   Rico's    relationship     with   the    United      States       "is   not

dispositive of whether they are in privity."                  Bonilla Romero,

836 F.2d at 43.     Furthermore, the district court explicitly found

that the federal prosecutor did not participate in the local

proceedings against Santiago, and Santiago failed to show that

this factual finding was erroneous, much less clearly erroneous.

See United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.

2014) (noting that on appeal from a district court's suppression

ruling, we review factual findings for clear error).              Nor does the

record support Santiago's contention that the federal prosecution

controlled or was involved in the Commonwealth proceedings, which

"concerned purely local charges over which the federal enforcement

officials had no authority and thus no interest."              Bonilla Romero,

936 F.2d at 44.

           Although shortly after the shootout a United States

Probation Officer filed a motion notifying the district court that

he had been in contact with the victim and the investigating

officer,   the    motion   does   not   state    or   imply   that     a   federal

prosecutor (as opposed to a United States Probation Officer) had

been in contact or coordination with state prosecutors.                    See id.

at 43 ("In this case, the requirement was not satisfied since the

federal prosecutors were neither a party, nor in privity with a

party, to the suppression hearing in the Puerto Rico Superior


                                    -38-
Court.") (emphasis added).              It was not until five months after the

local suppression hearing took place that a federal prosecutor

entered an appearance in Santiago's federal probation revocation

proceedings. 18        In    addition,         although    the    federal   prosecutor

assigned to his case was a SAUSA on detail from the Puerto Rico

Department of Justice, Santiago has offered no evidence that she

was   involved    in     the   local      suppression       proceedings,      that   she

assisted or gave advice to local authorities, or even discussed

the matter with them.              Moreover, this court has clarified that

"the appointment of a state prosecutor as a special federal

prosecutor,     subsequent         to    the    state     court   action,    'does   not

retroactively make the federal government a party to an earlier

state court proceeding.'"               United States v. Charles, 213 F.3d 10,

21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,

893 (4th Cir. 1988)).

           We     also      find    unpersuasive        Santiago's       argument    that

privity can be found because both prosecutions involve the same

facts,   witnesses       (including        the    victim    and    the   investigating

officer), or law. Involvement of the same victim and investigating

officer in two prosecutions is to be expected where local and


18  It is understandable that the federal prosecutor would be in
contact with the victim and the agent conducting the investigation
because they would presumably be government witnesses at the
revocation hearing in federal court.


                                           -39-
federal charges are brought for the same underlying events, even

if the local and federal prosecutions are for different offenses

with    different   elements.        In    fact,    the    federal    and    local

prosecutions in Bonilla Romero involved at least the same facts

and    witnesses,   yet    this   court    found    no    privity    between   the

prosecuting authorities.          Bonilla Romero, 836 F.2d at 41, 44.

Finally, contrary to Santiago's contention, the timing of the

events -- where federal charges were brought before the local case

was dismissed, and local charges were refiled after Santiago's

federal case was already pending -- suggests that there was no

coordination between the federal and local prosecutions.

            In sum, what determines if privity exists is whether

there was "a close or significant relationship between the federal

and    Puerto    Rico     prosecutors      during   the     local    suppression

[proceedings] or whether the federal authorities controlled or

actively   participated      in   [those    proceedings]      such    that   their

interests in enforcing federal law were sufficiently represented."

Id. at 44.      Because nothing suggests this happened in Santiago's

case, we find that there was no privity between the two prosecuting

authorities and, thus, collateral estoppel is not applicable.

                              III.   Conclusion

            For the foregoing reasons, we reverse and vacate the

district court's order and find that, because there was no privity


                                     -40-
between the two prosecuting authorities, collateral estoppel is

inapplicable.   We remand the case to the district court for

proceedings consistent with this decision.

          Reversed, Vacated and Remanded.




                              -41-
