
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2380                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                WALTER CARABALLO-CRUZ,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                              __________________________                                Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                              __________________________               Miguel  A.A.  Nogueras-Castro,   Assistant  Federal   Public               _____________________________          Defender,  with  whom  Benicio  Sanchez  Rivera,  Federal  Public                                 ________________________          Defender, was on brief, for appellant.               Jose  A.  Quiles-Espinosa, Senior  Litigation  Counsel, with               _________________________          whom  Guillermo Gil,  United States  Attorney, was on  brief, for                _____________          appellee.                              _________________________                                    April 20, 1995                              _________________________                    SELYA,  Circuit  Judge.     Defendant-appellant  Walter                    SELYA,  Circuit  Judge.                            ______________          Caraballo-Cruz  appeals  his  conspiracy  conviction   on  double          jeopardy  grounds.    His  claim  has  merit.   Consequently,  we          reverse.                                          I                                          I                    This appeal has its origins in an earlier case.  In May          1992, a federal grand  jury charged appellant with  conspiracy to          possess  29 kilograms  of  cocaine, intending  to distribute  the          drug, in  violation of 21 U.S.C.     841(a)(1) and 846.   On July          16, 1992, a petit jury found him guilty as charged.  The district          court thereafter  imposed sentence and we  affirmed the judgment.          United  States v. Caraballo-Cruz, No. 92-2316  (1st Cir. Feb. 10,          ______________    ______________          1994) (unpublished opinion).                      Appellant's  travail   was  not  limited  to  the  1992          indictment.   On June 18, 1993, the grand jury returned a second,          far broader indictment.   The new  indictment contained a  master          conspiracy  count (count 1) and 47 subsidiary counts.  The master          conspiracy count charged 30 defendants, including appellant, with          conspiracy  to possess  and  distribute some  2,000 kilograms  of          cocaine  in  violation  of  21   U.S.C.      841(a)(1)  and  846.          Appellant, who  was not indicted  on any  other charge,  promptly          moved  to  dismiss  count 1.    He  asseverated  that the  master          conspiracy portrayed therein encompassed the  narrower conspiracy          described  in the  earlier indictment,  and, therefore,  that the          government's nascent attempt to  prosecute him anew for  his role          in the master conspiracy transgressed the Double Jeopardy Clause.                                          2                    On  August   20,  1993,   the  district   court  denied          appellant's motion to dismiss without prejudice to its renewal at          trial.1   But no trial ever occurred.  Instead, appellant entered          into a conditional plea agreement in which he reserved his double          jeopardy claim.  The district court accepted a conditional guilty          plea,  Fed. R.  Crim.  P. 11(a)(2),  and  imposed sentence.    On          December  7, 1993, in accordance  with the condition  of his plea          agreement, Caraballo-Cruz filed a notice of appeal.                                          II                                          II                    The Fifth Amendment  to the United States  Constitution          states in relevant part:   "No person [shall] be subject  for the          same offence to be twice put in jeopardy of life or limb . . . ."          This  constitutional shield  embodies three  separate safeguards:          it  protects against a  second prosecution  for the  same offense          after an  acquittal; it protects against a second prosecution for          the  same  offense after  a conviction;  and it  protects against          multiple punishments for the same offense.  See North Carolina v.                                                      ___ ______________          Pearce, 395 U.S. 711, 717 (1969); United States v. Ortiz-Alarcon,          ______                            _____________    _____________          917 F.2d  651, 653 (1st  Cir. 1990),  cert. denied, 500  U.S. 926                                                _____ ______          (1991).    In the  papers  accompanying  his motion  to  dismiss,          Caraballo-Cruz set forth in considerable detail the basis for his          belief  that  the most  recent  conspiracy  charge fell  squarely          within the proscription of the second buckler  of this tripartite                                        ____________________               1The court acknowledged that  the issue was nonfrivolous but          declined to decide it "without having the benefit of the evidence          that  will be  presented against  the defendant  at trial."   The          court noted  that,  depending on  what  the trial  disclosed,  "a          renewed request [for dismissal] may prosper."                                          3          shield.    He repeats  these arguments  in  his brief  on appeal,          asserting that the conspiracies  described in the two indictments          are, in law and in fact, the same offense.                    While   the  appellant's  position  is  consistent  and          predictable, the  government's response  is exotic.   Even though          the prosecution attempted to  meet the double jeopardy initiative          head-on  before  the  district  court,  its  appellate  brief  is          confined  to a pair  of peripheral issues.  First, the government          contends that  we lack appellate jurisdiction  because the double          jeopardy  issue  was never  decided on  the  merits by  the court          below.  Second, it maintains  that appellant's guilty plea waived          the issue.  These assertions contain more growl than bite.                                         III                                         III                    To guard  against the constitutional insult that double          jeopardy  entails,  a court  faced  with  a colorable  successive          prosecution claim must hear  and determine the matter  in advance          of trial.   See United States v. Liotard, 817 F.2d 1074, 1079 (3d                      ___ _____________    _______          Cir. 1987); United States v.  Booth, 673 F.2d 27, 30  (1st Cir.),                      _____________     _____          cert.  denied, 456 U.S. 978 (1982).   The reason for this rule is          _____  ______          apparent:   if the  right to be  free from a  second trial is not          vindicated  before that  trial  commences, then  the right  is no          right at all,  but a cruel  illusion.  See  Liotard, 817 F.2d  at                                                 ___  _______          1080;  see  also  Robinson v.  Neil,  409  U.S.  505, 509  (1973)                 ___  ____  ________     ____          (explaining  that  the  Double  Jeopardy  Clause  is  distinctive          because "its practical result  is to prevent a trial  from taking          place  at all").  In a successive prosecution case, the guarantee                                          4          against double jeopardy "would be lost if the accused were forced          to  `run  the gauntlet'  a second  time"  before being  placed on          trial.  Abney v. United States, 431 U.S. 651, 662 (1977).                  _____    _____________                    The  case at  hand  fits neatly  within this  doctrinal          framework.   Confronted  with a  timely  motion to  dismiss  that          limned  a patently  nonfrivolous  successive prosecution  claim,2          the  lower  court  denied the  motion  without  prejudice to  its          renewal after the presentation  of evidence at trial.   See supra                  _____ ___ ____________  __ ________ __ _____    ___ _____          note 1.   The Double Jeopardy Clause  prohibits such temporizing.          And, moreover, inasmuch as the district court's failure to decide          the  double jeopardy claim on the merits stemmed from the court's          mistaken view of  the law rather than from  any lack of diligence          on  appellant's  part, the  government's  jurisdictional argument          founders.                                          IV                                          IV                    The  government's  waiver  argument  fares  no  better.          Though  an  unconditional  guilty  plea  typically  subsumes  all          nonjurisdictional   defects  occurring   earlier  in   the  case,          insulating  previous rulings  from  appellate review,  see United                                                                 ___ ______          States  v.  Cordero,  42 F.3d  697,  698  (1st  Cir. 1994),  that          ______      _______                                        ____________________               2While we need not  reach the merits of the  double jeopardy          claim, see infra Part V, that claim has much to commend it:  both                 ___ _____          indictments  charged  the  defendant  with  violating  the   same          statutes;  the described conspiracies  overlapped temporally (the          first indictment  charged a conspiracy taking place  in May 1992,          whereas the  second indictment charged a  conspiracy running from          September 1991 to March  1993); the five purported coconspirators          identified  in the first indictment were among those named in the          second indictment;  both conspiracies involved  importing cocaine          from  Colombia into Puerto Rico; and in both instances contraband          was destined for transshipment.                                           5          principle is inapposite  where, as here,  the government and  the          defendant enter  (and the district court  approves) a conditional                                                                ___________          plea agreement that expressly  preserves the defendant's right to          raise a  particular  issue  on appeal.    This  conclusion  flows          irresistibly  from  the language  of  the  Criminal Rules,  which          provide in pertinent part that:                    With  the  approval  of  the  court  and  the                    consent  of the  government, a  defendant may                    enter  a conditional  plea of  guilty .  . .,                    reserving  in  writing the  right,  on appeal                    from the  judgment, to review of  the adverse                    determination   of  any   specified  pretrial                    motion.          Fed. R. Crim.  P. 11(a)(2).  The import of this  rule is open and          obvious:   it  is designed  to "ensure  careful attention  to any          conditional  plea," to  "identify precisely what  pretrial issues          have been preserved for appellate review," and  to husband scarce          judicial resources  by permitting  a defendant fully  to litigate          hoarded issues while  at the  same time lessening  the burden  on          busy district  courts and  sparing the sovereign  the expense  of          trial.  Fed. R. Crim. P. 11 advisory committee's note.                    The agreement that led to appellant's plea in this case          makes reference to Rule 11(a)(2)  and contains an express written          reservation of the  right to appeal from the denial of the motion          to  dismiss.3   In short,  it scrupulously  follows  the protocol          required by the rule.   Hence, the government's execution  of the                                        ____________________               3After referencing Rule 11(a)(2), the plea  agreement stated          that  "this plea  is conditioned  upon defendant's  reserving the          right to appeal  the Order denying defendant's motion  to dismiss          the indictment on double jeopardy grounds."                                            6          agreement  (by   not  one,  but  two,   Assistant  United  States          Attorneys)   represented  its  considered   acquiescence  in  the          defendant's  right to hawk his double  jeopardy defense on appeal          notwithstanding his guilty plea.  See id.; see also United States                                            ___ ___  ___ ____ _____________          v. Ramos, 961  F.2d 1003,  1005-06 (1st Cir.)  (holding that  the             _____          entry   of  a  conditional  guilty  plea  preserves  specifically          described   rulings   for   review    and   waives   all    other          nonjurisdictional errors),  cert. denied, 113 S.  Ct. 364 (1992);                                      _____ ______          United  States v.  Simmons,  763 F.2d  529,  533 (2d  Cir.  1985)          ______________     _______          (similar).  Having secured a plea by means of this accommodation,          the government cannot  now retract its acquiescence.   After all,          "[h]aving  one's cake and  eating it, too,  is not in  fashion in          this circuit."  United  States v. Tierney, 760 F.2d 382, 388 (1st                          ______________    _______          Cir.), cert. denied, 474 U.S. 843 (1985).                 _____ ______                    Should any doubt remain   and we see none   the Supreme          Court's  opinion in  Doggett v.  United States,  112 S.  Ct. 2686                               _______     _____________          (1992), supplies the sockdolager.  There, the government advanced          substantially the  same argument  as it advances  here, asserting          that,  by  pleading guilty,  the  defendant waived  any  right to          appeal  his  claim  that  a delayed  arrest  had  prejudiced  his          defense.  See  id. at 2694 n.3.  The Court rejected this argument                    ___  ___          out of hand.   It noted that  Doggett had tendered a  conditional          guilty plea  under  Rule 11(a)(2),  and that  the plea  agreement          memorialized   "the   Government's   explicit  consent   to   his          reservation of the right to  appeal" the denial of his motion  to          dismiss.   Id.    Accordingly, Doggett could  not be barred "from                     ___                                          7          pursuing as effective an  appeal as he  could have raised had  he          not pleaded guilty."  Id.  So it is here.4                                ___                                          V                                          V                    In its opposition to  the appellant's motion to dismiss          in the  district  court, the  government attempted  to parse  the          factors required to  determine when successive  conspiracy counts          should  be construed as charging the same offense for purposes of          double  jeopardy analysis.  See, e.g., United States v. Cloutier,                                      ___  ____  _____________    ________          966 F.2d 24,  28 (1st Cir. 1992)  (elucidating multi-pronged test          for determining whether  two successive conspiracy counts  charge          the  same  offense within  the  purview  of the  Double  Jeopardy          Clause);  United States  v. David,  940 F.2d  722, 734  (1st Cir.                    _____________     _____          1991)  (similar), cert. denied, 502  U.S. 1046 (1992); cf. United                            _____ ______                         ___ ______          States  v.  Gomez-Pabon,  911  F.2d  847,  860  (1st  Cir.  1990)          ______      ___________          (elucidating test  in analogous context), cert.  denied, 498 U.S.                                                    _____  ______          1074  (1991).  On appeal, however, the government fails either to          renew this challenge or  to address the substantive issue  in any          meaningful  way.    Instead,  the  government  declares,  without          further elaboration,  that the  "underlying offenses are  not the          same."  Government's Brief at 11.  An enigmatic reference of this          sort, totally devoid of developed argumentation, is like a month-                                        ____________________               4The government's  reliance on  United States v.  Broce, 488                                               _____________     _____          U.S.  563 (1989), is mislaid.   In Broce,  the defendant admitted                                             _____          guilt  on two separate conspiracy counts.  On review, the Supreme          Court  held  the  defendant's   double  jeopardy  defense  to  be          "foreclosed by the guilty pleas and the judgments of conviction."          Id.  at  565.   Unlike  this  case,  Broce's  pleas were  neither          ___          conditional nor qualified in any comparable way.  Hence, Broce is                                                                   _____          inapposite.                                          8          old  ketchup bottle:    it may  look  full, but  is  surpassingly          difficult to get anything out of it.                    We believe it is apodictic that "issues adverted  to in          a perfunctory  manner, unaccompanied by some  effort at developed          argumentation, are deemed waived."  United States v. Zannino, 895                                              _____________    _______          F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).  To be                                 _____ ______          sure,  the usual  office of  this rule  in  criminal cases  is to          negate  consideration  of  skeletal  arguments  advanced  by  the                                                                    __  ___          defendant.  See, e.g., United States v. Innamorati, 996 F.2d 456,          _________   ___  ____  _____________    __________          468 (1st Cir.), cert. denied, 114 S. Ct. 409 (1993); Zannino, 895                          _____ ______                         _______          F.2d at 17.  But  in fairness, what is sauce for  the defendant's          goose  is  sauce for  the government's  gander.   Thus,  the rule          applies  with  undiminished  vigor  when, as  now,  a  prosecutor          attempts  to  rely  on  fleeting  references  to  unsubstantiated          conclusions  in lieu  of  structured argumentation.   See,  e.g.,                                                                ___   ____          United  States v. Rodriguez Cortes,  949 F.2d 532,  542 (1st Cir.          ______________    ________________          1991); United States v. Doe, 878 F.2d 1546, 1554 (1st Cir. 1989);                 _____________    ___          United States v. Serrano, 870 F.2d 1, 7 n.5 (1st Cir. 1989).          _____________    _______                    On this record,  then, we must  hold the government  to          its  default  and  credit   appellant's  argument  that  the  two          conspiracies constitute one and the same offense.                                          VI                                          VI                    We need go no further.   Appellant fully preserved  his          defense of double jeopardy, and the government has articulated no          credible reason to  suppose either  that the  charged crimes  are          constitutionally  distinct  or  that  the  defense  is  otherwise                                          9          flawed.  Consequently, the judgment of conviction must be          Reversed.          Reversed.          ________                                          10
