
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 94-1738                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JULIO RAMIREZ-BURGOS,                                      Appellant.                                                                                      __________________                                     ERRATA SHEET             The opinion of this  Court, issued January 5, 1995, is amended as        follows:             Page 5, l.11:  "Ramirez" in place of "Ramirez"                                                   _______                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1738                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JULIO RAMIREZ-BURGOS,                                      Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Olga M. Shepard for appellant.             _______________             Juan  A. Pedrosa,  Assistant United  States  Attorney, with  whom             ________________        Guillermo Gil, United States Attorney, was on brief for appellee.        _____________                                                                                      ____________________                                   January 5, 1995                                                                                      ____________________                    CYR,  Circuit Judge.   Defendant  Julio  Ramirez Burgos                    CYR,  Circuit Judge                          _____________          brought  this appeal from  an interlocutory district  court order          rejecting his  pretrial motion to  dismiss Count III in  a three-          count indictment.  Counts I  and II charge separate  carjackings,          in  violation of  18 U.S.C.    2119, and  Count III  charges that          Ramirez used or carried a firearm during crimes of violence, viz.                                                                       ___          the carjackings alleged in  Counts I and II,  in violation of  18          U.S.C.   924(c).  Ramirez claims  that the government may not try          him on  either Count  I or  Count II  and on  Count III,  without                                                ___          violating the Double Jeopardy Clause of the United States Consti-          tution, because the identical evidential elements are required to          establish  a carjacking charge and the   924(c) violation charged          in Count  III.1  After denying  the motion to dismiss  Count III,          the district court  stayed further proceedings pending  an inter-          locutory appeal.                    The Supreme Court  has admonished that the  final judg-          ment rule,  see 28 U.S.C.    1291, "is strongest in  the criminal                      ___          context," Flanagan v.  United States, 465  U.S. 259, 265  (1984),                    ________     _____________          since  the "'delays and  disruptions attendant  upon intermediate          appeal are especially inimical to the effective and fair adminis-          tration of the criminal law.'"   Abney v. United States, 431 U.S.                                           _____    _____________          651, 657 (1977) (quoting DiBella  v. United States, 369 U.S. 121,                                   _______     _____________          126 (1962)).   We must  therefore determine whether  the district          court  order  is  immediately appealable  under  the  "collateral                                        ____________________               1We express no view whatever on the relevance or correctness          of Ramirez's assumption.   See Blockburger v.  United States, 284                                     ___ ___________     _____________          U.S. 299 (1932).                                           3          order" doctrine.  See Cohen  v. Beneficial Industrial Loan Corp.,                            ___ _____     ________________________________          337 U.S. 541, 545 (1949)  (holding that a recognized exception to          the final judgment rule exists  for a "small class [of interlocu-          tory  orders] which finally  determine claims of  right separable          from,  and collateral  to,  rights asserted  in  the action,  too          important to  be denied review  and too independent of  the cause          itself  to require that appellate consideration be deferred until          the whole case is adjudicated.")                    The  Double Jeopardy  Clause safeguards  against (i)  a          second prosecution  following acquittal  or final  conviction for          the  same offense  and  (ii) multiple  punishments  for the  same          offense.   United States  v. Rivera-Martinez,  931 F.2d 148,  152                     _____________     _______________          (1st Cir.),  cert. denied,  112 S. Ct.  184 (1991)  (citing North                       _____ ______                                   _____          Carolina v. Pearce, 395 U.S. 711, 717 (1969)).  The Supreme Court          ________    ______          held in Abney  that an order denying a pretrial motion to dismiss                  _____          based on  a claim  of former jeopardy  is immediately  appealable          under the collateral order doctrine.   Abney, 431 U.S. at 659-61.                                                 _____          The  Court reasoned  that  only  an  interlocutory  appeal  could          protect the defendant from the "strain, public embarrassment, and          expense of a criminal trial more than once for the same offense."          Id. at 661.  Abney,  nevertheless, is not carte blanche authority          ___          _____          for all interlocutory  appeals brought under the  Double Jeopardy          banner, since  some such claims  do not meet the  requirements of          the "collateral order"  doctrine.  The interlocutory  order chal-          lenged by Ramirez falls into the latter category, since it simply          disallowed  a  "multiple  punishment"  claim  masquerading  as  a                                          4          "former jeopardy" claim.                    We believe the  Abney branch of the  "collateral order"                                    _____          exception to the  final judgment rule is limited  to the "special          circumstances  permeating"  former jeopardy  claims.   Abney, 431                                      ______ ________            _____          U.S. at 663 (emphasis added).                      Ramirez argues that  a simultaneous trial on  Count III          and  Counts I/II  would entail  "former  jeopardy" because  these          counts require identical elements of proof.  However, the Supreme          Court has  distinguished between  the "double  jeopardy" problems          posed  by a  simultaneous trial  and by  successive trials.   See                                                                        ___          United States v. Halper, 490 U.S. 435 (1989).   In a simultaneous          _____________    ______          trial, the  multiple punishment  inquiry focuses  on whether  the          legislature  has  authorized  multiple  punishments,  as  it  may          lawfully do.   Ohio v. Johnson, 467 U.S. 493, 499-500 (1984).  In                         ____    _______          successive trials, on the other hand, "the Double Jeopardy Clause          protects against the  possibility that the Government  is seeking          the second punishment  because it is dissatisfied  with the sanc-          tion obtained in the first proceeding."  Halper, 490 U.S. at 451,                                                   ______          n.10.                      The Halper Court foreclosed Ramirez's multiple  punish-                        ______          ment  claim.   There, the  Court  held that  a civil  proceeding,          punitive in nature,  which followed a criminal trial  on the same          set of facts, violated the  Double Jeopardy Clause.  Id.  at 448.                                                               ___          The Court nevertheless  stated that  its ruling  did not  prevent          "the  Government from seeking  and obtaining both  the full civil          penalty and  the full  range of  statutorily authorized  criminal                                          5          penalties in  the same  proceeding.  In  a single  proceeding the          multiple  punishment issue would be limited  to ensuring that the          total  punishment did not exceed  that authorized by the legisla-          ture."  Id. at 450.                  ___                                          6                    In United  States v. Sorren,  605 F.2d 1211,  1215 (1st                       ______________    ______          Cir.  1979),  we  indicated that  our  analysis  of interlocutory          appellate jurisdiction  turns upon  whether the  implicated right          was "incapable of vindication on  appeal."  The challenge  raised          in the  instant interlocutory appeal  can be fully  vindicated on          appeal from  a final  judgment of conviction  and sentence.   See                                                                        ___          United States v. Abreu, 952  F.2d 1458, 1465 (1st Cir.) (vacating          _____________    _____          sentence in post-conviction appeal based upon multiple punishment          claim), cert.  denied, 112 S. Ct. 1695  (1992);  Rivera-Martinez,                  _____  ______                            _______________          931 F.2d at  153 (same).  An interlocutory appeal  in the present                                              case would  not serve the  purposes envisioned in  Abney, because                                                             _____          Ramirez would have to stand trial on the remaining counts even if          Count III  were dismissed.   See United  States v.  McHenry, 1993                                       ___ ______________     _______          U.S. App. LEXIS 12553, at *2 (6th Cir. May 19,  1993) (interlocu-          tory appeal  of double  jeopardy claim raised  in   924(c)  and            2119  context; dismissed for lack of jurisdiction); United States                                                              _____________          v. Witten, 965  F.2d 774, 775-76 (9th Cir.  1992) (similar).  The             ______          Supreme Court has  emphasized "the crucial distinction  between a          right not be tried and a right whose remedy requires the dismiss-          al of charges.  The former necessarily falls into the category of          rights that  can be  enjoyed only if  vindicated prior  to trial.          The  latter does not."  United  States v. Hollywood Motor Car Co.                                  ______________    _______________________          Inc., 458 U.S. 263, 269 (1982).          ____                                          7                    As  we lack  appellate jurisdiction,  the interlocutory          appeal must be dismissed.2                      Appeal dismissed for lack of jurisdiction.                    Appeal dismissed for lack of jurisdiction.                    ______ _________ ___ ____ __ ____________                                                   ____________________               2At this juncture,  we take no position on whether Congress,          by  its enactment  of  18  U.S.C.    924(c),  intended  "multiple          punishments."                                          8
