                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1373

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

                      LUIS A. COLON-OSORIO,

                            Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Hector M. Laffitte, U.S. District Judge]
                                                       

                                           

                              Before

                       Selya, Circuit Judge,
                                           
            Aldrich and Coffin, Senior Circuit Judges.
                                                     

                                           

  Kathleen A.  Felton, Attorney,  Department of  Justice, with  whom
                     
Daniel F. Lopez-Romo, United States  Attorney, and Miguel A.  Pereira,
                                                                   
Assistant United States Attorney, were on brief for appellant.
  Linda Backiel for appellee.
               

                                           

                        November 30, 1993
                                           

     COFFIN,  Senior Circuit  Judge.  On  December 9,  1992, Luis
                                   

Colon Osorio was convicted  of two counts of failure to appear as

ordered  before a court  in Connecticut.   A month  later, on the

same  day that  Colon Osorio  received a  sentence  calculated to

effect his immediate release from prison, the government unsealed

a new criminal complaint charging him as a fugitive in possession

of  firearms.   The  district  court dismissed  these  charges on

double  jeopardy  grounds  because   the  government's  proof  of

fugitive status  would necessarily rely  on the same  conduct for

which Colon Osorio had  been punished in the first  prosecution. 

The case on which  the district court primarily relied,  Grady v.
                                                              

Corbin, 110 S. Ct.  2084 (1990), has  since been overruled.   See
                                                                 

United  States  v. Dixon,  113 S.  Ct.  2849 (1993).    Under the
                        

Supreme   Court's   current   formulation   of   double  jeopardy

jurisprudence, we are obliged to reverse.

                            I.  Facts
                                     

     Luis  Colon  Osorio  is  a  member  of  Los  Macheteros,  an

organization dedicated  to the independence  of Puerto Rico.   In

1985, along  with seventeen other members of  Los Macheteros, and

two non-members,  Colon Osorio  was arrested  in Puerto  Rico and

charged  with aiding and abetting and  conspiring in the planning

and execution of a 1983 robbery of $7 million from  a Wells Fargo

depository in West Hartford, Connecticut.1

                    

     1For further  factual background on the  Wells Fargo robbery
case, as well as a detailed analysis of the legal issues the case
involved, see United States v. Maldonado-Rivera, 922 F.2d 934 (2d
                                               
Cir. 1990).

                               -2-

     Colon Osorio was detained without bail for seventeen months,

and  then  ordered released  to the  District  of Puerto  Rico in

December  1986.   On September  24, 1990,  Colon Osorio  issued a

communique  stating that he was  "going underground to rejoin the

clandestine  struggle" for the  independence of  Puerto Rico.   A

criminal  complaint alleging violation of conditions of pre-trial

release  was  filed  the following  day,  and  an arrest  warrant

issued. 

     A Connecticut district court  ordered Colon Osorio to appear

for a hearing on the government's  motion to forfeit his bond  on

December 17,  1990.  He failed to appear.  The same court ordered

him to appear for jury selection in the criminal trial on January

13, 1992.  He failed to appear a second time.  On March 17, 1992,

Colon Osorio was arrested in Puerto Rico, allegedly in possession

of a  semi-automatic pistol, ammunition, and a live hand grenade,

as  well as  cocaine  and  marijuana.    He  was  transferred  to

Connecticut  and charged  with two  counts  of failure  to appear

following release on bail, pursuant  to 18 U.S.C.   3146(a).2   A

jury convicted him  of these charges on December 9,  1992 and, on

January 29, 1993, he was sentenced to 318 days imprisonment.  

     In  the interim,  between  conviction  and  sentencing,  two

events  occurred.   First, on  January 19,  1993,  the government

dismissed the indictments against  Colon Osorio stemming from the

                    

     2This statute provides: "Whoever, having been released under
this chapter  knowingly . . .  fails to appear before  a court as
required  by conditions  of release  . . .  shall be  punished as
provided in subsection (b) of this section."

                               -3-

Wells  Fargo bank robbery  case.  Second,  on the day  before his

sentencing,  the United  States brought  a criminal  complaint in

Puerto Rico, unsealed the next day, charging him  with possession

of  the firearms and drugs  allegedly confiscated at  the time of

his  arrest in Puerto  Rico.   The subsequent  indictment charged

Colon Osorio  with three counts  of possession of a  firearm as a

fugitive from justice,  in violation of  18 U.S.C.    922(g)(2),3

and  two  counts of  possession  of  a  controlled substance,  in

violation of 21 U.S.C.   844(a).

     The  district  court  dismissed  the  fugitive-in-possession

charges on double  jeopardy grounds.  The  court first determined

that 18 U.S.C.   3146(a)(1), the failure to appear provision, was

a "species of  lesser-included offense" of 18 U.S.C.   922(g)(2),

making the second prosecution  an impermissible repetition of the

first  one.    Alternatively, the  court  found  that  the second

prosecution  was barred  by  Grady v.  Corbin,  110 S.  Ct.  2084
                                             

(1990),  in which  the Supreme  Court held  that to  establish an

essential element of an offense  charged in a second prosecution,

the  government could not rely on conduct for which the defendant

already had been  prosecuted.  The district  court concluded that

the  government would have to  rely on the  conduct proving Colon

                    

     3This statute provides: "It shall be unlawful for any person
. . . who is a fugitive from  justice . . . to ship or  transport
in interstate or  foreign commerce,  or possess  in or  affecting
commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or
foreign commerce."

                               -4-

Osorios's failure  to appear  in  order to  establish the  flight

element of the section 922(g)(2) offense.4

     On appeal, the government  contends that the Supreme Court's

recent opinion in United States v. Dixon, 113 S. Ct. 2849 (1993),
                                        

controls the  resolution of this  case.   It points out  that the

Dixon Court  flatly overruled  Grady v. Corbin,  thus undermining
                                              

one of the district  court's bases for finding a  double jeopardy

bar  to the  second  prosecution.   Additionally, the  government

argues that applying the traditional double jeopardy analysis set

forth in Blockburger v.  United States, 284 U.S. 299  (1932), and
                                      

reaffirmed in  Dixon, compels the  conclusion that there  are two
                    

separate   offenses,    permitting   the   fugitive-in-possession

prosecution to proceed.

     Colon  Osorio  recognizes that  Grady  v.  Corbin no  longer
                                                      

supports his claim of  double jeopardy, but his reading  of Dixon
                                                                 

otherwise differs from  the government's.   He claims that  Dixon
                                                                 

bolsters the  district court's  conclusion that his  bail jumping

offense  is  completely  included in  the  fugitive-in-possession

                    

     4The district court also noted  a potential venue problem if
a single trial had  been sought for both violations.   Opinion at
9, n.10.   The government notes that  an exception to  the double
jeopardy bar on  subsequent prosecutions may lie where  the State
is unable to  proceed on the  more serious  charge at the  outset
because the additional facts necessary to sustain the charge have
not  yet been discovered or occurred, despite the exercise of due
diligence, see  Brown v. Ohio, 432 U.S. 161, 169, n.7 (1977), and
                             
urges us to extend this exception to embrace legal impediments as
well,  such as  where venue  restrictions prevent  the government
from  joining all  charges in  a single  district.   However, the
government cites  no authority  which supports  this proposition.
Because  we find no double jeopardy bar to the second prosecution
under section 922(g)(2), we need not reach this issue.  

                               -5-

charge,  and that  his prosecution for  that charge  is therefore

barred on double jeopardy grounds.

     Whether  principles  of  double  jeopardy bar  a  subsequent

prosecution is an  issue for  plenary review.   United States  v.
                                                             

Aguilar-Avanceta, 957 F.2d 18, 21 (1st Cir. 1992).  
                

                     II.  Double Jeopardy Law
                                             

     The Double  Jeopardy Clause of the  Fifth Amendment provides

that no person shall "be subject for the same offence to be twice

put in jeopardy of  life or limb . .  . ."  U.S. Const.  amend V.

Under this clause, a defendant is protected from both  successive

prosecutions  and  multiple  punishments  for  the same  criminal

offense.   See  North Carolina  v. Pearce,  395 U.S.  711 (1969);
                                         

United States v.  Rivera Martinez,  931 F.2d 148,  152 (1st  Cir.
                                 

1991).

     In Blockburger  v. United States,  284 U.S. 299  (1932), the
                                     

Supreme Court  ruled that  punishment for two  statutory offenses

arising  out of  the same  criminal act  or transaction  does not

violate double  jeopardy if "each  provision requires proof  of a

fact which  the other does not."   Blockburger, 284 U.S.  at 304.
                                              

The Blockburger  test focuses on  the statutory elements  of each
               

offense.  "If  each requires proof of a fact  that the other does

not,  the  Blockburger  test   is  satisfied,  notwithstanding  a
                      

substantial  overlap  in  the  proof  offered  to  establish  the

crimes."   Ianelli  v.  United States,  420  U.S. 770,  785  n.17
                                     

(1975);  see also United  States v. Felix, 112  S. Ct. 1377, 1382
                                         

(1992).

                               -6-

     In Brown v. Ohio,  432 U.S. 161, 166-67 (1977),  the Supreme
                     

Court acknowledged  that the  Blockburger test  was not  the only
                                         

standard used to  determine whether successive prosecutions  were

the "same offence" for double jeopardy purposes.  The Brown Court
                                                           

noted that in some circumstances where a second prosecution would

require relitigation  of factual  issues already resolved  by the

first, successive prosecutions  were barred, notwithstanding  the

fact that  the two offenses involved  were sufficiently different

to  permit   the  imposition   of  consecutive   sentences  under

Blockburger. The Court pointed  to Ashe v. Swenson, 397  U.S. 436
                                                  

(1976), and In re  Nielsen, 131 U.S. 176 (1889), to  support this
                          

proposition.    In  Ashe,  the  Court  ruled  that principles  of
                        

collateral estoppel embodied in the Double Jeopardy Clause barred

a second prosecution for robbery of one person when the defendant

had  been  acquitted of  robbery of  another  person in  the same

incident.  In In re Nielsen, the Court held that a conviction for
                           

cohabiting with two  wives over  a two and  one-half year  period

barred  a subsequent  prosecution for  adultery with  one of  the

wives on  the day  following the  end of  that period.   Although

strict application of Blockburger would have permitted imposition
                                 

of consecutive  sentences, in both  cases, the  Court found  that

these  separate  offenses were  the  "same"  for double  jeopardy

purposes, and barred the second prosecutions.  Brown, 432 U.S. at
                                                    

166-67 n.6.

     In 1990, in Grady v. Corbin, 110 S. Ct. at  2084, the Court,
                                

reviewing over a century of double jeopardy jurisprudence, looked

                               -7-

to  Ashe and  In  re Nielsen  as  evidence that  double  jeopardy
                            

analysis  must  extend  beyond  Blockburger.    The  Grady  Court
                                                          

recognized   a  distinction   between  multiple   punishment  and

successive prosecution cases, noting that successive prosecutions

raised concerns  beyond punishment which justified  a more robust

standard by which to review double jeopardy for these cases.  

     The  Grady  majority asserted  that,  in  cases of  multiple
               

punishment,  the purpose  of the  Double  Jeopardy Clause  was to

prevent  the   sentencing  court   from  prescribing   a  greater

punishment than that authorized by the legislature.  110 S. Ct at

2091.  In  that context,  Blockburger functioned as  a "`rule  of
                                     

statutory  construction,'  a  guide  to  determining  whether the

legislature intended multiple punishments."  Id. at 2091 (quoting
                                                

Missouri  v. Hunter,  459 U.S.  359, 366  (1983)).   By contrast,
                   

successive   prosecutions   raised   concerns  beyond   excessive

punishment, such  as questions  of finality, harassment,  and the

risk  of  erroneous conviction.    In  this  context, the  Double

Jeopardy  Clause   also  served  as   a  check  on   the  state's

prosecutorial  power,  insuring that  the  state,  "with all  its

resources  and   power,"  did  not  misuse   its  authority  over

individual defendants.  Id. (quoting Green v. United  States, 355
                                                            

U.S. 184, 187 (1957)).    

     Under Grady, to determine whether the Double Jeopardy Clause
                

barred  a  subsequent  prosecution,  a court  first  applied  the

traditional Blockburger  test.   If  the  subsequent  prosecution
                       

survived the Blockburger test,  the court then determined whether
                        

                               -8-

establishing an  essential element of an offense  charged in that

prosecution would  require the  government to prove  conduct that

constitutes  an offense for which the  defendant already has been

prosecuted.   110 S. Ct. at 2093.   If so, the second prosecution

was barred.  Id. 
                

     In Dixon v. United States, 113 S. Ct. 2849 (1993), the Court
                              

renounced  Grady's  "same conduct"  test  and  affirmed that  the
                

Blockburger   analysis  governs  both   multiple  punishment  and
           

successive  prosecution  cases.5   Writing  for  a 5-4  majority,

Justice Scalia,  in Dixon,  essentially adopted the  reasoning of
                         

his  dissent in Grady to  argue that Grady's  "same conduct" rule
                                          

lacked  constitutional roots,  and  was wholly  inconsistent with

Supreme Court  precedent  and  the  common-law  understanding  of

double jeopardy.   113 S. Ct.  at 2860.   In his view,  the Grady
                                                                 

Court  had  overstated the  limitations  of  the Double  Jeopardy

Clause, in practice embracing  a requirement that would  have all

charges arising  from a  single criminal transaction  tried in  a

single proceeding.   Grady,  110 S.  Ct. at 2102.   The  Court in
                          

Dixon  thus   narrowed  the   scope  of  inquiry   in  successive
     

prosecution cases.    

                    III.  Application of Dixon
                                              

     Applying the  Dixon/Blockburger  "same elements" test to the
                                    

facts  of this case compels the conclusion that the defendant may

be prosecuted  for being  a fugitive  in  possession of  firearms

                    

     5In  the three  years  since Grady,  the composition  of the
                                       
Court changed, resulting in  a shift in the majority  view of the
history and precedent underlying the Double Jeopardy Clause.

                               -9-

under 18 U.S.C.   922(g)(2) despite his earlier conviction  under

18 U.S.C.   3146 for  failure to appear.  To secure  a conviction

under section 3146(a)(1), the government must prove that  (1) the

defendant has been released on bail pending trial, sentencing, or

appeal;  (2) the defendant was required to appear before a court;

and  (3) the defendant knowingly failed to appear.  The fugitive-

in-possession charge requires proof (1) that  a defendant fled to

avoid  prosecution for a crime; (2) that he knowingly possessed a

firearm; and (3) that  the firearm was possessed in  or affecting

commerce.

     Each  statute clearly  requires proof  of elements  that the

other  does not.  Under section 3146, for example, the government

must  prove that defendant was released on bail, and was required

to appear before a court.  These elements  are not required under

section  922(g), as  a  person may  be  a fugitive  from  justice

without having been released on bail,  and without being required

to  appear  before a  court.   Section  922(g) requires  that the

defendant  possess a firearm, which is not a required element for

a violation of section 3146(a).  Therefore, prosecution for these

two offenses is not barred by Blockburger/Dixon.
                                               

     The district court made  this same observation, but rejected

the  technical  comparison  of  the  statutes'  elements  as  too

cursory.  The court found that this case was comparable to Harris
                                                                 

v.  Oklahoma, 433 U.S. 682 (1977) (per curiam), where the Supreme
            

Court  held  that  a  prosecution  for robbery  with  a  firearm,

following defendant's  conviction for felony murder  based on the

                               -10-

robbery, was  barred by double jeopardy principles.   The Supreme

Court  later explained  this result  by noting  that, for  double

jeopardy  purposes,  it did  not  consider  "the crime  generally

described as felony  murder as a  separate offense distinct  from

its various elements."   Illinois  v. Vitale, 447  U.S. 410,  420
                                            

(1980).  Rather, robbery with a firearm was a "species of lesser-

included offense" of the  felony murder for which  Harris already

had been prosecuted.  Id.  
                         

     Relying on  Harris, the  district court  found that,  on the
                       

specific facts of this case, section 3146(a)(1) was a "species of

lesser-included  offense"  of  section  922(g)(2).     The  court

explained that in order to prosecute Colon Osorio for a violation

of section 922(g)(2),  the government must show that Colon Osorio

was a fugitive from  justice, which, in turn, required  a showing

that  he fled to avoid prosecution.  In this case, the government

would rely on proof of the  same conduct which comprised proof of

his bail jumping offense under section 3146: that he  was on bail

for  an indictment in Connecticut; that he was required to appear

before a court; and that he failed to appear.   Noting that these

were all the "elements necessary  in the previous prosecution for

violations of  section 3146(a)(1)," the district  court held that

section  3146  was  a  "species of  lesser-included  offense"  of

section  922(g)(2) and,  therefore, that  Blockburger barred  the
                                                     

government from prosecuting Colon Osorio under this section.

     The district court's analogy lacks force in the aftermath of

Dixon.   In the  first place,  Harris'  status is  unclear.   The
                                     

                               -11-

Supreme  Court  in Grady  had pointed  to  Harris to  support its
                                                 

argument that Blockburger was not the exclusive test to vindicate
                         

the   Double  Jeopardy   Clause's  protection   against  multiple

prosecutions.   Grady,  110  S. Ct.  at  2092.   The  Dixon Court
                                                           

overruled   this   proposition,   holding   that   both  multiple

prosecution  and multiple  punishment  cases are  to be  assessed

under the identical standard, Blockburger's "same elements" test.
                                         

Dixon,  113 S. Ct.  at 2856, 2860.   A  majority  of the justices
     

criticized  an  interpretation  of   Harris  which  supports  the
                                           

proposition  that  the   Blockburger  test  is  insufficient   to
                                    

determine whether  a successive  prosecution is barred,  and that

conduct, not merely statutory elements, must be the object of the

double  jeopardy  inquiry.   Id. at  2861.   These  same justices
                                

disagreed, however,  over Harris'  application, leaving open  the
                                

possibility that  a majority could still view Harris as providing
                                                    

an exception to the Blockburger approach.  See 113 S.Ct. at 2866-
                                              

67  (Rehnquist, C.J., concurring and dissenting); id. at 2857 n.2
                                                     

(Scalia, J.).6 

                    

     6Dixon involved  the question of whether  defendants who had
           
been  prosecuted for  criminal  contempt of  court for  violating
court orders subsequently could  be tried for crimes  arising out
of  the  same  conduct which  was  the  subject  of the  contempt
prosecution.   While a majority  of the Court  joined to reaffirm
Blockburger's application to successive prosecution cases, and to
           
overrule  Grady  v.  Corbin's  "same  conduct"  test,  there  was
                           
significant disagreement  among this same majority  regarding the
effect  of this change.   Chief Justice Rehnquist,  in an opinion
joined by  Justices O'Connor and Thomas, focused his criticism on
Justice  Scalia's  application  of  Harris.   He  contended  that
                                          
Justice  Scalia  improperly invoked  Harris.   In looking  to the
                                           
facts that had  to be proven to show a  violation of the specific
court orders  at issue, and  not to the  generic elements of  the
crime   of  contempt   of  court,   Justice  Scalia   effectively

                               -12-

     In  any event, this case is distinguishable from Harris.  In
                                                            

Harris, the  Court barred  a second  prosecution for  the offense
      

that had been used to  establish an element of the felony  murder

offense for which the defendant was convicted.  By contrast, bail

jumping is  not an offense on  which the government will  rely to
               

establish Colon Osorio's fugitive  status.  The government merely

will  rely  on the  same conduct  that  the government  proved to
                                

establish Colon Osorio's bail jumping offense. 

     Indeed, the district court's  analysis is precisely what the

Dixon  Court rejected.  Under Dixon, the fact that the government
                                   

will  attempt  to  prove that  Colon  Osorio  was  a fugitive  by

referring  to  the same  conduct used  to  prove the  elements of

failure to  appear does  not offend  the Double Jeopardy  Clause.

The  same actions can  constitute an  offense under  two distinct

statutes and can be  prosecuted separately under each statute  as

long as  the statutes do not  define a single offense  within the

meaning of  Blockburger.  United  States v. White, 1  F.3d 13, 17
                                                 

(D.C.  Cir. 1993); see also Blockburger, 284 U.S. at 304 (quoting
                                       

Morey v. Commonwealth, 108 Mass. 433 (1871)).
                     

The district court's decision therefore must be REVERSED.
                                                         

                    

resurrected the  Grady analysis that the Court had just rejected.
                      
Dixon, 113  S. Ct.  at 2866-67  (Rehnquist, C.J.,  concurring and
     
dissenting).  See also  id. at 2857 n.2 (Scalia,  J., criticizing
                           
Chief  Justice  Rehnquist's  interpretation of  his  analysis  of
Harris).   Therefore, whether Harris still  provides an exception
                                    
to Blockburger remains unclear post-Dixon.
                                         

                               -13-
