          United States Court of Appeals
                      For the First Circuit


No. 17-2195

                          UNITED STATES,

                            Appellee,

                                v.

                      WILLIAM ROSADO-CANCEL,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before

                    Lynch, Stahl, and Kayatta,
                          Circuit Judges.


     Luis Rafael Rivera and Luis Rafael Rivera Law Offices on brief
for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, on brief for appellee.


                          March 5, 2019
            KAYATTA,   Circuit       Judge.         After    Puerto    Rico    courts

concluded    in   preliminary       hearings        that    Commonwealth      weapons

charges    against   William       Rosado-Cancel       were    not    supported     by

probable cause, Rosado-Cancel pleaded guilty to equivalent federal

charges based on the same conduct.              Rosado-Cancel later moved the

district court to dismiss the indictment on double jeopardy and

issue preclusion grounds.           The district court denied the motion

and Rosado-Cancel appealed.         For the following reasons, we affirm.

                                         I.

            In October of 2013, a federal grand jury indicted Rosado-

Cancel for unlawful possession of a firearm with an obliterated

serial number, in violation of 18 U.S.C § 922(k), and unlawful

possession of an automatic weapon, in violation of 18 U.S.C.

§ 922(o).     In August of 2014, while the federal charges were

pending,    Puerto   Rico     prosecutors        charged      Rosado-Cancel        with

violating P.R. Laws Ann. tit. 25, § 458f (possession of a semi-

automatic   or    automatic    weapon)        and   P.R.    Laws     Ann.   tit.   25,

§ 458i(b)    (possession      of    a    weapon      with     its    serial    number

obliterated).     The government does not dispute either that both

sets of charges stemmed from the same alleged conduct or that the

federal and Commonwealth criminal laws are equivalent.

            In Puerto Rico courts, a defendant charged with a felony

has the right to a preliminary hearing in which a magistrate

decides whether there is probable cause to believe the defendant


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committed the offense charged.           P.R. Laws Ann. tit. 34, app. II,

§ 23.    These preliminary hearings are adversarial and public, and

both sides have the right to introduce evidence.              Id.      When the

prosecution fails to clear this hurdle, Puerto Rico law allows one

more preliminary hearing on the same or different evidence before

a different magistrate of higher rank.               Id. § 24(c).       Rosado-

Cancel informs us, and the government does not contest, that if

the second magistrate agrees with the first that no probable cause

exists, further prosecution of those charges is prohibited.                  See

United States v. Rosado-Cancel, No. 13-CR-731, 2017 WL 543199, at

*2 (D.P.R. Feb. 10, 2017) ("[T]he commonwealth government has two

at bats; if it strikes out at both preliminary hearings, the game

is over.").       This was the fate of Rosado-Cancel's Commonwealth

case: At two successive preliminary hearings that took place while

the     federal    charges     were    pending,    Commonwealth   magistrates

concluded that the Puerto Rico weapons charges were not supported

by probable cause.            As a result, Rosado-Cancel's Commonwealth

charges were dismissed and Puerto Rican officials may not further

prosecute them.

             In   June   of    2016,   following   the   disposition    of   the

Commonwealth case, Rosado-Cancel pleaded guilty in the United

States District Court to both federal counts without a plea

agreement.        But in October of that year, following an almost

identical motion by his co-defendant, Rosado-Cancel moved the


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district court to dismiss his indictment as a violation of the

Double Jeopardy Clause.        The district court referred the motion to

a magistrate judge, who concluded that the Puerto Rico preliminary

hearings did not place Rosado-Cancel in jeopardy, and that the

Double Jeopardy Clause therefore did not apply to the federal case.

In   his   objection      to     the    magistrate       judge's    Report      and

Recommendation,   Rosado-Cancel         argued    for    the    first   time   that

relitigation of the probable cause issue was "barred due to Issue

Preclusion of the Collateral Estoppel Doctrine under the Double

Jeopardy Clause of the Fifth Amendment."                  The district court,

adopting the Report and Recommendation of the magistrate judge,

concluded that jeopardy had not attached in the Puerto Rico

proceedings, and hence that the federal prosecution did not offend

double jeopardy principles.            The district court also found that

Rosado-Cancel's    issue        preclusion       claim    was    untimely,      and

alternatively found the claim meritless because Rosado-Cancel

neglected to show privity between Puerto Rico and federal law

enforcement officials.         Rosado-Cancel appealed to this court.

                                        II.

           The   Double    Jeopardy      Clause    of    the    Fifth   Amendment

declares 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.

This right "was designed to protect an individual from being

subjected to the hazards of trial and possible conviction more


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than once for an alleged offense."       Green v. United States, 355

U.S. 184, 187 (1957).   Nevertheless, "a single act gives rise to

distinct offenses -- and thus may subject a person to successive

prosecutions -- if it violates the laws of separate sovereigns."

Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1867 (2016).      The

United States Supreme Court recently concluded that, for the

purposes of the Double Jeopardy Clause, the Commonwealth of Puerto

Rico and the United States are a single sovereign, and that

therefore Puerto Rico and the United States cannot successively

prosecute an individual "for the same conduct under equivalent

criminal laws."   Id. at 1876.

          Relying on this development, Rosado-Cancel argues that,

given his victories in the Puerto Rico preliminary hearings and

the resulting bar to future prosecution at the Commonwealth level,

his federal conviction was unconstitutional.       Right out of the

gate, Rosado-Cancel encounters a major hurdle:     The Supreme Court

has consistently held that jeopardy has not attached, and the

Double Jeopardy Clause therefore has no application, until a

defendant is put to trial.   See Serfass v. United States, 420 U.S.

377, 388 (1975); United States v. Jorn, 400 U.S. 470, 479 (1971)

("[A] defendant is placed in jeopardy in a criminal proceeding

once the defendant is put to trial before the trier of the facts,

whether the trier be a jury or a judge."); United States v. Bonilla

Romero, 836 F.2d 39, 42 (1st Cir. 1987) ("It is now well-settled


                                 - 5 -
law, therefore, 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.").         Rosado-Cancel attempts

to skirt this obstacle by arguing that the second probable cause

determination was "the functional equivalent of an acquittal"

because it was decided on the merits and finally precluded future

prosecution under Puerto Rico law.

          Supreme Court precedent forecloses this argument.               In

Serfass, the government appealed from a district court order

granting Serfass's pretrial motion to dismiss the indictment.           420

U.S. at 380–81.     Serfass argued that the Double Jeopardy Clause

barred the appeal.    Id. at 389–90.        He acknowledged that -- since

his case never got to trial -- "formal or technical jeopardy had

not attached," but argued instead that the district court's ruling

was the "functional equivalent of an acquittal on the merits" and

that "constructively jeopardy had attached."             Id.     The Court

rejected this position, sticking instead to the rule that "jeopardy

does not attach until a defendant is 'put to trial before the trier

of facts, whether the trier be a jury or a judge.'"             Id. at 391

(quoting Jorn, 400 U.S. at 479).       "Without risk of a determination

of guilt, jeopardy does not attach, and neither an appeal nor

further prosecution constitutes double jeopardy."             Id. at 391–92

(emphasis added).    When the Commonwealth magistrates screened out

Rosado-Cancel's   case   at   the    preliminary    hearing    phase,   they


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ensured that Rosado-Cancel never faced the risk of a determination

of guilt on those charges.    Rosado-Cancel was, therefore, never

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

Double Jeopardy Clause has no application.

          Rosado-Cancel also argues that "[r]elitigation of the

same issues is barred due to Issue Preclusion of the Collateral

Estoppel Doctrine under the Double Jeopardy Clause of the Fifth

Amendment."   The government counters that Rosado-Cancel waived his

issue preclusion claim by failing to raise it before the magistrate

judge, instead advancing it for the first time in his objections

to the magistrate's Report and Recommendation.     We agree.   See

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d

985, 990–91 (1st Cir. 1988) ("We hold categorically that an

unsuccessful party is not entitled as of right to de novo review

by the judge of an argument never seasonably raised before the

magistrate.").   Moreover, we have consistently held that -- even

assuming issue preclusion does not depend upon jeopardy having

attached in the prior proceeding -- issue preclusion requires "that

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; see

also United States v. Santiago-Colón, No. 16–2509, slip op. at 33

(1st Cir. Feb. 28, 2019)     (holding that the United States and

Puerto Rico's single-sovereignty status under the Double Jeopardy


                               - 7 -
Clause    does   not   eliminate    the    privity    requirement    in   issue

preclusion claims).      Here, Rosado-Cancel has not argued that the

federal    prosecutors    were     in     privity    with   the   Commonwealth

prosecutors, and his issue preclusion claim would therefore fail

on the merits even if it were not waived.

                                        III.

            Finding no error, we affirm the judgment of the district

court.




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