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,
SELYA,
Caraballo-Cruz
jeopardy

Circuit Judge.
Circuit Judge.
______________
appeals

grounds.

his

His

Defendant-appellant

conspiracy

claim

has

conviction

merit.

on

Walter

double

Consequently,

we

reverse.
I
I
This appeal has its origins in an earlier case.
1992, a federal grand

jury charged appellant with

possess

of

drug, in

29 kilograms

cocaine, intending

violation of 21 U.S.C.

In May

conspiracy to

to distribute

841(a)(1) and 846.

the

On July

16, 1992, a petit jury found him guilty as charged.

court thereafter

imposed sentence and we

The district

affirmed the judgment.

United States v. Caraballo-Cruz, No. 92-2316

______________
______________

(1st Cir. Feb. 10,

1994) (unpublished opinion).

Appellant's
indictment.

travail

was

not

limited

to

the

1992

On June 18, 1993, the grand jury returned a second,

far broader indictment.

conspiracy

The new

indictment contained a

count (count 1) and 47 subsidiary counts.

master

The master

conspiracy count charged 30 defendants, including appellant, with

conspiracy
cocaine

in

to possess

and

violation

of

Appellant, who
moved

to

distribute some
21

U.S.C.

was not indicted

dismiss

count 1.

on any
He

841(a)(1)

in the

asseverated

earlier indictment,

government's nascent attempt to

and

other charge,

conspiracy portrayed therein encompassed the

described

2,000 kilograms

that the

of

846.

promptly

master

narrower conspiracy

and, therefore,

that the

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.
plea,

Fed. R.

December

The district court accepted a conditional guilty

Crim.

P. 11(a)(2),

7, 1993, in accordance

and

imposed sentence.

with the condition

On

of his plea

agreement, Caraballo-Cruz filed a notice of appeal.

II
II
The Fifth Amendment
states in relevant part:

to the United States

Constitution

"No person [shall] be subject

for the

same offence to be twice put in jeopardy of life or limb . . . ."

This
it

constitutional shield
protects against a

after an
the

embodies three

second prosecution

separate safeguards:
for the

same offense

acquittal; it protects against a second prosecution for

same

offense after

a conviction;

and it

multiple punishments for the same offense.

protects against

See North Carolina v.

___ ______________

Pearce, 395 U.S. 711, 717 (1969); United States v. Ortiz-Alarcon,

______
_____________
_____________
917 F.2d
(1991).

651, 653 (1st

In the

Cir. 1990),

papers

cert. denied, 500

_____ ______

accompanying

his motion

to

U.S. 926

dismiss,

Caraballo-Cruz set forth in considerable detail the basis for his

belief

that

the most

recent

conspiracy

charge fell

within the proscription of the second buckler

squarely

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

renewed request [for dismissal] may prosper."

disclosed,

"a

shield.

He repeats

these arguments

asserting that the conspiracies

in

his brief

on appeal,

described in the two indictments

are, in law and in fact, the same offense.

While

the

predictable, the

appellant's

government's response

the prosecution attempted to

head-on

before

confined

jeopardy
below.

the

to a pair

contends that
issue

is

is exotic.

court,

its

of peripheral issues.

appellate

and

Even though

decided on

brief

is

First, the government

we lack appellate jurisdiction

was never

consistent

meet the double jeopardy initiative

district

Second, it maintains

the issue.

position

the

because the double

merits by

the court

that appellant's guilty plea waived

These assertions contain more growl than bite.

III
III

jeopardy

To guard

against the constitutional insult that double

entails,

a court

prosecution claim must hear

of trial.

faced

with

a colorable

successive

and determine the matter

in advance

See United States v. Liotard, 817 F.2d 1074, 1079 (3d

___ _____________
Cir. 1987); United States v.
_____________
cert.
_____

Booth, 673 F.2d 27, 30

_____

denied, 456 U.S. 978 (1982).

______

apparent:

if the

vindicated

before that

right at all,
1080;

_______

see
___

that

illusion.
Neil,
____

Double

at all").

See
___
409

Jeopardy

because "its practical result

place

second trial is not

commences, then

Robinson v.
________
the

The reason for this rule is

free from a

trial

but a cruel

also
____

(explaining

right to be

(1st Cir.),

the right

is no

Liotard, 817 F.2d

_______
U.S.

505, 509

Clause

at

(1973)

is

distinctive

is to prevent a trial

from taking

In a successive prosecution case, the guarantee

4

against double jeopardy "would be lost if the accused were forced

to

`run

trial.

the gauntlet'

time"

before being

placed on

Abney v. United States, 431 U.S. 651, 662 (1977).

_____
_____________
The

framework.
limned

a second

case at
Confronted

a patently

hand

fits neatly

with a

nonfrivolous

timely

within this
motion to

doctrinal

dismiss

successive prosecution

that

claim,2

the

lower

court

denied the

motion

renewal after the presentation

_____ ___ ____________
note 1.

without

prejudice to

of evidence at trial.
__ ________ __ _____

The Double Jeopardy Clause

its

See supra
___ _____

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
on

appellant's

the law rather than from

part, the

government's

any lack of diligence

jurisdictional argument

founders.
IV
IV
The
Though

an

government's

unconditional

nonjurisdictional

waiver
guilty

defects

insulating

previous rulings

States
______

Cordero,
_______

v.

42 F.3d

argument
plea

occurring
from
697,

fares

typically
earlier

no

subsumes
in

appellate review,
698

(1st

better.

the

all

case,

see United
___ ______

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
defendant enter

where, as here,

(and the district court

plea agreement that expressly

raise a

particular

irresistibly

the government and

from

issue

the

approves) a conditional
___________

preserves the defendant's right to

on appeal.

the language

of

This
the

conclusion

flows

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).

obvious:

is designed

it

conditional

plea," to

The import of this

to "ensure

careful attention

"identify precisely what

have been preserved for appellate review," and

judicial resources
hoarded issues while
busy district
trial.

rule is open and

by permitting
at the

courts and

pretrial issues

to husband scarce

a defendant fully

same time lessening

sparing the sovereign

to any

to litigate

the burden

on

the expense

of

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)
reservation of the

and contains an express written

right to appeal from the denial of the motion

to

dismiss.3

In short,

required by the rule.

it scrupulously

follows

the protocol

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
its

two,

Attorneys)

represented

defendant's

right to hawk his double

considered

notwithstanding his guilty plea.

v. Ramos, 961
_____

F.2d 1003,

entry

conditional

of

described

rulings

for

nonjurisdictional errors),
United States v.
______________
(similar).

Simmons,
_______

Assistant

acquiescence

States
in

the

jeopardy defense on appeal

See id.; see also United States

___ ___ ___ ____ _____________

1005-06 (1st Cir.)

guilty

United

plea

review

(holding that

preserves

and

waives

cert. denied, 113 S.

_____ ______
763 F.2d

529,

the

specifically
all

other

Ct. 364 (1992);

533 (2d

Cir.

1985)

Having secured a plea by means of this accommodation,

the government cannot

now retract its acquiescence.

After all,

"[h]aving

one's cake and

this circuit."

eating it, too,

is not in

fashion in

United States v. Tierney, 760 F.2d 382, 388 (1st

______________
_______

Cir.), cert. denied, 474 U.S. 843 (1985).

_____ ______
Should any doubt remain
Court's

opinion in

Doggett v.
_______

and we see none

United States,
_____________

(1992), supplies the sockdolager.

substantially the
that,

by

appeal
defense.

his

claim

See
___

the

under

Id.
___

had

right to

prejudiced

Doggett had tendered a

Government's

reservation of the right to

arrest

any

his

The Court rejected this argument

Rule 11(a)(2),

"the

Ct. 2686

here, asserting

defendant waived

a delayed

It noted that

memorialized

dismiss.

as it advances

id. at 2694 n.3.

___

out of hand.
guilty plea

that

112 S.

There, the government advanced

same argument

pleading guilty,

the Supreme

and that
explicit

the plea
consent

conditional

agreement
to

appeal" the denial of his motion

Accordingly, Doggett could

his

to

not be barred "from

pursuing as effective an
not pleaded guilty."

appeal as he

Id.
___

could have raised had

he

So it is here.4
V
V

In its opposition to
in the

district

court, the

factors required to

the appellant's motion to dismiss

government attempted

determine when successive

to parse

the

conspiracy counts

should

be construed as charging the same offense for purposes of

double

jeopardy analysis.

966 F.2d 24,

28 (1st Cir. 1992)

for determining whether

the

same

Clause);
1991)

See, e.g., United States v. Cloutier,

___ ____ _____________
________

two successive conspiracy counts

offense within
United States
_____________

(elucidating multi-pronged test

the

purview

v. David,
_____

(similar), cert. denied, 502

_____ ______

States
______

v.

Gomez-Pabon,
___________

(elucidating test
1074

(1991).

Double

Jeopardy

722, 734

(1st Cir.

U.S. 1046 (1992); cf. United

___ ______
847,

860

(1st

Cir.

1990)

denied, 498 U.S.

______

On appeal, however, the government fails either to

way.

to address the substantive issue

Instead,

further elaboration,
same."

F.2d

940 F.2d

in analogous context), cert.

_____

renew this challenge or

meaningful

911

of the

charge

that the

the

declares,

without

"underlying offenses are

not the

Government's Brief at 11.

government

in any

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
a perfunctory

manner, unaccompanied by some

argumentation, are deemed waived."

to in

effort at developed

United States v. Zannino, 895

_____________
_______

F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).

_____ ______

To be

sure,

is to

negate

the usual

office of

consideration

defendant.
_________

of

this rule
skeletal

in

criminal cases

arguments

advanced

by
__

the
___

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

applies

with

attempts

to

conclusions

the government's

undiminished
rely

on

in lieu

vigor

fleeting
of

gander.

when, as
references

Thus,

now,
to

949 F.2d 532,

prosecutor

unsubstantiated

structured argumentation.

United States v. Rodriguez Cortes,

______________
________________

the rule

See,
___

e.g.,
____

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,
its

default

and

credit

then, we must
appellant's

hold the government

argument

that

to

the

two

Appellant fully preserved

his

conspiracies constitute one and the same offense.

VI
VI
We need go no further.

defense of double jeopardy, and the government has articulated no

credible reason to
constitutionally

suppose either
distinct

or

that
9

that the

charged crimes

the

is

defense

are

otherwise

flawed.

Reversed.
Reversed.
________

Consequently, the judgment of conviction must be

10