-
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
Document Info
Docket Number： 94-1738
Filed Date： 1/5/1995
Precedential Status： Precedential
Modified Date： 3/3/2016