USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1373
UNITED STATES OF AMERICA,
Appellant,
v.
LUIS A. COLON-OSORIO,
Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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Kathleen A. Felton, Attorney, Department of Justice, with whom
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Daniel F. Lopez-Romo, United States Attorney, and Miguel A. Pereira,
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Assistant United States Attorney, were on brief for appellant.
Linda Backiel for appellee.
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November 30, 1993
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COFFIN, Senior Circuit Judge. On December 9, 1992, Luis
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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.
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Corbin, 110 S. Ct. 2084 (1990), has since been overruled. See
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United States v. Dixon, 113 S. Ct. 2849 (1993). Under the
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Supreme Court's current formulation of double jeopardy
jurisprudence, we are obliged to reverse.
I. Facts
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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
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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
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Cir. 1990).
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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
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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."
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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
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(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
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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."
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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),
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controls the resolution of this case. It points out that the
Dixon Court flatly overruled Grady v. Corbin, thus undermining
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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
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reaffirmed in Dixon, compels the conclusion that there are two
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separate offenses, permitting the fugitive-in-possession
prosecution to proceed.
Colon Osorio recognizes that Grady v. Corbin no longer
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supports his claim of double jeopardy, but his reading of Dixon
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otherwise differs from the government's. He claims that Dixon
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bolsters the district court's conclusion that his bail jumping
offense is completely included in the fugitive-in-possession
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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
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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.
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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.
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Aguilar-Avanceta, 957 F.2d 18, 21 (1st Cir. 1992).
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II. Double Jeopardy Law
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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);
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United States v. Rivera Martinez, 931 F.2d 148, 152 (1st Cir.
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1991).
In Blockburger v. United States, 284 U.S. 299 (1932), the
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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.
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The Blockburger test focuses on the statutory elements of each
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offense. "If each requires proof of a fact that the other does
not, the Blockburger test is satisfied, notwithstanding a
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substantial overlap in the proof offered to establish the
crimes." Ianelli v. United States, 420 U.S. 770, 785 n.17
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(1975); see also United States v. Felix, 112 S. Ct. 1377, 1382
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(1992).
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In Brown v. Ohio, 432 U.S. 161, 166-67 (1977), the Supreme
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Court acknowledged that the Blockburger test was not the only
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standard used to determine whether successive prosecutions were
the "same offence" for double jeopardy purposes. The Brown Court
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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
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(1976), and In re Nielsen, 131 U.S. 176 (1889), to support this
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proposition. In Ashe, the Court ruled that principles of
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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
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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
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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
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166-67 n.6.
In 1990, in Grady v. Corbin, 110 S. Ct. at 2084, the Court,
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reviewing over a century of double jeopardy jurisprudence, looked
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to Ashe and In re Nielsen as evidence that double jeopardy
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analysis must extend beyond Blockburger. The Grady Court
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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
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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
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statutory construction,' a guide to determining whether the
legislature intended multiple punishments." Id. at 2091 (quoting
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Missouri v. Hunter, 459 U.S. 359, 366 (1983)). By contrast,
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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
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U.S. 184, 187 (1957)).
Under Grady, to determine whether the Double Jeopardy Clause
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barred a subsequent prosecution, a court first applied the
traditional Blockburger test. If the subsequent prosecution
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survived the Blockburger test, the court then determined whether
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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.
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In Dixon v. United States, 113 S. Ct. 2849 (1993), the Court
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renounced Grady's "same conduct" test and affirmed that the
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Blockburger analysis governs both multiple punishment and
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successive prosecution cases.5 Writing for a 5-4 majority,
Justice Scalia, in Dixon, essentially adopted the reasoning of
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his dissent in Grady to argue that Grady's "same conduct" rule
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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
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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
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Dixon thus narrowed the scope of inquiry in successive
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prosecution cases.
III. Application of Dixon
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Applying the Dixon/Blockburger "same elements" test to the
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facts of this case compels the conclusion that the defendant may
be prosecuted for being a fugitive in possession of firearms
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5In the three years since Grady, the composition of the
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Court changed, resulting in a shift in the majority view of the
history and precedent underlying the Double Jeopardy Clause.
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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.
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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
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v. Oklahoma, 433 U.S. 682 (1977) (per curiam), where the Supreme
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Court held that a prosecution for robbery with a firearm,
following defendant's conviction for felony murder based on the
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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
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(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.
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Relying on Harris, the district court found that, on the
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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
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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
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Supreme Court in Grady had pointed to Harris to support its
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argument that Blockburger was not the exclusive test to vindicate
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the Double Jeopardy Clause's protection against multiple
prosecutions. Grady, 110 S. Ct. at 2092. The Dixon Court
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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.
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Dixon, 113 S. Ct. at 2856, 2860. A majority of the justices
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criticized an interpretation of Harris which supports the
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proposition that the Blockburger test is insufficient to
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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
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disagreed, however, over Harris' application, leaving open the
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possibility that a majority could still view Harris as providing
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an exception to the Blockburger approach. See 113 S. Ct. at 2866-
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67 (Rehnquist, C.J., concurring and dissenting); id. at 2857 n.2
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(Scalia, J.).6
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6Dixon involved the question of whether defendants who had
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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
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overrule Grady v. Corbin's "same conduct" test, there was
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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
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Justice Scalia improperly invoked Harris. In looking to the
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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
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In any event, this case is distinguishable from Harris. In
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Harris, the Court barred a second prosecution for the offense
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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
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establish Colon Osorio's fugitive status. The government merely
will rely on the same conduct that the government proved to
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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
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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
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(D.C. Cir. 1993); see also Blockburger, 284 U.S. at 304 (quoting
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Morey v. Commonwealth, 108 Mass. 433 (1871)).
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The district court's decision therefore must be REVERSED.
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resurrected the Grady analysis that the Court had just rejected.
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Dixon, 113 S. Ct. at 2866-67 (Rehnquist, C.J., concurring and
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dissenting). See also id. at 2857 n.2 (Scalia, J., criticizing
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Chief Justice Rehnquist's interpretation of his analysis of
Harris). Therefore, whether Harris still provides an exception
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to Blockburger remains unclear post-Dixon.
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