USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1738
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO RAMIREZ-BURGOS,
Appellant.
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ERRATA SHEET
The opinion of this Court, issued January 5, 1995, is amended as
follows:
Page 5, l.11: "Ramirez" in place of "Ramirez"
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1738
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO RAMIREZ-BURGOS,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Olga M. Shepard for appellant.
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Juan A. Pedrosa, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, was on brief for appellee.
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January 5, 1995
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CYR, Circuit Judge. Defendant Julio Ramirez Burgos
CYR, Circuit Judge
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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.
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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
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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
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context," Flanagan v. United States, 465 U.S. 259, 265 (1984),
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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.
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651, 657 (1977) (quoting DiBella v. United States, 369 U.S. 121,
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126 (1962)). We must therefore determine whether the district
court order is immediately appealable under the "collateral
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1We express no view whatever on the relevance or correctness
of Ramirez's assumption. See Blockburger v. United States, 284
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U.S. 299 (1932).
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order" doctrine. See Cohen v. Beneficial Industrial Loan Corp.,
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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
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(1st Cir.), cert. denied, 112 S. Ct. 184 (1991) (citing North
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Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The Supreme Court
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held in Abney that an order denying a pretrial motion to dismiss
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based on a claim of former jeopardy is immediately appealable
under the collateral order doctrine. Abney, 431 U.S. at 659-61.
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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
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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
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"former jeopardy" claim.
We believe the Abney branch of the "collateral order"
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exception to the final judgment rule is limited to the "special
circumstances permeating" former jeopardy claims. Abney, 431
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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
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United States v. Halper, 490 U.S. 435 (1989). In a simultaneous
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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
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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,
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n.10.
The Halper Court foreclosed Ramirez's multiple punish-
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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.
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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
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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.
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In United States v. Sorren, 605 F.2d 1211, 1215 (1st
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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
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United States v. Abreu, 952 F.2d 1458, 1465 (1st Cir.) (vacating
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sentence in post-conviction appeal based upon multiple punishment
claim), cert. denied, 112 S. Ct. 1695 (1992); Rivera-Martinez,
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931 F.2d at 153 (same). An interlocutory appeal in the present
case would not serve the purposes envisioned in Abney, because
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Ramirez would have to stand trial on the remaining counts even if
Count III were dismissed. See United States v. McHenry, 1993
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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
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v. Witten, 965 F.2d 774, 775-76 (9th Cir. 1992) (similar). The
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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.
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Inc., 458 U.S. 263, 269 (1982).
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As we lack appellate jurisdiction, the interlocutory
appeal must be dismissed.2
Appeal dismissed for lack of jurisdiction.
Appeal dismissed for lack of jurisdiction.
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2At this juncture, we take no position on whether Congress,
by its enactment of 18 U.S.C. 924(c), intended "multiple
punishments."
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