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Criminal - Weapons - Double jeopardy - Issue preclusion.

Byline: Mass. Lawyers Weekly Staff

Where (1) Puerto Rico courts concluded in preliminary hearings that weapons charges against a defendant were not supported by probable cause, (2) the defendant then pleaded guilty to equivalent federal charges based on the same conduct and (3) he later moved to dismiss the federal indictment on double jeopardy and issue preclusion grounds, a U.S. District Court judge correctly denied the dismissal motion, as jeopardy did not attach in the Puerto Rico courts and the issue preclusion argument was waived.


" The district court, adopting the Report and Recommendation of [a] 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 [defendant William] 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.

" 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.'

"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.

" When the Commonwealth magistrates screened out Rosado-Cancel's case at the preliminary hearing phase, they 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. 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.' 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."

United States v. Rosado-Cancel (Lawyers Weekly No. 01-054-19) (8 pages) (Kayatta, J.) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 17-2195) (March 5, 2019).

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Title Annotation:United States v. Rosado-Cancel, U.S. Court of Appeals for the 1st Circuit
Publication:Massachusetts Lawyers Weekly
Date:Mar 8, 2019
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