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First Circuit: Prosecution Under Puerto Rico and Federal Law for Same Drug Offense Constitutes Double Jeopardy

After a police officer saw Jose Reyes-Correa selling drugs at the Fernando Luis Garcia Housing Project in Utuado, Puerto Rico, in November 2015, a search of Reyes’ apartment turned up 41 baggies of crack cocaine. He was charged with possession with intent to distribute under Article 401 of the PRCSA, but he pleaded guilty, based upon the same conduct, to a different charge – a violation of Article 406 of the PRCSA, which criminalizes an “attempt or conspiracy to commit” any offense criminalized by the PRCSA.

Sixteen months later, a federal indictment was handed down, alleging Reyes and 26 other people participated in a decades-long conspiracy to traffic crack cocaine and other drugs near two public housing projects in Utuado, including the Fernando Luis Garcia Public Housing Project. The indictment charged Reyes with conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and one count each of aiding and abetting possession with intent to distribute heroin, cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 841(a)(l).

Reyes filed a motion to dismiss the § 846 conspiracy count as a violation of the Double Jeopardy Clause. The U.S. District Court for the District of Puerto Rico denied the motion, and with the assistance of attorney Julio Cèsar Alejandro Serrano, Reyes appealed.

On interlocutory appeal, the First Circuit cited Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863 (2016), as holding that the government of Puerto Rico and the federal government are not separate sovereigns for double jeopardy purposes. This is important as prosecutions by separate sovereigns, such as the government of one of the states and the federal government, are not a violation of the Double Jeopardy Clause, but the same sovereign cannot successfully prosecute a person twice for the same conduct through equivalent criminal laws. Gamble v. United States, 139 S. Ct. 1960 (2019). Two laws “are not the same if they each ‘require[] proof of [an additional] fact which the other does not.’” United States v. Lanoue, 137 F.3d 656 (1st Cir. 1998) (quoting Blockburger v. United States, 284 U.S. 299 (1932)).

In declining to dismiss the count, the district court ruled that the two charges were not the same offense. The First Circuit disagreed.

The Court ruled that the conviction under Puerto Rico law could not have been for an “attempt” since the crimes had been completed, not merely attempted. Further, the Government had not argued in the lower court that Reyes was convicted of “attempting” rather than “conspiracy to commit” the offense.

The Government argued that a violation of Article 406 is not the same offense as a violation of § 846, but the Court rejected that argument, stating “the two statutory offenses are defined in nearly identical language” and the Government failed to identify a substantive difference between them.

The Government also argued that the factual basis of the charges differed in that the federal count identified a second housing project and 26 co-conspirators. The Court concluded that the substantial overlap in time and location, along with intertwined objectives, “suffice to show that Reyes has made out a prima facie case” that both charges are for the same offense. The Government even conceded that the Article 406 conviction constituted “relevant conduct” to the § 846 charge. This shifted the burden to the Government to prove that the charges were different. United States v. Booth, 673 F.2d 27 (1st Cir. 1982). But the Government’s “speculative” arguments were unable to do so, according to the Court.

Accordingly, the Court reversed the denial of the motion to dismiss. See: United States v. Reyes-Correa, 971 F.3d 6 (1st Cir. 2020). 

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Related legal case

United States v. Reyes-Correa



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