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Boston, MA - Criminal defense lawyer represented defendant with unlawful possession of a firearm with an obliterated serial number, and unlawful possession of an automatic weapon charges.

In October of 2013, a federal grand jury indicted RosadoCancel for unlawful possession of a firearm with an obliterated
serial number, in violation of 18 U.S.C § 922(k), and unlawful
possession of an automatic weapon, in violation of 18 U.S.C.
§ 922(o). In August of 2014, while the federal charges were
pending, Puerto Rico prosecutors charged Rosado-Cancel with
violating P.R. Laws Ann. tit. 25, § 458f (possession of a semiautomatic or automatic weapon) and P.R. Laws Ann. tit. 25,
§ 458i(b) (possession of a weapon with its serial number
obliterated). The government does not dispute either that both
sets of charges stemmed from the same alleged conduct or that the
federal and Commonwealth criminal laws are equivalent.
In Puerto Rico courts, a defendant charged with a felony
has the right to a preliminary hearing in which a magistrate
decides whether there is probable cause to believe the defendant
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committed the offense charged. P.R. Laws Ann. tit. 34, app. II,
§ 23. These preliminary hearings are adversarial and public, and
both sides have the right to introduce evidence. Id. When the
prosecution fails to clear this hurdle, Puerto Rico law allows one
more preliminary hearing on the same or different evidence before
a different magistrate of higher rank. Id. § 24(c). RosadoCancel informs us, and the government does not contest, that if
the second magistrate agrees with the first that no probable cause
exists, further prosecution of those charges is prohibited. See
United States v. Rosado-Cancel, No. 13-CR-731, 2017 WL 543199, at
*2 (D.P.R. Feb. 10, 2017) ("[T]he commonwealth government has two
at bats; if it strikes out at both preliminary hearings, the game
is over."). This was the fate of Rosado-Cancel's Commonwealth
case: At two successive preliminary hearings that took place while
the federal charges were pending, Commonwealth magistrates
concluded that the Puerto Rico weapons charges were not supported
by probable cause. As a result, Rosado-Cancel's Commonwealth
charges were dismissed and Puerto Rican officials may not further
prosecute them.
In June of 2016, following the disposition of the
Commonwealth case, Rosado-Cancel pleaded guilty in the United
States District Court to both federal counts without a plea
agreement. But in October of that year, following an almost
identical motion by his co-defendant, Rosado-Cancel moved the
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district court to dismiss his indictment as a violation of the
Double Jeopardy Clause. The district court referred the motion to
a magistrate judge, who concluded that the Puerto Rico preliminary
hearings did not place Rosado-Cancel in jeopardy, and that the
Double Jeopardy Clause therefore did not apply to the federal case.
In his objection to the magistrate judge's Report and
Recommendation, Rosado-Cancel argued for the first time that
relitigation of the probable cause issue was "barred due to Issue
Preclusion of the Collateral Estoppel Doctrine under the Double
Jeopardy Clause of the Fifth Amendment." The district court,
adopting the Report and Recommendation of the 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
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. Rosado-Cancel appealed to this court.
II.
The Double Jeopardy Clause of the Fifth Amendment
declares 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.
This right "was designed to protect an individual from being
subjected to the hazards of trial and possible conviction more
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than once for an alleged offense." Green v. United States, 355
U.S. 184, 187 (1957). Nevertheless, "a single act gives rise to
distinct offenses -- and thus may subject a person to successive
prosecutions -- if it violates the laws of separate sovereigns."
Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1867 (2016). 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." Id. at 1876.
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. See Serfass v. United States, 420 U.S.
377, 388 (1975); United States v. Jorn, 400 U.S. 470, 479 (1971)
("[A] defendant is placed in jeopardy in a criminal proceeding
once the defendant is put to trial before the trier of the facts,
whether the trier be a jury or a judge."); United States v. Bonilla
Romero, 836 F.2d 39, 42 (1st Cir. 1987) ("It is now well-settled
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law, therefore, that jeopardy 'attaches' when a trial commences;
that is, when a jury is sworn or empanelled or, in a bench trial,
when the judge begins to hear evidence."). Rosado-Cancel attempts
to skirt this obstacle by arguing that the second probable cause
determination was "the functional equivalent of an acquittal"
because it was decided on the merits and finally precluded future
prosecution under Puerto Rico law.
Supreme Court precedent forecloses this argument. In
Serfass, the government appealed from a district court order
granting Serfass's pretrial motion to dismiss the indictment. 420
U.S. at 380–81. Serfass argued that the Double Jeopardy Clause
barred the appeal. Id. at 389–90. He acknowledged that -- since
his case never got to trial -- "formal or technical jeopardy had
not attached," but argued instead that the district court's ruling
was the "functional equivalent of an acquittal on the merits" and
that "constructively jeopardy had attached." Id. The Court
rejected this position, sticking instead to the rule that "jeopardy
does not attach until a defendant is 'put to trial before the trier
of facts, whether the trier be a jury or a judge.'" Id. at 391
(quoting Jorn, 400 U.S. at 479). "Without risk of a determination
of guilt, jeopardy does not attach, and neither an appeal nor
further prosecution constitutes double jeopardy." Id. at 391–92
(emphasis added). When the Commonwealth magistrates screened out
Rosado-Cancel's case at the preliminary hearing phase, they
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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. See
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d
985, 990–91 (1st Cir. 1988) ("We hold categorically that an
unsuccessful party is not entitled as of right to de novo review
by the judge of an argument never seasonably raised before the
magistrate."). 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." Bonilla Romero, 836 F.2d at 43; see
also United States v. Santiago-Colón, No. 16–2509, slip op. at 33
(1st Cir. Feb. 28, 2019) (holding that the United States and
Puerto Rico's single-sovereignty status under the Double Jeopardy
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Clause does not eliminate the privity requirement in issue
preclusion claims). 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.

Outcome: Finding no error, we affirm the judgment of the district
court.

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