85 F.

3d 823

UNITED STATES of America, Appellee,

v.
Hector GUZMAN, a/k/a Hector Guzman Rivera, Defendant,
Appellant.
No. 95-1234.

United States Court of Appeals,

First Circuit.
Submitted May 6, 1996.
Decided June 7, 1996.

Gabriel Hernandez Rivera on brief, and Hector Guzman Rivera, pro se

ipso, on supplemental brief, for appellant.
John C. Keeney, Acting Assistant Attorney General, Theresa M.B. Van
Vliet and Philip Urofsky, Criminal Division, U.S. Dept. of Justice, and
Guillermo Gil, United States Attorney, on brief for appellee.
Before SELYA and CUMMINGS, * Circuit Judges, and COFFIN, Senior
Circuit Judge.
SELYA, Circuit Judge.

This appeal raises, inter alia, the question whether defendant-appellant Hector
Guzman Rivera (Guzman) was twice put in jeopardy for the same offense, thus
violating his Fifth Amendment rights. Discerning neither a constitutional flaw
nor any other significant error, we affirm the judgment below.

I. BACKGROUND
2

The indictment in this case arises out of an aborted drug smuggle that took the
appellant by sea from Puerto Rico to the island of St. Maarten in the
Netherlands Antilles.1 According to the appellant's uncontradicted allegations,
Victor Ayala, an agent of the United States Drug Enforcement Administration
(DEA), followed the LEE MARY (captained by the appellant) to St. Maarten in
August 1990, and then surveilled it for two days. At this juncture Dutch

authorities boarded the ship, searched her, seized seventy-three kilograms of

cocaine, and detained several persons. The appellant alleges that Ayala joined
in the search, but the United States maintains that he merely observed it from
his surveillance post. At any rate, it is undisputed that after the search had
begun Ayala informed the Dutch authorities of Guzman's involvement. Local
police ran Guzman to ground nearby and arrested him.
3

The Dutch government charged Guzman with a crime involving possession of

the cocaine stashed on board the LEE MARY. He was tried, convicted, and
sentenced to a ten-year term of immurement in St. Maarten. He escaped in May
of 1992. Approximately seven months later the DEA arrested him in Puerto
Rico when he attempted to sell heroin to an undercover agent. After being
found guilty of that crime he was sentenced to 147 months' imprisonment.

The appellant's troubles were not yet behind him: in November of 1993, federal
authorities in Puerto Rico indicted several individuals (including Guzman) for
the attempted smuggle that had occurred in the summer of 1990. The charges
against the appellant included conspiring to possess, with intent to distribute, in
excess of five kilograms of cocaine, see 21 U.S.C. 841(a)(1) & 846;
attempting to import cocaine into the United States, see id. 952, 960, & 963;
and aiding and abetting the commission of certain charged offenses, see 18
U.S.C. 2.

In due season the district court denied motions to dismiss the indictment which
posited, inter alia, that the bringing of charges violated the Double Jeopardy
Clause, U.S. Const. amend. V, cl.2, and that the delay in procuring the
indictment countervailed the Speedy Trial Act, 18 U.S.C. 3161-3174. Rather
than entrust his fate to a jury, the appellant entered into a plea agreement with
the government pursuant to which he pleaded guilty to possession of cocaine
with intent to distribute. All other charges against him were dropped. The
district court imposed a sentence of seventy months in prison, directing that the
term run consecutive to the previously imposed heroin-trafficking sentence.
This appeal ensued.

II. ANALYSIS
6

In addition to the double jeopardy claim--which has been extensively briefed by

Guzman's appellate counsel--Guzman himself advances four other assignments
of error in a supplemental pro se brief. We address all five claims.

7A. Double Jeopardy.

The appellant contends that the offense of conviction in this case and the
offense for which he was convicted in St. Maarten are one and the same, thus
triggering double jeopardy concerns. Even though both cases involve the
appellant's possession of the identical seventy-three kilos of cocaine, destined
for importation into the United States via St. Maarten, a towering obstacle
looms: the two sets of charges were brought by different governments. The
black-letter rule is that prosecutions undertaken by separate sovereign
governments, no matter how similar they may be in character, do not raise the
specter of double jeopardy as that constitutional doctrine is commonly
understood. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88
L.Ed.2d 387 (1985); United States v. Lopez Andino, 831 F.2d 1164, 1167 (1st
Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100 L.Ed.2d 605
(1988). This rule derives from the tenet that when "a defendant in a single act
violates the 'peace and dignity' of two sovereigns by breaking the laws of each,
he has committed two distinct 'offences' " and can be prosecuted and punished
for both. Heath, 474 U.S. at 88, 106 S.Ct. at 437.

The appellant concedes the general validity of this "dual sovereign" rule, and
recognizes that, if applicable in this instance, it shields the United States from
the successive prosecution prong of the Double Jeopardy Clause. He argues
nonetheless that the shield is unavailable here because the United States
government orchestrated the St. Maarten investigation and superintended the
ensuing prosecution, thus effectively merging the two sovereigns into one for
double jeopardy purposes.

10

The argument is not entirely without basis. In Bartkus v. Illinois, 359 U.S. 121,
131-33, 79 S.Ct. 676, 683-84, 3 L.Ed.2d 684 (1959), the Supreme Court upheld
the second of two convictions of a defendant who had been prosecuted by two
sovereigns--the federal government and a state--for the same conduct. The
Court indicated, however, that under very limited circumstances successive
prosecutions by separate sovereigns might transgress the Double Jeopardy
Clause. See id. at 123-24, 79 S.Ct. at 678-79. Bartkus was not such a case
because, there, the record did

11 support the claim that the State of Illinois in bringing its prosecution was merely
not
a tool of the federal authorities, who thereby avoided the prohibition of the Fifth
Amendment against a retrial of a federal prosecution after an acquittal. It does not
sustain a conclusion that the state prosecution was a sham and a cover for a federal
prosecution, and thereby in essential fact another federal prosecution.
12

Id.

13

This language strongly suggests that defendants prosecuted by two sovereign

governments for the same conduct may on occasion be able to invoke double
jeopardy protection. While some courts have brushed aside this language as
dictum and hinted that the Bartkus exception to the dual sovereign rule may not
exist at all, see United States v. Paiz, 905 F.2d 1014, 1024 n. 13 (7th Cir.1990),
cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991); United
States v. Patterson, 809 F.2d 244, 247 n. 2 (5th Cir.1987), most courts have
treated the Bartkus intimation as good law. See, e.g., United States v. Certain
Real Property and Premises Known as 38 Whalers Cove Dr., 954 F.2d 29, 38
(2d Cir.1992), cert. denied, 506 U.S. 815, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992);
United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.1991); United States v.
Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587-88 (6th Cir.1991); In re
Kunstler, 914 F.2d 505, 517 (4th Cir.1990), cert. denied, 499 U.S. 969, 111
S.Ct. 1607, 113 L.Ed.2d 669 (1991); United States v. Bernhardt, 831 F.2d 181,
182-83 (9th Cir.1987); United States v. Lane, 891 F.Supp. 8, 10 (D.Me.1995);
United States v. Bouthot, 685 F.Supp. 286, 294 (D.Mass.1988).

14

We find the gravitational pull of Bartkus irresistible. Indeed, we think that the
exception is compelled by the bedrock principles of dual sovereignty. See
United States v. Liddy, 542 F.2d 76, 79 (D.C.Cir.1976) ("Bartkus, as we view
it, stands for the proposition that federal authorities are proscribed from
manipulating state processes to accomplish that which they cannot
constitutionally do themselves. To hold otherwise would, of course, result in a
mockery of the dual sovereignty concept that underlies our system of criminal
justice.").

15

We emphasize that the Bartkus exception is narrow. It is limited to situations in

which one sovereign so thoroughly dominates or manipulates the prosecutorial
machinery of another that the latter retains little or no volition in its own
proceedings. See, e.g., United States v. Baptista-Rodriguez, 17 F.3d 1354, 1361
(11th Cir.1994); Whalers Cove, 954 F.2d at 38; Raymer, 941 F.2d at 1037;
Kunstler, 914 F.2d at 517; Liddy, 542 F.2d at 79.

16

Some courts have suggested that a defendant who seeks shelter under the
Bartkus exception bears the burden of proving that one sovereign dominated
the other's acts. See, e.g., Raymer, 941 F.2d at 1037; Liddy, 542 F.2d at 79.
Nevertheless, this court has erected a framework that dictates a somewhat
different allocation of the burden. Under this matrix, the defendant must proffer
evidence sufficient to establish a prima facie case that the two prosecutions
were for the same offense. If the defendant meets his entry-level burden by
making an adequate evidentiary showing to that effect, the devoir of persuasion
shifts to the government to prove that the offenses are not identical.2 See United

States v. Garcia-Rosa, 876 F.2d 209, 229 (1st Cir.1989), cert. denied, 493 U.S.
1030, 110 S.Ct. 742, 107 L.Ed.2d 760 (1990); United States v. Booth, 673 F.2d
27, 30-31 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853
(1982); see also United States v. Schinnell, 80 F.3d 1064, 1066 (5th Cir.1996)
(employing same paradigm); United States v. Inmon, 568 F.2d 326, 331-32 (3d
Cir.1977) (same); United States v. Mallah, 503 F.2d 971, 986 (2d Cir.1974)
(same), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).
17

In the Bartkus context, the question whether a defendant is being twice

prosecuted for the same offense turns in part on the applicability of the dual
sovereign rule. See Heath, 474 U.S. at 88, 106 S.Ct. at 437. Thus, the defendant
must produce some evidence tending to prove that the rule should not apply
because one sovereign was a pawn of the other, with the result that the notion
of two supposedly independent prosecutions is merely a sham. If the defendant
proffers evidence sufficient to support such a finding--in effect, a prima facie
case--the government must shoulder the burden of proving that one sovereign
did not orchestrate both prosecutions, or, put another way, that one sovereign
was not a tool of the other. See, e.g., United States v. Harrison, 918 F.2d 469,
475 (5th Cir.1990) (applying burden-shifting matrix in the Bartkus context).3

18

In this case, it is crystal clear that the appellant did not offer enough evidence to
carry his entry-level burden. Factually, his claim comes down to this: he asserts
that Agent Ayala traveled to St. Maarten, surveilled the LEE MARY, alerted
the St. Maarten police to the appellant's presence, participated in the shipboard
search (a fact that the United States contests), and testified at the ensuing trial.
Nothing in the appellant's proffer remotely suggests that the Dutch authorities
were merely handmaidens of the DEA or that the Dutch prosecution was in
reality a prosecution undertaken sub rosa by the United States government.
Even if all the appellant's facts--stripped, of course, of opprobrious epithets and
unsupported conclusions--are taken at face value, those facts show nothing
more than the rendering of routine intergovernmental assistance. Cooperative
law enforcement efforts between independent sovereigns are commendable,
and, without more, such efforts will not furnish a legally adequate basis for
invoking the Bartkus exception to the dual sovereign rule. See Whalers Cove,
954 F.2d at 38; Paiz, 905 F.2d at 1024.

19

Viewed against this legal and factual mise en scene, the indictment in this case
did not constitute a second prosecution for the same offense within the purview
of the Fifth Amendment. Consequently, the district court did not err in denying
the motion to dismiss the indictment on double jeopardy grounds.

B. Speedy Trial Act.

20

21

The baseline premise of the Speedy Trial Act is the requirement that a
defendant has a right to be tried promptly following his indictment or initial
appearance before a judicial officer (whichever first occurs). See United States
v. Staula, 80 F.3d 596, 600 (1st Cir.1996). Juxtaposed with this requirement is
the requirement that, once arrested, a suspect must be indicted or otherwise
formally charged within thirty days of his arrest. See 18 U.S.C. 3161(b). The
appellant suggests two reasons why the government's actions in this case run
afoul of this latter proscription. Neither reason is persuasive.

22

1. The first iteration of the appellant's speedy trial claim embodies a

repullulation of his double jeopardy analysis. He asseverates that since the
United States orchestrated his arrest in St. Maarten, 18 U.S.C. 3161(b)
required the United States to indict him within thirty days of that arrest. This
asseveration elevates hope over reason, and we need not linger long in
dispatching it.

23

The Speedy Trial Act, in terms, applies only to the conduct of the United
States. Because we already have held that the United States did not control,
dominate, or manipulate the actions of the Dutch authorities in respect to
Guzman's arrest and prosecution in St. Maarten, see supra Part II(A), the claim
that the date of that arrest affected the movement of the speedy trial clock in
this case is without foundation. Arrest or indictment by one sovereign does not
engage the statutory guarantee of a speedy trial in respect to a subsequent
indictment by a different sovereign. See United States v. MacDonald, 456 U.S.
1, 10 n. 11, 102 S.Ct. 1497, 1503 n. 11, 71 L.Ed.2d 696 (1982).

24

2. The second iteration of the appellant's speedy trial claim takes a somewhat
divergent slant. He asserts that, when he was arrested in Puerto Rico for heroin
trafficking, the United States knew of his 1990 involvement with the ill-fated
cocaine smuggle and, hence, the government was obliged to charge him within
thirty days of that arrest, see 18 U.S.C. 3161(b), or in the alternative, to seek a
detainer from the Bureau of Prisons (which had custody of him at the time), see
id. 3161(j)(1). This assertion is equally devoid of merit.

25

In the first place, the Speedy Trial Act requires that a person arrested for a
crime must be charged by indictment or information within thirty days of his
arrest "in connection with such charges." Id. 3161(b). In this situation, the
heroin-trafficking incident that led to the appellant's December 1992 arrest had
no connection with his activity in St. Maarten two-and-one-half years earlier. It
follows, therefore, that since the authorities did not arrest the appellant in 1992
for a crime related to his St. Maarten conduct, the Speedy Trial Act did not
require that he be charged with the cocaine-smuggling crime within thirty days

of that arrest. See United States v. Orbino, 981 F.2d 1035, 1036-37 (9th
Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 256, 126 L.Ed.2d 208 (1993);
United States v. Savage, 863 F.2d 595, 597-98 (8th Cir.1988), cert. denied, 490
U.S. 1082, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989).
26

In the second place, 18 U.S.C. 3161(j)(1) applies only to a person who has
been "charged with an offense." In this instance, the appellant was not charged
with the offenses of conspiracy to possess with intent to distribute and
attempted importation until the end of 1993. Until it brought such a charge, the
government had no obligation to file a detainer with the Bureau of Prisons.4

C. Plea Agreement.
27
28

The appellant contends that the government breached the plea agreement. He
tells us that the U.S. Attorney's office promised it would not oppose a
recommendation for a concurrent sentence, but the prosecutor instead argued
successfully for a consecutive sentence.

29

This contention is baseless.5 The plea agreement signed by the appellant

specifically, explicitly, and unambiguously states: "The United States and the
defendant agree that the sentence to be imposed in this case shall run
consecutive to any other sentence of imprisonment that the defendant is
currently serving." The plea agreement also contains an integration clause that
provides: "This written agreement constitutes the complete plea agreement
between the United States, the defendant, and the defendant's counsel. The
United States has made no promises or representations except as set forth in
writing in this plea agreement." The questionnaire that the appellant completed
in advance of the change-of-plea colloquy is consistent with these
understandings.6 The appellant has made no allegation that he was coerced into
signing the plea agreement, that he was misled as to its contents, or that the
questionnaire is bogus.

30

In short, the appellant identifies nothing that would justify an objectively

reasonable expectation that the plea agreement meant anything other than what
it plainly says. Since the government abided faithfully by the clear terms of its
written agreement, we have no warrant to set aside the sentence imposed by the
district court. See United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988).

D. Ineffective Assistance of Counsel.

31
32

The appellant claims that his trial counsel provided him with ineffective
assistance by failing to (1) file appropriate pretrial motions, (2) notify the

sentencing court of health problems afflicting his family, and (3) make a proper
request for the return of property. The rule is firmly settled in this circuit that
"fact-specific claims of ineffective assistance cannot make their debut on direct
review of criminal convictions." United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir.1993) (explaining the rule and collecting cases), cert. denied, --- U.S. ----,
114 S.Ct. 1839, 128 L.Ed.2d 466 (1994). While we have made occasional
exceptions to the rule in certain idiosyncratic circumstances, see, e.g., United
States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991), cert. denied, 502 U.S.
1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992), this case does not fall within the
isthmian confines of any recognized exception. Because the appellant did not
present this claim of ineffective assistance to the lower court, we decline to
consider it.7
E. Seizure of Property.
33
34

Under the Criminal Rules, a person deprived of property "may move the district
court for the district in which the property was seized for the return of the
property on the ground that such person is entitled to lawful possession of the
property." Fed.R.Crim.P. 41(e). Acting pro se, Guzman made such a motion
below; in it, he claimed entitlement to certain items allegedly seized from him
at the time of his initial arrest in St. Maarten. He also claimed entitlement to a
tool box, together with its contents, alleging that the tool box was inside a car,
belonging to his sister, that federal authorities seized in Puerto Rico. The
district court found that the property seized in St. Maarten was taken not by the
United States but by the Netherlands Antilles, and that, therefore, the court
lacked jurisdiction to order its return.8 However, the district court did not rule
on the appellant's motion insofar as it pertained to the tool box's confiscation.
The appellant did not ask for reconsideration based on this oversight. He
nevertheless attempts to appeal from the court's failure to direct that the tool
box be returned.

35

The government's brief misses the appellant's point. It contends, correctly, that
Guzman never made a claim of ownership referable to the car, and thus does
not have standing to contest its seizure. Cf. United States v. One Parcel of Real
Property ... Known as Plat 20, Lot 17, 960 F.2d 200, 206 n. 3 (1st Cir.1992)
(noting that a person who does not claim ownership cannot contest the civil
forfeiture of property); United States v. One Parcel of Real Property ... Known
as 116 Emerson Street, 942 F.2d 74, 78 (1st Cir.1991) (same). But this
observation does not in any way trump the appellant's insistence that he owns,
and is entitled to the return of, the tool box and its contents.

36

Although the appellant's point is arguable, it is separable from, and has no

36

effect upon, the appellant's conviction and sentence. A defendant may bring an
independent civil action for the return of property even if the underlying
criminal case has been closed. See United States v. Garcia, 65 F.3d 17, 19-20
(4th Cir.1995); United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995);
United States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir.1993). Since such a
complaint serves as the functional equivalent of a Rule 41(e) motion, we
perceive no need to prolong this case in order to pursue the point (especially in
view of the fact that the district court made no findings in regard to the tool
box). We therefore deny Guzman's request for relief vis-a-vis the tool box,
without prejudice to his right to bring a separate civil action to compel its
return. See United States v. $8,850, 461 U.S. 555, 569, 103 S.Ct. 2005, 2014,
76 L.Ed.2d 143 (1983).

III. CONCLUSION
37

We need go no further. For aught that appears, Guzman was lawfully

prosecuted, justly convicted, and appropriately sentenced. His conviction and
sentence must therefore be Affirmed.

Of the Seventh Circuit, sitting by designation

Further details of the failed drug-smuggling operation can be found in our

opinion in United States v. Laboy-Delgado, 84 F.3d 22 (1st Cir.1996)

Although a double jeopardy claim of the successive prosecution type is

admittedly in the nature of an affirmative defense to an indictment, there is
nothing unorthodox about requiring the government to bear the ultimate burden
of proof vis-a-vis the existence of an alleged constitutional violation once
sufficient evidence is adduced to put the question legitimately into issue. See,
e.g., United States v. Rodriguez, 858 F.2d 809, 813-15 (1st Cir.1988) (holding
that if a defendant identifies record evidence from which a jury could conclude
that the defendant was entrapped, the government must bear the burden of
proving that no entrapment occurred)

There is some controversy in the circuits over whether this procedural matrix
applies unreservedly both to interlocutory review of double jeopardy claims
and to direct appeals following convictions. Compare United States v. Dortch, 5
F.3d 1056, 1060-61 (7th Cir.1993) (holding that the defendant bears the burden
of proof on posttrial review), cert. denied, --- U.S. ----, 114 S.Ct. 1077, 127
L.Ed.2d 394 (1994) and United States v. Bendis, 681 F.2d 561, 564 (9th
Cir.1981) (same), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286

(1982) with United States v. Loyd, 743 F.2d 1555, 1563 (11th Cir.1984)
(applying standard burden-shifting framework to posttrial review); United
States v. Adamo, 742 F.2d 927, 946-47 (6th Cir.1984) (same), cert. denied, 469
U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985); United States v. Kalish, 690
F.2d 1144, 1147 (5th Cir.1982) (same), cert. denied, 459 U.S. 1108, 103 S.Ct.
735, 74 L.Ed.2d 958 (1983); Mallah, 503 F.2d at 986 (same). See also GarciaRosa, 876 F.2d at 229 n. 17 (noting the uncertainty). Since we hold that the
appellant did not satisfy his entry-level burden, we need not take sides on this
controversial issue today
4

To cinch matters, the law is pellucid that the dismissal of an indictment is not a
suitable remedy for a violation of 18 U.S.C. 3161(j)(1). See United States v.
Wickham, 30 F.3d 1252, 1255 (9th Cir.1994); United States v. Dawn, 900 F.2d
1132, 1135-36 (7th Cir.), cert. denied, 498 U.S. 949, 111 S.Ct. 368, 112
L.Ed.2d 330 (1990); United States v. Anderton, 752 F.2d 1005, 1008 (5th
Cir.1985)

As an initial matter, we note that the appellant did not raise the issue of the
government's alleged breach before the district court. The question of
procedural default vis-a-vis claims involving breached plea agreements has
divided the courts of appeals. See United States v. Gonzalez-Perdomo, 980
F.2d 13, 15-16 (1st Cir.1992) (collecting cases). We need not enter this thicket
today because we find the appellant's claim of breach to be without basis

The record does not contain a transcript of the change-of-plea hearing. We must
assume, therefore, that the appellant's answers to the judge's questions did not
differ from the written questionnaire. See, e.g., Moore v. Murphy, 47 F.3d 8,
10-11 (1st Cir.1995) (explaining that the appellant must bear the onus of an
incomplete record on appeal); Real v. Hogan, 828 F.2d 58, 60 (1st Cir.1987)
(similar)

Of course, our disposition does not prejudice the appellant's right to raise a
claim of ineffective assistance of counsel in a petition for postconviction relief
under 28 U.S.C. 2255. See Mala, 7 F.3d at 1064

On appeal, the appellant does not challenge this ruling, and we do not address it