FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District
P. Taddei, Attorney, Appellate Section Criminal Division,
U.S. Department of Justice, with whom Kenneth A. Blanco,
Acting Assistant Attorney General, Trevor N. McFadden, Acting
Principal Deputy Assistant Attorney General, Rosa E.
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Section, were on brief, for
S. McCutcheon, Assistant Federal Public Defender, with whom
Franco L. Pérez-Redondo, Research & Writing
Specialist, Eric Alexander Vos, Federal Public Defender, and
Vivianne M. Marrero-Torres, Assistant Federal Public
Defender, Supervisor, Appeals Section, were on brief, for
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
United States appeals the district court's order granting
David Santiago-Colón's ("Santiago")
motion to suppress identification evidence, giving preclusive
effect to a Puerto Rico Court of Appeals's order
suppressing this same evidence in a local proceeding for
different offenses. According to the district court, inasmuch
as Puerto Rico and the United States are a single sovereign
for purposes of the Double Jeopardy Clause, Puerto
Rico v. Sánchez Valle, 136
S.Ct. 1863, 1869-77 (2016), it was bound by the local
court's final judgment suppressing identification
evidence, even though federal prosecutors "did not
participate in the [Puerto Rico] court criminal proceedings
against Santiago." United States v.
Santiago-Colón, 213 F.Supp.3d 297, 298
(D.P.R. 2016). In so ruling, the district court deviated from
our on-point precedent holding that suppression of evidence
by a Puerto Rico court does not require a federal court to
suppress that same evidence unless federal prosecutors were a
party, or were in privity with a party, to the suppression
hearing in the Puerto Rico court, United States v.
Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987),
which was not the case here. Sánchez Valle,
moreover, did not change the law in this area. Accordingly,
we reverse and vacate the district court's suppression
January 13, 2013, Puerto Rico Police Department Agent Carlos
Sepúlveda-Rivera ("Sepúlveda") was
off-duty at La Casita, a bar in Villalba, Puerto Rico, when
he got into an altercation with two men. Sepúlveda and
the two men exchanged gunfire. After the men shot
Sepúlveda four times, he was transported to the
hospital for treatment of his injuries. Sergeant Pedro
Quiles-Torres ("Quiles") interviewed
Sepúlveda at the hospital later that day. During his
interview, Sepúlveda provided a description of his two
assailants. Based on the descriptions provided by
Sepúlveda and a review of the security video footage
of La Casita, local law enforcement agents identified
Santiago and Richard Cartagena-Suárez
("Cartagena") as the shooters. The next day, Quiles
showed two photo arrays to Sepúlveda, each of them
containing nine photos. One array included Santiago's
photo, and the other one included Cartagena's.
Sepúlveda picked Santiago and Cartagena from the photo
Rico prosecutors charged Santiago with attempted first-degree
murder, carrying and using a firearm without a license, and
discharging or pointing a firearm, in violation of Puerto
Rico law. Santiago moved to suppress Sepúlveda's
identification of him on the grounds that it was obtained in
contravention of the Puerto Rico Rules of Criminal Procedure.
The local prosecution opposed. The local trial court held a
three-day evidentiary hearing, in which four witnesses
(including Sepúlveda and Quiles) testified. After the
local trial court denied suppression, Santiago appealed to
the Puerto Rico Court of Appeals. The Puerto Rico Court of
Appeals then reversed and suppressed the identification
evidence. It noted some contradictions in
Sepúlveda's testimony, concluded that
Sepúlveda's identification of Santiago "and
the photographic line up led by Sergeant Quiles were not
trustworthy pursuant to the criteria established by . . .
[the Puerto Rico] Supreme Court in Pueblo
v. Hernández González,"
2009 WL 197570 (2009) (untranslated), and remanded the case
to the local trial court. See App. at 65, 84, May
18, 2017, No. 16-2509 (certified translation of
People v. Santiago-Colón,
KLCE 2014-00130, 2014 WL 5438091 at *13, 20 (P.R. Ct. of App.
Sept. 30, 2014)). The Puerto Rico Supreme Court declined to
intervene, and the case was later dismissed.
on the January 13, 2013 incident, a federal grand jury
returned an indictment on June 4, 2015, charging Santiago
with being a felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Santiago moved to suppress
Sepúlveda's out-of-court identification and to
prevent Sepúlveda from identifying him in court. He
argued that the identification procedure had been unduly
suggestive, that the Puerto Rico Court of Appeals had already
considered and rejected the testimony of Sepúlveda and
Quiles -- "the only witnesses who [could] provide
material testimony on the issues relevant to the case at
bar" -- and that said determination was final. Urging
the court to apply a standard like the one used when
reviewing habeas corpus petitions, Santiago argued that
"disagreement alone is not enough" for a federal
court to ignore a state court's credibility
determination. Rather, "[t]he federal court must
conclude not only that the state court's determination
was wrong, but that it was unreasonable in light of
the evidence presented." Because, according to Santiago,
the Puerto Rico Court of Appeals's decision was not
unreasonable, he urged the district court to
"defer" to the "findings made by Puerto
Rico's courts," suppress Sepúlveda's
out-of-court identification of Santiago, and preclude
Sepúlveda from identifying Santiago in court.
government opposed the motion, arguing that Santiago had
failed to show that "the identification procedure was
impermissibly suggestive under federal law" and that, in
fact, the procedure was reliable. The government also noted
that the Puerto Rico Court of Appeals, in reversing the trial
court, failed to give due deference to the trial judge's
findings of fact and therefore misapplied Puerto Rico law.
Additionally, the government pointed out that
Sepúlveda knew the perpetrators before the shootout
and identified Santiago by his nickname, supporting the
reliability of the identification.
October 4, 2016, without holding a hearing, the district
court granted Santiago's "request to suppress
identification." That order was followed by an opinion
entered the same day. Santiago-Colón, 213
F.Supp.3d 297. In its opinion, the district court noted that
in Sánchez Valle the U.S. Supreme Court held
that "for purposes of the Double Jeopardy Clause, the
[Puerto Rico] and United States governments constitute a
single sovereign, in as much [sic] as the former's power
to prosecute derives from the latter's."
Id. at 297. The district court concluded that it
"must give the [Puerto Rico] court suppression findings
and judgment preclusive effect" because "[n]ot
doing so would ignore the constitutional reality that indeed
[Puerto Rico] and [the] United States are but one sovereign
when it comes to criminally prosecuting individuals."
Id. at 298. It further noted that, although federal
prosecutors "did not participate in the [Puerto Rico]
court criminal proceedings against [Santiago], their local
counterparts in fact did" and "[t]heir authority to
do so ultimately emanates from the United States."
Id. (citing Sánchez Valle, 136 S.Ct.
at 1863). The district court's order set a pre-trial
conference for November 9, 2016 "to discuss if the
Government ha[d] independent evidence to proceed with its
prosecution, or if it will appeal the Court's suppression
November 10, 2016, the district court held the pre-trial
conference. At the beginning of the conference, the district
court stated that it believed "there [was] a
basis" for filing an interlocutory appeal. The
government argued that the district court's suppression
of Santiago's identification was contrary to binding
First Circuit precedent applying collateral estoppel
principles, including Bonilla Romero, 836 F.2d 39,
and United States v.
Pérez-Pérez, 72 F.3d 224 (1st Cir.
1995), and that Sánchez Valle did not change
the law. The district court rejected the government's
arguments and clarified that the court's decision was not
based on collateral estoppel, but "on an assumption that
it's the same sovereign." According to the district
court, because under Sánchez Valle Puerto
Rico and the United States are "a single
sovereign," the Puerto Rico court's suppression
findings and judgment have preclusive effect on a subsequent
federal prosecution and bind the district
court then inquired whether the government had independent
evidence to proceed to trial. The government responded that
even though the court had suppressed Sepúlveda's
out-of-court identification of Santiago, it "would like
to proceed to trial" with the in-court identification,
because Sepúlveda knew Santiago prior to the January
13th incident and before he saw the photo array. The
government also indicated that it could use the security
video footage allegedly showing Santiago at the crime scene.
Santiago responded that he thought the district court had
suppressed both the out-of-court identification (product of
the photo array) as well as any in-court identification
because the Puerto Rico Court of Appeals had allegedly
suppressed both identifications. After reviewing again the
decision from the Puerto Rico Court of Appeals, the district
court concluded that the Puerto Rico Court of Appeals had
suppressed both Sepúlveda's out-of-court and
in-court identifications of Santiago, and resolved to do the
same. The court further stated that it would
"supplement" its suppression order.
district court noted that if the government had no
independent evidence to identify Santiago at trial, the
"course to proceed would be for the government to file a
notice of appeal," because the issue was
"definitely capable of repetition," would
"continue happening," and was "appealable
interlocutorily." Additionally, it noted that
"[t]his may be the best case to do it." Santiago
agreed that the government "should go up to the First
Circuit to clarify th[e] issue."
with its statements during the pre-trial conference, later
that day the district court entered an order supplementing
its October 4th order by clarifying that its suppression
order was "based on the single sovereign doctrine and
not on collateral estoppel" and "extend[ed] to both
the in-court identification by . . . Sepúlveda . . .,
as well as the photo identification." On December 2,
2016, the government filed its notice of appeal, stating that
it was appealing from the order entered on November 10, 2016.
On November 15, 2017, the government filed a certification
under 18 U.S.C. § 3731 with the district court, in which
the United States Attorney certified that "the appeal is
not taken for the purpose of delay and that the evidence
[suppressed] is a substantial proof of a fact material in the
appeal, the government claims the district court's order
suppressing any in-court identification of Santiago as the
shooter should be reversed because it is contrary to First
Circuit precedent, which has held that whether suppression of
evidence by a local court has preclusive effect in a federal
proceeding is an issue of collateral estoppel, not double
jeopardy. It further claims that, under collateral estoppel
principles, the suppression of the identification evidence
was improper because the two prosecuting authorities were not
Timeliness of the Notice of Appeal and 18 U.S.C. § 3731
claims that this court lacks jurisdiction to entertain this
appeal because the government filed an untimely notice of
appeal and failed to comply with the certification
requirements under 18 U.S.C. § 3731. We address each
procedural challenge in turn.
Standard of Review and Applicable Law
court must verify that it has appellate jurisdiction before
addressing the merits of any appeal.
Espinal-Domínguez v. Puerto
Rico, 352 F.3d 490, 495 (1st Cir. 2003).
"Jurisdiction is a question of law subject to de
novo review." United States v.
W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).
Criminal Appeals Act establishes in relevant part that:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court
suppressing or excluding evidence . . ., not made after the
defendant has been put in jeopardy and before the verdict or
finding on an indictment or information, if the United States
attorney certifies to the district court that the appeal is
not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.
The appeal in all such cases shall be taken within thirty
days after the decision, judgment or order has been rendered