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United States v. Santiago-Colon

United States Court of Appeals, First Circuit

February 28, 2019

DAVID SANTIAGO-COLÓN, Defendant, Appellee.


          John 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 appellant.

          Andrew 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 appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         The 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 order.

          I. Background

         A. Factual Background

         On 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.[1] 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 arrays.

         B. Local Case

         Puerto 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.

         C. Federal Case

         Based 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).[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.

         The 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.

         On 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 order."[3]

          On 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.[4]

         The 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.

         The 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."

         Consistent 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 proceeding."

         On 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 in privity.[5]

         II. Discussion

         A. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731 Certification Requirement

         Santiago 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.

         i. Standard of Review and Applicable Law

         This 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).

         The 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 and ...

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