Mimesis Law
26 July 2017

Puerto Rico Federal Court Says Government Gets No Do-Over

January 4, 2017 (Fault Lines) – The “do-over” is a fine American tradition. Everybody knows if you don’t like the kickoff in a backyard football game, you ask for a do-over. Golf shot went awry? Take a mulligan. Steak cooked wrong? Send it back so the chef can try again. Go all in on an ill-advised poker hand and get cleaned out? That’s what the rebuy is for.

So it’s no surprise federal prosecutors might think they can just keep on coming after a defendant until he screams “uncle!” If at first you don’t succeed, try, try again. With the reputation the federal criminal justice system has for doubling as a railroad, why not?

Jose Silva-Rentas had apparently drawn the ire of federal agents in Puerto Rico, who thought he was a big-time drug dealer. The feds haven’t convicted him yet, so he remains innocent like the rest of us. But big-time drug dealer or not, he is certainly facing big-time federal drug charges.

Silva was arrested on May 29, 2014, and charged with being a felon in possession of a firearm. To make matters worse, the firearm was fully automatic. The federal government hates guns, but it really hates machine guns.

Everything started when Homeland Security got a call from one of its secret snitches confidential sources that a drug deal was about to go down. The agent who got the call didn’t testify at the hearing on Silva’s motion to suppress, so it’s not clear what the source told him. Some other agent testified the source said a white SUV was going to be involved in a drug deal.

Silva was with some other men in a gated parking lot. There was a white SUV in the parking lot. Let the fun begin:

When the agents reached the area, the gate was open. Nobody was in the main lot. Clemente, Vázquez, and a third agent immediately entered through the gate and ran toward the stables, their guns drawn, announcing their presence and yelling “halt” or “stop.” In the grassy area beside the stables, several individuals, including Colón and Silva, were standing in front of various parked cars, including a white Toyota Sequoia.

 Turns out most of the agents running around with their guns drawn didn’t really know why they were running around with their guns drawn.

The government suggests that the agents announced themselves and ordered the individuals to stop only after observing the presence of Silva, whom they recognized as a well-known drug trafficker and convicted felon. Vázquez, however, testified that as he ran into the stables area, following Clemente, he drew his gun and yelled “halt” without taking note of any specific facts, and that Silva was unknown to him prior to the events of this case. Marrero did not testify that he knew of or recognized Silva. The government also claims that Alemán’s property was known to the agents as a drug trafficking site. But Vázquez testified that he had no prior experience with the property, and Marrero’s testimony suggested the same.

Silva filed a motion to suppress the evidence found. In case you have forgotten, or don’t care about the Fourth Amendment, the cops don’t get to violate your constitutional rights and then use the fruits of that violation against you.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In general, an affront to this guarantee calls for application of the exclusionary rule: evidence that the government obtains by violating a defendant’s Fourth Amendment rights may not be introduced against that defendant at trial.

The usual process would now begin. Defendant makes an argument that his rights were violated. Government argues one of the 9 million judicially-created exceptions to the Fourth Amendment and throws in the coffin nail, “but judge, he’s a drug dealer!” The judge pulls out his finest rubber stamp, denies the motion because it was filed by a defendant, and everyone can keep moving towards the inevitable staggering federal sentence.

Except not this time. United States Magistrate Judge Bruce McGiverin decided not to play ball with the prosecutors and actually do some judging. He found the tip that triggered the agents running in to a parking lot, guns out, was not all that much of a tip. After listening to all the government testimony, Judge McGiverin noted the informant really just described the possibility of a drug deal. And it wasn’t much of a possibility, at that.

…at this point the agents were dealing with probabilities stacked atop other probabilities, each level resting on an ever shakier foundation. With the exception of a white Sequoia’s general presence in Navarro, nothing in the tip had been corroborated. The agents did not observe anything specifically indicating a drug-related crime.

Evidence suppressed, case dismissed.

But, as you might have suspected, the story didn’t actually end there. The feds brought a second indictment against Silva on far more serious charges than possessing a gun. That 76-page indictment alleges the usual federal drug conspiracy. Drugs, guns, money laundering.

And, not surprisingly, the government wasn’t quite ready to let go of the evidence it got from Silva when he was arrested. And why not? Guns and cash. The average juror can clearly see only a drug dealer carries guns and cash. And this case has a whole different case number than that other dismissed case, so it’s a whole new ballgame right?

No. In a pleasantly surprising turn of events, there appear to be multiple federal judges in Puerto Rico who have not only read the Constitution, but understand its meaning.

The prosecutors, not surprisingly, made the same old arguments to admit the suppressed evidence from Silva’s arrest. This makes perfect sense. That was a whole different case, after all.

The judge in the second case reminded the prosecutors about a little theory called “collateral estoppel.” The theory is not too hard to grasp. Basically, once parties have litigated an issue and a judge has decided it, that’s it. You don’t get to keep coming back and trying to get a new ruling.

In the second case, the government argued it should get to use the suppressed evidence for two reasons. First, that other judge was wrong. Second, they didn’t dismiss the case because he threw out all of their evidence. No way. They are the federal government. They would gladly prosecute someone with no evidence. So there really can’t be any collateral estoppel.

United States District Judge Daniel Dominguez saw right through this argument. It only took him three and a half pages to back up his declaration that “[t]he Government misses the mark with this argument.”

He then went on to explain why the prosecutor’s argument was “nonsensical.” Or, why there would be no do-over in this case. The government already had a chance to make its arguments. It lost. And it lost because the judge threw out all its evidence. That means the evidence stays out.

To hold to the contrary would imply that the United States is afforded infinite opportunities to use previously suppressed evidence against a defendant in subsequent proceedings in separate cases. This would also allow the United States to reargue admissibility of evidence in perpetuity until they find a judge that holds the evidence admissible. Obviously, that would not be in tune with the Constitution’s protections against Double Jeopardy nor the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Good for Judge Dominguez. Upholding the Fourth Amendment is dirty work. Most judges want nothing to do with it. It is unfortunate that, as the judge states, the government is not in tune with the Constitution. But lucky for us, a few judges in Puerto Rico are. Let’s hope that attitude catches on.

H/T USA Today’s Brad Heath, always an exceptional source of great appellate decisions.

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