* The Honorable Louis F. O berdorfer, of the United States District Court for the Distr

ic t of Columbia, sitting by designation. 1 06-0908-cr Un ited Sta tes v. D ionisio UNITED STATE S COURT OF APPEA LS FOR THE SEC OND CIRC UIT

____________________________________

August Term, 2006 (Argued: November 15, 2006 Decide d: September 17 , 2007) Docket No. 06-0908-cr

____________________________________ UNITED STATES OF AMERICA,

Appellee , v. DOMI NICK DIO NISIO, a.k.a . BL

ACK DOM, Defendant-Appellant

.

____________________________________ Before: CALAB RESI, WESLEY, Circuit Judges , OBERDORFER, District Judge. *

____________________________________ Appeal from denial of Defendant-Appellant’s motion to dismiss on doub le jeopa rdy ground s. Affirmed. T HOM AS J. S EIGEL , Assistant United States Attorney, for

Roslynn R. Mauskopf, United States Attorney for the

Eastern District of New York (D av id C. Ja me s, As si st an t U ni te d S ta te s A tt or ne y, on the brief

), for Appellee

. D IARMUID W HIT E , White & White, Port Washington, N.Y. (Brendan White & James Froccaro, on the brief

), for Defendant-Appellant

.2 1 CALABRESI , Circuit Judge : 2 Defendant Dominick Dionisio a

ppeals th e district court’s denial of his motion to

dismiss a 3 racketeering

consp iracy charge that he c laims is prohibite d by the Doubl e Jeopard

y Cla use. Dion isio 4 contends that the protections of the Double Jeopardy Clause were triggered when, pursua nt to a plea 5 agree

ment, the cour

t previou sly

dismissed w

ith prejud ice ano ther r ackete ering co nspi racy charge 6 agains thim that was allegedly based on the same offense conduct. Guaran

teeing that no pe rson shal l 7 “be subject f

or the sa me offense

to be twic e put in

jeopard y of life or li mb,” U.S. C onst. amend. V, 8 the Double Jeopardy Clause protec ts criminal defendants against “a second prosecution for the same 9 offense

after acquittal,” “a second prosec ution for the same offense after convicti on,” and

“multiple 10 punishmen

ts for the same offense.” North Carolina v. Pearce , 395 U.S. 711, 717 (1969) overruled 11 on other grounds by Alabama v . Smith , 490 U.S. 794 (1989). 12 The instant appeal implicate s the firs t of these protect ions. I n doing s o, it

raises a question 13 that

is open in this circuit. Under what circumstances, if ever, doe s a c o urt’s dism issal with 14 prejudice of a charge (pursuant to a plea ag reemen t with the gov ernment

and prior to a trial by afact15 finder), constitute “jeopardy ” for purposes of

the Fifth Amendment? We affirm the lower court’s 16 determination tha t, based on the record in the case at bar , the pretrial dismissal of Dionisio’s 2001 17 conspi racy

indictment with prejudice did not amount to jeopardy. We do not today dec ide tha t 18 jeopardy

may never

attach as a res ult of a pretrial dismissal with prejudice. Rather, we hold only (1) 19 that

in order for a pretrial

dismissal to trigger the protections of the Double Jeopardy Clause, there 20 must

be an adjudication of elements of theoffense charged, in a way that reflected a genuine risk of 21 conviction, and (2) that no such adjudication occurred in the instant ca se. 221 The substa ntive ra cketee ring charge l isted as the predic ate act s: loansha rking, s ecurit

ies fraud, money lau nderi ng, and other drug tr affick ing. 3 I. B ACKGROUND 1
The releva

nt facts a re not in d ispute. I n 2001, in the Eastern District of

New Yor k, Dionisio 2
was charg ed under the Rack eteer I nfluenc ed and Co rrupt Orga nizations A ct (“RI CO”), 18 U .S.C. 3 § 1962(c), with counts of sub stant ive racketeering, rac keteering conspiracy

, and other offenses 4 [hereinafter

“2001 indictment”]. T h ese invol ved the Co lombo org anized cr ime family

of La Cosa 5 Nostra. The cha

rged c onduct al legedl

y to ok place

from 1993 to 2001. The counts of substantive 6 racketeeri ng andracket eering c onspi racy assert ed sev eral of the sa me pred icate acts, inclu ding a 7 conspiracy

to distribute marijuana between January 1999 and May 1999. 1 Pursuant t o a plea 8 agree

ment, Dionisio pled guilty to one count of substantive racketeer ing, and the cour

t sentenc ed him 9 to 78 months’ imprisonment to run concurrently with a pr ior sentence. Also pursuan t to the pl ea 10 agree

ment, th e g overnment moved to dismiss with prejudice the other counts against Dionisio. 11 Among th ese was the racketeer

ing con spiracy

charg e. Dionisi o’s plea

agree ment provided that : 12 (a) no further criminal charges will be broug ht against the defendant

for the s pecific crimes 13 charged

against the defendant in the above-c aptioned supersedingindictment, it being 14 understood that this agreement does not bar the use of s uch conduct as a predicate act 15 or

as the basis for a sentencing enhanc ement in a subsequent prosecution including, but 16 not limited to, a prosecution pursuant to 18 U.S.C. §§ 1961 et seq. ; 17 (b) At

the time of sentence, [the gover nment] will move to dism iss the remaining counts of 18 the ref

erence d superse ding indi ctment an d the unde

rly ing indic tments with prejudice

. 194

(empha sis added) . The agreement further sta ted that “[s]hould it be judged by the Offic e that the 1 defendant

has violated any pr

ovision of this agreement, the defendant will not be re leased f

rom his 2 plea of guilty

but this Office will be released from its obligations under this ag reement.” Id. 3 In2004, Dion isio was on

ce ag ain indic ted in

the Eastern District of

New Yor k on t he char ge 4 of racketeering conspirac

y, this time in violation of 18 U.S.C. § 1962(d) [here in after “2004 5 indictment

”]. His char

ged conduct, also in connection with the Colombo crime fa mily , assert

edly 6 took

place from November 1991 to May 1999. This conspira cy , as ident

ified by the distri ct court , 7
was based on

four cla imed pre dicate

acts: “(1) a 1991 double attempted murder, (2) a 1991 robbery 8 of a Yeshiva, (3) a conspir

acy to rob mar

ijuana f rom Hispa

nic narcotics traffickers in or about and 9 between

August 1 998 and Ma

y 19 99, and (4) a cons

piracy to rob marijuana ‘from a white mal e 10 residing in the vicinity of Batte ry Park City

in Low er Manha

ttan’ in or about a

nd betwe en Augu st 11 1998 and May 1999.” United Sta tes v. Dio nisio , 415 F. Supp. 2d 191, 194 (E.D.N.Y. 2006) (quoting 12 Def.’s Ex. E. ¶¶ 11-19). 13 OnJune 3, 2005, defendant moved to dismiss the indictment both as a violation of the 14 Double Jeopardy Clause and a s a breac h by the gov ernment

of the 200 1 plea ag

reemen t. Dionisio 15 contended

that the 2004 marijuana conspiracy indictmentto rob marijuana traffickers was based on 16 the same con

duct as that which f

ormed the

predica te of Dion

isio’s 200 1 ma

rijuana c onspiracy 17 indict ment
. Because the earlier c onspiracy indictment had be en dismissed “with prejudice,” 18 defendant argued that he could n

ot be expose d to jeopardy a gain on a conspiracy

charge grounde d 19 inthe same offense conduct. Dionisio also argue d that the 2004 indictment violated the 202 A defendant usually may only app eal from a co urt’s final decis ion, which, in a cr iminal ca se, is marked by the imposition of a sentence. Flanagan v. United States , 465 U.S. 259, 263 (1984). An interlocutory

appeal from a district

court pretrial order deny ing a motion to dismiss an indictment on double jeopardy g

rounds is, however, permitted. Abney v. United States , 431 U.S. 651, 658-62 (1977). See also infra note 3. 5 government’s plea agreement pledg e that “no fu rthe r criminal charges will be broug ht against the 1 defenda

nt for the specific crimes c harge d” in the 2 001 indict ment. 2 OnFebruary 15, 2006, the district court (Judge I rizarry ) denied Dionisio’ s motion to di smiss. 3 The court rebuffed the doub le j eopardy c hallenge; it held that “jeopardy did not attach when the 4 racketeering

conspiracy

charge was dismissed with prejudice from the 2001 indictment pursua ntto 5 defendant’s plea agreement.” 415 F. Supp. 2 d at 199; see generally id. at 195-200

. Rejecting 6 defendant’s contention that the government had breache d the plea agreement, the court noted

that 7 the ag re em en t d is mi ss ed th e 2 00 1 c ou nt s o nl y “ for t he specific crimes charge d” and, even if the 8 crimes charg ed in

the 2001 and 2004 indictments were the same, the plea ag reement expressly stated 9 that

it “does not bar the

use of . . . conduct [l ike that a lleged inthe 2001 indictment] as a predic ate 10 act”in future racketeering prose cutions. Id. at 19 4. The court did not consider whether the two 11 indictmen

ts were b ased on the same of fense c onduct. 12 Onappeal, at this time, Dionisio may only challenge the double jeopardy ground of the 13 court’s denial of

his motion to dismiss. And it is that which he seeks to have reversed. 2 He contends 14 that

jeopard y a ttached when the court dismissed, wi th prejudice, his 2001 indictment for racketeering 15
co ns pi ra cy, and furt her that the dismiss al “with

prejudice” bears the preclusive for ce of res judic ata 16 because, in effect, it operates as an adjudication on the merits and ther efore b ars subsequen t 17 prosecutions. In response, the government argues that jeopa rdy did not attach in 2001. I t contends 18 that

the court gave only min iste rial approval to the parties’ 2001 plea agr eement, and that the 193 Defen dant addit ionally sugg ests that the 2004 indictment violated the government’s plea ag reement pledge that “no further criminal charge s will be brought against the defendant for the spec ific crimes charged” in the 2001 indictmen

t. This cha

llenge is not suff

iciently intertwined with Di onis i o’s doublejeopardy que stion to allow us to consider it on interlocutory appea l. See s u pra note 2. Ac co rd in gl y, we expre ss no view on the matter and expect that any questions concerning defendant’s claim will remain before the district court and be subject to appea l once the case is concluded.
6 resulting dismissal of the racketeering conspira cy cha rge can neither be the g

rounds for collateral 1
es to pp el no r f

or th e a tt ac hm en t o f j eo pa rd y. 2 3 II. D ISCU SSI ON 4

We review Dionisio’s double jeopardy c hallenge de novo. United States v. Estrada , 320 F.3d 5 173, 180 (2d

Cir. 2003). It goes without say ing that “an

accused must suffer jeopardy before he can 6 suffer

double jeopardy.” Serfass v. United States , 420 U .S. 377, 393 (1975 ); United States v. Von 7 Barta , 635 F.2d

999, 1004 (2d

Cir. 1980), cert. denied, 450 U .S. 9 98 (19 81) (q uoti ng Serfass , 420 8 U.S. at 393); see also U nited State

s v. Jorn , 400 U.S. 470, 4 80 (1971) ; see generally Ex parte Lange , 9 85 U.S. (18 Wa

ll.) 163, 1 68-69 (18 73) (est ablishing that the D ouble Jeopardy Clause ba

rs a second 10 prosecution

on ly i f j eo pa rd y a ttached i n the orig inal proc eeding). At the heart of this appe al is 11 whether

the 2001 d

ismissal wi

th prejud ice of th e charg e aga

inst Dionis io pla ced him in sufficient 12 jeopardy to trigger the protections of the Clause. 3 13 As the district court correctly noted, “no Second Circuit or Supreme C ourt authority

directly 14 address [es] whether jeopardy attaches when a charg e is dismissedwith prejudice pursuant to a plea 15 agreement,”

415 F. Sup

p. 2d at 1 96. The court nevertheless held that pretrial dismissal with prejudice 16 cannot

trigger the attachment of jeopa rdy. While we believe tha t the court’s categorical

ruling was 174 We do not, and need not, resolve on the facts before us the question of whether the 2001 and 2004 racketeering

conspiracy

counts charged

the same offense conduct. I n Blockburger v. United States , the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each pro vision r equires proof of a fact which the other doe s not.” 284 U.S. 299, 304 (1932). In discussing (and re jecting on other gro unds) Di onisio’s claim that the government breached the 2001 plea agreement, the district court properly identified the Blockbu rger framework as the way to dete

rmine “whether two racketeer ing conspiracy

charges are the ‘sa

me offen se ’ for 7 based on a misreading of both Supreme Court and our precedents, as well as an over -reading of the 1 decisions of other circuits, w e conclud e that on the facts of this case its rejection of appellant’s 2 double jeopardy c laim was appropriate. 3 Becau se a defen dant’s c onstitutional intere st in final ity a ttaches w el l before

a verdict is 4 reached, it is firmly established that the “attachme ntof jeopardy”

occurs not only with a ve rdict but 5
more generally

at the “point in criminal proceedings at which the c onstitution al purposes and policies 6 [of

the clause] are implicated.” Serfass , 420 U.S. at 388. As a result, the Supreme Court has long 7 recognized

that jeopardy a

ttaches in a jury

tri al after

the ju ry has bee

n empaneled and sworn, see 8 Kepner

v. United States , 195 U.S. 100, 128 (1904), and in a bench trial when the judge begins to hear 9 evidence. Wade v. Hunter, 336 U.S. 684, 6 88 (1949) ; McCarthy v. Zerbst , 85 F.2d 6 40, 642 (1 0th 10 Cir.), cert. denied, 299 U.S. 610 (1936). We have recognized, however, that while jeopa rdy certain ly 11 attaches in a tria l on the merits after a jury is sworn or a judge hears evidence , “it is less clear . . . 12 what pretrial proceedings are such as to place a defendant in jeopardy .” Lockett v. Montemango , 784 13 F.2d 78, 82 (2d Cir. 1986). 14 Inview of this uncertainty, we begin by examining the standard, established by the Supre me 15 Courtand

applied by numerous c ourts of appeals, for evaluating when the protect ions of the

Double 16 Jeopardy

Clause ma

y be trigg ered by

a pretr ial dismissa

l. 4 17doublejeopardy purpo ses.” 415 F. Supp . 2d at 202 (c itin g Russotti v. United States , 717 F.2d 27, 33 (2d Cir. 1983) (holding that the same offense conduct is only evident when

“ both the enterprise and the pattern of activity a

lleged” in the earlier indictment ar e the sam e as those alleged in the later indictment)). But the court did not then appl y th e frame

work to the

caseat bar because it concluded th at je op ar dy w ou ld no t a tt ac h t o t he 20 01 in di ct me nt an ywa y. Inmany cases in volving d ouble jeo pardy claims, it is desirab le for a

district c ourt to decide the Blockburger

question f

irst, and ther

eby avoid what may be comple

x constitutional issue s. In

this case, however , since th ere is nothing in the record to suggest that the pretrial dismissal of Dionisio’s 2001 indict ment “repre sented a resolution of any of the factual elements of the offense c harged,” United States v. Dahlstrum , 655 F.2d 971, 974 (9 th Cir. 1981), we do not address the Blockburger challen ge by defenda nt. 8 A. Identifying the Attachment of Jeopardy. 1
(1) The Serfass Standard 2 Serfass

v. United States, 420 U.S. 377 (1975), p rovides t he prima ry guidep ost

for evaluating 3 pretrial attachments of jeopardy . In Serfass , the Supreme Court reviewed the dismissal, before trial, 4 of an

indictment that had

been ba sed on de fendant ’s failur e to report for mili

tary service . Despite 5 Serfass’s contention that the pretrial dismissal relied on “evidentiary facts outside of the indictmen t, 6 whichfacts wo

uld consti tute a de fense

on the merits at trial,” id. at 390 (citations omitted), the Court 7 held

that “formal or

technical jeopardy

” had not attached, because the cour tthat had dismissed the 8 indictmentwas “without power to m ake any determination regardi ng petitioner’s guilt or innocence.” 9 Id. at 389 (citations omitted). But the Supreme Court went further, and stated

that even if a dismissal 10
were based on evidentiary facts that gave rise to a

constructive acq

uittal, the word “a cquittal” bore 11 “no talismani c quality for purp oses o f

the Double Jeopardy Clause.” Id. at 392. Rather, “an 12 ‘acquit

tal’ cannot be divorced from the procedura l context in which the action so characterized was 13 t a ken.” Id. Because the pretrial proce edings did not actually concern “facts surrounding the 149

commission of the alleged offense,” id. at 389 (quot ing United States v. Covington , 395 U.S. 57, 60 1 (1969)) , the High Court rejected defendant’s c laim and said: “Without risk of a determinat ion o f 2 guilt, jeopardy

does not attach . . . .”. Id. at 391-92. 3 Su bs eq ue nt ly, in app lying Serfass , the Supreme C ou rt has underscored the need to look 4 beyond

the fo rm of t he cou rt’s p retri al rul ing t o it s substance in order to determine whether the 5 dismissal actually re presented a

“ resolution, correct or not, of some or all of the factual elements of 6 the offense charged .” United Sta tes v. Ma rtin Linen Supply Co. , 430 U.S. 564, 571 ( 1977) (e mphasis 7 added). In Martin Linen, the Court addressed a judgment of acquittal issued by a trial judge after a 8 deadlocked

ju ry h ad be en di sc ha rg ed . C on cl ud in g t ha t t he Do ub le Je op ar dy Clause barred the 9 gover

nment’s a ppeal, the Court emphasized the need to evaluate “whether the ruling of the judge, 10 whatever

its label, actually re

p resents a resolution, correct or not, of some or all of the factua l 11 elements

of the offense charge d. There can be no qu estion that the judgments of acquittal entered 12 here . . . were ‘acquittals’ in substance a s well as form.” Id. at 571-72. 13 The Serfass

- Martin Linen framework requ ires that we look be

yon d forma l istic labels of 14 acquittal or conviction and scr utinize the

substantiv e resolu

tion under lyin g that di sposition. But these 15 decisions also c onfirm tha t it is not necessary

to have an actual acquittal or, for that matter, a 16
conv iction, in order to trigger double jeopa rdy. What is crucial, instead, is whe ther the defendant 17 faced

the risk of a determination of guilt, and this may well include exposure to risk of conviction 18 ina pretr

ial plea p roceed ing. Thu s, the key

issue, ev en in

a pretr ial context, is whether the disposition 19 of

an individ

ual’s ind ictment e ntailed f indings o f facts o

n the mer its such th at the d efendant was 20 placed in genuine jeopardy by the making

of such findings. This standard for jeopardy attachment 21 comports

with the Court’s later decisions in Burks v. United States, 437 U.S. 1 (1978), and in United 2210

States v. Scott , 437 U.S. 82 (1978), whichestablish that , in identifying whe ther jeopardy

attached, 1 it is necessary

to distinguish: (a) between “determinations that relate to a defendant’s culpability

and 2 those that are merely procedural and do not bear on the defe ndant’s blameworthiness,” as well as (b) 3 between

“questions of fact and questions of law.” Kruelski v. Conn. Super. Ct. for the Jud. Dist. of 4 Danbury , 316 F.3d 103, 109 (2d Cir . 2003); see also Smalis v. Pennsylvania, 476 U.S. 140 (1986) 5 (holding that

a trial judge’s grant of a de murrer, based on

insuffic iency

of the ev idence t o establish 6 factual guilt, constituted a nonappealable ac quittal under the Double Jeopardy Clause)

. 7 The pra

ctical im port of th ese distin

ctions is e vident in a

ny n umber of pretria l dispositions. 8 For

instance , the dete

rmination that a defendant was not tried within the relevant speedy trial time 9 is a finding of fact. But it is not a finding of fa ct that invol v es jeopardy . By contr ast, a plea 10 agreement

in which the court was directly involved in adefenda

nt’s dec ision to ple ad guilt y to two 11 counts, in exchange for an agre ement to drop with prejudice a third count, all on the basis of findi ngs 12 of

certain facts wh ich suppor

t that ag reemen t, might p erhaps c onsti tut e a pretrial fact-finding that 13 implicated

jeopardy in its proper

sense of risk of exposure. And the same would likely be true if an 14 individual were to p lead gu ilty to an off ense bef ore tria l, and the g overnme

nt subsequ

ently were to 15 seek

to indict that person for a lesser-included offense. It follows that the adjudica tion of some

facts 16 that

go to the meritsof a charge ag ainst a defendant is essenti al to the st

andard e stablishe d in Serfass 17 and Martin Linen , for only if the fa cts go to the merits of the casecan it be said that the defendant 18
wa s p la ce d i n a ct ua l j eo pa rd y. 19

205 Crucial to this decisionwas Holme s’ interpretation of the statute of limitations before the Court as

goingto the merits of culpability. Not all statutes of limitations in all states do so. See, for example , the discussion of different statutes of limitations in Kruelski , 316 F.3d at 11 1 n.10. See a lso infra note 7. 11 (2) The Significance of Preclusion 1

None of these requirements are diminished by principles of preclusion. In United States v. 2 Oppenheimer , 242 U.S. 85 (1916), t he Court f

ound the d

efenda nt’s in dic tment to be prohibited 3 beca

use an earl i er indictment for the same offense had bee n held to be barred by

a statute of 4 limitations

. A later r uling in a nother c ase rendered invalid the statute-of-limitations reasoning on the 5 basis of which

Oppenheimer’s first indictment had bee n dismissed . The governmen t then soug

ht to 6
rec harge Oppenheimer with the identical crimes that had originally been deemed precluded. 7 Rejectin

g this ne w indictme

nt, Justice H olmes wro te for the Court: 8 It

cannot be that

the safe guard s of the pe

rson, so of

ten and so rightly mentione d with sole

mn 9 reverence, are less than those that protect from a liability in debt. It cannot be that a judg ment 10 of

acquittal on the ground of the statute of limitations is less a protection against a se cond 11 trial than a judgment upon the g round of i nnocence, or that such a judgment is any more 12 effective when entered after a verdict than

if entered by

the government’s consent before a 13 jury

is empaneled; or that it is conclusive if e ntered upon the general issue, but if upon a 14 special plea

of the statute, permits the defendant to be prosecuted ag ain. We do notsuppose 15 that

it would be doubted

that a judgment upon a demurrer to the merits would be a ba r to a 16 second in

dictment i

n the same

words. 17 Of

course, the quashing

of a bad indictment is no bar to a prosecution upon a good one, but 18 a

ju dg me nt fo r t he de fe nd an t u po n [ a] gr ou nd th at
. . . g oe s t o h is li ab il it y a s [ a] matter of 19 substantive law, and one judgment that he is free as matter of substantive law is as good as 20 another. A plea of the statute of limitations is a plea to the merits , and however the issue was 21 raised

in the for

mer cas e, afte

r judgme nt upon it, i

t could not be r eopened in a later 22 prosecution. 23 Id. at 87-88 (internal citations omitted) (emphasis added). 5 2412

The Oppenheimer

C ourt e xp ressly reje cted both the government’s contention “that the 1 doctrine of res ju

dicata d oes not exis t for cri

minal cas es except

in the mo difie d form of the 5th 2 Amendmen

t” and the government’s conclusion “that a dec ision upon a plea in bar cannot prevent 3
a second trial when the defendant never ha s been in jeopardy in the sense of being before a jury upon 4 the facts of the offense charg ed.” Id. at 87 (emphasis added). The Court the n said : “[T]h e 5th 5 Amendment

was not intended to do away w i th what in the civil law is a fundamental principle of 6 justice in order , when a man once has been acquitted on the me rit

s , to enabl e the governmen t to 7 prosecute him a second time.” Id. at 71 (internal citations omitted) (emphasis added). 8 Since Oppenheimer , there has been much debate on whether that casewas grounded in the 9 Double

Jeopardy Clause or in broader Due Process arg uments. See, e.g. , DiGiangiemo v. Regan , 528 10 F.2d

1262, 1264

(2d Cir. 19 75); Paradise v . CCI Warden , 136 F.3d 331, 336-37 (2d Cir. 1998). But 11 in the end, that discussion is neither here nor there for the issue before us. The Supreme Cour

t did 12 state i n Ashe v. Swenson , 397 U.S. 436, 442 (1970), that res judicata and collateral estoppel ar e 13 “ingre dient[s] of

the Fifth Amendment guarantee a gainst double jeopardy .” And so the y a re. But this 14 does not alter

the fac t that, as the later Serfass and Martin Linen cases held, the re must be

je opardy 15 inorder for there to be double jeopardy

. And the existence of res judicata or collateral estoppel does 16 notby i ts el f m ea n t he re wa s j eo pa rd y, that is, it does not answer the question whether a decision on 17 the merits which entailed a risk of conviction had been made. On the fa cts in Oppenheimer , Justice 18 Holmes found that such a decision had there occurre d. That, however, mean s only tha t a court is 19 required

to see whether the operative facts in the case it faces lead

to the same or another conclusion. 20 Inthe case before us, that requires us to consider whether t he dismissal with prejudice arising out 21 of

an agreement between the parties – w ha te ve r i t m ay m ea n c iv il ly – reflected a re solution of facts 2213

crucial to the mer

its of the criminal case that had been brought, and did so throug h a process that 1 involved a risk of conviction for the defendant. 2

B. Use of Other Court Decisions by the Court Below 3 We conclude that the Supreme Court’s decisions in Serfass , Martin Linen , Oppenheimer and 4 Ashe direct a

court’s attention to a pret rial dismis sal’s subs tance r ather than its form. They focus 5
onthe core q

uestion of whether there ha s been a f

act-ba sed reso lution of e lements of the offe nse 6 charged

as a result o f a proc ess in which the defendant risked conviction. I t is that core question that 7
we must address. The district court, instead, held that whe re a dismi ssa l with prejudice occurs 8 pretrial , no such inq uiry is n ece ssary , for no je opardy can atta ch. We bel ieve tha

t in reac hing this 9 conclusionthe district court read decisions of our court and

of other circuit courts concerning pr etrial 10 dismissals

and jeopardy

too broadly. And we a

re not prepared to affirm

such a categor ical h oldi ng. 11 Our

court has applied Serfass and its pr ogeny to reject numerou s double jeopard y c laims that 12
were based on pretrial dismissals. In each ca se, however, the dismissal had clearly not constituted 13
a resolution of the f

actual e lements of

the offe nse char ged in a manner t hat involv ed a ris k o f 14 conviction. Either the opinion did n ot assert tha t the dismissal was with prejudice, or the factual 15 elements

were manifestly

notresolve d, or con

viction wa s not in any

way at stake . Thus, in Lockett 16

v. Montemango we found that jeopardy did not attac

h to a charge to which, with court approva l, the 17 defendant

pled that he was “not responsible by reason of mental disease or defect.” 784 F.2d at 83- 18 84. In l o oking bey ond defendant’s formal “acquittal,” we r elied upon the New York Court of 19 Appeals ’ holding that, under the state statute authorizing this plea-ba sed acqui ttal, the court had 20 power

only either to permit the statute-based plea or to reject it and allow the cri minal procee dings 216 We have, f rom time to

time, in dicta, cit ed the Supreme C ourt’s po st- Serfass jurisprud ence in support of the ca tegori c al propos iti on that jeopardy doe s not attach as a result of an indictment’s pretrial dismissal. For instance, Martin L in en was cited by our court, in dicta, in support of the statement that “[t]here can be no double jeopardy issue, w here, as here, the initial prosecution was decided on a pretrial motion.” Paradise v. CCI Warden , 136 F.3d at 336. B ut as Martin Linen makes clear, see supra

II .A(1) , that jurispru dence does not support those dicta. R ather, i n each case, the court looked past the form of the prior court’s pretrial ruling to its substance. 14 to continue: “In no event could the c ourt make a binding factual finding of the defendant’s guilt.” 1 Id. at 84 (quoting Lockett v. Juviler , 480 N.E.2d 378, 382 (N.Y. 1985)) (e mphasis removed). 2 Becau se only the validity of the defendant’s claim of mental disease or de fect was at stake in the 3 court’s evaluation, he “never risked conviction at his plea pr oceeding an d theref

ore neve r was in 4 jeopardy.” Id. 5 And i n United States v. Fontanez , 869 F.2d 180, 183 ( 2d Cir. 198 9), we sim ilarly applie d 6 Serfass

in re vi ew in g t he do ub le je op ar dy c ha ll en ge of a d ef en da nt wh os e p re vi ou sl y dismi ssed 7 narcotics conspiracy indictment in Canada was alleged to be “virtually identical” to a narcotics 8 conspiracy

charged by

the United States. Even if the two charges were identica l, we held, “when a 9 count

has been dismissed, jeopardy ha s not attached unless the defendant was first ‘put to trial.’” Id. 10 at

183 (q uoti ng Serfass , 420 U.S. a t 388). “Si

nce [ the narcotics conspiracy ] count . . . of the 11 Canadian

indict ment was di smissed without a trial having been commenced, Fontane z was not 12 plac ed

in jeopardy on the Cana

dian charge of conspirac

y.” Id. Critically, however, the recor d i n 13 Fontanez did not indicate that the earlier dismissal was “wit h prejudice.” And, despite our holding’s 14
use of the term “dismissed,” id. , our statement of facts observed only that the earlier c harge

in 15 question was simply “withdrawn.” Id. at 182. 6 16 The decision s of other circuits , even tho se concerning the specific issue of a dismissal with 17 prejudice, similarly stand only for the — correct — princip le that je opardy does not a

tta ch in the 187 There is no indication, of course, that the bar to prosec ution in local co urts was b ased on d

ouble je op ar dy. 15 absence of exposure by the defenda nt to a deter

mination g oing to “factual guilt or innocence.” The 1 D.C. Circuit Cou

rt of Appe als’ dec ision in United States v. Lindsey , 47 F.3d 440 (D.C. Cir. 1995), 2 vacated

on other grounds sub nom. , Robinson v. United States, 516 U.S. 102 3 (1995), provides a 3 prime example. 4 In Lindsey , the court rejected defendant’s argume nt that a District of Columbia local court’s 5 pretri al dismissal o f a char ge “wi th prejud ice” tri gger

ed the dou

ble jeopa rdy bar ag ainst his 6 prosecution

in the federal district court for the same offe nse. Id. at 444. Significantly, the Lindsey 7 court

did not hold

that the pretrial

dismi ssal of a ch arge with prejudice could not trigg er the 8 attachment

of j eop ard y. It did noteven establish a presumption against such attachment. I nstead, the 9 court

found that, in Lindsey , the particular dismissal did not involve q uestions of factual guilt or 10 innocence. This was because in that case, the reason for the grant of a dismissal with prejudice was 11

– as the court of appeals expressly stated – “ merely t

o yield ju risdictionto the fed eral distri ct court .” 12 Id. (emphasis added). And, as the Lindseycourt further said, the dismissing court “certainly had no 13 power

to dismiss th e separ

ate indictm ent then pe nding in the United States District Court.” Id. 14 “Understood

in its proper context, then, [the] dismissal ‘with prejudice’ merely operated to bar 15 reprosecution in the Dist rict of Colu mbia [loca l] courts .” 7 Id. (emphas is added) . In o ther wor ds, the 16 procee dings before the dism is sing cou

rt in no wa

y pu t the def endant a t risk of c onviction

and so 17
co ul d n ot en ta il je op ar dy. 18 Likewise, in United S tates v. S tricklin , the Fif

th Circuit C ourt of Ap

peals concluded t

hat, 19 altho ugh the government would be barred by the Six th Am endme nt fro m ind icti ng a defendant for 207 Marion ’s comment about statutes of limitations might be thought t o be in ten sion with Oppenheimer , in which a statute-of-limitations vio lation was deemed a merits-based pretrial dismissal. Marion and Oppenheimer are quit e recon cilable , however. Oppenhe imer turned on the C ourt’s construction of the particu lar fed eral sta tute of limitations before the Court. See supra note 5. For the same reason, our court found reasonable , despite Oppenheimer , the Conne cticut Supreme Court’s conclusion that

a violation of its state statute of limitations did not provide a merits-based pretrial dismissal triggering jeopar dy protections. Kruelski , 316 F.3d at 111 n.1 0. This wa s becaus e Connecticut

interpreted its statute of

limitations

very differe ntly from the i

nterpre tation ap parentl y given by t he Supre me Court to

the limitations statute in Oppenheimer

. As read by the Connecticut courts, a dismissal pursuant to Connecticut’s limitation statute said nothing about the defendant’s criminal culpability. Id. at 110-11.
8 The district

court al so cited r

ulings f rom a numb er of oth er cour ts that dec lined to a

pply a double jeopardy bar following an indictment’s pretrial dismissal pursuant to a plea ag reement
. Se e, e.g. , 16 a charge that previously

had been dismissed with prejudice for lack of a speedy trial, the defendant’s 1 claim

that the dismissal triggered the attachment of jeopa rdy failed be caus e the lack of a speedy 2 prosecution had “noth ing to do w

ith guilt or innoce

nce or the truth of

the allegations in the 3 indictment.” 591 F.2d 1 112, 1120 ( 5th Cir. 1979), cert. denied, 444 U.S. 963 (1979) (quot ing United 4 States v. Marion , 404 U.S. 307, 312 (1971)). 5 Inreachi

n g this conclusion, the Stricklin Court rel ied on the Supreme C ourt’s Marion 6 decision, id. , which established the principle that a dismissal due to the lack of a speedy prosecution 7 was not a

judgmen t on the me

rits: 8 The motion to dismiss reste d on gro unds that had nothing

to do with guilt or innocence or the 9 truth

of the allegations in the indictment but was, rather, a plea in the na ture of confession and 10 avoidance, that is, where the defendant does not deny that he has committed the acts alleged 11 and

that the a cts were a crime b ut instead pleads that he ca

nnot be pr osecute d becau se of some 12 extraneous factor, such as the running of the statute of limitations or the deni al of a speedy 13 trial. 14 Marion , 404 U.S. at 312. 7 Thus, Stricklin , like L indsey , confirms the principle that a pretrial 15 dismissal, even with prejudic e, does not trigg er the a ttachmen t of jeopa rdy unless it r eprese nts a 16 merits-based resolution of allegations in the indictment in a way that involved risk of conviction. 8 17United

States v. Nyhuis , 8 F.3d 731, 735 n.2 (11th Cir. 1993) (“We may disregard the § 846 conspiracy

charg e in the Mic

higan in dictment w

hich was dismissed p

ursu a nt to Nyhuis’s plea agreement

b ec ause jeo

pardy did not atta

ch to that dismissed c

harge .”); United States v. Soto-Alvarez , 958 F.2d 473, 482 n.7 (1st Cir. 1992) (“[J]eopardy ordinarily does not attach to counts which are dismissedand

on whichno finding

of guilt y is made”) . But Nyhuis ’s sparse analy sis of the dismissal ina footnote does not

indicate whether the charge was dismissed with prejudice, and Soto-Alvarez ’s assertions that jeopardy “ ordinarily” doe s not attach based on a p retri al dismissal, also does not indicate whether a dismissal with prejudice was being c onsidered. 17 Fi na ll y, the district court relied specifically on the finding in United States v. Dahlstrum , 655 1 F.2d

971, 974 (9th Cir. 1981), cert. denied, 455 U.S. 928 (1982), t hat an ind ictment’ s “dismissa

l is 2
no t equi valent to acquittal even if dismissal is ‘with prejudice.’” 415 F. Supp. 2d at 199 (citing 3 United

States v. Vaughan , 715 F.2d 1373, 1376

(9th Cir. 1983) ). But Dahlstrum , instead, confirms 4 the importance of looking past a pretrial ruling’s label to the underly ing record. For

in Dahlstrum 5 the lower co

urt’s dism

issal with p

rejudic e was man

ifestly not a determination

of culpability. T he 6 Dahlstrum co urt found that while “the district judge had serious doubts as to whether the government 7 had

established its ca se bey

ond a rea sonable

doubt,” the judge had expressly stated that

the dismissal 8 was “not on the merits” but rather was due to “g overnmental misconduct.” 655 F.2d at 974. 9 As a result, Dahlstrum , no less than Stricklin , Lindsey , and the other cases cited by

the court 10 below, must be not be read as a holding that forecloses the possibility of the a ttachment of jeopardy 11 to a pretrial dismissal with prejudi ce. Rath er, it must be viewed as a decision that denies the 12 attachment

of jeo pardy when , “[a] fter re viewi ng the e ntire record , [th e revie wing court ] cannot 13
con cl ude, with any deg ree of certainty , that the district judge’s disposition actually r epresented a 14 resolutionof any of the fa ctual elem ents of the offense charge d.” Id . Not surprisingly , then, in 15 United

States v. Cejas , 817 F.2d 595, 598, 6 00 (9th

Cir. 1987), decided after Dahlstrum , the Ninth 169 Si mi la rl y, the Tenth Circuit Court of Appeals has found that jeopardy a

ttached when a conspiracy charge was dismissed with prejudice, see Unite d States v . Mintz , 16 F.3d 1101 (10th Cir. 1994). But the lower court in the case at bar persua s ively arg ued that the T enth Circ

uit, in rea

ching th is conclusion, mistakenly relied on wha t it thought was binding precedent, and so its holding was without any reasone d foundation. See generally 415 F. Supp 2d at 196-97. 18 Circuit expressly held that wher e a char ge’s pr etrial di smissal was onthe merit s – not due t o faulty 1 procedure or technical defe cts in the indictment – a subsequent prosecution was barred. 9 2

C. The Merits 3 We theref

ore conc lude that

the distri ct court

over-r ead our c ourt’ s and othe r circuit court 4 decisions in reaching its holding that a pre trial dismi ssal w ith preju dice necessarily entails no 5 je op ar dy. And we doubt that such a bright line test would be consis tent with the Supreme Court 6 decisions in Oppenheimer , Ashe , Serfass , and Martin Linen . Nevertheless, we need not take an 7 ultimate position on that issue. For, in the case before us, even if we apply the more

nuance d test 8 that

we think the Supreme Court cases have established, we must hold that no jeopardy attached as 9
a result of Dionisio’s plea agreement and the subse quent dism

issal of some counts

with prejudice. 10 The rec ord discl oses only an agr eement between the parties that following Dionisio’s plea 11 of

guilty to one count of substantive r acket eering, the government would move to dismiss the 12 remainingcounts wit h prejudi ce. The

gover nment, in fact, made such a motion, an

d the cour t duly 13 dismissedthe other counts. But we do notknow the r eason or basis for that dismis sal. And there is 14 nothing in the record to suggest that the dismissal e

ntailed a resolution of any

factua l element s that 15 went to the merits of the charges ag ainst Dionisio. There is, moreover, certainly no indication that 16 any

suchresol utio n (ass umin g arguendo that one had occu rred) in volved a p

rocessthat put Di onisio 17 at

any risk of conviction. Under the circ umstance s, the re quireme nts for the attachment of jeopardy 1819

that, we believe, the Supreme Court has established have not been me t. Hence, the district

court – 1 altho ugh it applied a less nuanced, and less s atisfactory , test – nonetheles s reached the correct r esult. 2 3 III. C ONCLUSI ON 4

For

these re asons, we AFFI

RM the district court’s holding that Dionisio’s 2004 indictment 5 was not barred by

the Double Jeopardy Clause. 6 7