USCA1 Opinion
March 25, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1978
STEPHEN ROSSETTI,
Petitioner, Appellee,
v.
JOHN J. CURRAN, CHAIRMAN,
COMMONWEALTH OF MASSACHUSETTS PAROLE BOARD,
Respondent, Appellant.
____________________
ERRATA SHEET
The opinion of this Court, issued on March 21, 1996, is amended
as follows:
On page 2, line 1, replace "1991" with "1981". On same page,
line 2, replace "1992" with "1982".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1978
STEPHEN ROSSETTI,
Petitioner, Appellee,
v.
JOHN J. CURRAN, CHAIRMAN,
COMMONWEALTH OF MASSACHUSETTS PAROLE BOARD,
Respondent, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Lynch,
Circuit Judges.
______________
____________________
Elisabeth J. Medvedow, Assistant Attorney General, Criminal
________________________
Bureau, with whom Scott Harshbarger, Attorney General, was on brief
_________________
for respondent.
Matthew A. Kamholtz with whom Matthew H. Feinberg and Segal &
____________________ ____________________ ________
Feinberg were on brief for petitioner.
________
____________________
March 21, 1996
____________________
BOUDIN, Circuit Judge. In 1981, Stephen Rossetti was
_____________
acquitted of armed robbery in state court. In 1982, he was
convicted in state court of conspiracy to commit the same
robbery. Much of the evidence used in the two trials was the
same. In a habeas corpus proceeding, the district court
ruled that the second prosecution violated double jeopardy
principles and ordered Rossetti released without possibility
of retrial. The Commonwealth now appeals. For the reasons
that follow, we modify the district court's judgment.
I.
The charges against Rossetti arose out of the armed
robbery of a Brink's armored truck in the parking lot of a
bank in the Jamaica Plain section of Boston on December 4,
1980. A Brink's guard had just removed a sack filled with
$150,000 in cash from the truck and was carrying it toward
the bank entrance when he was approached by three men,
possibly masked. One of the men asked for the money; and
another leveled a shotgun at the guard. Ultimately, the
three jumped into a car and drove off, taking the money and
the guard's pistol.
In both trials, the prosecution built its case around
the testimony of Joseph Smith, who testified that he was a
fourth participant in the December 4 robbery who had been
waiting in a second car to assist if necessary by blocking
pursuers. His testimony was crucial to the prosecution's
-2-
-2-
case. Although there was ample evidence of the robbery,
neither the Brink's guards nor anyone else could identify
Rossetti as one of the perpetrators. Nor was there any eye-
witness evidence, other than Smith's testimony, to prove
Rossetti's participation in the conspiracy to commit the
robbery.
Smith was not an ideal witness. He had been arrested
four days after the Brink's robbery on a warrant charging
escape from the Deer Island House of Correction; he then
offered the government information about the Brink's job. In
exchange, the Commonwealth promised Smith parole on his Deer
Island sentence, immunity from prosecution for escape, and no
jail time for his role in the Brink's robbery. He was also
promised a plane ticket to anywhere in the United States, the
restoration of his Massachusetts driver's license, and $1,500
in cash.
In the first trial (Rossetti I), which took place in
__________
June 1981, Rossetti was the sole defendant and was charged
with armed robbery. Under Massachusetts law, the
Commonwealth was prohibited from trying the conspiracy in the
same trial as the substantive offense unless the defendant
moved for joinder. Mass. R. Cr. P. 9(e). Smith described in
detail the course of the robbery on the morning of December 4
and Rossetti's participation in it. He also described more
briefly the preparations for the crime--including a visit to
-3-
-3-
the bank on Thanksgiving Day, the final planning sessions,
and the theft of cars on December 3--and Rossetti's role in
those preparations.
The Commonwealth also presented physical evidence that
the police had recovered from Rossetti's home, including
hidden cash with serial numbers corresponding to the stolen
money. The police had also found a key in Rossetti's room
that led them to a locker located in another building. In
the locker, police discovered clothing and weapons tied to
the robbery, including the Brink's guard's pistol and a
sawed-off shotgun, which were also offered at trial.
Rossetti vigorously attacked Smith on cross-examination,
and also offered police testimony that Smith had taken a much
more active role in the robbery than he had admitted.
Through testimony from his mother and his girlfriend,
Rossetti also sought to establish an alibi for the time of
the robbery (and for Thanksgiving Day). And to explain the
physical evidence, witnesses testified that Rossetti had
taken some items from Smith's apartment after Smith's arrest.
The jury acquitted Rossetti of armed robbery.
In the second trial (Rossetti II), Rossetti, Louis
____________
Royce, and Joseph Sousa were co-defendants, each charged with
conspiracy to commit the Brink's robbery. This trial took
place in December 1982, and the pattern of the trial was
similar to Rossetti I. After the two Brink's guards
___________
-4-
-4-
described the crime, the Commonwealth called Smith to
testify. In the first trial, the focus of Smith's direct
examination was the commission of the robbery; in Rossetti II
___________
Smith described the robbery and Rossetti's role in it but
also dwelt at length on several meetings Smith had held with
Rossetti and other conspirators prior to December 4.
Again, Smith was vigorously attacked, both on cross-
examination and by impeaching testimony. Rossetti again
offered alibi evidence for the date of the crime. Again,
witnesses testified that Rossetti had taken incriminating
items from Smith's apartment. All three defendants were
convicted of conspiracy. The convictions were affirmed,
Commonwealth v. Royce, 479 N.E.2d 198 (Mass. App.), further
____________ _____ _______
rev. denied, 482 N.E.2d 328, 484 N.E.2d 102 (1985), and
____________
Rossetti's request for post-conviction relief in state court
was denied.
In September 1990, Rossetti filed in the district court
for habeas corpus relief. The district court held that the
second prosecution was barred by the double jeopardy clause
as construed in Ashe v. Swenson, 397 U.S. 436 (1970).
____ _______
Rossetti v. Curran, 891 F. Supp. 36 (D. Mass. 1995). In the
________ ______
alternative, the district court held that, even if the second
prosecution had been proper, the state court had committed
constitutional error by admitting evidence of Rossetti's
participation in the robbery of which he had been previously
-5-
-5-
acquitted. The court granted the writ of habeas corpus
without the possibility of retrial.
II.
The district court's legal rulings are reviewed de novo,
_______
United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st
______________ ________________
Cir.), cert. denied, 506 U.S. 834 (1992), and we consider
_____________
first the district court's ruling that the second prosecution
was barred entirely under Ashe v. Swensen. The Commonwealth
____ _______
suggests that Rossetti's claim on this issue was not properly
presented in state court and was thus lost, see Picard v.
___ ______
Connor, 404 U.S. 270, 275-76 (1971), but in our view the
______
issue was adequately raised and preserved. See Scarpa v.
___ ______
Dubois, 38 F.3d 1, 6 (1st Cir. 1994), cert. denied, 115 S.
______ _____________
Ct. 940 (1995).
The Fifth Amendment, held to apply to the states through
the Fourteenth Amendment, provides in part that no person
shall "be subject for the same offense to be twice put in
jeopardy of life or limb." Benton v. Maryland, 395 U.S. 784
______ ________
(1969). A layman might think that Rossetti had been twice
prosecuted for the same criminal venture. But armed robbery
and conspiracy to commit armed robbery are separately defined
crimes under Massachusetts law and each requires an element
that the other does not. Accordingly, under governing
Supreme Court precedent, they are separate offenses for
double jeopardy purposes. Blockburger v. United States, 284
___________ _____________
-6-
-6-
U.S. 299 (1932). Rossetti does not suggest otherwise.
But the Supreme Court has broadened double jeopardy
protection by incorporating into the clause the concept of
collateral estoppel, so that "when an issue of ultimate fact
has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in
any future lawsuit." Ashe v. Swenson, 397 U.S. at 443. In
____ _______
this case, the district court invoked Ashe v. Swenson and
____ _______
reasoned that, in light of the evidence and instructions in
the armed robbery trial, the jury in the first trial had
necessarily determined that Rossetti had not conspired to
_________
commit the armed robbery.
Of course, conspiracy was not the crime charged in the
first case, so the acquittal on armed robbery does not,
standing alone tell us what, if anything, the jury found as
to conspiracy. And under settled precedent, the burden was
upon Rossetti to show that the jury had in the first case
decided the conspiracy issue and decided it in Rossetti's
favor. Aguilar-Aranceta, 957 F.2d at 23. In making this
________________
assessment, the district court quite properly examined the
evidence and instructions. Id. at 23.
___
The district court reasoned that the jury at Rossetti I
___________
was presented with a stark choice: either accept Smith's
testimony in its entirety, or conclude that he was a liar and
reject it all. The jury had obviously rejected Smith's claim
-7-
-7-
that Rossetti had participated in the robbery. In rejecting
Smith's claim, the district court concluded, the jury also
rejected his briefer account of Rossetti's participation in
the conspiracy to commit the crime. In the district court's
view, the first trial therefore resolved the issue of
Rossetti's participationin the conspiracy inRossetti's favor.
We do not share the district court's assurance that in
acquitting Rossetti of armed robbery the jury in Rossetti I
___________
rejected the proposition that Rossetti had conspired with the
perpetrators of the robbery. "The heart of a conspiracy is
the formation of [an] unlawful agreement or combination."
Commonwealth v. Pero, 524 N.E.2d 63, 65 (Mass. 1988). If the
____________ ____
jury accepted Rossetti's alibi for the day of the crime, it
could easily have acquitted him of armed robbery without
deciding whether Rossetti had agreed at some earlier time to
play some role in the robbery.
Rossetti's mother and his girlfriend each testified that
he was with them at the time of the robbery. And the
girlfriend provided an exculpatory explanation as to how
Rossetti came later to possess the money associated with the
robbery; his possession of the key to the locker where the
weapons were stored was never directly explained. Given
Smith's weakness as a witness, the alibi could easily have
supplied reasonable doubt, and the alibi did not preclude the
possibility that Rossetti had conspired beforehand.
-8-
-8-
The district court's conclusion rested secondarily on
the criminal joint venture instruction given to the jury in
the first trial. The joint venture theory under
Massachusetts law is designed to make "an active participant"
in a crime, Commonwealth v. Stewart, 582 N.E.2d 514, 519
____________ _______
(Mass. 1991), liable for the crime even if his role is
limited to his presence coupled with an intent to aid in the
crime if necessary. Commonwealth v. Cunningham, 543 N.E.2d
____________ __________
12, 15 (Mass. 1989). But the charge given in this case,
which we reprint in an appendix, was more muddled than the
standard formulation.
Under the charge as given, the jury might have thought
that it should convict Rossetti of armed robbery if he merely
conspired in planning the robbery or it might instead have
__
thought that it could not convict unless Rossetti was present
at the robbery and ready to provide assistance.
Unfortunately for Rossetti, the latter interpretation is at
least as likely as the former; there is language in the
charge pointing both ways. Thus, the jury's verdict of
acquittal does not necessarily, or even probably, reflect a
finding that Rossetti was innocent of conspiracy.
III.
The district court held, in the alternative, that
Rossetti was entitled to a new trial. The acquittal in the
first trial, the district court reasoned, established at the
-9-
-9-
very least that Rossetti had not been engaged in the armed
robbery itself (or more precisely, found a reasonable doubt
on this point). Yet, in the second trial the prosecutor
again offered Smith's testimony that Rossetti had
participated in the robbery itself, inviting the second jury
to contradict the first.
For more than a decade after Ashe v. Swenson, this offer
____ _______
of evidence by the prosecutor--inviting the jury in the
second trial to find that Rossetti had participated in the
armed robbery--would clearly have offended the collateral
estoppel branch of double jeopardy doctrine. E.g., United
____ ______
States v. Gonzalez-Sanchez, 825 F.2d 572 (1st Cir. 1987).
______ ________________
True, the purpose was to help the prosecutor prove a
different offense not foreclosed by the first verdict, i.e.,
____
that Rossetti had conspired to commit armed robbery. But the
evidence of his participation in the robbery was still
designed to prove the very conduct (armed robbery) of which
the first jury had acquitted Rossetti.
Two decades after Ashe v. Swenson, the Supreme Court
____ _______
decided Dowling v. United States, 493 U.S. 342 (1990).
_______ ______________
There, the federal government prosecuted Dowling for armed
bank robbery; and because the bank robbers had been masked,
the prosecutor--as identification evidence under Fed. R.
Evid. 404--offered proof that Dowling, similarly masked and
armed, had sought to rob a private home two weeks later and
-10-
-10-
had been unmasked and identified in the struggle. The
prosecutor's problem was that prior to the bank robbery
trial, Dowling had been tried and acquitted of the house
robbery.
In Dowling, as in this case, the defense argued that the
_______
use in the second trial of "acquitted conduct" evidence
violated the collateral estoppel branch of double jeopardy.
The Supreme Court rejected the claim, pointing to the
difference in the burden of proof. In the first trial, the
jury had found that the government had failed to prove the
house robbery beyond a reasonable doubt; in the second,
Dowling's presence in the house merely needed to be proved as
a likelihood in order to help the government in the bank
robbery case. Id. at 348-49.
___
If the reasoning of Dowling is applied mechanically to
_______
our own case, the Commonwealth was arguably free--so far as
federal constitutional law is concerned--to offer the bank
robbery evidence in Rossetti II. No intermediate fact need
____________
be proved beyond a reasonable doubt, so long as the crime
itself is proved beyond a reasonable doubt. New Jersey v.
__________
T.L.O., 469 U.S. 325, 345 (1985); In re Winship, 397 U.S. 358
______ _____________
(1970); Fed. R. Evid. 401. It was enough for the jury in
Rossetti II to conclude that it was likely that Rossetti had
____________
participated in the armed robbery.
If the jury found that Rossetti had likely participated
-11-
-11-
in the bank robbery, this could then have been used by the
jury, together with other evidence, to prove Rossetti's guilt
on the conspiracy charge beyond a reasonable doubt. A jury
could convict without the robbery evidence: Smith gave
direct testimony in the second trial that Rossetti had
conspired; and the prosecutor proved that proceeds and
implements of the robbery had been linked with Rossetti. But
if the jury also believed that Rossetti had likely
____
participated in the robbery, guilt on the conspiracy charge
could be found even more readily.
The district court took note of Dowling and sought to
_______
distinguish it, pointing out that in Dowling's bank robbery
trial, the "other crime" evidence, offered under Rule 404(b)
to establish identity, related to an entirely different
criminal transaction, i.e., the housebreaking. The district
____
court continued:
While the offenses in Dowling occurred at different
_______
times, with different victims and to a degree
different participants, the offenses at issue here
involved the same participants, the same offense,
and followed a day later. Surely the admissibility
of acquitted conduct in this case necessarily
raises issues of fairness and dimensions of
prejudice which the [Supreme] Court in Dowling was
_______
not obliged to consider.
891 F. Supp. at 47.
Perhaps so. From a classic double-jeopardy standpoint,
it may seem especially "unfair" to retry the defendant after
acquittal where the two crimes relate to the one set of
-12-
-12-
events. But to distinguish Dowling on this ground is simply
_______
to quarrel with Blockburger's test of when two crimes
___________
comprise different offenses. It would be easy enough to
quarrel; in fact, the Supreme Court for a brief period came
closer to using a same-transaction test for double jeopardy,
see Grady v. Corbin, 495 U.S. 508 (1990), overruled by United
___ _____ ______ ____________ ______
States v. Dixon, 113 S. Ct. 2849 (1993). But Blockburger
______ _____ ___________
binds us all.
As for "prejudice," the inference of guilt drawn from
the acquitted conduct may be more weighty in this case than
in Dowling precisely because of the close relationship of the
_______
two crimes. Yet, that could easily be offered as an argument
for admissibility here. Cf. Fed. R. Evid. 403 (balancing
___ ___
probative value against relevance). Plainly it would be
highly probative in a conspiracy trial to show that the
defendant accused of planning a crime with others had
probably carried out the very crime alleged to have been
planned.
Further, in one important respect, there is less risk of
unfair prejudice in this case than in Dowling. The ordinary
______ _______
threat of unfair prejudice in a Rule 404(b) case is that the
jury will infer that because the defendant has committed
other bad acts, he has a "bad character" and is likely to
have acted in conformity therewith. This inference,
forbidden by Rule 404(a), is largely submerged by the more
-13-
-13-
obvious and permissible inference that because the defendant
___________
participated in the crime that was the object of the
conspiracy, he was guilty of the conspiracy as well.1
And yet the Commonwealth has made none of these
arguments, assuming instead that while it was free to try
Rossetti for conspiracy, the prosecutor's use of evidence of
Rossetti's participation in the armed robbery was forbidden
by Ashe v. Swenson. Why the Commonwealth made this
____ _______
concession is unclear: its brief cites only to a
Massachusetts case which relied on Ashe v. Swenson but was
____ _______
decided prior to Dowling. Possibly, the Commonwealth was
_______
persuaded by the district court's distinction of Dowling;
_______
alternatively, it may have placed undue faith in its
argument--rejected by the district court but renewed by the
Commonwealth here--that the armed robbery evidence was
harmless error. In all events, we hold the Commonwealth to
its waiver.
Although very doubtful about the district court's
attempted distinction of Dowling, we are inclined to reserve
_______
____________________
1The district court thus erred in saying that the armed
robbery evidence in this case "violated the express terms of
Rule 404(b)," even if we ignore the fact that Rule 404(b) did
not govern the Massachusetts courts. Subject to Rule 403,
evidence of a second crime transactionally related to charged
crime is admissible when, as here, it is "so blended or
connected with the one on trial as that proof of one
incidentally involves the other." United States v. Dworken,
_____________ _______
855 F.2d 12, 27 (1st Cir. 1988) (emphasis and citations
removed).
-14-
-14-
the issue for a case in which the prosecution chooses to
litigate the point. Just how the Supreme Court would apply
Dowling in a slightly different context is a matter that
_______
could at least be debated. Given our rejection of the
district court's main ruling, the Commonwealth is free to
retry Rossetti if it desires, so there certainly is no threat
to public safety. In fact, we were told that Rossetti was on
parole when his habeas petition was granted.
Finally, something, but not much, needs to be said about
the Commonwealth's harmless error defense. Assuming
dubitante that the armed robbery evidence was precluded in
_________
the second trial, that "error" was not harmless under the
standard test. Brecht v. Abrahamson, 113 S. Ct. 1710, 1722
______ __________
(1993) (error is harmless if it has no "substantial and
injurious effect or influence in determining the jury's
verdict"). O'Neal v. McAninch, 115 S. Ct. 992, 995 (1995).
______ ________
This is so even though we agree with the government that the
other evidence of conspiracy (Smith's testimony as to
conspiracy and the real evidence) is impressive, if taken
most favorably to the government.
But in appraising harmless error, we do not look only at
the government's best case but rather at the evidence as a
whole. United States v. Innamorati, 996 F.2d 456, 475-76
_____________ __________
(1st Cir.), cert. denied, 114 S. Ct. 409 & 459 (1993). Smith
____________
was a witness that the jury could easily choose to
-15-
-15-
disbelieve. And Rossetti's possession of some of the real
evidence was explained, although a jury might think the
explanation far-fetched and it was certainly incomplete.
Smith's detailed evidence of Rossetti's actual participation
in the robbery itself could easily have altered the outcome.
The judgment of the district court is modified to
________
provide for issuance of the writ unless, within a reasonable
time to be determined by the district court, the Commonwealth
chooses to retry Rossetti on the charge of conspiracy, and
the matter is remanded to the district court for the entry of
________
a modified judgment.
It is so ordered.
________________
-16-
-16-
APPENDIX
The charge, in relevant part, read as follows:
Under our law and as a general rule, if two or more
persons engage in a joint criminal undertaking in
furtherance of its object each is the agent of the
other in all matters relating to the common object
of the enterprise and the acts of one are the acts
of all. To be engaged in a joint enterprise,
however, a person must actively participate in it.
Merely being present at the time when a crime is
committed is not sufficient even though a defendant
may have had knowledge that the crime was going to
be committed and did absolutely nothing to prevent
it. What must be proved is that the defendant who
is charged on the theory of joint enterprise in
some way associated himself with the venture; that
is, he participated in it as something he wished to
bring about as an active participant as
distinguished from merely being present or at the
scene when some other person committed a criminal
act.
On the other hand, a person may be a participant in
the commission of a crime without having actually
performed any physical act at the time when the
crime was committed. If the defendant who is
charged under the theory of joint enterprise has
put himself in a position or location where he can
render assistance or encouragement in the
commission of the crime, then, and once again, as a
general rule he can be found guilty even though he
did not commit the criminal act or made no physical
contribution to the execution of the criminal act.
In order, therefore, to find this defendant guilty
of the crime of robbery, you must be satisfied,
first of all, beyond a reasonable doubt that he
participated with others in this armed robbery and
not that he was merely present at the time but that
in some active way he associated himself with the
crime before it was committed and put himself in a
position or location where he might aid or assist
those persons in the commission of the crime. You
must be satisfied that this defendant combined and
confederated in advance with the others to
accomplish an illegal purpose.