Nadeau v. Matesanz

United States Court of Appeals
For the First Circuit

No. 01-2288

RICHARD J. NADEAU, JR.,

Petitioner, Appellant,

v.

JAMES MATESANZ,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker*, Senior U.S. District Judge]

Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Paul M. Freitas for appellant.
Linda A. Wagner, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellee.

____________________
April 29, 2002
____________________

* Of the Southern District of New York, sitting by designation.
 STAHL, Senior Circuit Judge. Appellant Richard Nadeau

appeals from the district court's denial of his petition for writ

of habeas corpus. In March 1996, a Middlesex Superior Court jury

convicted Nadeau of two counts of burglary, three counts of

receiving stolen property, and one count of receiving a stolen

motor vehicle. Appealing his convictions, Nadeau argued inter

alia that he could not lawfully be convicted of both the burglary

and the receiving of the stolen property. On April 2, 1999, the

Massachusetts Appeals Court agreed with Nadeau's argument and

vacated the possession of stolen property convictions but affirmed

the remaining convictions. Commonwealth v. Nadeau, 46 Mass. App.

Ct. 1121, 708 N.E.2d 154 (1999) (table).1 On June 3, 1999, the

Massachusetts Supreme Judicial Court denied Nadeau's application

for further appellate review. Commonwealth v. Nadeau, 429 Mass.

1109, 712 N.E.2d 99 (1999) (table).

On June 25, 2000, Nadeau filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, asserting three grounds

of error. The district court denied the petition on August 21,

1
See generally United States v. Trzcinski, 553 F.2d 851, 853
(3d Cir. 1977) ("Traditionally, receipt of stolen goods has been a
crime distinct from the theft. Under the general view, a thief who
actually carried away the goods could not 'receive' them from
himself. This principle is based either upon the theory of
avoiding the infliction of a double penalty or upon the philosophic
consideration that a single act may not constitute both the larceny
and the receiving. An accessory, however, may be guilty of both
larceny and receipt of stolen goods. See 2 F. Wharton, Criminal
Law and Procedure § 576 (12th ed. 1957), and R. Perkins, Criminal
Law 321 (1969). But these general observations are not controlling
because . . . the question is one of statutory construction, not
common law distinctions.").

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2001, but issued a certificate of appealability on September 18,

2001. In this appeal, Nadeau continues to press two purported

grounds for relief. First, he maintains that the trial judge's
instructions to the jury violated his constitutional right to

present a defense and to have his guilt determined by a jury of his

peers. Second, he contends that the Massachusetts Appeals Court
erred when it chose merely to vacate the convictions for possession

of stolen property, and should instead have ordered a new trial.2
Finding neither of these arguments meritorious, we affirm.

I.

At trial, Nadeau's theory of defense consisted of two

main components. First, he offered an alibi to account for his
whereabouts during the times that the burglaries took place.
Second, he argued that someone else, namely, his friend Michael

Farese, had actually stolen the goods that the police recovered
during the search of Farese's apartment, where Nadeau had been
staying. When the time came to instruct the jury, the trial judge

offered a standard charge regarding reasonable doubt.
Specifically, the judge stated,
The question is, has the government proved
beyond a reasonable doubt that Mr. Nadeau did
certain things. He is the only defendant.
You are not to focus on whether there were or
should have been anyone else accused of these
offenses. The question is, has the government

2
The third issue raised by Nadeau in his original petition,
but not presented on appeal, concerned the denial of his motion to
suppress the confession he made to the police on the date of his
arrest.

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 proved beyond a reasonable doubt that Mr.
Nadeau is guilty.
Nadeau objected to this instruction at trial, arguing

that it was "confusing and contradictory" and, in essence, told the

jury to ignore Nadeau's arguments regarding the possible
culpability of Farese. On habeas review, the district court

rejected Nadeau's claim that the trial court's failure to modify or

correct the jury instructions violated his constitutional rights.

Nadeau's appeal is governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Therefore, in order

to prevail, Nadeau must show that the state court decision was

contrary to federal constitutional law or an unreasonable
application of clearly established federal law as determined by the

Supreme Court. Id. § 2254(d)(1). We review the district court's

denial of habeas relief de novo. See Almanzar v. Maloney, 281 F.3d
300, 303 (1st Cir. 2002).

Nadeau has not offered any Supreme Court case that would

suggest that the jury instructions were constitutionally

inadequate. The reasonable doubt instruction offered by the trial
judge closely parallels a model federal instruction,3 and the

3
A widely accepted federal pattern jury instruction provides:

You are here to determine whether the
government has proven the guilt of the
defendant[s] for the charge[s] in the
indictment beyond a reasonable doubt. You are
not called upon to return a verdict as to the
guilt or innocence of any other person or
persons. So, if the evidence in the case
convinces you beyond a reasonable doubt of the
guilt of Defendant[s] _______ for the crime[s]
charged in the indictment, you should so find,

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validity of comparable instructions has been upheld on previous

occasions.4 Furthermore, we have not independently identified

anything in the instruction chosen by the state court judge that
runs afoul of the minimum constitutional requirements identified by

the Supreme Court. Therefore, Nadeau's argument that the Appeals

Court's affirmance of the trial court's instruction was an
"unreasonable application" of Supreme Court precedent must fail.5

See 28 U.S.C. § 2254(d)(1).

II.

We can likewise dispose of Nadeau's second argument
without extensive discussion. Nadeau claims that the Supreme

Court's decision in Milanovich v. United States, 365 U.S. 551

(1961), requires the lower courts to grant a defendant a new trial

even though you may believe that one or more
other unindicted persons are also guilty. But
if any reasonable doubt remains in your minds
after impartial consideration of all the
evidence in the case, it is your duty to find
Defendant[s] _______ not guilty.

O'Malley, et al., Federal Jury Practice and Instructions, § 12.11
(2000).
4
See United States v. Dennis, 645 F.2d 517, 522-23 (5th Cir.
1981), overruled on other grounds by United States v. Lane, 474
U.S. 438 (1986).
5
As a practical matter, we are also not convinced that
Nadeau's ability to present his defense was compromised by the jury
instruction. As the district court noted, "The instruction tells
jurors to ignore whether anyone else was accused (e.g.,
charged/indicted) with the crimes, not whether they actually
committed the crimes." In other words, the instruction directed
the jurors to render a verdict of not guilty unless they were
convinced beyond a reasonable doubt that the defendant before them,
and not some other person, had committed the crimes at issue in the
case.

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when he is convicted of both a theft and possession of stolen

property stemming from the same incident. In reaching the

conclusion that Nadeau's argument was without merit, the
Massachusetts Appeals Court relied upon Commonwealth v. Nascimento,

421 Mass. 677, 683-84, 659 N.E.2d 745, 749-50 (1996), in which the

Massachusetts Supreme Judicial Court explained that Milanovich has
been limited by the later Supreme Court opinion in United States v.

Gaddis, 424 U.S. 544 (1976). Other courts of appeals have

concurred in this assessment, and accordingly have cited Gaddis as

the controlling Supreme Court pronouncement on this issue.

See United States v. Brown, 996 F.2d 1049, 1055 (10th Cir. 1993)

(citing cases from eight other circuits for the proposition that

Milanovich has been de facto overruled by Gaddis).
In light of this overwhelming consensus, we are

unconvinced that the decision of the Massachusetts Appeals Court

"involved an unreasonable application of[] clearly established
Federal law." 28 U.S.C. § 2254(d)(1).6 Therefore, we agree with

the district court that this assignment of error lacks merit.

III.

Accordingly, we affirm the district court's decision to

dismiss the appellant's petition for habeas relief.

6
We need express no view regarding what, if any, lingering
force Milanovich may have in light of the Supreme Court's later
decision in Gaddis. For purposes of habeas review, it is
sufficient to rest our decision on the ground that the
Massachusetts Appeals Court's application of the remedy supplied by
Gaddis rather than Milanovich is not unreasonable.

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