Clarke v. Spencer

United States Court of Appeals
For the First Circuit

No. 08-2476

ALTON CLARKE,

Petitioner, Appellant,

v.

LUIS SPENCER, Superintendent at MCI-Norfolk,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Ebel, * Circuit Judges.

Victoria L. Nadel for appellant.
Susanne G. Reardon, Assistant Attorney General, Martha
Coakley, Attorney General, was on brief for appellee.

September 22, 2009

*
Of the Tenth Circuit, “sitting by designation.”
 EBEL, Circuit Judge. Habeas Petitioner Alton

Clarke appeals the district court’s decision denying him

relief, under 28 U.S.C. § 2254, from his Massachusetts

convictions for kidnapping and rape. Clarke argues that

1) the Commonwealth unconstitutionally used the fact that he

invoked his right to remain silent during a police

interrogation against him at trial; and 2) Clarke’s retrial,

following two earlier trials on similar charges, violated

double jeopardy. We reject these arguments and, having

jurisdiction under 28 U.S.C. § 2253, we AFFIRM.

I. BACKGROUND

A. Factual background

Viewed in the light most favorable to the verdict, see

Brewer v. Marshall, 119 F.3d 993, 995 (1st Cir. 1997), the

evidence presented during Clarke’s third trial established

the following: At approximately 9:30 p.m. one night in March

1995, the victim was walking from her home in Roxbury,

Massachusetts, to a nearby restaurant. A burgundy-colored

car drove up onto the sidewalk, blocking the victim’s path.

A man, unknown to the victim at the time but later

identified as Clarke, jumped out of the car, pointed a gun

at the victim, and pushed her into the car. Clarke then

drove to a home at 22 Skyview Lane, where he forced the

victim into the home’s basement at gunpoint. There, Clarke

3
“raped her by first inserting the gun into her vagina, then

inserting his penis into her vagina, and finally by

inserting his penis into her mouth.” Clarke v. Spencer, 585

F. Supp.2d 196, 200 (D. Mass. 2008).

Several weeks later, the victim “recognized and

identified Clarke as the man who raped her when, by chance,

she ran into him at Boston City Hospital. After a chase by

[the victim’s] boyfriend and hospital security guards,

Clarke was apprehended and taken into custody by Boston

Police officers.” Id.

At the time of his arrest, Clarke told police that he

knew the woman who lived at 22 Skyview Lane, but that he had

never taken another woman there and he had never seen the

woman who was now accusing him of rape. At trial, however,

Clarke testified instead that he met the victim at a club

and she propositioned him, offering sex for money.

According to Clarke, he accepted the offer, paid the woman

half of their agreed-upon fee, and drove her to 22 Skyview

Lane, where he knew the owner would not be at home. Clarke

testified that, once they got to the house, he was unable to

pay the rest of the agreed-upon fee and the woman,

therefore, threatened to accuse Clarke of rape.

B. Procedural background

1. State proceedings

4
 The Commonwealth tried Clarke three times.

a. First trial, occurring in January 1997

Massachusetts initially charged Clarke with five

offenses: “assault and battery with a dangerous weapon,

kidnapping, and three counts of aggravated rape, one count

for each different form of penetration. Clarke’s first

trial . . . resulted in a mistrial when the jury failed to

reach a unanimous verdict.” Id.

b. Second trial, occurring in August 1997

“Clarke was retried in August, 1997, on the same

charges.” Id. The jury convicted him of kidnapping and two

counts of the lesser included offense of rape. See id. at

201. The jury acquitted Clarke of the aggravated portion of

the rape charges, as well as the charge of assault and

battery with a dangerous weapon and the third rape count.

See id. at 201. On direct appeal, however, the Massachusetts

Appeals Court reversed Clarke’s three convictions and

remanded his case for another trial, after concluding the

Commonwealth had improperly used Clarke’s post-Miranda

silence against him at trial. See Commonwealth v. Clarke,

722 N.E.2d 987, 992 (Mass. App. Ct. 2000), further review

denied, 733 N.E.2d 124 (Table) (Mass. 2000).

c. Third trial, occurring in August 2001

5
 Clarke’s third trial, the one at issue here, occurred

in August 2001. The Commonwealth, this time, tried Clarke

only on two charges of rape and one count of kidnapping.

See Clarke, 585 F. Supp. 2d at 201. The third jury

convicted Clarke of all three offenses, and the court

sentenced Clarke to twelve years in prison. See id.

According to Clarke, that sentence was later reduced to

“eight to ten years.” (Aplt. Br. at 4 n.1.)

On direct appeal, the Massachusetts Appeals Court

affirmed Clarke’s convictions, Commonwealth v. Clarke, 799

N.E.2d 605 (Table), 2003 WL 22881000 (Mass App. Ct. Dec. 5,

2003) (unpublished), and the Massachusetts Supreme Judicial

Court denied further review, Commonwealth v. Clarke, 806

N.E.2d 102 (Table) (Mass. Mar. 31, 2004) (unpublished).

2. Federal habeas proceedings

In March 2006, Clarke filed his federal habeas petition

pursuant to 28 U.S.C. § 2254. The district court denied

relief, but granted Clarke a certificate of appealability

(“COA”), see 28 U.S.C. § 2253(c), on the claims he is

currently pursuing on appeal.

II. DISCUSSION

A. Whether the Commonwealth used Clarke’s invocation of his
right to remain silent during a police interrogation
against him at trial

1. Standard of review

6
 Because the Massachusetts Appeals Court addressed and

rejected the merits of this claim, see Clarke, 2003 WL

22881000, at *1, a federal court “shall not” grant Clarke

habeas relief on this basis unless the state appellate

court’s

adjudication of the claim—

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). This court reviews the district

court’s decision to deny § 2254 relief de novo. See John v.

Russo, 561 F.3d 88, 91 (1st Cir. 2009).

2. Merits

The Government may not use at trial the fact that a

defendant, after receiving Miranda 1 warnings, invoked his

right to remain silent. See Anderson v. Charles, 447 U.S.

404, 407-08 (1980); Doyle v. Ohio, 426 U.S. 610, 611 (1976);

Miranda, 384 U.S. at 468 n. 37. A defendant can, however,

knowingly and voluntarily waive his right to remain silent,

see Miranda, 384 U.S. at 444, by, for example, voluntarily

answering questions after receiving Miranda warnings. See

1
Miranda v. Arizona, 384 U.S. 436 (1966).

7
Charles, 447 U.S. at 408; cf. Montejo v. Louisiana, 129

S. Ct. 2079, 2085 (2009) (addressing waiver of Fifth

Amendment right to counsel after Miranda warnings). But

such waiver “is not an all-or-nothing proposition.” United

States v. Andújar-Basco, 488 F.3d 549, 555 (1st Cir. 2007).

A suspect may invoke his right to remain silent in any

manner at any time before or during interrogation. See

Miranda, 384 U.S. at 444-45, 473-74. The First Circuit has

further concluded that “the words the defendant uses to

assert the privilege are themselves protected by it.”

Andújar-Basco, 488 F.3d at 557.

Clarke contends that at trial the Commonwealth, in three

ways, improperly used at trial the fact that he invoked his

right to remain silent during an interrogation.

a. Detective Gavin’s testimony

Clarke first argues that the Commonwealth improperly

used his post-Miranda silence during its direct examination

of Detective Donna Gavin. Gavin testified that when she

interviewed Clarke, following his arrest, Clarke told her

that he had never seen the victim before and that he had

never brought any female guest to 22 Skyview Lane. Gavin

asked Clarke how it was, then, that the victim could

describe the home located at 22 Skyview Lane. But, before

Gavin could explain to the jury Clarke’s answer to that

8
question, the court sustained defense counsel’s objection

because it was in response to that question that Clarke

invoked his right to remain silent. Gavin then testified

simply that the interview had ended shortly thereafter.

The Massachusetts Appeals Court rejected Clarke’s claim

that Detective Gavin’s direct testimony amounted to improper

use of his invoking his right to remain silent at the post-

arrest interview because the trial court sustained the

objection and Gavin never answered the question. See

Clarke, 2003 WL 22881000, at *1. That determination was not

contrary to, nor an unreasonable application of, clearly

established Supreme Court precedent. See Greer v. Miller,

483 U.S. 756, 763-65 (1987).

b. Cross-examination of Clarke

Clarke next argues that the prosecutor improperly used

Clarke’s post-Miranda silence while cross-examining him.

On direct examination, Clarke testified, contrary to

Detective Gavin, that he told the detective that he had once

brought a prostitute to 22 Skyview Lane and that when he

could not pay her, she threatened to accuse him of rape.

During cross-examination, the following exchange occurred:

Q. It’s your testimony ----

A. It’s my testimony today before the jurors that
I did told [Detective Gavin] I brought someone, a
guest, a prostitute, at 22 Skyview Lane.

9
Q. Sir, isn’t it true that you told Detective Gavin
that you never brought anyone to Skyview Lane,
right sir?

A. Totally impossible.

Q. And sir, when she asked you, she asked you,
didn’t she, sir, how the woman would know the
inside and outside of that house, right?

[Defense Counsel]: Objection

THE COURT: Sustained.

[Prosecutor]: Your Honor, may I be heard
at sidebar?

THE COURT: No, you may not. Sustained.
Move on, let’s go.

[Prosecutor]: Your Honor, may I be heard
at side bar?

THE COURT: No, you may not.

Q. You were asked about the description of the
house, correct, Mr. Clarke?

[Defense attorney]: Objection.

THE COURT: Sustained.

Q. Sir, you’d agree with me that Detective Gavin
wouldn’t have asked that question if you had said
that you had brought someone to Skyview Lane,
right, Mr. Clarke?

[Defense Attorney]: Objection.

THE COURT: Sustained.

[Prosecutor]: Your Honor, may I be heard
at side bar?

THE COURT: No, you may not. Let’s move
on.

10
 Q. You’d agree, sir, that that question wouldn’t
make any sense, right, sir?

[Defense Attorney]: Objection.

THE COURT: Sustained.

Q. You’d agree, sir, that Detective Gavin would
have no reason to ask you about how she would be
able to describe the inside and outside of the
house if you had told her that you brought someone
in that house, right, Mr. Clarke?

[Defense Attorney]: Objection.

THE COURT: Sustained.

Q. And Detective Gavin asked you that question,
didn’t she, Mr. Clarke?

[Defense Attorney]: Objection.

THE COURT: Sustained.

(Tr. v. II at 278-80.) Later in the cross-examination, the

prosecutor asked: “When you knew, sir, that mistaken

identity would not work” as a defense, “isn’t that when you

said . . . she was a prostitute?” (Id. at 293.) The trial

court sustained defense counsel’s objection and ordered the

“[j]ury [to] disregard the last question.” (Id.)

The Massachusetts Appeals Court held this

cross-examination did not amount to improper use of Clarke’s

post-Miranda silence, again because the trial court had

sustained defense counsel’s objections to all of those

questions “and the jury consequently never heard the answer

or that it was the defendant, not Detective Gavin, who

11
terminated the interview.” Clarke, 2003 WL 22881000, at *1.

That determination was not contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent.

The Government might improperly “use” a defendant’s

post-Miranda silence simply by posing questions to a

witness, even where the witness does not answer. See Ellen

v. Brady, 475 F.3d 5, 12-14 (1st Cir. 2007). In addition,

“[a] prosecutor’s persistence in referring to the

defendant’s post-Miranda silence . . . may result in a

[constitutional] violation even when no evidence of the

defendant’s silence is submitted to a jury.” 2 Id. at 14.

But that was not the case here.

The prosecutor’s questions did not directly or

indirectly suggest that Clarke might have invoked his right

to remain silent. And the trial court prevented any

response from Clarke from which jurors might have inferred

2
In making this observation, the First Circuit cited,
e.g., Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998), which
found a constitutional violation under much more egregious
circumstances than those presented here. See Ellen, 475
F.3d at 14. In Hill, the prosecutor directly brought to the
jury’s attention Hill’s post-Miranda silence on four
separate occasions over the course of two days of trial,
during the examination of several witnesses and closing
argument. See Hill, 135 F.3d at 1414-16. Under those
circumstances, the Eleventh Circuit held that “the
prosecution’s repeated and deliberate references throughout
Hill’s trial to his post-Miranda silence and request for
counsel violated the Due Process Clause of the Fourteenth
Amendment.” Id. at 1412.

12
that he invoked that right. In addition, both before and

after trial, the court instructed jurors generally to

disregard questions and evidence to which an objection had

been sustained. See Greer, 483 U.S. at 764-65 (addressing

a single objectionable question); see also Andújar-Basco,

488 F.3d at 559-60; Ellen, 475 F.3d at 11.

c. Closing argument

Lastly, Clarke asserts that comments the prosecutor made

during her closing argument amounted to improper use of

Clarke’s post-Miranda silence. The prosecutor argued, in

closing, that Clarke

needs to explain to you today why he said to
Detective Gavin when Detective Gavin said to him,
“Did you ever see that woman before?” “No, I’ve
never seen her before.” “Did you ever take a woman
to 22 Skyview Lane?” “No, I never took a woman to
22 Skyview Lane.” But think about it, ladies and
gentlemen, why would Detective Gavin then ask, why
would she say, “Well, if you never took a woman to
22 Skyview Lane and you don’t know this woman, how
come she can describe the inside and outside of
that house?” Why would she ask that, that wouldn’t
make sense.

(Tr. v. III at 30.)

The Massachusetts Appeals Court held that “there was

nothing improper about the prosecutor’s arguing to the jury

that the story the defendant gave to the detective prior to

ending the interview was inconsistent with his trial

testimony.” Clarke, 2003 WL 22881000, at *1. That

determination, too, was not contrary to, nor an unreasonable

13
application of, clearly established Supreme Court precedent.

The Commonwealth could properly introduce evidence of what

Clarke told Detective Gavin during the interrogation, before

Clarke invoked his right to remain silent. See Charles, 447

U.S. at 408; Andújar-Basco, 488 F.3d at 555. The fact that

what Clarke told Detective Gavin contradicted the story that

Clarke told jurors at trial was fair game during closing

argument.

B. Whether the jury’s verdict in the second trial
precluded Clarke’s third trial on the two rape offenses

At his second trial, the jury acquitted Clarke of

assault and battery with a dangerous weapon, one count of

rape, and the aggravated element of all three rape charges,

but convicted him of kidnapping and two counts of rape. See

Clarke, 2003 WL 22881000, at *1. The Massachusetts Appeals

Court reversed those three convictions, paving the way for

Clarke’s third trial, at issue here. See Clarke, 722 N.E.2d

at 989, 994. On appeal to this court, Clarke asserts two

theories for why the results of his second trial precluded

his retrial on any of the rape counts, or at least precluded

the Commonwealth from presenting at his third trial any

evidence that he had a gun.

1. Whether double jeopardy barred Clarke’s third trial
on any of the rape charges

14
 Clarke’s first theory is that the Double Jeopardy Clause

precluded the Commonwealth from retrying him on any of the

three rape charges.

a. Procedural default

The district court held that for federal habeas purposes

Clarke had procedurally defaulted this claim by failing to

raise it in the state trial court. See Clarke, 585

F. Supp. 2d at 203-04. We disagree. “[A] federal

claimant’s procedural default precludes federal habeas

review . . . only if the last state court rendering a

judgment in the case rests its judgment on the procedural

default.” Harris v. Reed, 489 U.S. 255, 262 (1989).

Although Clarke failed to raise this double-jeopardy

argument before or during his third trial, 3 Clarke did raise

the issue on direct appeal to the Massachusetts Appeals

Court. And, notwithstanding Clarke’s default in the trial

court, the Massachusetts Appeals Court addressed and

rejected this claim on its merits. See Clarke, 2003 WL

22881000, at *2. We, therefore, can address the merits of

3
Prior to his third trial, Clarke did file a motion to
dismiss the indictment, raising a different double-jeopardy
argument—that, because the prosecutor’s actions during the
second trial were taken in an attempt to goad Clarke into
moving for a mistrial, double jeopardy precluded his retrial
on the offenses on which the second jury convicted Clarke.
See Clarke, 2003 WL 22881000, at *1. Clarke does not
reassert that double-jeopardy argument in these habeas
proceedings.

15
Clarke’s double-jeopardy claim here. See Harris, 489 U.S.

at 263 (holding that “a procedural default does not bar

consideration of a federal claim on . . . habeas review

unless the last state court rendering a judgment in the case

clearly and expressly states that its judgment rests on a

state procedural bar” internal quotes omitted)); see also

Carsetti v. Maine, 932 F.2d 1007, 1010 (1st Cir. 1991);

Allen v. Massachusetts, 926 F.2d 74, 78-79 (1st Cir. 1991).

b. Standard of review

Because the state appellate court addressed and rejected

Clarke’s double-jeopardy claim on its merits, this court

“shall not” grant Clarke habeas relief unless the state

appellate court’s “adjudication of the claim” was contrary

to, or an unreasonable application of, clearly established

Supreme Court precedent, or was an unreasonable

determination of the facts in light of the evidence

presented in the state-court proceeding. 28 U.S.C.

§ 2254(d).

c. Merits

Following the reversal of the results of Clarke’s second

trial, the Commonwealth was free to retry him on the

offenses for which he had previously b een

convicted—kidnapping and two rapes—but could not retry him

on the offenses on which the second jury had

16
acquitted—assault and battery with a dangerous weapon,

aggravated rape, and a third rape. See Lockhart v. Nelson,

488 U.S. 33, 38-39 (1988). The problem in this case,

according to Clarke, is that it is unclear on which of the

three rape counts the jury acquitted during the second

trial. The three verdict forms for rape submitted to the

jury during the second trial each listed aggravated rape and

the lesser offense of rape, but did not otherwise specify to

which of the rape charges each verdict form referred—penile

penetration, oral rape, or penetration with the gun. Clarke

contends that, because it was unclear on which of these

three rape charges the jury acquitted, the Commonwealth

could not retry him on any of those three rape charges.

The Massachusetts Appeals Court rejected that argument

see Clarke, 2003 WL 22881000, at *2, concluding that the

trial court had clearly instructed jurors which charged rape

count pertained to each verdict slip:

[L]et me first tell you what the Commonwealth’s
theory is. The Commonwealth is going forward
alleging aggravated rape, three counts of
aggravated rape, first by penetration by the
defendant, the defendant’s penis into [the
victim’s] vagina; second, oral penetration of the
defendant’s penis into her mouth; and, third,
penetration into her vagina by a gun. Those are
the three indictments for aggravated rape.

(D. Ct. Doc. 11, attachment 1, supp. app. at 1.) Because

the jury acquitted Clarke of the third rape count, the state

17
appellate court determined that the second jury acquitted

Clarke of the rape involving penetration with the gun,

Clarke, 2003 WL 22881000, at *2. Therefore, the

Massachusetts Appeals Court concluded that trying Clarke

again on the other two rapes counts did not violate double

jeopardy. See id. That determination was not an

unreasonable application of clearly established Supreme

Court precedent. See Abney v. United States, 431 U.S. 651,

663-65 (1977) (considering, in rejecting double-jeopardy

argument against second trial, jury instructions given

during first trial to determine which of two offenses the

jury convicted the defendant). Nor, on the facts of this

case, was it “an unreasonable determination of the facts in

light of the evidence.” 28 U.S.C. § 2254(d)(2).

As an alternative theory for habeas relief, Clarke

argues that his trial attorney was constitutionally

ineffective for failing to raise this double-jeopardy

argument before or during his third trial. To succeed on

such a claim, Clarke must establish both that his trial

counsel’s performance was deficient and that that deficiency

prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Because we have concluded that

Clarke’s double-jeopardy claim fails on its merits, his

trial attorney was not constitutionally deficient in failing

18
to raise this issue, nor did that failure prejudice Clarke’s

defense.

2. Whether principles of collateral estoppel precluded
the Commonwealth, during Clarke’s third trial, from
introducing evidence that Clarke had a gun

Clarke’s final theory for habeas relief is that, if it

was clear that the jury at his second trial acquitted him of

rape by penetrating the victim with a gun, then the

Commonwealth was collaterally estopped from presenting at

his third trial evidence that he had a gun.

a. Exhaustion

While collateral estoppel is still an “element in the

Double Jeopardy Clause,” such an argument is distinct from

the core concept of Double Jeopardy. See United States v.

Marino, 200 F.3d 6, 9, 12 (1st Cir. 1999). Clarke never

specifically raised his collateral-estoppel argument to the

Massachusetts state courts. It is, thus, unexhausted.

Nevertheless, we can still address the merits of Clarke’s

claim here because we conclude the issue does not warrant

habeas relief. See 28 U.S.C. § 2254(b)(2) (“An application

for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.”)

19
 b. Merits

Because Clarke never raised his collateral-estoppel

claim in the state court, our review is de novo. See

Marino, 200 F.3d at 10.

Collateral estoppel, in the criminal context, “means

simply 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. 436, 443 (1970); see

also Yeager v. United States, 129 S. Ct. 2360, 2367 (2009);

Bobby v. Bies, 129 S. Ct. 2145, 2152 (2009). Clarke asserts

that the jury at his second trial found that he did not have

a gun when he kidnapped and twice raped the victim. Clarke

bases this argument on the jury’s decision to acquit him of

the charges of assault and battery with a dangerous weapon,

rape by penetration with a gun, and aggravated rape, which

may be proven by the use of a gun during the rape.

Assuming, without deciding, that Clarke’s second jury did

20
find that he did not have a gun, 4 Clarke’s

collateral-estoppel argument still does not warrant relief.

The jury at his third trial, in convicting Clarke of

kidnapping and two rape counts, did not necessarily have to

find that Clarke had a gun. See Bies, 129 S. Ct. at 2152

(“A determination ranks as necessary or essential only when

4
In applying collateral estoppel in a criminal context
where, as here, the jury issued a general verdict, we must
“examine the record of the prior proceeding” to determine
what the prior jury necessarily found. Ashe, 397 U.S. at
444 (quotations omitted). In doing so, we will take “into
account the pleadings, evidence, charge, and other relevant
matter” in order to decide “whether a rational jury could
have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.”
Id. (quotation omitted); see also Yeager, 129 S. Ct. at
2367. Clarke bears the burden of proving “unequivocally[]
that the [earlier] jury verdict . . . necessarily included
an implicit factual finding” precluding retrial. Marino,
200 F.3d at 10 (quotations omitted); see also Dowling v.
United States, 493 U.S. 342, 350 (1990). But Clarke, who
has been represented by counsel throughout these federal
habeas proceedings, has failed to provide this court with a
record from the second trial sufficient to permit us to
conduct such a review. See Dowling, 493 U.S. at 351-52
(rejecting collateral-estoppel argument where defendant had
failed to show that prior prosecution necessarily decided
issue sought to be precluded in subsequent prosecution).

“If a judgment does not depend on a given determination,
relitigation of that determination is not precluded”; “[a]
determination ranks as necessary or essential only when the
final outcome hinges on it.” Bies, 129 S. Ct. at 2152. The
district court, in denying habeas relief, held that Clarke
had failed to show that his second jury found that he had no
gun, suggesting that, even in light of the acquittals, the
jury still would not necessarily have had to find that
Clarke had no gun. See Clarke, 585 F. Supp.2d at 208.
Clarke has failed to present to us an adequate record for us
to challenge that conclusion.

21
the final outcome hinges on it.”). Therefore, the jury did

not have to make a finding of ultimate fact that

contradicted the second jury’s findings. See Dowling, 493

U.S. at 348 (rejecting collateral-estoppel claim where,

“unlike the situation in Ashe . . . , the prior acquittal

did not determine an ultimate issue in the present case”);

Marino, 200 F.3d at 9 (noting that, “[w]hen a jury reaches

a general verdict of acquittal on certain counts, . . . the

defendant may argue that the jury must have based its

acquittal on certain factual findings favorable to him, and

that those findings bar any retrial on other counts upon

which he was not acquitted, since his conviction in the

retrial necessarily would depend on the jury at retrial

reaching contrary findings as to the same essential facts”)

(emphasis added); United States v. Dray, 901 F.2d 1132, 1136

(1st Cir. 1990) (noting that, “if an issue determined in a

prior proceeding between the same parties (or their privies)

constitutes a necessary element of a subsequent prosecution,

collateral estoppel will likely operate as a complete bar to

the latter prosecution”) (emphasis added).

Here, in the third trial, Clarke was charged with one

count of kidnapping and two counts of rape. None of those

counts required proof that Clarke had or used a gun. Thus,

there is no double jeopardy problem, even assuming the jury

22
in the second trial determined that Clarke did not use a gun

during these crimes.

Nevertheless, evidence that Clarke used a gun was still

relevant evidence to help explain how Clarke was able to

force the victim into his car and to compel her to submit to

his sexual demands. Even reading the second verdict as

Clarke argues, all that can be determined from the second

verdict is that the jury found the government had failed to

prove the existence of a gun “beyond a reasonable doubt.”

But that is not the test for the introduction of relevant

evidence in the third trial; that only requires that the

evidence be probative — that it tends to explain or

strengthen or make an asserted act more likely than not to

be true. Clarke never objected to the introduction of this

evidence on the grounds that it was not relevant. See

Dowling, 493 U.S. at 348, 350 (declining to extend Ashe “to

exclude in all circumstances . . . relevant and probative

evidence that is otherwise admissible under the Rules of

Evidence simply because it relates to alleged criminal

conduct for which a defendant has been acquitted”).

This case is similar to Dowling, in which the Supreme

Court held that the prosecution could present evidence of a

prior robbery, of which the defendant had already been

acquitted, as evidence of other crimes or bad acts under

23
Fed. R. Evid. 404(b). See 493 U.S. at 348, 350. Dowling

specifically noted that, to present evidence of other bad

acts under Fed. R. Evid. 404(b), the prosecution need not

prove the defendant committed that act beyond a reasonable

doubt, but only that the jury could “reasonably conclude

that the act occurred and that the defendant was the actor.”

493 U.S. at 348-49. In Dowling, then, “[t]he Supreme Court

rejected the [collateral-estoppel] claim, pointing to the

difference in the burden[s] of proof” between convicting a

defendant and establishing the evidence’s admissibility.

Rossetti v. Curran, 80 F.3d 1, 5 (1st Cir. 1996); see also

United States v. Felix, 503 U.S. 378, 386 (1992). Under

Massachusetts law, the proponent of evidence at trial, upon

general objection, only “has the burden . . . of satisfying

the trial judge that the proposed evidence has rational

probative value.” H.E. Fletcher Co. v. Commonwealth, 214

N.E.2d 721, 725 (Mass. 1966); see generally Rossetti, 80

F.3d at 5 (noting that “[n]o intermediate fact need be

proved beyond a reasonable doubt, so long as the crime

itself is proved beyond a reasonable doubt”). For these

reasons, Clarke has failed to establish that habeas relief

is warranted under his collateral-estoppel claim.

III. CONCLUSION

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 For the foregoing reasons, we AFFIRM the district

court’s decision denying Clark habeas relief.

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