Rossetti v. Curran

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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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).

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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

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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.

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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.