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 amen

as follows:

On page

2, line

1, replace

"1991" with

line 2, replace "1992" with "1982".

"1981".

On

same pa

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,
________________________
Bureau, with whom

Assistant

Attorney

Scott Harshbarger, Attorney

_________________

General,

Crimi

General, was on

br

for respondent.
Matthew A. Kamholtz with
____________________

whom Matthew H. Feinberg

____________________

Feinberg were on brief for petitioner.

________

____________________

March 21, 1996

____________________

and Segal
_____

BOUDIN, Circuit Judge.

_____________

In

acquitted of armed robbery in

convicted in

robbery.

same.

state court

1981, Stephen

state court.

of conspiracy

Rossetti was

In 1982,

to commit

he was

the same

Much of the evidence used in the two trials was the

In

a habeas

corpus proceeding,

the district

ruled that

the second

principles

and ordered Rossetti released without possibility

of

prosecution violated

court

retrial. The Commonwealth

now appeals.

double jeopardy

For the reasons

that follow, we modify the district court's judgment.

I.

The

charges against

robbery of

bank

a Brink's armored

in the Jamaica Plain

1980.

in cash from the

the bank

entrance

possibly masked.

another leveled

when

of the

truck in the parking

truck and was

he was

at the

jumped into a car and drove

guard.

lot of a

filled with

carrying it toward

approached

men asked

armed

on December 4,

just removed a sack

One of the

a shotgun

arose out

section of Boston

A Brink's guard had

$150,000

three

Rossetti

by

three

men,

for the money;

and

Ultimately,

the

off, taking the money and

the guard's pistol.

In both

the

trials, the

prosecution built its

testimony of Joseph Smith,

case around

who testified that

he was a

fourth participant

waiting

pursuers.

in the

in a second car

His

December 4

to assist if

testimony was

robbery who

had been

necessary by blocking

crucial to

the prosecution's

-2-2-

case.

Although there

was ample

evidence of

the robbery,

neither

the Brink's

guards nor

anyone else

Rossetti as one of the perpetrators.

witness

evidence,

Rossetti's

other than

participation

in

could identify

Nor was there any eye-

Smith's

testimony, to

the conspiracy

to

prove

commit the

robbery.

Smith

four

was not an ideal

days after the

escape from

the Deer

witness.

Brink's robbery

Island House

of

He

had been arrested

on a

warrant charging

Correction; he

offered the government information about the Brink's job.

exchange, the Commonwealth promised

then

In

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

June 1981,

with

armed

(Rossetti I),
__________

Rossetti was the

robbery.

which took

sole defendant and

Under

place in

was charged

Massachusetts

law,

the

Commonwealth was prohibited from trying the conspiracy in the

same trial

as the

moved for joinder.

substantive offense unless

Mass. R. Cr. P. 9(e).

the defendant

Smith described in

detail the course of the robbery on the morning of December 4

and

Rossetti's participation in it.

briefly the preparations for

He also described more

the crime--including a visit to

-3-3-

the bank

on Thanksgiving

and the theft of

Day, the final

planning sessions,

cars on December 3--and Rossetti's

role in

those preparations.

The Commonwealth also

the

police

hidden cash

money.

had

presented physical evidence

recovered from

Rossetti's

with serial numbers corresponding

The police

that led them to

had also found

home, including

to the stolen

a key in Rossetti's

a locker located in

that

another building.

room

In

the locker,

the

robbery,

police discovered

including the

clothing and weapons

Brink's

guard's

tied to

pistol and

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

Through

Rossetti

role

testimony

the robbery

from

his

evidence,

than

mother

also sought to establish

the robbery (and for

physical

in

and

had

admitted.

his

girlfriend,

an alibi for

the time of

Thanksgiving Day).

witnesses

he

And to

testified that

explain the

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

place

commit the Brink's

in December

similar

to

1982, and

Rossetti I.
___________

robbery.

the pattern

After

the

two

This

trial took

of the

trial was

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

also

described the

robbery and Rossetti's

role in

it but

dwelt at length on several meetings Smith had held with

Rossetti and other conspirators prior to December 4.

Again,

Smith was

examination

and

by impeaching

offered alibi evidence

witnesses

items

testified

from Smith's

convicted

of

for the

denied, 482

testimony.

date of the

that Rossetti

apartment.

conspiracy.

Commonwealth v.
____________

rev.

vigorously attacked,

The

had

All

Rossetti again

crime.

Again,

taken incriminating

convictions

328, 484

cross-

three defendants

Royce, 479 N.E.2d 198

_____

N.E.2d

both on

were

were affirmed,

(Mass. App.), further

_______

N.E.2d

102 (1985),

and

____________

Rossetti's request for post-conviction relief

in state court

was denied.

In September 1990, Rossetti

for habeas corpus relief.

second prosecution

as construed

in

filed in the district court

The district court held

was barred by the

Ashe
____

v.

Swenson,
_______

Rossetti v. Curran, 891 F. Supp.

________
______

that the

double jeopardy clause

397

U.S.

436

36 (D. Mass. 1995).

(1970).

In the

alternative, the district court held that, even if the second

prosecution had

constitutional

been proper,

error

participation in the

by

the state court

admitting evidence

had committed

of

Rossetti's

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
______________

Cir.), cert.

v. Aguilar-Aranceta,
________________

denied, 506 U.S.

957

834 (1992),

F.2d

18, 21

and we

(1st

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

Connor,
______

404 U.S.

court and

was thus lost,

270, 275-76

(1971), but

in our

view the

and preserved.

See
___

Scarpa v.
______

issue was

adequately raised

Dubois, 38
______

F.3d 1, 6 (1st

see Picard
___ ______

v.

Cir. 1994), cert. denied, 115 S.

_____________

Ct. 940 (1995).

The Fifth Amendment, held to apply to the states through

the

Fourteenth Amendment,

shall "be subject

provides in

for the same

jeopardy of life or limb."

part that

offense to

no person

be twice put

Benton v. Maryland, 395 U.S.

in

784

______

(1969).

A layman might

prosecuted

________

think that Rossetti

for the same criminal venture.

had been twice

But armed robbery

and conspiracy to commit armed robbery are separately defined

crimes under

that

the

Supreme

Massachusetts law and each

other

Court

does

not.

precedent,

double jeopardy purposes.

requires an element

Accordingly,

they

are

under

separate

governing

offenses for

Blockburger v. United States, 284

___________
_____________

-6-6-

U.S. 299 (1932).

But the

protection by

Rossetti does not suggest otherwise.

Supreme

Court has

broadened

incorporating into

double

the clause the

jeopardy

concept of

collateral estoppel, so that "when an issue of ultimate

has

issue

any

this

once been determined by a valid and final judgment, that

cannot again be litigated between

future lawsuit."

Ashe v. Swenson,
____
_______

case, the district

reasoned that, in light

the

fact

armed robbery

court invoked

the same parties in

397 U.S. at 443.

Ashe v.
____

Swenson and
_______

of the evidence and instructions

trial, the

jury in

the first

In

in

trial had

necessarily determined

that Rossetti

had

not conspired
_________

to

commit the armed robbery.

Of course,

first

case, so

conspiracy was not the crime

the

acquittal on

standing alone tell us

to

conspiracy.

upon Rossetti to

robbery does

what, if anything, the jury

And under

the conspiracy

favor.

Aguilar-Aranceta,
________________

jury had

issue and

957 F.2d

district court

evidence and instructions.

not,

found as

settled precedent, the burden was

show that the

decided

assessment, the

armed

charged in the

in the first

decided it

at 23.

case

in Rossetti's

In making

quite properly

this

examined the

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

Smith's claim,

the district

robbery.

In rejecting

court concluded, the

jury also

rejected his

the

briefer account of

Rossetti's participation in

conspiracy to commit the crime.

view,

the

first

trial

therefore

In the district court's

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 formation

Commonwealth
____________

of [an]

unlawful

agreement or

conspiracy is

combination."

v. Pero, 524 N.E.2d 63, 65 (Mass. 1988). If the

____

jury accepted Rossetti's alibi

could

"The heart of a

easily have

acquitted

for the day of the

him of

crime, it

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

girlfriend

them

at the

provided

an

time

of the

robbery.

And

exculpatory explanation

as

the

to how

Rossetti

came later to possess the money associated with the

robbery;

his possession of the

weapons

were stored

Smith's weakness

was

key to the

never directly

as a witness,

locker where the

explained.

the alibi could

Given

easily have

supplied reasonable doubt, and the alibi did not preclude the

possibility that Rossetti had conspired beforehand.

-8-8-

The

district court's

the criminal joint

the

first

conclusion rested

secondarily on

venture instruction given to the

trial.

The

joint

venture

jury in

theory

under

Massachusetts law is designed to make "an active participant"

in

a crime,

(Mass.

Commonwealth v.
____________

1991), liable

for

Stewart, 582
_______

the crime

even

N.E.2d 514,

if his

role

limited to his presence coupled with an intent to aid in

crime if

necessary.

Commonwealth v.
____________

519

is

the

Cunningham, 543 N.E.2d

__________

12,

15 (Mass. 1989).

which

But

we reprint in an

the charge

given in

appendix, was more

this case,

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

Unfortunately for

least

charge

as

and

acquittal does

to

provide

Rossetti, the latter

likely as

pointing

ready

the former;

both ways.

there

Thus, the

not necessarily, or even

assistance.

interpretation is at

is language

jury's

in the

verdict of

probably, reflect a

finding that Rossetti was innocent of conspiracy.

III.

The

district

court

Rossetti was entitled to a

first trial, the district

held,

in

new trial.

the

alternative,

The acquittal

that

in the

court reasoned, established at the

-9-9-

very

least that Rossetti had

not been engaged

in the armed

robbery itself

on

(or more precisely, found

this point).

again

offered

Yet,

in the

Smith's

second trial

testimony

participated in the robbery

a reasonable doubt

that

the prosecutor

Rossetti

had

itself, inviting the second jury

to contradict the first.

For more than a decade after Ashe v. Swenson, this offer

____
_______

of

evidence

second trial

armed

by the

to find that

robbery--would

estoppel branch

States
______

True,

prosecutor--inviting

clearly have

of double

purpose

was

jury in

Rossetti had participated

offended

to

825 F.2d

help

different offense not foreclosed

the

the

in the

the collateral

jeopardy doctrine.

v. Gonzalez-Sanchez,
________________

the

the

572 (1st

E.g., United
____ ______

Cir. 1987).

prosecutor

prove

by the first verdict, i.e.,

____

that Rossetti had conspired to commit armed robbery.

evidence

of

his

participation

designed to prove the very

in the

robbery

But the

was

still

conduct (armed robbery) of

which

the first jury had acquitted Rossetti.

Two

decided

decades after

Dowling
_______

There, the

Swenson, the
_______

United States, 493

______________

federal government

bank robbery;

the

v.

Ashe v.
____

U.S.

Evid. 404--offered

armed, had sought

342

prosecuted Dowling

and because the bank robbers

prosecutor--as

Supreme Court

identification

evidence

proof that Dowling,

(1990).

for armed

had been masked,

under

Fed. R.

similarly masked and

to rob a private home two

weeks later and

-10-10-

had

been

unmasked

prosecutor's

trial,

problem

Dowling had

and identified

was that

been tried

in

prior

the

to

struggle.

the bank

and acquitted

The

robbery

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

The

Court

Supreme

rejected

difference in the burden of

jury

house

had found that the

robbery

the

claim,

proof.

double jeopardy.

pointing

to

the

In the first trial,

the

government had failed

beyond a

reasonable

doubt;

to prove the

in the

second,

Dowling's presence in the house merely needed to be proved as

likelihood in

robbery case.

If the

our

order to

help the

government in

the bank

Id. at 348-49.
___

reasoning of Dowling is
_______

own case, the Commonwealth

federal constitutional

was arguably free--so far as

law is concerned--to

robbery evidence in Rossetti II.

____________

be proved beyond

applied mechanically to

a reasonable

offer the

bank

No intermediate fact

need

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

could

convict

beyond a reasonable doubt.

Smith

gave

that

Rossetti

had

that

proceeds

and

implements of the robbery had been linked with Rossetti.

But

direct

testimony

conspired;

if

the

without the

and

jury

participated in

in

the

also
____

the

robbery

evidence:

A jury

second trial

prosecutor

believed

proved

that

the robbery, guilt on

Rossetti

had

likely

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

related to

establish

identity,

an

entirely

criminal transaction, i.e., the housebreaking.

____

different

The district

court continued:

While the offenses in Dowling occurred at different

_______
times,

with

different

victims and

different participants, the

involved

of

acquitted

raises

conduct

issues

of

in

degree

offenses at issue here

the same participants,

and followed a day later.

to

the same offense,

Surely the admissibility

this

fairness

case
and

necessarily

dimensions

prejudice which the [Supreme] Court in Dowling

_______

of
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

the one

where

the two

crimes relate

to

set of

-12-12-

events.

to

But to distinguish Dowling on this ground is simply

_______

quarrel

comprise

with

Blockburger's
___________

different offenses.

test

It

of

would be

when

two

crimes

easy enough

to

quarrel; in fact, the

closer to using a

Supreme Court for a brief

period came

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

the acquitted conduct may

inference of guilt

drawn from

be more weighty in this

case than

in Dowling precisely because of the close relationship of the

_______

two crimes.

for
___

Yet, that could easily be offered as an argument

admissibility here.

probative

highly

value against

probative in

Cf. Fed.
___

relevance).

R. Evid.

Plainly

conspiracy trial

to

403 (balancing

it would

show that

be

the

defendant

accused

probably carried

of

out

planning

the very

crime

with

crime alleged

others

to have

had

been

planned.

Further, in one important respect, there is less risk of

unfair
______

prejudice in this case than in Dowling.

_______

threat

of unfair prejudice in a Rule 404(b) case is that the

jury

will infer

other bad

have

acted

that

acts, he has

in

forbidden by Rule

because the

defendant has

a "bad character"

conformity

therewith.

404(a), is largely

-13-13-

The ordinary

committed

and is

likely to

This

inference,

submerged by the

more

obvious and permissible inference that

___________

participated

in

the

crime

that

was

because the defendant

the

object

of

the

conspiracy, he was guilty of the conspiracy as well.1

And

yet

the

arguments, assuming

Commonwealth

instead that

Rossetti for conspiracy, the

has

made

while it

none

was free

in the armed robbery

by

Why

v.

Swenson.
_______

these

to try

prosecutor's use of evidence of

Rossetti's participation

Ashe
____

of

the

was forbidden

Commonwealth

made

this

concession

is

unclear:

Massachusetts case which

decided

prior to

persuaded

it

may

have

In

the

only

armed

undue

robbery

all events, we hold the

was

Commonwealth was

distinction

placed

to

v. Swenson but
_______

the district court but

here--that

harmless error.

cites

Possibly, the

district court's

argument--rejected by

Commonwealth

brief

relied on Ashe
____

Dowling.
_______

by the

alternatively,

its

of Dowling;
_______

faith

in

its

renewed by the

evidence

was

Commonwealth to

its waiver.

Although

very

doubtful

about

attempted distinction of Dowling,

_______

the

district

court's

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

connected

admissible when,
with the

one

on

as here,
trial

incidentally involves the other."

855 F.2d

12,

27 (1st

Cir.

it
as

is "so
that

-14-14-

proof

of

one

United States v. Dworken,

_____________
_______

1988) (emphasis

removed).

blended or

and

citations

the

issue for

a case

litigate the point.

Dowling
_______

could

in a

at

district

in which

the prosecution

Just how the Supreme Court

slightly different

least

chooses to

be

debated.

court's main

context is

Given

ruling, the

our

would apply

a matter

rejection

Commonwealth is

that

of the

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

dubitante that
_________

the second

harmless

the armed

trial, that

error

defense.

robbery evidence was

"error" was

Assuming

precluded in

not harmless

under the

standard test.

(1993)

Brecht
______

(error is

injurious

harmless

effect

verdict").

v. Abrahamson, 113 S. Ct.

__________

or

if it

influence

O'Neal v.
______

evidence

conspiracy

of

and the

no "substantial

in determining

the

McAninch, 115 S. Ct. 992,

________

This is so even though we agree

other

has

1710, 1722

and

jury's

995 (1995).

with the government that the

conspiracy

(Smith's

real evidence)

testimony

is impressive,

as

to

if taken

most favorably to the government.

But in appraising harmless error, we do not look only at

the

government's best case but

whole.

United States
_____________

rather at the

v. Innamorati,
__________

evidence as a

996 F.2d

456, 475-76

(1st Cir.), cert. denied, 114 S. Ct. 409 & 459 (1993).
____________

was

witness

that

the

jury

could

easily

Smith

choose

to

-15-15-

disbelieve.

evidence

was

explanation

Smith's

And

Rossetti's possession of

explained, although

far-fetched

and

it was

jury

some of the

might think

certainly

real

the

incomplete.

detailed evidence of Rossetti's actual participation

in the robbery itself could easily have altered the outcome.

The

judgment

of

provide for issuance

the

district court

is

modified
________

to

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

furtherance of its object each

other in all matters
of

in

is the agent of the

relating to the common object

the enterprise and the acts of one are the acts

of all.

To be

engaged

however, a person must

Merely being

in a

joint

enterprise,

actively participate in it.

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
be committed and did absolutely nothing
it.
is

to

to prevent

What must be proved is that the defendant who

charged on

the theory

some way associated himself

of joint

enterprise in

with the venture; that

is, he participated in it as something he wished to

bring

about

as

an

active

distinguished from merely being

scene

when some other

participant

as

present or at

the

person committed a criminal

act.

On the other hand, a person may be a participant in

the commission of
performed
crime
charged

a crime without

any physical

was

committed.

act at
If

under the theory

the

having actually

the time

when the

defendant who

of joint

is

enterprise has

put himself in a position

or location where he can

render

encouragement

assistance

or

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

of

the crime

first

of robbery,

of all,

beyond a

you must

be satisfied,

reasonable doubt

participated with others in this

guilty

that he

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
those

location where he might

aid or assist

persons in the commission of the crime.

You

must

be satisfied that this defendant combined and

confederated

in

advance

with

accomplish an illegal purpose.

the

others

to