Benson v. Superior Court Dept. of Trial Court of Mass.

• Decision Date: 09 November 1981
• Docket Number: No. 81-1162,81-1162
• Parties: Albert B. BENSON and Viktor E. Benson, Petitioners, Appellants, v. SUPERIOR COURT DEPARTMENT OF the TRIAL COURT OF MASSACHUSETTS and Francis X. Bellotti, as he is Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 355

663 F.2d 355

Albert B. BENSON and Viktor E. Benson, Petitioners, Appellants, v. SUPERIOR COURT DEPARTMENT OF the TRIAL COURT OF

MASSACHUSETTS and Francis X. Bellotti, as he is

Attorney General of the Commonwealth of

Massachusetts, Respondents, Appellees.

No. 81-1162.

United States Court of Appeals, First Circuit.

Argued Sept. 15, 1981.

Decided Nov. 9, 1981.

John C. Martland, and Murray P. Reiser, Boston, Mass., with whom Jordan L. Ring, Ring & Rudnick, and Reiser & Rosenberg, Boston, Mass., were on brief, for appellants.

John J. Bonistalli, Sp. Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., and Stephen R. Delinsky, Asst. Atty. Gen. Needham, Mass., Chief, Criminal Bureau, were on brief, for appellees.

Before COFFIN, Chief Judge, VAN DUSEN, Senior Circuit Judge ^*, BOWNES, Circuit Judge.

COFFIN, Chief Judge.

Appellants, previously acquitted of the charges of arson and breaking and entering with intent to commit arson, now face trial on the charge of conspiring to commit arson. They come before us claiming that the double jeopardy clause bars their prosecution for the crime of conspiracy, or, alternatively, that collateral estoppel, as embodied in the double jeopardy clause, limits the facts and issues that can be litigated during the trial on the conspiracy charge. They seek relief under 42 U.S.C. § 1983 and our habeas corpus jurisdiction.

I.

On the evening of December 20, 1978, Massachusetts state police observed appellants, Albert and Viktor Benson, entering and exiting from an office building that erupted into fire shortly after their departure. The Bensons were arrested and, indicted with identical charges of arson, breaking and entering with intent to commit arson, and conspiracy to commit arson. Because Massachusetts law at that time prevented the Commonwealth from trying them for the substantive crimes at the same time it tried them for conspiracy to commit the same substantive crimes, Mass.Gen. Laws ch. 278, § 2A (repealed 1979), the Commonwealth chose to prosecute first for the substantive crimes. Appellants were acquitted.

The state subsequently undertook to start proceedings on the conspiracy count. Although the state admits that it has no direct evidence of a conspiracy, it seeks to prove conspiracy by use of inferential and circumstantial evidence. Appellants have argued that, given the wording of the instructions to the jury, the acquittal on the charges of the substantive crimes included an acquittal on the conspiracy charge. Their primary contention, however, has been that the state does not have any substantial proof of conspiracy and that it will in fact try to prove conspiracy by trying to show that appellants actually set the fire and therefore must have participated in an agreement between themselves sufficient to constitute a conspiracy.

Appellants raised these objections before the state trial court by filing a pre-trial motion to dismiss, alleging that double jeopardy requires that the entire proceeding be barred because the facts the government will try to prove have already been found in their favor, and by filing a motion in limine requesting the court to issue an order to prevent the government from reintroducing facts and theories of facts that were rejected at the first trial. The Massachusetts Superior Court denied both motions.

Appellants appealed these decisions to the extent of filing with one member of the Massachusetts Supreme Judicial Court an application for leave to take an interlocutory appeal. Apparently because the Massachusetts Rules of Criminal Procedure specifically allow a defendant to raise on interlocutory appeal issues spurred by a ruling on a motion to suppress, appellants characterized the trial court's rulings as refusals to suppress evidence. See Mass.R.Crim.P. 15(b)(2). The Justice to whom they appealed denied their application without prejudice to their right to renew the objections in the course of the trial proceedings.

Thereupon, appellants filed suit in the federal district court, seeking a writ of habeas corpus barring the prosecution or a writ barring the relitigation of all issues and facts necessarily determined in their favor at the previous trial. They also alleged that under § 1983 they were entitled to a declaratory order dismissing the indictment or both declaratory and injunctive relief preventing the Commonwealth from relitigating issues previously determined. Finding that it had jurisdiction to address these claims, the district court, 507 F.Supp. 975, concluded that the double jeopardy clause does not require that the prosecution be barred. It did, however, issue an order stating that the Commonwealth is foreclosed from claiming or arguing that appellants set the fire or aided, counseled or procurred the burning of the building.

II.

We address first the question whether the double jeopardy clause requires that the prosecution on the conspiracy charge be barred by the acquittal on the substantive crimes. This question is framed by appellants both as a petition for a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254 and as a prayer for a declaratory order under 42 U.S.C. § 1983.

With respect to the petition for a writ of habeas corpus, our primary concern is whether appellants have properly exhausted their claim. Exhaustion presents a peculiar question in the context of a petition for a writ of habeas corpus brought before the state proceeding has even begun. Section 2254, which requires exhaustion, applies only to petitions filed after the state has rendered a judgment and hence affords neither a source of power nor a definition of exhaustion applicable to this case. Section 2241, which empowers courts to issue writs and makes no mention of exhaustion, has been interpreted to allow a court to grant a writ before a defendant has exhausted his claim at trial, but only in unusual circumstances. See Ex Parte Royall, 117 U.S. 241, 251-53, 6 S.Ct. 734, 740-41, 29 L.Ed. 868 (1886). The Supreme Court has reasoned that federal courts, despite their power to issue writs, must respect the authority and ability of state courts to protect constitutional rights in the first instance. See Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 489-90, 93 S.Ct. 1123, 1126-27, 35 L.Ed.2d 443 (1973); Ex Parte Royall, supra, 117 U.S. at 251-53, 6 S.Ct. at 740-41. Thus, while it may be possible for a court to consider issuing a writ before the trial has taken place and before the state court has had a chance to decide the constitutional issue, the circumstances under which this should be allowed must be very carefully examined. See generally Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975).

We have in the past implicitly recognized that a threat to a defendant's right to be protected from double jeopardy can be a sufficiently extraordinary circumstance to allow a federal court to review a petition for a writ of habeas corpus without awaiting exhaustion of the claim by completion of the state trial. See Reinstein v. Superior Court Dept. of the Trial Court of Massachusetts, 661 F.2d 255 (1st Cir. 1981). This recognition is well-founded. Because the double jeopardy clause is designed to protect a defendant not only from double conviction but also from being subjected twice to the trial process itself, Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed. 199 (1957), a federal court is in the extraordinary position of having no way to protect a defendant's constitutional right other than to consider a petition before trial. See generally Drayton v. Hayes, 589 F.2d 117, 120-21 (2d Cir. 1979); United States ex rel. Triano v. Superior Court of New Jersey, 393 F.Supp. 1061, 1067 (D.N.J.1975), aff'd without opinion, 523 F.2d 1052 (3d Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 787, 46 L.Ed. 645 (1976); Grizzle v. Turner, 387 F.Supp. 1, 4-5 (W.D.Okla.1975).

Recognition of the general principle that a petition based on a double jeopardy claim may be considered before trial does not mean, however, that a defendant is relieved of all responsibility to exhaust what pre-trial opportunities he may have to raise the claim before the state court. It is with a sense of cautiousness in keeping with the comity concerns underlying the exhaustion doctrine that we examine the measures appellants have taken to exhaust their claim that the prosecution should be barred.

Appellants did present the allegation that the double jeopardy clause requires dismissal of the conspiracy indictment to the trial court by filing a motion to dismiss. When their motion was denied, however, they sought interlocutory appeal from one member of the Supreme Judicial Court only to the extent of arguing that the double jeopardy clause required granting of their motion for "suppression of the evidence", not as here, that the prosecution should be barred. The Supreme Court clearly has required that the claim exhausted in the state court be the same claim presented in federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed. 438 (1...