Rossetti v. Curran

• Decision Date: 10 January 1996
• Docket Number: No. 95-1978,95-1978
• Parties: 44 Fed. R. Evid. Serv. 197 Stephen ROSSETTI, Petitioner, Appellee, v. John J. CURRAN, Chairman, Commonwealth of Massachusetts Parole Board, Respondent, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

80 F.3d 1

44 Fed. R. Evid. Serv. 197

Stephen ROSSETTI, Petitioner, Appellee, v. John J. CURRAN, Chairman, Commonwealth of Massachusetts Parole Board, Respondent, Appellant.

No. 95-1978.

United States Court of Appeals First Circuit.

Heard Jan. 10, 1996.

Decided March 21, 1996.

Appeal from the United States District Court for the District of Massachusetts; Hon. Nancy J. Gertner, U.S. District Judge.

Elisabeth J. Medvedow, Assistant Attorney General, Criminal Bureau, with whom Scott Harshbarger, Attorney General, Boston, MA, was on brief for respondent.

Matthew A. Kamholtz with whom Matthew H. Feinberg and Segal & Feinberg, Boston, MA, were on brief for petitioner.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

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 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 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 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, 20 Mass.App.Ct. 221, 479 N.E.2d 198, further rev. denied, 395 Mass. 1104, 482 N.E.2d 328, 396 Mass. 1102, 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, 90 S.Ct. 1189, 25 L.Ed.2d 469 (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 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, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992), and we consider first the district court's ruling that the second prosecution was barred entirely under Ashe v. Swenson. 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, 92 S.Ct. 509, 511-12, 30 L.Ed.2d 438 (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, --- U.S. ----, 115 S.Ct. 940, 130 L.Ed.2d 885 (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, 89 S.Ct. 2056, 23 L.Ed.2d 707 (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 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (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, 90 S.Ct. at 1193. 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.

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 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 participation in the conspiracy in Rossetti'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, 402 Mass. 476, 524 N.E.2d 63, 65 (1988). If the jury accepted Rossetti's alibi for the day of the crime,...