*1 reasonably be to call expected could not husband Brazil.3 COLA,
Palhava’s Plaintiff, Appellant, Neil R. the facts circumstanc- light of all and known to at the undisputedly es Coleman REARDON, H. Charles Sheriff of Essex Palhava, we hold that no time he arrested County, Defendant, Appellee. find jury could did reasonable that Coleman No. 85-1324. The probable cause to arrest. have summary to grant court’s decision Appeals, district United States Court of judgment in favor the defendants First Circuit.
affirmed. Argued Sept. 1985.
Decided March 1986. following explanation particular signed person The is the Dr. which made out to Hosmany Ramos at Palhava's crimi- blank. Ramos called Varella-Cid to find out put nal their to have trial as to how stolen checks made what name "Garcia” check way possession. only com- he instructed it made into Palhava’s Our and Ramos to have out to wife, impossible ment it would be to Ana When the deal is that almost Palhava. with completed, convey single telephone this information in a “Garcia” was Ramos received two $24,500 payable call. to checks: one made Ana Garcia, signed by George and and Palhava one Janeiro, April Near the end of in Rio de $9,500 payable made Ramos to himself and Ameri- a mutual friend introduced Ramos to an signed by George also Garcia. can had because Ramos diamonds to sell. agreed and Now Ramos contacted Varella-Cid George Garcia. American identified himself as the car to meet him in Sao Paolo to finish sale. met with "Garcia” four times in order to Ramos airport driving Varella-Cid met Ramos at the negotiate for the Ra- a deal sale of diamonds. They stopped Mercedes which was for sale. mos that "Garcia” knew about dia- understood get gas suggested they and then Varella-Cid he wanted the diamonds monds because to see go get to his house to his other car before building daytime. They top on the of a pick up driving $35,000 to the service station to Ramos’ finally agreed price on a of about and old Mercedes. When Ramos saw Varella- pay in but that "Garcia" would American checks he Cid’s other car a 1981 Porsche decided more time to think it over. Ramos wanted buy later, he would rather that car Varella-Cid days with Three or four Ramos met price husband, Varella-Cid, agreed $30,000 They negotiated sell it. because Palhava’s deal for the Porsche. The new was that repairing man Mercedes told who was Ramos’ get plus would Ramos’ old Mercedes Varella-Cid Varella-Cid had a Mercedes for Ramos that new $10,000 $60,000 get would Ra- about and Ramos sale. asked for his car. Varella-Cid So, check Palhava endorsed the which proposed mos to trade him his old Mercedes Porsche. payable gave plus along had been made to her back two diamonds he had $24,500. extremely ex- plus him Mercedes are to Ramos. day proposed duty. a new deal. pensive import Ra- The next Varella-Cid in Brazil due keep willing both checks and one if he He would take of the mos Varella-Cid would be asked money would take back one checks of the diamonds. Ramos take the American instead of agreed diamonds and his old Mercedes and he Palhava's account Varella-Cid agree- keep They typed up he could would Porsche but in the New York bank. gave cleared because dia- title to it until the checks ment Ramos the two Varella-Cid the checks wanted to see if Varella-Cid monds. good sent Palhava to or not. Varella-Cid then to Rio to meet with "Garcia.” Ramos returned the two York and Boston to have checks if Ramos like to have two New "Garcia" asked would account. deposited in her York bank them New rather than one if he wanted checks *2 trial; (2) rationales of the Massachusetts Court and the below; (3) analysis district claim; (4) lant’s due issues raised the Commonwealth on appeal. *3 I. FACTUAL BACKGROUND 7, 1982, Cola, appellant On December employed by then an attorney the Massa- Revenue, Department chusetts was charged separate under indictments with two violations of the state’s conflict in- statute, terest Mass.Gen.Laws ch. 268A. (“the first indictment financial interest indictment”) charged Cola with violating Stephen Perry with whom D. M. Thomas 268, 6, by ch. participat- Mass.Gen.Laws § Roseman, Casner, Edwards & Edwards and ing in a family matter in which he and his brief, Boston, Mass., plaintiff, on were second, (“the a had financial interest. The appellant. indictment”), agency him of accused violat- Robinson, Gen., Atty. Asst. Francis L. 268A, 4(c), ch. by Mass.Gen.Laws § Bellotti, Gen., Atty. X. with whom Francis acting agent for someone other than the Boston, brief, Mass., were on for defend- in Commonwealth of Massachusetts a mat- ant, appellee. ter in which the Commonwealth a state agency party was and had a a direct and COFFIN, ALDRICH and TOR- Before charges substantial interest. The related RUELLA, Judges. Circuit dealings to certain that Cola business had TORRUELLA, Judge. in a friend Circuit become involved with named Michael Rapp. appeal This from the denial of a is an a trial in petition by day jury filed Neil After seven Suffolk habeas R. Cola Court, Superior convicted of challenge his state court under a Cola was both conviction Appellant’s charges. motion for a new trial was Massachusetts statute. central His interest that he was not denied. For the financial convic- contention is convicted $3,000, and jury state tion Cola fined for the but rather tribu- agency he was sentenced to one nal on never raised at conviction year prison. appeal process requires On Massachu- trial. Court, convictions setts both guilt to determined based on the case as affirmed, Supreme Judicial argues that his and the presented Cola application for further re- unconstitutionally affirmed denied Cola’s conviction was view. on a not set forth at trial. Supreme Due to Court’s decision petition then filed a habeas Cola States, 442
Dunn v. United
the Dis-
United States District
(1979),
the trustee
bank,
Cola. Cola then went to a
cashed the
States Internal Rev-
sentative of
United
check,
$20,000
as fol-
distributed
chapter
and the trustee in the
enue Service
$11,000 Volpe
repay
lows:
his loan
reorganization. The trustee later testi-
$2,000
pay
premium;
Com-
through-
fied that Cola—who was
Massachusetts; $3,500
monwealth of
previously
had
hearing
out the
and who
Edison;
$3,500
remaining
Boston
and the
*5
assigned
represent
the Common-
been
Rapp
in cash.
interests
therein —stated to the
wealth
had no ob-
judge
Commonwealth
particu-
3.
indictment and bill
The
of
of the trustee.
jections to the removal
lars
this,
disputed
asserting that he had
merely in the
silent and was
remained
background
With the above
of
evi-
on his lunch
courtroom as an observer
trial,
turn to consid-
dence
repre-
did not
hour. Cola further stated he
claim,
aspect of Cola’s
that not
er one
the interests of the Commonwealth
sent
at odds
was the
aside for lunch.
during the time he set
that it was at
with the
but
“lunch
Respondents refer to this as Cola’s
(and hence,
by)
not forewarned
odds with
hour defense.”
as narrowed
the bill of
the indictment
gen-
“agency
The
indictment”
particulars.
then removed
The trustee was
language
of the Massa-
erally followed
$30,000
eventually repaid the
Rapp
court.
statute, and read as follows:
chusetts
later in June of 1980.
six months
to Cola
contrast,
creditors, by
The unsecured
COLA,
employee,
state
com-
NEIL R.
Rapp’s tax debt continued to
paid.
never
the month
mencing at a time in or about
rate of six to nine thousand
escalate at a
December,
continuing
from
1979
1981, Rapp
per
April
month.
In
dollars
occasions
time and on different
time to
proceeding
11
to a
chapter
converted
should offer un-
opportunity therefore
time,
At that
his
liquidation.
7
chapter
Sep-
month of
time in or about the
til a
obligation to the Commonwealth
unpaid tax
tember,
County
in the
at Boston
1980
$400,000.
exceeded
Suffolk,
locations
and at other diverse
County
of Suffolk
both within
$10,000 loan/payback
2. The
without,
employee
being a state
while
discharge
his
proper
chapter
not in
September of
while the
offi-
attorney
agent or
did act as
Rapp
cial duties
pending,
still
proceeding
other than the Common-
cash,
someone
which Cola volunteered
again needed
particular
a wealth in connection
disputed wheth-
help
procure.
him
It is
$10,000
the Commonwealth
in which
matter
expressed his need for the
Rapp
er
agency is a party
and a state
and has a
3. The collection of taxes due the Com-
interest,3
direct and substantial
monwealth of Massachusetts.
added).
(Emphasis
payment
4. The
of taxes due the Com-
monwealth of Massachusetts.
particulars
for a bill of
Cola’s motion
requested
prosecution
make the
5. The
representation
defendant’s
following clarifications:
Framingham
interests of
Food
identity
party
for whom
Services, Inc. and one Michael Rapp.
alleged
the defendant
to have act-
this,
Further than
the Commonwealth is
agent
attorney
or
ed as
other than
particularize
unable to
the Commonwealth.
time.
2. The acts
which he
defendant
(Emphasis added).
performed
employee
as a state
be-
The indictment
particulars
and the bill of
December,
tween
Septem-
1979 and
together
must be read
and the indictment
ber, 1980 which were not
is limited
clarifica-
proper discharge
his
official
tions.
Leavitt,
Commonwealth v.
duties.
Mass.App.Ct. 585, 595,
4. The identification of the direct and were, cy proceeding substantial interest of the Common- late guilt, court’s he asserts that particular wealth in the matter re- such improperly omitted from *6 ferred to in the indictment. (as the indictment by narrowed the bill of 5. The means which the Common- particulars). (Emphasis added). The Commonwealth answered as follows: Michael committed. wealth alleges Rapp, Framingham the offenses were Food Ford Services Inc. in granting a second that Cola acted as in acts of Second, paragraph agency Cola “2,” alleged by argues only the first agent that of the three for Framingham government two— [1] Services, Inc. mortgage Utopia Realty Trust, and [2] 2. The for Inc. defendant in Framingham granting acted as second Food mortgage agent Services, [1] ing a loan from Volpe Cola acted as proof at trial. Cola fur- Rapp’s agent —were subject in obtain- of Utopia Realty Trust ... ther asserts that respec- these two [2] for acts— Rapp
Michael obtaining $30,000 tively, $10,000 a loan loan trans- from for Inc. corporation, other than in the Framingham one John payment Volpe Food of [and] debts to the Services, ... of Com- [3] his court’s actions described above—were also the fo- cus of the summation, prosecutor’s and the thrust of the jury. opening Accordingly, statement, monwealth. argues Cola that the Commonwealth’s theo- 3. The statute under which agent Cola was convicted anyone ... as ... in connection provided: any particular with matter in which the Com- shall, employee "No state monwealth ... has a direct and otherwise than substantial duties, 268A, proper discharge 4(c). ch., his interest." official act Mass.Gen.Laws in denial indictment was claimed error of his motions for a agency ry guilt transactions. solely finding guilty on the loan of not required based as to each support indictment. To his view of error Cola, problem, argues process The due court, alleged the trial Cola appeal. his For the in the course of arose judge’s at trial and the instructions Court, reviewing Appeals Massachusetts transactions, below, focused on the loan acts seems to have claims of error Cola’s in the loan participation they allegedly held that Cola’s which because never Rather, at all. was no crime transactions particular government to a inter- connected behavior at bank- the crime was Cola’s taxes, not in est collection could where, by protesting ruptcy proceeding 4(c). be crimes under Cola’s view More- trustee, in effect Cola the removal of over, objected to regarded Cola what he agent. Rapp’s acted as theory guilt prosecu- concocted then, necessarily is not argument, Cola’s only purposes appeal; tor name- bankruptcy pro- at the that his behavior ly, agency that Cola’s illicit act of was not he a crime. Neither does ceeding was not participation his in the loan transac- the mat- fact that evidence on dispute the representation” tions but “covert Rather, jury. Cola ter was before Rapp bankruptcy proceeding. at the incidental vis such evidence was claims that petition, purposes For of this habeas case or a vis the portions relevant Court deci- jury. This guilt presented to the addressing objections sion are those Cola’s Cola, argues was the loan transac- guilt, legal judge’s instructions and the the state tribunal tions found and factual basis for the conviction Accordingly, citing the no crime. to be Court, indictment. Cola asserts Massachusetts guilt upon which acts or not constitute a crime. he was tried did judge’s 1. The instructions Further, States, citing Dunn v. United rejected chal- L.Ed.2d 743 lenge judge’s instructions to the (1979), appeals asserts that the state had ground that Cola’s trial counsel on the his conviction on a theo- upholding charge, ap- content of the negotiated the presented at violated ry of it, right to have such and then remained parently his due consented in- set forth in the determined on basis presented two different when silent dictment and object. cit- at trial to opportunities contemporaneous Massachusetts ing the addressing Cola’s claim and Before rule,4 given the court noted objection it, to we find it nec- government’s rebuttal *7 the object at holdings failure to the exact of Cola’s essary to set forth the and the whether Appeals question Court would be the Massachusetts residual whole, district court below. create a as a would charge, viewed miscarriage justice. a of risk of substantial OF THE MASSA- II. THE HOLDINGS Cola, supra, Commonwealth AND APPEALS COURT CHUSETTS found While the court N.E.2d at 1099. COURT BELOW THE DISTRICT nonetheless charge, in the defects certain court appeals A. The state the relevant judge described noted that accuracy, which reasonable statutes with appeals arguments to the state Cola’s powerful the Commonwealth’s “taken with (1) essentially three: he chal- court were evidence,” it un- court to conclude led the government’s sufficiency of the lenged the by any misled jury had been likely the evidence; (2) in the errors he claimed (3) defects. Id. jury; and he instructions to the judge’s 1, supra, text of rule. note 4. See agency Appeals
2. The
indictment
The Massachusetts
a
was then faced with
dilemma. On the
began
portion
court
of
hand,
one
it had conceded that the
focus
restating,
words,
its
its
opinion by
proof had been the loan
case
sup-
as
essence of
transactions,
the theory
guilt
and that
at trial: that
ported by the evidence
“Cola
based on such transactions was “faulty.”
(i.e.,
S & S
Rapp
acted for
someone So, the bulk of Cola’s trial focused on non
Commonwealth) to minimize
other than the
hand,
criminal behavior. On the other
payment
(i.e.,
state taxes
delay
a Appeals Court reviewed the record and
which
particular matter in
the Common-
found testimony regarding acts committed
and substantial
wealth had a direct
inter- by
crime,
Cola that
did constitute
name
est)
Id.,
N.E.2d at 1101.
This
...”
ly,
object
his failure to
to the removal Cola’s,
role of
“tax
minimization”
consequent
the trustee and
covert repre
regarded
satisfying
as
court
ele-
sentation of
Rapp
bankruptcy pro
ments of the
was estab-
dilemma,
ceeding. Hence the
for under
by
following
lished in the court’s view the
States,
Dunn
supra,
v. United
it is a viola
three acts of Cola:
of due
to affirm a conviction
tions,
though
phasize
Id.
Rather,
court as most
But
self,
wealth
000 and
tor’s
ty.”
both in its
reduction of tax
nities
The court
lated to
...
the c. 11
would
opening
encouraging
under the
taxes;
[1]
This was that
appeared
Cola’s
the acts
the court
by filing
keep
participation
$10,000
apply
constitute
proceeded
bill
reorganization,
clearly constituting
participation
as evidenced
the tax collector at
to focus
regarded by
[3]
returns for
discharge
summation,
arrearages.
loan
particulars
by passing
noted,
loan
to notice a
4(c)
solely
transactions,
proceeds
Commonwealth,
the Common-
violation. Id.
of the trustee
who was
loan transac-
[Rapp]
these,
did
opinion,
on the
up opportu-
and in
“difficul-
prosecu-
a crime.
bay;
not em-
calcu-
$30,-
pay-
did in
its
[2]
it-
tions
ty
debts of the
than
N.E.2d at 1102.
ment of third item
lars,
ticulars,
Framingham Food
indictment as narrowed
presented to
ruptcy proceeding
tion at the
government’s case.6
deed set forth in the indictment and was
ny
ment nor
on a basis neither
As to whether Cola’s actions at the bank-
effect
of interest and
that Cola “acted as an
between all the
to the Commonwealth.”
stating
guilt
Dunn,
Appeals
mentioned
bankruptcy proceeding
Court read the above
—covert
Properly noting
that Cola had generally
had to establish that its
Services,
Court,
arguably
set
in the
Rapp corporations,
forth in
as a focus of the
or dual
corporation,
to survive scruti
the bill of
Inc. in
bill of
subject
points
sham distinc-
representa
agent
the indict
the identi-
—was
Id.,
quote
at trial.
particu-
other
pay-
par-
in
not constitute criminal conduct. The theo-
(and
agent
acted as Rapp’s
merely
ry
transactions,
the loan
based on
Service,
agent
Framingham
Inc.)
Food
Court,
said the
“faulty.”5
payment
Id.
of debts other than to the
Commonwealth,
468 N.E.2d at
general concept
1101-1102.
within
*8
apply
5. We
participation
are bound
a state
Cola’s
the
to
court’s
loan transaction was
4(c).
Ponte,
not a crime under §
statement of
See
local
law.
Tarrant v.
(1st Cir.1985);
Hunter,
691 trial, that, therefore, appel- his to affirm on determining whether the means of theory indeed before different would violate due late opening, the prosecutor’s process. As to jury. appel- reflect the felt it did
district court regard not it as hence did late judge’s charge jury to the 3. The Dunn, any problems presenting plainly The district court states that the First, although the district reasons. two charge only focused on judge’s to the prosecu- characterized had earlier court loans, respect actions to the Cola’s proceed- bankruptcy to the references tor’s hence, did not address criminal behav- concluded “passing,” it nonetheless ing as 9, However, on this issue ior. Id. at last arguable at least that the is that “[i]t the district court followed the Massachu- encompassed the matters which 15 lines Court, and, supported citing the con- the state’s found setts Thus, implicitly rule, the district court contemporaneous objection noted that viction.” “arguable” references regarded any right object to the trial Cola’s court to the prosecutor appeal instructions on waived court’s requirement that the satisfying the Dunn object his failure to at trial. correspond stated the district Cola’s failure concluded, Second, the district court trial. showing of cause object at absent a citation, any deficiency pre- that without precluded him from chal- prejudice, — deficiency under Dunn sumably even petition lenging in a instructions sufficiency of because the —was waived corpus. Wainwright v. for habeas See never chal- statement was opening 2497, 72, 53 433 U.S. 97 S.Ct. Sykes, required finding motion for a lenged by a (1977); v. McLaughlin L.Ed.2d 594 Ga- arriving at 9. In guilty. not Id. (1st Cir.1984). 7, 9 Accord- briel, F.2d conclusion, ad- court did not the district found no ingly, because the district court that the constitu- contention dress Cola’s showing required by the above of cause as objected he error to which tional —an cases, claim. Id. at 10. it disallowed Cola’s theory not set affirmance on a late tribunal conclusion, however, the court noted occurred, and yet at trial —had forth application of the it not for its that were therefore, upon impose rule, it would contemporaneous objection any constitu- object prior obligation to writ, granted since require unrealistic would be to tional error presented case clearly indicated the foresight. powers solely the non- focusing jury to be one closing argument, As to the at 11. loan transactions. Id. criminal any connec- again noted district court theory to be Appeals Court III. ANALYSIS regarded the connec- court The tenuous. habeas by noting that Cola’s begin We exclusively” to tion, “almost any, if to be asserts a in essence petition, which Id. themselves. loan transactions under our claim, us is not before observations, the district Despite these Rather, Cola powers. supervisory federal requirements for clos- find no could court af- tribunal’s challenges a state prohibition from the arguments apart that fed- Given of his conviction. firmance improperly prejudicial statements. against powers supervisory have no eral courts prosecu- Accordingly, it concluded that in- proceedings, federal judicial over state closing sung have waived tor could well to correct proper here tervention “Columbia, without the Gem of Ocean” correct “er- only to imperfections but mere sufficiency of the case legal affecting the See, dimension.” of constitutional rors By implication, Id. (1st Cir. Gabriel, 732 F.2d v. Lacy rejected the district suppose, 1984); Phillips, 455 “Columbia, Smith the Gem Cola’s contention 940, 948, 71 L.Ed.2d 102 S.Ct. sung at had anyone was all of the Ocean” latter, therefore, case between and that similarities variance be- States, supra, are 30) v. United (only September Dunn tween the indictment *11 involved a federal worthy notice. Dunn proof the trial (September at 30 and statute, Organized Title IV of the perjury 21) not fatal. October was 1970, Act 18 U.S.C. Crime Control Court, Supreme in reviewing The the 1623, false prohibits which declarations § decision, disapproved any Tenth Circuit’s any proceeding made oath “in before under characterization the a issue as variance ancillary grand jury to or Indeed, regarded issue. because the Court issue, apart the The from United States.” proof centrally focusing the at trial on discussion, process the was how to September statement, 30 no saw vari- “ancillary” proceedings that define such ance at all. Both indictment and the subject would false statements made proof September at trial involved 30. The declarant to 1623. as with the § problem involved fundamental due case, present originated Dunn with de- concepts by jury, of notice trial which how to bate over define criminal conduct. led the Court to state: background Along with of a statute uphold To a conviction a charge on subject differing interpretations, to the de- alleged that was in neither an indictment Cola, Dunn, to Mr. fendant similar had presented a jury nor to at trial offends one committed more than act. Dunn had most process. basic notions of due occasions, essentially lied on in a two once principles Few constitutional are more lawyer’s September again office on 30 and firmly established than a defendant’s 21 evidentiary hearing an October right to be on the specific charges heard where, part, adopted for the most he of which he is accused: See Eaton v. September 30 statements. Tulsa, 697, 415 U.S. 698-699 S.Ct. [94 charging per- The indictment Dunn with 1228, 1229, (1974) 39 L.Ed.2d (per 693] Sep- 1623 mentioned curiam); Louisiana, Garner v. 368 U.S. statement, 30 tember and not state- 248, 251, 163-164 S.Ct. 7 L.Ed.2d [82 trial, govern- ment of October 21. At (1961); Arkansas, v. Cole 333 U.S. 207] proof on September ment centered its 514, 517, 201 S.Ct. 92 L.Ed. [68 644] government 30 statement. The also (1948); Jonge Oregon, De 299 U.S. evidence, although signifi- 255, 259, 362 81 L.Ed. [57 278] cant, on the 21 October statement.9 Unlike is, sure, glaring There no Cola, objected Dunn at trial to admis- distinction between the Government’s sion 21 re- October statement and theory at trial and the Tenth Circuit’s objection acquit- newed his in motion for analysis appeal. jury might on well support motion, tal. To this latter Dunn’s have reached same verdict had the argument was similar to state prosecution built its case petitioner’s on appeal. Septem- Dunn contended testimony 21 adopting Sep- October statement, ber proof the focus of tember 30 statement rather than on the requisite not made in the “ancil- was September hence, statement itself. But the of- lary proceeding,” and was not a defined, fense was all. not so crime at are not courts free revise the basis on appeal, agreed On the Tenth Circuit simply defendant convicted September Dunn statement likely result because the same would ob- However, noting no crime. September tain retrial. 30 and October 21 “inex- statements to be related,” tricably Id., 106-07, the court concluded that 2194- U.S. at 99 S.Ct. clearly Dunn had been on notice
9. This evidence was in the form of rebuttal tember 30 statement. Sep- Dunn's assertion had that he not made the itself, distinguish theory hard-pressed were at best inciden-
We are
Frankly,
tally present,
put,
or better
present
coherently
case from Dunn.
glaring distinction” between
at all.
also see “no
of the Massachusetts
We arrive at the conclusion that the
trial. The “dual
and the
Massachusetts
Court’s
theory can be ad
representation” appellate
only incidentally
before the
based on
facts. But it was not the
duced from the
very analysis
set forth
Dunn and
focus',
requires,
or as Dunn
While the
Chiarella.
Chiarella
the case was tried
“the
on which
largely
judge’s charge,
focused
on the
Id., 442
jury.”
and submitted
Court, in order
*12
Dunn
to determine the
106,
Reference to the
at
Accordingly, while we concede that were
best
“arguable” references
representa
between the
supporting
evidence
the dual
ference
Accordingly, be-
here and side-references.
theory
jury,
before the
we cannot
was
side-refer-
pros
as a matter of law mere
any
concluding
find
for
that the
cause
basis
suffice to
prosecutor
do not
ecution
its case” on such evidence.
ences
“built
place theory
before the
we conclude
meaningful attempt
was made
no
opening
constitu-
theory
prosecutor’s
the evidence to the
to relate
See, Dunn,
supra,
sup
tionally infirm.
adopted
appeal.
on
the evidence
2194-95,
106-07,
porting
appellate theory, as well as the U.S. at
99 S.Ct.
because we find the
tentative state-
11. We note that
10. We find the district court’s
meaningfully
any
be
not to
quite helpful: "the case ...
ment of the rule also
stages
principal
we need not decide
in a
[must
been]
stages, specifically,
of whether certain
the issue
manner which directed their attention
charge
prosecutor’s
judge’s
summa
the
tion,
Appeals
viola-
Court found
conduct which
weight
scrutiny
oth
than
deserve more
Reardon, supra at 6.
tive of the statute.” Cola v.
that,
However,
in order for
we do decide
ers.
been
court noted that this had not
The district
supporting the
evidence
for the Common-
done but nonetheless
ruled
weight,
given
evidence must be related
such
6,
11-12.
wealth.
Id.
and not
prosecutor
699-700,
pp.
unexplained. See
left
infra.
Chiarella,
charge here
supra,
sufficiently
Dunn as to the case before the
the trial —such
the prosecutor’s
as
summa-
Thus,
prosecutors may
while
be free to
judge’s charge
tion
the
jury—
closing
sing
waive
“Columbia the Gem
purpose
are examined not for the
of find-
Ocean,” they
of the
must beware when ing
resolving
inherent error but for
the
case,
such becomes the nature
their
“evidentiary” inquiry
determining
the
especially, when such
not the
af-
is
case
jury.
exact case before the
an
by
appellate
firmed
tribunal.
contemporane
the
apply
to
objection
ous
rule to due
chal
charge
2.
judge’s
lenges
to
under Dunn is
misunderstand
judge’s charge
jury,
As to the
complained
the nature of the error
about.
judge
Dunn,
the
in
note that
similar to
contemporaneous objec
In the traditional
judge,
competently
Cola’s
most
described
situation,
error
inheres
However,
the statute at issue.
also like
thus,
judge’s charge;
it is
to
reasonable
judge,
judge
pro-
the trial
in Dunn
require objection at the time of the error.
ceeded to discuss
noncriminal acts al-
situation, however,
In the Dunn
the error
indictment,
leged by
prosecution in
its
affirmance;
appellate
inheres in the
implying
thus
that these
serve as the
could
thus,
error
yet
has not
occurred at the
in
guilty
Finally,
basis for
verdict.
as
judge’s charge. Accordingly,
time of the
Chiarella,
judge
in
tangen-
Cola’s trial
require
object
to
defendants to
to
tially
referred to the conduct later found
prior
appellate opin
tribunal errors
to
however,
Appeals
criminal;
Court to be
is,
view,
ion itself
in our
to
unrea
impose
phrase
an
in
reiterate that
isolated
foresight.12 See, e.g.,
sonable demands
instructions,
ap-
arguably implies
York,
F.Supp.
Dlugash
v. State Newof
pellate
does
suffice
(E.D.N.Y.1979).
Id. at 237
Thus,
that, Chiarella,
Supreme
n.
late
set
forth in
indictment.
accept
if
Ap
Even we were to
law,
This cannot be the
addition to
peals
conclusion that the
Court’s
third al notice,
process requires
a trial in which
leged
act
set
in paragraph
forth
criminal defendants are able to confront
encompasses
2 implicitly
theo
case. See Jackson v.
ry,
314,
we nonetheless hold that Dunn re Virginia, 443
quires
(“It
(1979)
be set forth
agency). not see because we do the re- dundancy paragraph providing any 5 as
697
upon
appellate
not tried constitutes a
of the
are endorsed
added);
(emphasis
process.”)
denial of due
Supreme
There,
Court in Dunn.
the basis
196,
Arkansas, 333 U.S.
see also Cole v.
that,
of the Tenth Circuit’s affirmance was
514, 517,
(1947).
201, 68
sion,
as our conclusion that
as well
di-
are errors of constitutional
meaningful
no
notice our
provides
indictment
Accordingly,
reject
ample
mension.
we
the Com-
jury
evidence before the
corrob-
contention here.
monwealth’s
orating
appellate
that,
theory, we hold
presentation by
absent a
prosecutor
Appeals
3. The
Court decision and the
relating
appellate
such evidence to the
the-
presumption
correctness under
of
ory,
abridged.
is nonetheless
2254(d)
§
point,
As to our first
we note that the
The Commonwealth’s basic claim
Court,
Appeals
applied
the state
Appeals
here is that
Court’s conclu
rule,
contemporaneous objection
did not
sion—that its
of
was submitted
judge’s charge
consider the
as
of
evidence
jury
“finding
of fact” entitled
—is
However,
the case before the jury.
we
presumption
to a
under
correctness
already
that,
concluded
in inquiries
2254(d)
Mata,
U.S.C.
Sumner v.
§
under Dunn as to the case
jury,
before the
702 S.Ct.
place
jury,
reject
the case before the
appellate theory.
In the total context of
propriety
Appeals
the
Court’s con-
reference to the bankruptcy pro-
clusion,
2254(d).
despite §
ceeding
especially, to Cola’s nonobjec-
—and
(the
tion to the
removal
the trustee
prosecutor’s opening
As
act
state-
of dual representation)
ment,
best limit-
again
we once
note that the context
—was
ed, especially
compared
when
agency indictment,
volu-
clearly
is not
that of the
minous discussion of the loan
moreover,
transactions.
reading
and
that a
of the state-
however,
accepting,
Even
Appeals
simply
ap-
ment
does not communicate the
finding
ample evidence,
Court’s
we do
pellate theory.
although we
in-
are
not, under the circumstances of a flawed
clined
find no
appellate
to
connection to the
relation of such
facts to the
theo-
theory,
willing
adopt
gener-
we are
ry
guilt, regard
having
ous-view of the district court that a nexus
preserved.
been
However,
“arguable.”
is
again
con-
that,
law, arguable
clude
as a matter of
above,
question,
The
as noted
incidental references do not survive due
Supreme
answered
Court in Dunn.
that,
process scrutiny,
accordingly, any
There, the
noted that
while evidence
2254(d)
presumption
soundly
fully supporting
appellate theory
had
overcome.
jury,
prosecution
before the
been
had
point,
We now come to our second
which not “built
its case” on such evidence.
finding substantially Dunn,
addresses a “factual”
supra 442 U.S. at
upon by
Court,
relied
Court and the
Accordingly,
2194.
noted the
short,
district court
In
below.
both courts
had
offense
not been
terms of
defined
(and
Court)
especially
hence,
appellate theory,
pres
conclud-
ed that admitted flaws in the
unexplained
ence of such
evidence would
presentation
judge’s charge
process.
and the
could not reinstate due
Id.19
of the Dunn court are
The above
mere
incidental
level,
statements
or unex-
good
but
are
rule,
references
they
policy.
plained
prosecutor
ap-
a rule
implicitly
adopts
do not assure that
the conviction
pellate theory
there is more than sufficient evidence of
where
decided,
was so
Court has decided
Supreme
guilt
jury
before the
we can
presume
circumstances,
such
the better
that, under
pre-
theories
discarded
erroneous
a conviction for noncriminal
is one of
sumption
judge.
offered
prosecutor
Chiarella, supra,
conduct. See
U.S. at
n.
this means that we can
to have
presume
Likewise,
n. 21.
we feel
21,
evidence
analysis20
The traditional variance
of-
and,
therefore find such evi-
because we
fered
the Commonwealth here involves
unexplained,
First,
to have been left
three
elements.
dence
notable
variance
spoken of is a variance
the indict-
between
presence
evidence is irrelevant to
of such
Thus,
proof
ment and the
at trial.
According-
here.
the due
violation
purposes
the foremost
of indictments are
2254(d)
reject
any
ly,
as immaterial
§
protection
notice and
from retrial for the
presumption
respect
offense,
same
courts have concluded that
finding
ample
Court’s
evidence. Like-
presence
of either element would ren-
wise,
reject
apparent
as erroneous the
der the variance “harmless” or not fatal.
legal conclusion of the
Court that
The second notable element of this harm-
alleged ample
evidence here could cure
less variance doctrine follows from the
prosecutor
failure of the
to relate
such
harmlessness;
very possibility of
appellate theory.
evidence
presence
of a variance between the
independent
Based on our
review of the
proof
indictment and the
at trial does not
record,
per
finally,
constitute
se error.
we therefore conclude that
Third
perhaps because variances between indict-
statement,
prosecutor’s opening
closing
proof
regarded
ments and
at trial are not
judge’s charge
statement and the
error,
per
proof
se
the burden of
as to
compared
when
the-
placed
error
defendants,
has been
on
who
ory
are
must not
show that the variance exists
Rather,
simply not the same.
the central
but also that the variance is “fatal.” To
indeed,
principal stage,
theme of each
error,
establish such fatal
defendants must
trial,
the central theme of Cola’s
was an
opportu-
establish either lack of notice and
agency conviction based on the loan trans-
defend,
nity
jeopardy
or lack of double
bankruptcy pro-
actions. Reference to the
protection. Accordingly,
ability
ceeding,
clearly present,
while
made in
was
prove either element renders the variance
the context of the financial interest indict-
fatal.
best,
agen-
ment. At
a nexus between the
argument
The Commonwealth’s fourth
cy
bankruptcy proceed-
indictment and the
denying
petition
Cola’s habeas
thus in-
amorphously
passing,
offered
so
following
volves
claim: the Dunn deci-
divine,
would somehow
sion, since it also mentions the indictment
articulate,
independently
the-
particulars,
as narrowed
the bill of
can
ory.
corroborating
The evidence at trial
approached
under the harmless variance
left,
unfortunate-
doctrine,
(i)
whereby
finding
of either
Court,
ly,
in a similar limbo. The
adequate
opportunity
notice and an
to de-
view, fundamentally misinterpreted
in our
(ii)
ability
fend or
to invoke double
legal significance
the factual and
retrial,
protection
jeopardy
upon
pre-
would
proof
principal stages
of trial.
process challenges
clude due
to an
reject
the Commonwealth’s contention
late
not set forth at trial.
any
2254(d)
presumption
words,
ap-
In other
§
Commonwealth
pears
arguing
assuming
not overridden.
to be
even
doctrine,
certiorari,
hearing
any appeal,
20. This
writ
known
the harmless vari-
"On
52(a),
error,
ance rule and reflected in Fed.R.Crim.P.
of
case,
or motion for a new
States,
originated
78,
Berger
criminal,
v. United
295 U.S.
give
civil or
the court shall
(1935). Berger
55 S.Ct.
L.Ed. 1314
judgment after an examination of the entire
application
involved
of the "harmless error stat-
regard
record before the
without
ute,"
(28
269 of the Judicial Code as amended
§
errors, defects,
exceptions
technical
391),
U.S.C.
between the indict-
variances
rights
do not affect the substantial
ment and
at trial. The harmless error
parties.”
provides
statute
as follows:
*19
prosecution
did not
tal sixth amendment issues of confronta-
(and
theory
guilt
hence,
late
of
tion and trial by
we have strong res-
appellate theory
“varied” from the
against
ervations
unquestioning application
trial),
theory at
such a flaw would not be of the harmless variance doctrine.
(i)
fatal due to
either
indications of
Our conclusion that the harmless vari
adequate
of and
against
awareness
defense
may
ance doctrine
be here constitutionally
charge
being
charged
that he was
inapposite
is bolstered
the apparent re
wrongdoing
bankruptcy proceeding,
at the
jection by
Supreme Court,
in Dunn and
(ii)
or
protected,
fact that Cola is
under
Chiarella,
typical
analysis
variance
clause,
jeopardy
being
the double
from
re-
per
favor
Dunn,
se rule.
In
the Court
bankruptcy pro-
tried for his actions in the
specifically noted
because both the
ceeding.21
proof
indictment and the
at trial focused on
begin by acknowledging
We
a similarity
conduct,
noncriminal
variance was not the
typical
between
and
Dunn
variance
problem.
because the Dunn1 Court
case. Each
inquiry
involves
as to whether
regarded
de novo
a certain formal statement or rationale of
offending “the most basic notions of due
respectively,
pretrial
indictment
—
process,” it
and,
reversed the Tenth
particulars
as narrowed
the bill of
Circuit
post-trial ground
by implication, rejected
affirm-
the Tenth Circuit’s
corresponds to the actual events at
conclusion that the
complained
“variance”
ance—
trial,
hence,
probable
and
determina-
of in
approached
Dunn could be
case,
tions of the
In
policy
each
analysis.
Dunn,
harmless variance
See
su
adequate
speci-
notice is clear. Without
105-07,
pra,
U.S. at
which the
offense, clearly upon. instructed one, bad, claim, given
jury was either ones, good more
one one or bad and fails to show it chose a
the verdict States,
good v. United one. See Chiarella 21,100 237 n.
445 U.S. On either
n. 63 L.Ed.2d fundamentally unfair.
basis this was
Henry MALACHOWSKI Julia
Malachowski, Plaintiffs,
Appellants, *22 KEENE, al.,
CITY OF et
Defendants, Appellees.
No. 85-1583. Appeals,
United States Court of
First Circuit. Nov. 1985.
Submitted
Decided March