Appendix — Benson v. Massachusetts

= | Office -s Court, US

83-255 FIRM PiT yD

AUG 15 1982

No. -.. PTE

Pi Eee STEVAS

In the

Supreme Court of the United States.

Ocroser Term, 1983.

ALBERT B. BENSON anv VIKTOR E. BENSON,

PETITIONERS,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Appendix to Petition for a Writ of Certiorari to the

Supreme Judicial Court for the

Commonwealth of Massachusetts.

Murray P. Reiser, JorDAN L. RInc,

Eric H. Karp, Counsel of Record

Reiser & ROSENBERG, Joun C. MARTLAND,

4 Longfellow Place, Rinc & Rupnick,

Boston, Massachusetts 02114. 55 Union Street,

(617) 742-1810 Boston, Massachusetts 02108.

Attorneys for Petitioner (617) 523-0250

Viktor E. Benson Attorneys for Petitioner

Albert B. Benson

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

OPINION SOUGHT TO BE REVIEWED

Opinion, Supreme Judicial Court, Commonwealth

of Massachusetts, June 15, 1983 la

OPINIONS, ORDERS, AND RULINGS BELOW

“Rulings and Decision on Motion to Dismiss,” Suffolk

County Superior Court, (Hayer, J.), December 26,

1979 lla

Oral Order, Suffolk Superior Court, (O’Neil, J.),

April 15, 1980 2la

Opinion, Suffolk Superior Court, (O’Neil, J.), June

23, 1980 26a

Order, Single Justice of the Supreme Judicial Court,

(Kaplan, J.), October 3, 1980 29a

Memorandum, Single Justice of the Supreme Judicial

Court, (Kaplan, J.), October 3, 1980 30a

“Memorandum of Decision,” United States District

Court, District of Massachusetts, (Garrity, J.), Feb-

ruary 26, 1981 3la

“Amendment of Memorandum of Decision Dated

February 26, 1981,” United States District Court,

District of Massachusetts, (Garrity, J.), February 26,

1981 37a

Opinion, United States Court of Appeals, First Cir-

cuit, November 9, 198] 39a

Report, Suffolk County Superior Court, (Lynch,

Ch. J.), July 15, 1982 48a

JUDGMENT OR DECREE SOUGHT TO BE REVIEWED

Decree, Supreme Judicial Court, Commonwealth of

Massachusetts, June 15, 1983 5la

TABLE OF CONTENTS.

OTHER APPENDED MATERIALS

Docket Entries (portions)

Indictment (conspiracy to commit arson) #024292

Indictment (arson) 4024294 — Viktor E. Benson

Indictment (arson) 4024296 — Albert B. Benson

Indictment (breaking and entering with intent to

commit arson) #024293 — Viktor E. Benson

Indictment (breaking and entering with intent to

commit arson) #024295 — Albert B. Benson

Albert B. Benson’s Motion for a Bill of Particulars

dated February 13, 1979

Viktor E. Benson’s Motion for a Bill of Particulars

dated February 14, 1979

Commonwealth’s Response to Defendant’s Motion

for Bill of Particulars dated March 14, 1979

Pre-Trial Conference Stipulation, April 2, 1979

Affidavit of Jordan L. Ring in Support of Motion in

Limine — I, May 13, 1980

Commonwealth’s Trial Memorandum, May 14, 1980

Motion to Dismiss, May 14, 1982

Transcript, Commonwealth’s statement of expected

evidence, May 17, 1982

Mass. General Laws Chapter 278, section 2A and

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

Closing Argument, Commonwealth, Trial of Sub-

stantive Offenses

Instructions to Jury, excerpt, Trial of Substantive

Offenses

1

389 Mass. 473 ’ 473

Commonwealth v. Benson

COMMONWEALTH vs. ALBERT B. BENSON & another. !

Suffolk. February 8, 1983. -- June 15, 1983.

Present: Hennessey, C.J., Witains, Liacos, Apaams, & Nowan, JJ.

Constitutional Law, Double jeopardy. Collateral Estoppel. Due Process

of Law, Collateral estoppel. Conspiracy. Burning of Property.

Defendant's acquittal on indictments charging them with arson, and with

breaking and entering a building with the intent to commit arson, did

not preclude on the ground of collateral estoppel a subsequent trial of

the defendants on an indictment charging them with conspiracy to

commit arson. [ }

The return of a general verdict of not guilty on indictments charging de-

fendants with arson and breaking and entering a building with the in-

tent to commit arson did not preclude on the ground of collateral

estoppel the introduction of evidence, at a subsequent trial of an in-

dictment charging the defendants with conspiracy to commit arson, to

create inferences that the defendants set the fire and, therefore, must

have participated in an unlawful agreement, inasmuch as the verdict

of not guilty may have been rationally based on an issue of ultimate

fact other than that the defendants were not in any way responsible for

the fire. [ ]

At a trial of defendants on an indictment charging them with conspiracy

to commit arson, the prosecution would not be precluded on the

ground of collateral estoppel from introducing evidence of the arson

by the fact that such evidence had been admitted at a previous trial at

which the defendants had been acquitted on indictments charging

them with arson and breaking and entering with the intent to commit

arson involving the same property, where proof of the identity of the

persons who set the fire was not necessary to conviction on the con-

spiracy charge, and where the prosecution had represented that it

would offer no evidence to implicate the defendants in the substantive

arson offenses. [ }

INDICTMENT found and returned in the Superior Court

Department on January 11, 1979.

' Viktor E. Benson.

474 ” 389 Mass. 473

Commonwealth v. Benson

The case was reported by Lynch, J., to the Appeals

Court. The Supreme Judicial Court ordered direct review

on its own initiative.

Murray P. Reiser (Eric H. Karp with him) for Viktor E.

Benson.

John C. Martland for Albert B. Benson.

Martin E. Levin, Assistant Attorney General, for the

Commonwealth.

Liacos, J. On January 11, 1979, Albert and Viktor Ben-

son were indicted for conspiracy to commit arson. On May

17, 1982, the defendants filed a motion in the Superior

Court to dismiss the indictment. They alleged that, having

been acquitted previoulsy on the substantive charges of ar-

con and of breaking and entering in the nighttime with the

intent to commit arson, the doctrine of collateral estoppel

bars the prosecution of the defendants for the crime of con-

spiracy to commit arson. In the alternative, the defendants

allege that the Commonwealth is precluded by the prin-

ciples of collateral estoppel from relitigating all facts and

issues necessarily determined in their favor at the prior trial.

See Ashe v. Swenson, 397 U.S. 436 (1970); Commonwealth

v. Lopez, Mass. Adv. Sh. (1981) 1071. A motion to reserve

and report to the Appeals Court the defendants’ motion to

dismiss the indictment was filed and granted by a judge of

the Superior Court. Mass. R. Crim. P. 34, 378 Mass. 905

(1979). We transferred the report here on our own

motion.* The case has been continued for trial pending our

decision.

* The report is of the case, together with the following questions:

“(1) Whether, under the circumstances of this case, the doctrine of col-

lateral estoppel, as embodied in the double clause of the Fifth

Amendment tn the Constitution of the United States, bars the prosecution

of the defendants for the crime of conspiracy to commit arson?

“(2) Whether, alternatively, that doctrine bars the relitigation of all

facts and issues that were necessarily determined in the defendants’ favor

at their trial on the indictment charging the substantive crime of arson?

“(3) Given that the only evidence which the Commonwealth can and

will adduce at the trial of the defendants on a conspiracy-to-commit-arson

indictment is that evidence which the Commonwealth by memorandum

389 Mass. 473 ™ 475

Commonwealth v. Benson.

While the defendants correctly state the proposition that

the principles of collateral estoppel are embodied in the

Fifth Amendment guarantee against the double jeopardy,

Ashe v. Swenson, supra, and are therefore enforceable

against the Commonwealth through the Fourteenth

Amendment, Benton v. Maryland, 395 U.S. 784 (1969), the

defendants have failed to satisfy their burden of showing

that collateral estoppel is applicable in these circumstances.

Commonwealth v. Lopez, supra. We therefore conclude

that the motion to dismiss the indictment should be denied.

We summarize the facts. On the evening of December

20, 1978, State police observed Albert and Viktor Benson

entering an office building in Boston. Shortly after they left

the building, it burst into flames. The Bensons were ar-

rested and indicted on identical charges of arson, breaking

and entering in the nighttime with the intent to commit ar-

son, and conspiracy to commit arson. The Commonwealth

first prosecuted the defendants for the substantive crimes.*

The jury returned general verdicts acquitting the defend-

ants of the substantive crimes of arson, and breaking and

entering with the intent to commit arson.

The Commonwealth subsequently undertook to renew

proceedings on the conspiracy indictment. In October,

1979, the defendants filed their first motion to dismiss the

conspiracy indictment based on the Commonwealth’s ac-

knowledgment that (1) it had no direct evidence of the ex-

asserted it will produce, and nothing more, whether such a trial of the

defendants, acquitted on substantive arson indictments involving the

same property, is now barred by double jeopardy or collateral estoppel

principles?”

> At the time, the Commonwealth was statutorily prohibited from try-

ing the substantive crimes at the same time it tried the defendants for con-

spiracy to commit the same substantive offenses. G. L. c. 278, § 2A,

repealed by St. 1979, c. 344, § 43. The prohibition found in G. L.

c. 278, § 2A, is now found in Mass. R. Crim. P. 9(e), 378 Mass. 859

(1979) (providing, however, that a defendant may move for joinder of the

charges).

4a

476 389 Mass. 473

Commonwealth v. Benson

istence of conspiracy, (2) it had no evidence that a con-

spiracy had occurred on any date other than that of the fire,

and (3) it could not identify any alleged coconspirators other

than the defendants. A Superior Court judge denied the

relief sought by the defendants.

Through later pleadings, filed on March 14, 1980, the

Commonwealth indicated that it intended to introduce

evidence of three other fires and the alleged involvement of

the defendants therein. The defendants, in response, suc-

cessfully moved for an order barring the Commonwealth

from introducing such evidence. The defendants also filed

a motion in limine seeking to preclude the Commonwealth

from relitigating, at the conspiracy trial, all facts and issues

necessarily determined against it by the prior acquittal of

the defendants on the substantive charges. A renewed mo-

tion to dismiss was filed also on the same principles of col-

lateral estoppel. The trial memorandum filed by the Com-

monwealth at the request of the court summarized the

evidence the Commonwealth intends to introduce at the

conspiracy trial.‘ Both motions were denied. Thereafter

the defendants filed an application with a single justice of

this court for leave to file an interlocutory appeal in the

Supreme Judicial Court. After a hearing, the application

was denied without prejudice, allowing the defendants to

renew their contentions during the course of the trial.

The defendants then filed a petition for a writ of habeas

corpus, pursuant to 28 U.S.C. §§ 2241 and 2254 (1976), and

a complaint for declaratory and injunctive relief, pursuant

to 42 U.S.C. § 1983 (1976 & Supp. V 1981), in the United

States District Court for the District of Massachusetts. Both

‘The affidavit filed by the defendants in support of the motion in

limine was treated by the motion judge as a more precise recitation of the

proposed evidence of the Commonwealth. The defendants maintain that

the Commonwealth's trial memorandum, together with the Com-

monwealth’s March 14 pleading, which a judge held contained inadmissi-

ble evidence, are the only documents of record suggesting the nature of

the evidence to be introduced by the Commonwealth if it is allowed to

proceed with the conspiracy trial.

5a

389 Mass. 473 477

Commonwealth v. Benson

remedies sought were grounded on the claim of collateral

estoppel. Concluding that the Bensons had exhausted their

State remedies, the United States District Court for the

District of Massachusetts nevertheless denied the petition

for habeas corpus and complaint for injunctive relief, but

declared that “the Commonwealth will be foreclosed from

claiming or arguing that [the Bensons] set the fire in the

building or that they did aid, counsel or procure the burn-

ing of the building. However, thei alone would not be

enough to bar prosecution of the conspiracy indictment

...” Amendment of memorandum of decision dated

February 26, 1981 (March 6, 1981), for Benson v. Superior

Court Dep’t of the Trial Court, 507 F. Supp. 975, 978 (D.

Mass. 1981) (hereinafter cited as Benson I). On appeal by

the defendants of the denial of the writ of habeas corpus,

the United States Court of Appeals for the First Circuit

vacated in part and affirmed in part the District Court

judge’s ruling. Benson v. Superior Court Dep't of the Trial

Court, 663 F.2d 335, 359 (Ist Cir. 1981) (hereinafter cited

as Benson II). Affirming the denial of the request for in-

junctive relief and the writ of habeas corpus, the First Cir-

cuit Court of Appeals vacated that part of the District Court

judge’s decision which foreclosed the Commonwealth from

offering specific evidence at the trial on the conspiracy

charge, holding that the issue was not ripe because the court

did not know how the State would marshal its evidence.° Jd.

at 360-361.

The defendants then filed a petition for relief by the

Supreme Judicial Court pursuant to its supervisory power.

G.L. c. 211, § 3. After a hearing, a single justice con-

tinued the action, pending the defendants’ filing a motion in

the Superior Court to reserve and report a motion to

dismiss. On May 17, 1982, the defendants filed with the

Superior Court the motion to dismiss now before us. It is

this motion which is here on the reservation and report.

’The denial of the writ of habeas corpus was affirmed because of the

view of the Court of Appeals that the defendants had not exhausted their

State remedies.

6a

478 389 Mass. 473

Commonwealth v. Benson

The parties argue a variety of legal issues. We consider

only those dispositive of the report. Collateral estoppel is an

established rule of criminal law. See Ashe v. Swenson. 397

U.S. 436 (1970); Commonwealth v. Lopez, Mass. Adv. Sh.

(1981) 1071. Collateral estoppel “means simply 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, supra at 443. See Commonwealth v.

Scala, 380 Mass. 500, 503 (1980). The doctrine of collateral

estoppel may work in two ways. First, it may bar totally a

subsequent prosecution if one of the issues necessarily de-

cided at the first trial is an essential element of the alleged

crime in the second trial. Second, even if a prosecutor may

proceed to a second trial, the doctrine may bar the introduc-

tion of certain facts determined in the defendant's favor at

the first trial. See United States v. Lee, 622 F.2d 787, 790

(5th Cir. 1980). The doctrine of collateral estoppel will

preclude either the subsequent prosecution or the introduc-

tion or argument of certain facts, only if the jury could not

have based their verdict rationally on an issue other than the

one the defendant seeks to foreclose. See Ashe v. Swenson,

supra at 444. Whenever the doctrine of collateral estoppel

is raised by a defendant, the task of the court is to decide ex-

actly what issues were, or should have been, determined at

the first trial. See Sealfon v. United States, 332 U.S. 575,

578-579 (1948). Such inquiry must be conducted in a realis-

tic and practical manner by reviewing the proceedings as a

whole. See Ashe v. Swenson, supra.

We first consider whether the acquittal of the defendants

on the substantive charges of arson, and breaking and enter-

*See Commonwealth v. Lopez, Mass. Adv. Sh. (1981) 1071, 1073-1074

(court must look for concurrence of [1] a common factual issue, [2] prior

determination of that issue, and [3] determination of that issue in favor of

the party raising collateral estoppel). In addition, the doctrine of col-

lateral estoppel only applies in a criminal case where there is mutuality of

the parties. See Commonwealth v. Cerveny, 387 Mass. 280, 284-285

(1982). There is no question that the defendants have satisfied the last re-

quirement.

389 Mass. 473 a 479

Commonwealth v. Benson

ing with the intent to commit arson, bars completely the

prosecution for a conspiracy to commit arson. We conclude

that the subsequent prosecution for conspiracy is not

barred.

It long has been settled that “[a] ‘substantive offence and

a conspiracy to commit that offence’ each constitute a ‘dis-

tinct offence and each may be separately punished.’” Com-

monwealth v. French, 357 Mass. 356, 393 (1970), judg-

ments vacated as to death penalty sub nom. Limone v.

Massachusetts, 408 U.S. 936 (1972), quoting Common-

wealth v. Stasiun, 349 Mass. 38, 48 (1965). See Com-

monwealth v. Gailarelli, 372 Mass. 573, 576-577 (1977);

Commonwealth v. Shea, 323 Mass. 406, 411 (1948); Sealfon

v. United States, supra at 578. The judge at the first trial

properly instructed the jury as to the elements of the arson.

He stated: “Whoever willfully and maliciously sets fire to,

burns or causes to be burned or whoever aids, causes or

procures the burning of a building, whether the same is the

property of his or others, whether occupied, unoccupied or

vacant, shall be guilty of .. . arson.” See G. L. c. 266, § 2;

Commonwealth v. Niziolek, 380 Mass. 513, 526 (1980). The

elements of conspiracy are “a combination of two or more

persons, by some concerted action, to accomplish some

criminal or unlawful purpose... . [T]he unlawful agree-

ment constitutes the gist of the offence, and therefore . . . it

is not necessary to charge the execution of the unlawful

agreement.” Commonwealth v. Dyer, 243 Mass. 472, 483

(1922), quoting Commonwealth v. Hunt, 4 Met. 111,

123-125 (1842). Contrary to the contentions of the defend-

ants, the language of the arson statute, “causes,” “aids,”

“counsels,” or “procures,” does not incorporate an unlawful

agreement. Such wording relates only to an element of

joint venture. See Commonwealth vy. Stasiun, supra at

48-49; Benson I], supra at 360 n.1. Criminal culpability for

a substantive offense on the theory of a joint venture is based

on elements distinct from those involved in proof of a con-

spiracy. The unlawful agreement to commit arson, which

the Commonwealth is required to prove beyond a reason-

8a

pe 389 Mass, 473

Commonwealth v. Benson

able doubt in the instant case, was not an element required

to be proved in the first trial. Conspiracy to commit a sub-

stantive offense constitutes an offense distinct from the sub-

stantive offense and may be separately punished, Com-

monwealth vy. French, supra, Subsequent prosecution on

charges of conspiracy after acquittal of the substantive of-

fense does not implicate the doctrine of collateral estoppel.

Cf. Commonwealth v. Gallarelli, supra.

We next consider whether the introduction of evidence to

create inferences that the defendants set the fire, or aided,

caused, counseled, or procured the burning of the building

is barred because such evidence relates to facts which were

necessarily determined in the Bensons’ favor by the general

verdict of not guilty of the substantive charges of arson, but

which the Commonwealth would have to prove for a con-

spiracy conviction. We conclude that there is no bar to

such evidence.’

Although the Commonwealth has admitted that it has no

direct evidence of a conspiracy, its trial memorandum 1n-

dicates that it intends to prove the charge by circumstantial

evidence. Such a method of proof is generally consistent

with accepted practice. See Attorney Gen, v. Tufts, 239

Mass. 458, 494 (1921). The defendants contend that the

Commonwealth does not have sufficient evidence to prove

an illegal agreement if it cannot relitigate evidence creating

the inference that the defendants set the fire and therefore

must have participated in an unlawful agreement. The de-

fendants contend that the verdict acquitting them necessari-

ly determined that the defendants were not responsible in

any way for burning the building. They cite United States

v. Kramer, 289 F.2d 909 (2d Cir. 1961), and claim that the

Commonwealth “may not prove the new charge by assert-

"On this point, we note that both the District Court judge and the

Court of Appeals reached the same conclusion, See Benson v. Superior

Court Dep't of the Trial Court, 507 F. Supp. 975, 978-979 (D. Mass.

1981) (Benson 1); Benson v. Superior Court Dep't of the Trial Court, 663

F.2d 355, 360-361 (1st Cir. 1981) (Benson 11).

9

389 Mass. 473 ° 481

Commonwealth vc. Benson

ing facts necessarily determined against it on the first trial,

no matter how unreasonable the Covernment may consider

that determination to be.” Jd. at 916.

The defendants, however, have failed to recognize the

“difficulties often encountered with respect to a general ver-

dict of ‘not guilty.’"*® Jd. at 913. The defendants’ reliance

on United States v. Kramer, supra, is misplaced. “Kramer

was the rare case where it was possible to determine with

certainty what the jury in the earlier prosecution had decid-

ed.” United States v. Cioffi, 487 F.2d 492, 498 (2d Cir.

1973). “A finding of not guilty at a criminal trial can result

from any number of factors having nothing to do with the

defendant's actual guilt.” Commonwealth v. Cerveny, 387

Mass. 280, 285 (1982). In accordance with the trial judge's

instructions, the jury may have acquitted the Bensons be-

cause they concluded that the fire was not set or because

they concluded that there was no active participation by the

defendants with the person who set the fire.’ Since the jury

may have reached its decision rationally on some issue of

ultimate fact other than that the defendants were not in any

way responsible for the fire, the defendants have not met

their burden of proving that this fact was necessarily deter-

mined by virtue of the general verdict of acquittal. “It is

not significant that, in proving the conspiracy, the

Commonwealth also presented evidence of overt acts by

each of the defendants which tended to prove the substan-

tive offense.” Commonwealth v. Gallarelli, supra at 577.

The principles of collateral estoppel are inapplicable to

the evidentiary facts of the prior trial because of the tenuous

and speculative relationship between the result in the prior

* One commentator has described the examination of the previous pros-

ecution to determine the issue on which a rational jury based its verdict as

the “doctrine of ‘reasonable speculation.’” Note, Twice in Jeopardy, 75

Yale L.J. 267, 284-285 (1965).

* We note that the Commonwealth represents in its brief that it will not

seek to prove that the defendants set the fire and will ask that the jury be

told of the acquittal of the defendants on the substantive charges. Such a

charge may be appropriate, if the defendants assent.

482 ia 389 Mass. 473

Commonwealth v. Benson

proceeding and the evidence proposed to be presented in the

subsequent prosecution,

The answers to the questions reported are: (1) “No”; (2)

“No”; (3) “No.” The case is to stand for trial.

lla

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Superior Court

No. 024292

COMMONWEALTH

)

)

vs. ) RULINGS AND DECISION ON

) MOTION TO DISMISS

)

)

VIKTOR E. BENSON

ALBERT B. BENSON

This motion to dismiss a conspiracy indictment against Vik-

tor E. Benson and Albert B. Benson came on for hearing

before the court. All parties argued and filed briefs.

Since the same facts and arguments apply to each of the de-

fendants, the court is only writing one memorandum which

will apply to both defendants. For the purposes of this mem-

orandum, Viktor E. Benson will be referred to as “Viktor” and

Albert B. Benson will be referred to as “Albert.”

In Indictment No. 024294, Viktor was charged, in material

part, that: “Viktor E. Benson on December 20, 1978 did wil-

fully and maliciously cause to be burned, and did aid, counsel

and procure the burning of the building situated at 101-109

State Street, Boston... .”

in Indictment No. 624293, Viktor was charged, in material

part, that: “Viktor E. Benson on December 20, 1978 did break

and enter in the night time the building of Thomas Groom &

Co., Incorporated situated at 101-109 State Street in Boston,

with the intent to commit a felony: to wit arson.”

In Indictment 024292, Viktor and Albert were charged, in

material part, that: “Viktor E. Benson, Albert B. Benson, on

December 20, 1978, and on divers other dates, did conspire

together to wilfully and maliciously cause a building to be

burned and did conspire together to aid, counsel and procure

l2a

the burning of a building situated at 101-109 State Street,

Boston... .”

Albert was similarly charged. Indictment 024292 alleging

conspiracy with Viktor, see above paragraph. Indictment

024296 reads like 024294 and Indictment 024295 reads like

024293, only charging Albert instead of Viktor.

On September 11, 1979, a trial was held in Suffolk Superior

Court before a judge and a jury on indictments 024293 and

024294 against Viktor and indictments 024295 and 024296

against Albert. The cases were tried together. On September

18, 1979 the jury returned verdicts of not guilty on indictments

024293 and 024294 against Viktor and 024295 and 024296

against Albert.

Before the court is a motion to dismiss Indictment 024292, a

conspiracy indictment, against both Albert and Viktor. It was

agreed that this indictment was not tried with indictments

024294, 024296, 024293 and 024295. It was further agreed

that at all times pertinent to this case, G.L. c. 278, § 2A was in

effect which prohibited the trial of indictments for substantive

crimes with indictments for conspiracy to commit those same

substantive crimes.

Certain exhibits were introduced including certain pre-trial

motions and transcripts for the trial of indictments 024294,

024296, 024293 and 024295. The court has reviewed the tran-

scripts and the exhibits. The court has also reviewed the briefs

and cases submitted by all of the parties.

It is further agreed that the Commonwealth only moved for

trial of indictments against both defendants on the substantive

counts of arson (G.L. c. 266, § 10) and breaking and entering

(G.L. c. 266, § 16), and pursuant to G.L. c. 278, § 2A the

Commonwealth did not move for trial on the conspiracy in-

dictment No. 024292.

The defendants argue that since the defendants were found

not guilty of the substantive crimes of arson and breaking and

l3a

entering, and that since substantially the same evidence of-

fered at the substantive trial will be offered at the conspiracy

trial, the offenses are basically the same in nature and the con-

spiracy indictment should be dismissed since the defendants

have already been placed in jeopardy for the conspiracy in-

dictment. The defendants further argue that the Common-

wealth should be collaterally estopped from relitigating identi-

cal issues in the conspiracy indictment.

The Commonwealth argues that the defendants may be

prosecuted both for conspiracy to commit arson and for the

substantive crime of arson; that such prosecutions are not

barred on the double jeopardy grounds; that the doctrine of

collateral estoppel is not applicable to the facts in this case;

and that the motion to dismiss the indictment at this posture

should be denied.

It is clearly the law in this Commonwealth that the defend-

ants may be prosecuted both for the conspiracy to commit ar-

son and for the substantive crime of arson, and that such pros-

ecutions are not barred on double jeopardy grounds. Comm.

v. French, 357 Mass. 356, 393 (1970); Comm. v. Gallarelli,

372 Mass. 573, 576-577 (1977); Comm. v. Shea, 323 Mass.

406, 411 (1948). In Gallarelli, the Supreme Judicial Court re-

ferred to the long-standing rule in Massachusetts which states

the following:

A single act may be an offense against two statutes; and if

each statute requires proof of an additional fact which

the other does not, an acquittal or conviction under either

statute does not exempt the defendant from prosecution

and punishment under the other. Morey v. Common-

wealth, 108 Mass. 433, 434 (1871).

The defendants argue that the judge in the substantive trials

charged the jury on conspiracy and therefore the conspiracy

l4a

indictment prosecution should be barred. Without passing on

the legal effect of the argument, in reviewing the part of the

charge referred to by the defendants, I find and rule that the

judge was charging on a joint criminal enterprise and not con-

spiracy.

A trial based on the joint criminal enterprise theory is distin-

guishable from a trial on the conspiracy theory. It is essential

to a conviction on a common enterprise theory that the de-

fendants “. . . were jointly engaged in the commission of a

[crime] and that the defendant(s) associated [themselves] with

that venture and participated to some extent in the offense.”

Comm. v. Stasiun, 349 Mass. 38, 49. Comm. v. Benders, 361

Mass. 704, 708 (1972).

It is necessary for the Commonwealth in a common enter-

prise case to produce facts that the defendants participated in

the offense to some extent. Comm. v. Madeiros, 354 Mass.

193, 198 (1968). The Commonwealth has the burden of prov-

ing each element of the respective offenses and showing the

participation of the defendants. The crime of conspiracy is

generally preliminary to the substantive offense; it is complete

with an agreement between two or more persons to commit a

crime. Comm. v. Dyer, 243 Mass. 472, 483 (1922). The

distinction lies in the Commonwealth’s burden of proof. In a

conspiracy prosecution the Commonwealth must prove the

fact that there was an unlawful agreement. In a common

enterprise prosecution the Commonwealth must prove the

elements of the crime and show that the defendants partici-

pated in the commission of the crime. In the instant case the

proof of an unlawful agreement is distinct from the proof of

wilfully setting a fire.

In the trial of the substantive offenses the Commonwealth

had the burden of proving that the defendants “did. . . cause

to be burned, and did aid, counsel and procure the burning of

a building.” To prove arson, the Commonwealth had to prove

l5a

the defendants set fire or were accessories before the fact of the

fire, which is no part of the necessary proof as to the conspir-

acy indictment.

The Commonwealth could satisfy its burden on the substan-

tive offense by showing one of the following: (a) that the de-

fendants set the fire, (b) that the defendants poured gasoline

for someone else to set the fire, (c) that the defendants advised

and aided where or how to set the fire, (d) that the defendants

paid others to set the fire. While these facts would be admis-

sible to support an agreement to commit a crime, they may

not, by themselves, satisfy the Commonwealth’s burden on a

conspiracy indictment. The facts (a-d) above are not an il-

legal agreement, but facts in carrying out the agreement.

In the conspiracy indictment in the instant case, the Com-

monwealth is required to prove an unlawful agreement,

Comm. v. Hunt, 45 Mass. 111, 125 (1842), which is not re-

quired in the substantive arson case.

As to the double jeopardy claim, the court distinguishes the

cases cited by the defendant. The facts in North Carolina v.

Pearce, 395 U.S. 711 (1969) and Green v. U.S., 355 U.S. 184,

187-188 (1957) are not applicable to the case before the court.

The court understands that Benton v. Maryland, 395 U.S. 784

(1969) holds that the doctrine of double jeopardy is mandated

by the Fifth Amendment of the Constitution of the United

States and made applicable to the individual states through

the Fourteenth Amendment. However, the court rules, for

reasons stated before in this memorandum, that the doctrine

of double jeopardy does not apply to the instant case.

G.L. c. 278, § 2A specifically states: “An indictment for

conspiracy to commit a substantive offense shall not be tried

simultaneously with an indictment for the commission of said

substantive offense.” (1968) To hold that an acquittal of the

substantive crime prevents the trial of a conspiracy indictment

would not make sense in light of this statute. If the acquittal

16a

or conviction of the substantive crime would bar a trial for the

conspiracy indictment, the legislature would have so in-

dicated. Here the legislature separated the trials of substan-

tive and conspiracy indictments without indicating that the

acquittal or conviction of the substantive crime would bar a

later trial of the conspiracy indictment.

The Commonwealth is not barred from prosecuting the case

on grounds of collateral estoppel. In addressing this issue in

Comm. v. Shagoury, 1978 Mass.App.Ct.Ad.Sh. 927, 931, the

Appeals Court stated the following:

The doctrine of collateral estoppel operates to insure that

due process is not violated in consecutive criminal pro-

ceedings against the same defendant by foreclosing the

relitigation of those issues in the defendant’s second trial

which were determined by the verdict in his earlier trial,

even though the offenses charged in the two trials may

not be the same. Sealfon v. U.S., 332 U.S. 575, 578

(1948). Harris v. Washington, 404 U.S. 55, 56 (1971).

Where the prior proceeding against the defendant results

in a general verdict of acquittal, the court must examine

the evidence, pleadings and other relevant material from

the prior proceedings to determine whether a rational

jury could have grounded their verdict upon some issue

other than that which the defendant seeks to foreclose

from consideration in the later proceding. Ashe v. Swen-

son, 397 U.S. 436, 444 (1970). Ottomano v. U.S., 468

F.(2d) 269, 272 (1st Cir. 1972) cert. denied 409 U.S. 1128

(1973). The defendant has the burden of establishing

that the issue of fact which he seeks to foreclose from con-

sideration in the subsequent proceeding was necessarily

determined in his favor by the verdict in the prior pro-

ceeding. United States v. Tramunti, 500 F.(2d) 1334,

1346 (2d Cir.) cert. denied 419 U.S. 1079 (1974). United

States v. King, 563 F(2d) 559, 561 (2d Cir. 1977).”

l7a

In applying the doctrine of collateral estoppel to the facts in

the Shagoury case, supra, the court held that “the Common-

wealth was not foreclosed from litigating in the present trial

the issue of the defendant’s involvement in the September 20

theft.” The court held that the doctrine of collateral estoppel

did not apply.

On the substantive offenses in the case before the court, the

jury had to be satisfied beyond a reasonable doubt that the de-

fendant or defendants either set the fire on December 20, 1978

or caused someone to set the fire. Accordingly, there were

several rational bases upon which the Suffolk County Jury

could have acquitted the defendant or defendants on the

charge of setting the fire without having determined that the

defendants had not conspired in setting the fire. The jury, for

example, while believing the testimony concerning the pres-

ence of the defendant or defendants in the building on the

night of the fire, could have found that the fire was not set, or

that the defendant or defendants were not placed in the area

of the fire, or that other people had an equal opportunity to set

the fire, or that there was no evidence that the defendant or

defendants acted in concert with whomever set the fire. The

defendants were charged as principals in the commission of a

felony, and the jury had the right to refuse to find that the de-

fendants were present, aiding and abetting those who set the

fire.

In Comm. v. Shea, 323 Mass. 406, 411 (1948), the Supreme

Judicial Court said:

The acquittal of the defendant on the breaking and enter-

ing and larceny indictment did not affect the prosecution

for a conspiracy to steal. The offenses were distinct from

and independent of each other. A conviction on either

indictment would not bar a conviction on the other, and

this would be true even if one indictment had charged the

18a

defendants with committing a crime and the second had

charged them with a conspiracy to commit the same of-

fense. Commonwealth v. Walker. 108 Mass. 309 [other

citations ommitted].”

The fact that this case was before present C.L. c. 278, § 2A

does not make the case inapplicable to the present case.

The fact that the substantive offense and conspiracy were

based on the same incident is not a bar to two separate trials.

Comm. v. Gallarelli, supra. The fact that the same evidence

is used to support the separate offenses is not a bar to a second

trial. Morey v. Comm., 108 Mass. 433, 434.

In a conspiracy prosecution, the Commonwealth’s usual

mode of proof is by way of circumstantial evidence. Comm. v.

Riches, 219 Mass. 430, 438 (1914). The Commonwealth is al-

lowed to show a common scheme which tended to show a

background that the conduct was part of a general purpose

and cause of operation. Comm. v. Farmer, 218 Mass. 507,

512, 513.

In the trial on the substantive charges, the defendants filed a

motion in lemine requesting the trial judge to restrict the Com-

monwealth from offering evidence of “other fires with which

Albert Benson and/or Viktor Benson may have been associ-

ated” with themselves or with Harold Brown. This motion

was allowed by the trial judge. In the conspiracy trial the

Commonwealth may be allowed to offer evidence of other

fires as long as it is relevant to the crime being charged.

Comm. v. Egan, 357 Mass. 585, 589 (1970); Comm. v.

Borans, 1979 Mass.Ad.Sh. 2349, 2389.

The defendants cite to Ashe v. Swenson, 397 U.S. 436,

443-444 (1970) to support its claim of collateral estoppel. The

court distinguishes this case from the instant case on the facts.

The court also points out that that case was reversed after

trial, not on a motion to dismiss.

19a

At this posture what evidence will be presented by the Com-

monwealth in the conspiracy trial is not known. While the de-

fendants say it will be the same evidence that was heard in the

substantive trial, the Commonwealth does not agree that that

is so. The Commonwealth submits that the defendants’ asso-

ciation with Hamilton Realty and their collective history of in-

cendiary and suspicious fires would be material and relevant

in the trial of the conspiracy charge. No cases have been pre-

sented by the defendants holding that at this posture a motion

to dismiss should be allowed.

The court does not agree that a conspiracy charge is a lesser

included offense of the substantive crime as argued by the de-

fendants. Costarelli v. Comm., 1978 Mass.Ad.Sh. 734, cited

by the defendants does not state this, and the case does not ad-

dress the question before the court at this time.

Kuklis v. Comm., 361 Mass. 302, and Comm. v. Mahoney,

331 Mass. 510, do not address the issue before the court in the

instant case.

In their brief the defendants cite Comm. v. Gallarelli, 372

Mass. 573, as recognizing that individuals may be prosecuted

both for conspiracy to commit an illegal act and for the illegal

act. However, the defendants, recognizing this, argue that

the Supreme Judicial Court clearly left room for discretion.

While the Court in Callarelli, at page 927, said:

We do not say there may never be a case where prosecu-

torial discretion may be exercised in such a way under the

same evidence ‘rule’ as to amount to such harassment in

multiple and successive prosecutions as to require relief

for the defendant... .”,

the court does not find that the instant case is such a case.

The defendants argue that the “same transaction” test

should be constitutionally required as supportive of the double

20a

jeopardy principle since the “same evidence” rule permits mul-

tiple prosecutions where a single transaction is divisible into

discrete crimes. The court does not agree that the same trans-

actions rule is the law of the Commonwealth or that it should

be constitutionally required.

The court has examined the cases cited by the defendants

but does not find that they address the issue before the court at

this posture, a motion to dismiss.

For the reasons stated, the court respectfully denies the mo-

tion to dismiss.

/s/

George J. Hayer

Justice of the Superior Court

Entered:

Qla

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

CRIMINAL NUMBER

024292

COMMONWEALTH OF MASSACHUSETTS

VS.

VIKTOR BENSON and ALBERT BENSON

Before: O'NEIL, J.

Suffolk Superior Court

Boston, Massachusetts

Tuesday, April 15, 1980

APPEARANCES:

JOHN BONISTALLI, ESQUIRE, Assistant Attorney Gen-

eral, Attorney for the Commonwealth

MURRAY REISER, ESQUIRE, Attorney for Viktor Benson

JORDAN L. RING, ESQUIRE, Attorney for Albert Benson

JOHN MARTLAND, ESQUIRE, Attorney for Albert Benson

Susan Blodgett

Official Court Reporter

MASSACHUSETTS SUPERIOR COURT

22a

INDEX

Witnesses (None)

THE COURT: Good morning.

MR. BONISTALLI: Good morning.

MR. RING: Good morning.

MR. REISER: Good morning.

MR. BONISTALLI: Your Honor, has the Court decided

whether to go forward with Trooper Flaherty or Mr. Curran.

THE COURT: I am going to talk with you gentlemen in

just about thirty seconds on that, and I'm certain that Trooper

Flaherty will take the stand this morning unless further exami-

nation is waived. I just want to check with you a little bit as to

the time schedule.

MR. RING: I am having difficulty hearing your Honor,

THE COURT: Well, you won't now. Can you hear me

now?

MR. RING: Fine, Judge.

THE COURT: And on the next time schedule. Let me tell

you an order that I have drafted here and which will be for-

malized substantially the same type of wording. This may af-

fect in some way your presentation of evidence in this case.

The Commonwealth is precluded from preventing evidence in

its case in chief relative to incident arrangements and activities

involving the properties in Bourne, Brockton, and Brookline;

however, this order is not to be construed as precluding the

testimony relative to one or more of these properties and the

relationship of one or both of the defendants to the same for

the purpose of impeachment of testimony of any witness that is

called to testify in this case.

In the light of this order the Assistant Attorney General will

not refer to such properties or matters relative thereto in the

23a

Commonwealth's opening. In addition, in the event the Assis-

tant Attorney General intends to present such evidence

through examination or cross-examination for purposes of im-

peachment, the same will be called to the attention of the

Court out of the hearing of the jury first.

Now, as I said to you before, an absolute precluding order I

don't think is appropriate in many cases at all because -- why

don’t you sit down, let me finish, Mr. Ring.

MR. RING: Okay.

THE COURT: Because although evidence like that might

not be probative and might be prejudicial or overwhelmingly

prejudicial in the manner of proving the essential elements set

forth in the indictment, that material like all other material

might be important in the cross-examination of the witness,

and I don't intend to restrict its use along those lines. How-

ever, it will not come in any form as a surprise to counsel or to

the Court because if the situation is developed to a point where

I think justice requires the Attorney General to use that infor-

mation in some modified form or some such thing as that, we

will have a chance to talk about that at the bench.

Now, Mr. Ring, you want to say something?

MR. RING: Yes. Your Honor, said, and I made some

quick notes, in this case you can’t use it except to impeach a

witness called in this case. Your Honor meant by the defend-

ant or by the Commonwealth?

THE COURT: If the Commonwealth, and I don’t know

what witnesses the Commonwealth is going to call, if the

Commonwealth calls a witness who is hostile or reluctant and

made some statements that the Commonwealth doesn’t ex-

pect, the Commonwealth has a right to impeach that witness

within the rules of evidence as it does any other witness. So

that if the Commonwealth calls a witness and it is necessary or

seems appropriate to test his testimony by some statement,

then I'm not going to prevent the Commonwealth from doing

24a

it; however, there is the built-in safeguard here, Mr. Ring,

that before that is done it has to be reviewed and subject to an

order of the Court up here.

25a

CERTIFICATE

I, Susan Blodgett, Official Court Reporter, Suffolk Superior

Court, do hereby certify that the foregoing pages are a true

and accurate transcription of the proceedings in the matter of

Commonwealth of Massachusetts vs. Viktor Benson and

Albert Benson, taken at Suffolk Superior Court before

O’NEIL, J., on Tuesday, April 15, 1980.

/s/

Susan Blodgett

Official Court Reporter

26a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CRIMINAL NO. 0242

COMMONWEALTH

MEMORANDUM RE MOTION

IN LIMINE -I and

ALBERT B. BENSON ) IN MOTION TO DISMISS IV

VIKTOR E. BENSON _)

Vs.

—=

Introduction

The defendants Benson stand before this court for trial on

indictment numbered 024292 alleging that they, on December

20, 1978, and on divers other dates, did conspire together to

aid, counsel and procure the burning of a building situated at

101-109 State Street, Boston in the County of Suffolk. On

September 18, 1979 a Suffolk County jury returned verdicts of

not guilty on indictments 024294 and 024296 which similarly

stated that each defendant did willfully and maliciously cause

to be burned and did aid, counsel and procure the burning of

the same building. The same jury returned verdicts of not

guilty on companion indictments of breaking and entering

with intent to commit arson. Motions have been filed on

behalf of both defendants grounded on the principle of collat-

eral estoppel as enunciated in Ashe v. Swenson, 397, U.S. 436.

This court has before it for consideration two motions which

are closely related insofar as the issues that are raised. The first

motion treated in this memorandum is entitled “Motion in

7a

Limine -I”. By the allowance of this motion the defendants

seek to preclude the introduction into evidence at the trial evi-

dence that was determined against the criminals at the trial of

the substantive offenses. The second motion is entitled “Mo-

tion to Dismiss IV” seeking the dismissal of the conspiracy in-

dictments against both defendants on the basis of collateral

estoppel.' The Commonwealth has filed a Trial Memoran-

dum docketed on May 14, 1980 in the papers filed in this case.

Attorney Jordan L. Ring, counsel of record for Albert B. Ben-

son has filed an affidavit in support of Motion in Limine -I.

With the agreement of the Commonwealth and both defend-

ants the court has treated the Commonwealth’s Trial Memo-

randum as a summary of the nature of the testimony which

will be referred to in the Commonwealth’s opening remarks to

the jury as being the proposed evidence at the trial. Insofar as

the affidavit of Mr. Ring is considered to the degree that it is

consistent with the Trial Memorandun,, it is treated as a more

precise recitation of the testimony of the Commonwealth's

witnesses. The court considers and acts on both motions at

this time by specific request of all counsel by considering the

Trial Memorandum and affidavit as above treated as an offer

of proof in the matter of the motion in Limine I and represen-

tation by the Commonwealth as to the evidence it expects to

present to the jury.

Treated in this fashion I deny both motions but without

prejudice to the defendants’ right to make similar motions to

dismiss at the conclusion of the Commonwealth's opening in

the event the opening varies from the contents of the Trial

Memorandum and without prejudice to the defendants’ read-

dressing the issues raised in the motion in Limine I for consid-

eration in the light of the testimony elicited at the actual trial.

'The nature of the motions is synopsized in this Memorandum and ref-

erence is made to the motions themselves.

28a

The motion in Limine I requested a general order of preclu-

sion from the “relitigation of issues” which were determined

by the earlier verdict.

The record of the earlier trial was made available to the

court for examination. Particular attention was paid to the

opening and closing statements and to the jury instructions.

The opening and closing statements concentrated on the iden-

tity of the person or persons causing the fire rather than on the

issue as to whether the fire was of incendiary origin. No evi-

dence was presented by the defendants. The question of rea-

sonable doubt was emphasized in arguments by defendants

counsel, The instructions made clear the responsibility of the

Commonwealth to prove beyond a reasonable doubt all the

essential elements of the offenses. A reasonable doubt in the

mind of the jury as to any one of the essential elements of the

offense could have resulted in the not guilty verdict. The es-

sential elements of the offenses set forth in indictment No.

024292 are not entirely the same. The basis of the jury’s deter-

mination of not guilty is therefore speculative and the issues

determined by the 1979 verdict are therefore unclear. Com-

pare U.S. v. Kramer, 289 F.2d 909 (2d Cir. 1961). No double

jeopardy is presented here in the proposed trial of the compa-

nion conspiracy indictment. Commonwealth v. Scala, Mass.

Adv. Sh. 1980.

/s/

William C. O'Neil, Jr.

Justice of the Superior Court

Dated: June 23, 1980

29a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL CourT

FOR SUFFOLK COUNTY

No. 80-334 CIVIL

COMMONWEALTH OF MASSACHUSETTS

VS.

ALBERT B. BENSON

VIKTOR E. BENSON

ORDER

This matter came before the Court on the defendants’ Ap-

plication for leave to take interlocutory appeal. There was

argument by counsel for the defendant and the assistant attor-

ney general.

Upon consideration thereof, it is ORDERED that the ap-

plication pursuant to Mass. R. Crim. P. 15 (b) (2) be, and the

same hereby is denied, without prejudice to the renewal of the

defendants’ contentions in the course of the trial proceedings

as the situation may then appear.

By the Court, (Kaplan, J.)

/s/

Entered: October 3, 1980 Jean M. Kennett

Assistant Clerk

A TRUE COPY:

ATTEST: /s/

Joseph A. Legotti

ASSISTANT CLERK

OCTOBER 6, 1980

30a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL Court

FOR SUFFOLK COUNTY

No. 80-334 CIVIL

COMMONWEALTH OF MASSACHUSETTS

VS.

ALBERT B. BENSON

VIKTOR E. BENSON

MEMORANDUM

I wish to note that I am uncertain whether Mass. R. Crim.

P. 15 (b) (2) is a proper procedural vehicle for the defendants’

contentions. I have assumed arguendo, but without intimat-

ing any decision on the point, that this procedure is available.

October 3, 1980 /s/

Associate Justice

A TRUE COPY:

ATTEST: /s/

Assistant Clerk

October 6, 1980

3la

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ALBERT B. BENSON ET AL.,

)

Petitioners, )

)

v. ) Civil Action

) No. 81-101-G

SUPERIOR COURT DEPARTMENT OF _)

THE TRIAL COURT OF )

MASSACHUSETTS ET AL., )

)

Respondents.

MEMORANDUM OF DECISION

February 26, 1981

GARRITY, J.

The petitioners, Albert B. Benson and Viktor E. Benson,

seek a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254

and seek declaratory and injunctive relief under 42 U.S.C.

§ 1983. The essential allegation of the petition is that a state

court criminal indictment, No. 024292, for conspiracy to com-

mit arson, would violate their constitutional rights embodied

in the double jeopardy clause of the Fifth Amendment. For the

reasons discussed below we deny the petitioners’ writ and ap-

plication for an injunction against the pending state criminal

prosecution.

The essential facts underlying the petition involve a fire at a

five-story commercial building at 101-109 State Street, Boston,

Massachusetts, on December 20, 1978. On January 11, 1979

the petitioners were indicted by a Suffolk County grand jury

32a

on charges of arson (Indictments Nos. 024294 and 024296),

breaking and entering with the intent to commit arson (Indict-

ments Nos. 024293 and 024295), and conspiracy to commit ar-

son (Indictment No. 024292) in connection with the fire. The

Commonwealth moved for trial against the petitioners on the

substantive counts of arson and breaking and entering, on

September 11, 1979. The Commonwealth could not have in-

cluded in this trial the conspiracy indictment, by virtue of

Mass. G.L. c. 278, § 2A, which proscribes the simultaneous

trial of a conspiracy indictment with the substantive offense.

On September 18, 1979 the jury returned verdicts of not guilty

on the two substantive counts.

The petitioners next filed various motions to dismiss the con-

spiracy indictment in state court based on the doctrine of col-

lateral estoppel and on the United States Supreme Court's

decision in Ashe v. Swensen, 1970, 397 U.S. 436. These mo-

tions were denied in Superior Court in written memoranda

and in August 1980 the petitioners filed in the Supreme

Judicial Court, Single Justice Session, an application for leave

to take an interlocutory appeal of the denial of their motion to

prohibit trial on the conspiracy indictment. On October 3,

1980, after hearing, Justice Kaplan of the Supreme Court

denied the petitioners’ application without prejudice to the

renewal of the contentions in the course of the proceedings.

The petitioners are now awaiting trial on the conspiracy in-

dictment.

We begin by noting that this petition is an appropriate case

for the assertion of federal jurisdiction. First, it is essential

that the petitioners have exhausted their state remedies before

we may review the constitutional claim, 28 U.S.C. § 2254 (b)

and (c). We are satisfied that the Bensons have exhausted

their state remedies by virtue of their application to the single

33a

justice of the Supreme Court.' Once the petitioners have ex-

hausted available state remedies there is no further bar to the

assumption of federal jurisdiction, “for the deference owed to

the state judicial system demanded by principles of comity and

federalism has been paid.” Drayton v. Hayes, 2 Cir., 1979,

589 F.2d 117, 120. It is especially appropriate to assume juris-

diction to consider the merits of a pretrial writ of habeas cor-

pus where the petitioner claims the trial would place him in

double jeopardy in violation of the Constitution. See Green v.

United States, 1957, 355 U.S. 184, 187.

Second, the doctrine of Younger v. Harris, 1971, 401 U.S.

37, by which federal courts abstain from interference with

state court criminal proceedings absent extraordinary circum-

stances, does not prevent review of this claim. In this case a

prosecution against the petitioners on the conspiracy indict-

ment, if taken in violation of their right to be free from double

jeopardy, would be an exceptional circumstance threatening

irreparable injury to the petitioners. See Kugler v. Helfant,

' The respondents assert that the Bensons could raise their double jeopardy

claim upon an appeal from a conviction on the conspiracy counts. However,

such an appeal would be wholly inadequate to protect the defendants’ fifth

and fourteenth amendment rights where the trial itself would violate them.

Drayton v. Hayes, 2 Cir., 1979, 589 F.2d 117, 121.

A second ground is advanced by respondents to support the argument that

the petitioners have failed to exhaust state remedies, viz., that the petitioners

did not appeal to the full court of the Supreme Judicial Court Justice

Kaplan’s decision to dismiss their application for leave to take an in-

terlocutory appeal. This failure is not fatal to habeas corpus review under

the circumstances of this case. The substance of petitioner's double jeopardy

claim raised in this habeas proceeding has been considered and rejected three

times in state court, resulting in two written memoranda of decision. See

Commonwealth v. Benson, Superior Court No. 024292 (Mass. Dec. 20,

1979) (Hayes, J.) and Commonwealth v. Benson, Superior Court No. 024292

(Mass. June 23, 1980) (O’Neil, J.). We accept petitioners’ point that the

decision of the single justice to deny leave to file an interlocutory appeal is

discretionary and, as a practical matter, non-reviewable.

34a

1975, 421 U.S. 117, 125, rehearing denied 421 U.S. 1017. We

therefore proceed to consider the merits of the petitioners’

double jeopardy claim.

The petitioners do not contend that the conspiracy prosecu-

tion is barred because they have already been placed in jeop-

ardy for the same offense. Rather they contend that the

doctrine of collateral estoppel precludes their trial on the con-

spiracy charges. The Supreme Court held the doctrine of col-

lateral estoppel to be a part of the constitutional guarantee

against double jeopardy in Ashe v. Swensen, supra. This doc-

trine means 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 law-

suit.” Ashe, supra, at 443. Collateral estoppel protects

criminal defendants from redetermination of evidentiary facts

and ultimate facts. See United States v. Lee, 5 Cir., 1980, 655

F.2d 787, 789.

When a defendant seeks to raise the defense of collateral

estoppel to a prosecution, the court must examine the record of

the first trial to determine what facts have been or should be

deemed to have been determined in the first trial. United

States v. Lee, supra, at 790. The subsequent prosecution will

be precluded only if the jury in the first trial could not have ra-

tionally based its verdict on an issue other than the one the de-

fendant seeks to foreclose. United States v. Smith, 5 Cir.,

1973, 470 F.2d 1299, 1301.

Collateral estoppel may have two distinct effects on the sub-

sequent prosecution. First, the subsequent prosecution may

be completely barred if one of the facts necessarily determined

in the former trial is an essential element to the conviction in

the second trial. See, e.g., Ashe, supra; and United States v.

Kramer, 2 Cir., 1961, 289 F.2d 909. The second effect, and

the one we believe to be most applicable in this case, is where

the subsequent prosecution may proceed but collateral estoppel

35a

will bar the introduction of particular arguments and facts

necessarily established in a prior proceeding. See United

States v. Lee, supra, at 790; and United States v. Cioffi, 2

Cir., 1973, 487 F.2d 492, 498. The issue presented in this case

is whether the petitioners’ prosecution on the conspiracy in-

dictment is barred because some fact necessarily determined in

their favor by the general verdict of acquittal on the substan-

tive counts of arson is an essential element to the conspiracy

conviction the Commonwealth seeks.

After an extensive review of the record of the trial on the ar-

son and the breaking and entering indictments, we find that it

is impossible to determine with certainty precisely what the

jury in these prosecutions had decided. According to the peti-

tioners’ analysis, the jury verdict was based on a finding that

the petitioners had no responsibility whatsoever for the fire at

101-109 State Street. We cannot agree. At the trial the peti-

tioners did not dispute the fact that they were present in the

building immediately before the fire erupted, nor that the fire

in the building was set. The defense emphasized the facts that

a number of other people were present in the building when

the fire broke out, that there were many entrances and exits to

the building and that no trace of alcohol or fire accelerants

was found on the clothing of the petitioners. Therefore the

only fact which might be said to be necessarily determined in

the petitioners’ favor is the issue of the identity of the person or

persons who actually set the fire in the building, i.e., that peti-

tioners did not set the fire. Whether or not the petitioners

were involved in a conspiracy with other persons on the prem-

ises or elsewhere at the time of the fire cannot have been deter-

mined by the acquittal in the first trial. Thus the Common-

wealth will be foreclosed from claiming or arguing that the

petitioners set the fire in the building. However, that alone

would not be enough to bar prosecution of the conspiracy in-

dictment since proof of that fact is not essential to the govern-

36a

ment'’s successful prosecution of that indictment. The petition

for the writ of habeas corpus and for declaratory injunctive

relief is therefore denied.

/s/

W. Arthur Garrity, Jr.

United States District Judge

37a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ALBERT B. BENSON ET AL., )

Petitioners, )

)

Vv. ) Civil Action

) No. 81-101-G

SUPERIOR COURT DEPARTMENT OF )

THE TRIAL COURT OF )

MASSACHUSETTS ET AL., )

Respondents. )

AMENDMENT OF MEMORANDUM OF DECISION

DATED FEBRUARY 26, 1981

March 6, 1981

GARRITY, J.

Upon consideration of petitioners’ motion for reconsidera-

tion filed March 5, 1981, the third from the last sentence in the

court’s memorandum of de*ision dated February 26, 1981 is

hereby amended by the addition of the words “or that they did

aid, counsel or procure the burning of the building.” so that

the third from last sentence will now read as follows:

Thus the Commonwealth will be foreclosed from claim-

ing or arguing that the petitioners set the fire in the build-

ing or that they did aid, counsel or procure the burning of

the building.

Further changes or clarifications sought in petitioners’ mo-

tion for reconsideration, in particular those numbered 2 and 3,

38a

are denied. With respect to the second point, that the jury

could only have concluded that the petitioners did not have

the intent to commit arson when they entered the building, we

disagree. There is testimony that the petitioners had a key to

the building and were engaged in contracting work on the

premises with the consent of the owner. Therefore, we cannot

say that any one fact was necessarily determined by the peti-

tioners’ acquittal of the count for breaking and entering with

intent to commit arson. The third point raised by the defend-

ants is that the Commonwealth is precluded from asserting

that the petitioners conspired with any other persons to set the

fire in the building. This contention we reject based on the

Commonwealth's representation at oral argument that they

expect to produce evidence of a conspiracy whose membership

included a person or persons in addition to the petitioners.

/s/

W. Arthur Garrity, Jr.

United States District Judge

39a

United States Court of Appeals

For the First Circuit

No. 81-1162

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 1s AtrorNEY GENERAL

OF THE COMMONWEALTH OF MASSACHUSETTS,

RESPONDENTS, APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. W. Artuur Gararty, Jr., U.S. District Judge]

Before

Corrin, Chief Judge,

VAN Dusen, Senior Circuit Judge*

Bowness, Circuit Judge.

John C. Martland and Murray P. Reiser, with whom Jordan

L. Ring, Ring and Rudnick, and Reiser and Rosenberg were

on brief, for appellants.

* Of the Third Circuit, sitting by designation.

40a

John J. Bonistalli, Special Assistant Attorney General, with

whom Francis X. Bellotti, Attorney General and Stephen R.

Delinsky, Assistant Attorney General, Chief, Criminal

Bureau, were on brief, for appellees.

November 9, 1981

Corrin, 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 con-

spiracy, 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.

On the evening of December 20, 1978, Massachusetts state

police observed appellants, Albert and Viktor Benson, enter-

ing 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 enter-

ing with intend 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 sub-

stantive crimes. Appellants were acquitted.

4la

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 in-

cluded 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 request-

ing 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 Pro-

cedure specifically allow a defendant to raise on an interlocu-

tory 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 with-

out 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

42a

writ barring the relitigation of all issues and facts necessarily

determined in their favor at the previous trial. They also al-

leged that under § 1983 they were entitled to a declaratory

order dismissing the indictment or both declaratory and

injunctive relief preventing the Commonwealth from relitigat-

ing issues previously determined. Finding that it had jurisdic-

tion to address these claims, the district court concluded that

the double jeopardy clause does not require that the prosecu-

tion 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.

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 ex-

hausted 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

43a

Ex Parte Royall, 117 U.S. 241, 251-53 (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 (1973); Ex Parte Royall, supra, 117 U.S. at 251-53.

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 circum-

stances under which this should be allowed must be very care-

fully 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, No. 81-1050 (1st Cir. Sept. 30, 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

(1957), a federal court is in the extraordinary position of hav-

ing 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 (1976); Griz-

zle v. Burner, 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 responsi-

44a

bility 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 ap-

pellants have taken to exhaust their claim that the prosecution

should be barred.

Appellants did present the allegation that the double jeop-

ardy clause requires dismissal of the conspiracy indictment to

the trial court by filing a motion to dismiss. When their mo-

tion 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 (1971). There can be no question

here that the application for leave to file a petition for in-

terlocutory appeal did not raise precisely the same issue

presented in this petition for a writ of habeas corpus. Despite

the wording of the Massachusetts Rules of Criminal Procedure

which explicitly recognize interlocutory appeal only for deci-

sions on suppression motions, appellants could — and still can

— appeal to the Massachusetts Supreme Judicial Court under

its supervisory power. See Mass. Gen. Laws ch. 211 § 3; Fad-

den v. Commonwealth, 382 N.E.2d 1054, 1056 (Mass. 1978).

We therefore find that the unusual circumstances justifying

jurisdiction over a pre-trial petition for a writ of habeas corpus

do not exist in this instance.

Appellants also seek to bar the prosecution by arguing that

prosecution would violate § 1983 and that § 1983 entitles

them to a declaratory order dismissing the trial. Although this

request for relief would raise significant questions under the

abstention doctrine as set forth in Younger v. Harris, 401 U.S.

45a

37 (1971), and as applied to declaratory relief in Samuels v.

Mackell, 401 U.S. 66 (1971), we need not reach the question

whether interference with the state judicial process would be

fitting in these circumstances. Appellants’ argument that

their constitutional rights will be violated if the trial on the

conspiracy charge proceeds does not withstand analysis.

We do not question the rule that the doctrine of collateral

estoppel can bar a subsequent prosecution. Ashe v. Swenson,

397 U.S. 436, 445-46 (1970). Applying that principle, we do

not view the jury’s verdict in the first case as precluding prose-

cution of the second case. We accept the trial court’s finding

that the verdict did not acquit appellants of conspiring to set

the fire, despite the fact that they were acquitted of a charge

that they did “aid, counsel and procure” the burning of the

building. !

Beyond arguing that collateral estoppel bars prosecution on

the conspiracy charge because an element of the crime has

already been found in their favor — the argument we have

just rejected — appellants argue that collateral estoppel bars

the trial because the government does not have sufficient evi-

dence to prove an illegal agreement if it cannot relitigate the

substantive crimes to the extent of creating the inference that

appellants committed arson and therefore must have con-

spired. Certainly, collateral estoppel prevents the govern-

ment from relitigating the previous acquittals, see section III,

infra, but beyond this point, appellants’ argument raises noth-

‘In ruling on appellants’ pre-trial motion to dismiss, the Superior Court

found that the charge to the jury and the language of the indictment meant

that appellants were being charged with a joint criminal enterprise, not con-

spiracy. Proof of the former required proof that appellants participated in

the commission of the crimes, while proof of the latter requires an element

not common to the former — proof of an unlawful agreement. Thus, the

trial court concluded that appellants had not been acquitted of the charge of

making an illegal agreement. We accept this interpretation and application

of Massachusetts law.

46a

ing more than an issue of the sufficiency of the evidence. This

is a question that must be presented to the trial court in the

form of a motion for acquittal; it is not to be put before the

federal courts in the guise of a constitutional issue. We

therefore conclude that collateral estoppel, as applied through

the double jeopardy clause, does not bar appellants’ prosecu-

tion on the charge of conspiracy.

Ill.

Alternatively, appellants seek a writ barring the relitigation

of all facts and issues necessarily determined in their favor at

the previous trial as well as declaratory and injunctive relief to

the same effect under § 1983. The prayer for relief under our

habeas corpus jurisdiction is inappropriate, for the only relief

we can give is to release the supplicant from custody. As to the

prayer for relief under § 1983, we hold that the case is not ripe

for our consideration.

The doctrine of collateral estoppel as incorporated into the

double jeopardy clause can not only bar a prosecution but it

can also prevent the relitigation of specific facts and issues

necessarily found in a defendant's favor at a previous trial. See

United States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980);

United States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), cert.

denied, 416 U.S. 995 (1974). Appellants fear that the Com-

monwealth will try to relitigate the issue whether appellants

set the fire and hence they seek our protection. At this junc-

ture, however, there is no way of knowing how the state will

try to marshal its evidence and what points it will try to prove.

Until it becomes evident that the government is attempting to

encroach on appellants’ right to be free from double jeopardy,

there is no case or controversy that can be brought before this

47a

court.* We are not about to set ourselves up as Friday after-

noon quarterbacks. In reaching this result, we note that it is

not necessary for us to consider whether intervention would

ever be appropriate should a defendant dispute a trial court's

ruling during trial that the collateral estoppel principles had

not been violated.

In conclusion, we find that the habeas corpus claim that the

prosecution be barred is not properly before the court and that

appellants’ prayer for the same relief under § 1983 is without

merit. The claim that the double jeopardy clause requires this

court to impose orders or injunctions regulating what evidence

may be admitted at trial is found not to be justiciable. Accord-

ingly, in order to prevent possible misunderstanding by the

state trial court, we vacate that part of the district court’s Feb-

ruary 26, 1981, Memorandum of Decision, as amended on

March 6, 1981, foreclosing the Commonwealth from offering

specific evidence at the trial on the conspiracy charge, and af-

firm the judgment of March 13, 1981, directing “that the peti-

tion for writ of habeas corpus and for declaratory injunctive

relief be, and it is hereby, denied”.

48a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

CRIMINAL

NO. 024292

COMMONWEALTH

vs.

ALBERT B. BENSON & ANoTHeR!

REPORT

(Pursuant to Mass. R. Crim. P. 34)

Being of the opinion that, prior to trial, questions of law

have arisen which I, as trial judge, determine are both so im-

portant and so doubtful as to require the decision of the Ap-

peals Court, I hereby report this case to the Appeals Court,

pursuant to the provisions of Mass. R. Crim. P. 34, so far as is

necessary to present the following questions of law arising

therein:

(1) Whether, under the circumstances of this case, the doc-

trine of collateral estoppel, as embodied in the double jeopar-

dy clause of the Fifth Amendment to the Constitution of the

United States, bars the prosecution of the defendants for the

crime of conspiracy to commit arson?

(2) Whether, alternatively, that doctrine bars the relitiga-

tion of all facts and issues that were necessarily determined in

the defendants’ favor at their trial on the indictment charging

the substantive crime of arson?

' Viktor E. Benson.

49a

(3) Given that the only evidence which the Commonwealth

can and will adduce at the trial of the defendants on a conspir-

acy-to-commit-arson indictment is that evidence which the

Commonwealth by memorandum and in open court has here-

tofore asserted it will produce,* and nothing more, whether

such a trial of the defendants, acquitted on substantive arson

indictments involving the same property, is now barred by

double jeopardy or collateral estoppel principles?

Given the factual background of the instant case, its com-

plex procedural history to date, and the nature of the evidence

expected to be presented by the Commonwealth, a pre-trial

appellate determination of the Commonwealth’s rights under

double jeopardy and collateral estoppel principles to put the

defendants to what will be an extended trial on the conspiracy

indictment following their acquittal after trial of the “substan-

tive” arson indictments will, in the judgment of the under-

signed justice, expedite the eventual determination of the con-

spiracy indictment, conserve judicial time and effort, ensure

against possible unnecessary expense, and serve the ultimate

interest of justice for both the Commonwealth and the defend-

ants.®

In order to assist the Appeals Court in its determination of

the issues reported, the court submits with this Report an Ap-

pendix containing various relevant papers, including copies of

docket entries, the several Indictments, decisional memoranda

*See, in particular, Items Nos. 15 and 26 in the accompanying Appendix.

* Prosecution of this criminal case commenced on January 11, 1979 and has

already necessitated the judicial attention of: (1) at least three Superior Court

justices, including the undersigned, two of whom have written detailed legal

memoranda on the points involved, (2) two single justices of the Supreme

—- (3) a judge of the United States District Court for the District

of Massachusetts who rendered two written memoranda, and (4) the United

States Court of Appeals for the First Circuit, which also handed down a de-

tailed opinion.

50a

of the Superior Court (Hayer and O'Neil, JJ), memoranda and

opinion of the United States District Court for the District of

Massachusetts and the Court of Appeals for the First Circuit,

motions to dismiss and for other relief, statements of the Com-

monwealth’s expected evidence at trial, and other court papers

which should provide an adequate record upon which the

reported issues may be determined.

In accordance with the provisions of Rule 34, this case has

been continued for trial to await the decision of the Appeals

Court.

/s/

James P. Lynch, Jr.

Justice of Superior Court

Dated: July 15, 1982

5la

COMMONWEALTH OF MASSACHUSETTS.

SUPREME JUDICIAL CouRT FOR THE COMMONWEALTH,

At Boston,

June 15, 1983

IN THE Case No. SJC-2996

COMMONWEALTH

vs.

ALBERT B. BENSON & another

pending in the Superior Court Department of the Trial Court

for the County of Suffolk No. 024292

Orperep, that ine following entry be made in the docket;

viz., —

The answers to the questions reported are: (1) “No”;

(2) “No”; (3) “No.” The case is to stand for trial.

By THE Court,

/s/ , Clerk

June 15, 1983.

See opinion on file.

52a

Commonwealth vs. Viktor E. Benson & Albert B. Benson

Offense

Conspiracy, violation of General laws, chapter 266, section 2

Attorney

M. Reisner for V. Benson - 1/17/79

J. Ring for A. Benson - 1/17/79

No. 024292

Paper No. Date of Filing (024292-96)

] Jan. 11, 1979 Indictment returned.

Feb. 13, 1979

25 motion for a Bill of Particulars

-Albert B. Benson

38 Motion for bill of particulars

Viktor E. Benson

51 Commonwealth's response to de-

fendant’s motion for Bill of Par-

ticulars I

78 April 2, 1979 Pre-trial conference stipulation

filed.

102 Motion to dismiss indictment

105 Defendant Viktor Benson files:

Motion to dismiss indictment;

110 Dec. 26, 1979 Court, Hayer, J., files: Rulings

and Decision on Motion to

Dismiss denying same.

115 Mar. 19, 1980 motion in Limine I

Apr. 15, 1980 Court reads into the record oral

Order re: the admissability of

certain evidence in this case,

131 Apr. 22, 1980 Defendants’ file motion to

dismiss IV

June 23, 1980 Court, O’Neil, J., files Memoran-

dum in Limine I and in motion to

dismiss IV in which both motions

are denied without prejudice,

53a

COMMONWEALTH OF MASSACHUSETTS

024292

SUFFOLK, ss. At the Superior Court Department of the trial

court, begun and holden at the City of Boston, within and for

the County of Suffolk, for the transaction of Criminal

Business, on the first Monday of January in the year of our

Lord one thousand nine hundred and seventy-nine.

THE JURORS for the COMMONWEALTH OF MASSA-

CHUSETTS on their oath present that

VIKTOR E. BENSON

ALBERT B. BENSON

on December 20, 1978, and on divers other dates, did conspire

together to wilfully and maliciously cause a building to be

burned, and did conspire together to aid, counsel and procure

the burning of a building situated at 101-109 State Street,

Boston, in said County of Suffolk.

A TRUE BILL

/s/

Foreman of the Grand Jury

/s/

Assistant Attorney General

54a

COMMONWEALTH OF MASSACHUSETTS

024294

SUFFOLK, ss. At the Superior Court Department of the trial

court, begun and holden at the City of Boston, within and for

the County of Suffolk, for the transaction of Criminal

Business, on the first Monday of January in the year of our

Lord one thousand nine hundred and seventy-nine.

THE JURORS for the COMMONWEALTH OF MASSA-

CHUSETTS on their oath present that

VIKTOR E. BENSON

on December 20, 1978, did wilfully and maliciously cause to

be burned, and did aid, counsel and procure the burning of a

building situated at 101-109 State Street, Boston, in said

County of Suffolk.

A TRUE BILL

/s/

Foreman of the Grand Jury

/s/

Assistant Attorney General

55a

COMMONWEALTH OF MASSACHUSETTS

024296

SUFFOLK, ss. At the Superior Court Department of the trial

court, begun and holden at the City of Boston, within and for

the County of Suffolk, for the transaction of Criminal

Business, on the first Monday of January in the year of our

Lord one thousand nine hundred and seventy-nine.

THE JURORS for the COMMONWEALTH OF MASSA-

CHUSETTS on their oath present that

ALBERT B. BENSON

on December 20, 1978, did wilfully and maliciously cause to

be burned, and did aid, counsel and procure the burning of a

building situated at 101-109 State Street, Boston in said Coun-

ty of Suffolk.

A TRUE BILL

/s/

Foreman of the Grand Jury

/s/

Assistant Attorney General

56a

COMMONWEALTH OF MASSACHUSETTS

024293

SUFFOLK, ss. At the Superior Court Department of the trial

court, begun and holden at the City of Boston, within and for

the County of Suffolk, for the transaction of Criminal

Business, on the first Monday of January in the year of our

Lord one thousand nine hundred and seventy-nine.

THE JURORS for the COMMONWEALTH OF MASSA-

CHUSETTS on their oath present that

VIKTOR E. BENSON

on December 20, 1978, did break and enter in the night time

the building of Thomas Groom & Co., Incorporated situated

at 101-109 State Street in Boston, with the intent to commit a

felony: to wit arson.

A TRUE BILL

/s/

Foreman of the Grand Jury

/s/

Assistant Attorney General

57a

COMMONWEALTH OF MASSACHUSETTS

024295

SUFFOLK, ss. At the Superior Court Department of the trial

court, begun and holden at the City of Boston, within and for

the County of Suffolk, for the transaction of Criminal

Business, on the first Monday of January in the year of our

Lord one thousand nine hundred and seventy-nine.

THE JURORS for the COMMONWEALTH OF MASSA-

CHUSETTS on their oath present that

ALBERT B. BENSON

on December 20, 1978, did break and enter in the night time

the building of Thomas Groom & Co., Incorporated situated

at 101-109 State Street in Boston, with the intent to commit a

felony: to wit arson.

A TRUE BILL

/s/

Foreman of the Grand Jury

/s/

Assistant Attorney General

58a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS SUPERIOR COURT

CRIMINAL NO. 024292

COMMONWEALTH OF “

MASSACHUSETTS x

Plaintiff * Defendant, Albert B.

* Benson’s Motion for a Bill of

Vv. * Particulars

ALBERT B. BENSON and ¥

VIKTOR E. BENSON .

Defendant *

The defendant, Albert B. Benson, moves this Honorable

Court that the Commonwealth be ordered to file a written Bill

of Particulars specifying the following as to the above-num-

bered indictment:

1. The precise time of day in which the alleged offense

was committed.

2. The precise location where the alleged offense was

committed, including (a) the city or town in the Com-

monwealth where the alleged offense took place (b)

the streets and buildings, if any, where the alleged of-

fense was committed.

3. As precisely as possible the manner in which the al-

leged offense was committed.

4. The means by which the Commonwealth alleges that

the offense took place.

5. The “diverse other dates” alluded to on the face of the

above-numbered indictment.

59a

In support of the foregoing, the defendant, Albert B. Ben-

son, states:

1. The indictment was not sufficiently clear to enable the

defendant to prepare his defense;

2. The particulars sought by this motion are not in the

possession of the defendant and are otherwise not pro-

curable by him reasonably in advance of trial;

3. The request for the particulars sought by this motion is

made in good faith and with no intents to delay the

trial or require the disclosure of purely evidential

materials contained in the Comonwealth files.

ALBERT B. BENSON

By his attorney,

By:

JORDAN L. RING

RING & RUDNICK

55 Union Street

Boston, Mass. 02108

(617) 523-0250

60a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

SUPERIOR COURT DEPARTMENT

CRIMINAL NO. 024292

COMMONWEALTH OF )

MASSACHUSETTS ) MOTION OF THE

VS.

) DEFENDANT VIKTOR E.

) BENSON FOR A BILL OF

VIKTOR E. BENSON and ) PARTICULARS

ALBERT B. BENSON )

The defendant Viktor E. Benson moves this Honorable

Court that the Commonwealth be ordered to file a written Bill

of Particulars specifying the following as to the above-num-

bered indictment.

1,

2.

The precise time of day in which the alleged offense

was committed;

The precise location where the alleged offense was

committed, including (a) the city or town in the Com-

monwealth where the alleged offense took place and

(b) the streets and buildings, if any, where the alleged

offense was committed;

. The “divers other dates” on which the alleged offense

was committed;

. Whether or not there were or are any co-conspirators

who were not indicted. If the answer to the foregoing

is in the affirmative, the name and address of each

such unindicted co-conspirator;

. As precisely as possible, the act or acts which the Com-

monwealth alleges were carried out in furtherance of

the conspiracy;

6.

7.

10.

6la

The name and address of each and every co-

conspirator who was indicted;

As precisely as possible the manner in which the de-

fendants did conspire together to wilfully and

maliciously cause a building to be burned;

As precisely as possible the manner in which the

defendants did conspire together to aid, counsel and

procure the burning of a building situated at 101-109

State Street, Boston, Massachusetts;

The means by which the Commonwealth alleges that

the defendants did conspire together to wilfully and

maliciously cause a building to be burned;

The means by which the Commonwealth alleges that

the defendants did conspire together to aid, counsel

and procure the burning of a building situated at

101-109 State Street, Boston, Massachusetts.

In support of the foregoing, the defendant Viktor E. Benson

states:

1,

2.

The indictment was not sufficiently clear to enable

the defendant to prepare his defense;

The particulars sought by this motion are not in the

possession of the defendant and are otherwise not

procurable by him reasonably in advance of trial;

The request for the particulars sought by this motion

is made in good faith and with no intents to delay the

trial or require the disclosure of purely evidential

materials contained in the Commonwealth files.

VIKTOR E. BENSON

By his Attorney,

Murray P. Reiser, Esquire

73 Tremont Street

Boston, MA 02108

742-1810

62a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

SUPERIOR COURT DEPARTMENT

CRIMINAL NO. 024292

COMMONWEALTH OF ) COMMONWEALTH'’S

MASSACHUSETTS ) RESPONSE TO

VS. ) DEFENDANT’S MOTION

VIKTOR E. BENSON and ) FOR BILL OF

ALBERT B. BENSON ) PARTICULARS

)

Now comes the Commonwealth in the above entitled mat-

ter and responds as follows:

1. On December 20, 1978, and divers other dates prior to

that. At this time, the Commonwealth is unable to specify

dates.

2. 101-109 State Street, Boston, Massachusetts and divers

other locations which the Commonwealth is unable to specify.

3. See Paragraph 1.

4. The Commonwealth is unable to specify the names of

any other co-conspirators at this time.

5. On December 20, 1978, the defendant entered 101-109

State Street, Boston and did aid, counsel, procure and cause

that building to burn.

6. Albert B. Benson.

7. The defendant did agree with Albert B. Benson to wil-

fully and maliciously aid, counsel, procure and cause the

building at 101-109 State Street, to burn.

8. See Paragraph 7.

63a

9. Viktor E. Benson and Albert B. Benson did agree with

each other to wilfully and maliciously aid, counsel, procure

and cause the building at 101-109 State Street to burn.

10. See Paragraph 9.

Respectfully submitted,

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

By:

John J. Bonistalli

Assistant Attorney General

Criminal Bureau

One Ashburton Place

Boston, MA 02108

Tel. 727-2240

64a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.

SUPERIOR COURT

CRIMINAL NOS. 024292,

024293, 024294,

024295 and 024296

COMMONWEALTH OF

MASSACHUSETTS .

Plaintiff *

V. * PRE-TRIAL

* CONFERENCE

ALBERT B. BENSON and * STIPULATION

VIKTOR E. BENSON,

Defendants *

The Commonwealth, through its Assistant Attorney Gen-

eral, John Bonistalli, and defendants, Albert B. Benson

through his attorney, Jordan L. Ring, and Viktor E. Benson

through his attorney, Murray P. Reiser, having conferenced

the above-captioned case, have stipulated that the following

entries may be made upon the docket pertaining to Motions

made by the defendants, as follows:

1. Motion for Grand Jury Minutes. Allowed.

2. Motion for Witnesses Summoned to Testify Before the

Grand Jury. Allowed.

3. Motion for Exculpatory Evidence. Allowed.

65a

4. Motion for Promises, Reward or Inducements. The

Motion is allowed and the Commonwealth states there

were none.

5. Motion to Impose a Gag Order. Allowed, as it per-

tains only to this particular criminal action.

6. Motion for a Bill of Particulars Re: Burglary, # 024295

and 024293. Motion was allowed, and the Common-

wealth provided written responses to said Motion. At

the conference, the Commonwealth further stated:

a. Mr. Bonistalli will check the Commonwealth’s

reports to determine which defendant had the keys

to open the door at 101-109 State Street.

b. Mr. Bonistalli will determine how many of the

other keys found in the defendant's possession fit

the doors at 101-109 State Street.

c. Regarding the Accelerant, the Commonwealth, for

all the indictment, will only rely on the informa-

tion contained in the police laboratory reports.

d. Mr. Bonistalli said there was no evidence of a time

fuse or any other device to start a fire at the scene of

the fire.

e. Two plastic bags were found on the floor at the

scene of the fire.

7. Motion for a Bill of Particulars Re: Arson, # 024296

and 024294. Motion was allowed and complied with,

and the Commonwealth further stated that the fire

was started in the office located on the second floor of

the building.

8. Motion for a Bill of Particulars Re: Conspiracy,

# 024292. Motion was allowed and complied with,

and the Commonwealth further stated:

a. Mr. Bonistalli said there is no direct evidence per-

taining to “diverse other times”, and that the Com-

monwealth will only rely on inference to prove said

meetings.

10.

ll,

12.

66a

b. The Commonwealth has no statements to support

the allegations contained in Paragraph 3 relating

to an agreement to commit arson.

c. The Commonwealth has no direct evidence relat-

ing to a conspiracy, but if such evidence is discov-

ered, Mr. Bonistalli will so inform defense counsel.

Motions Re: Statements of the Defendants. Motions

were allowed and complied with, and the Common-

wealth further stated:

a. The Commonwealth does not possess any oral or

written statements from either defendant.

b. First Security, Inc. does not possess any oral or

written statements from either defendant.

Motion to Inspect Physical Evidence. Motion was

allowed, and it was further agreed that the defend-

ants’ expert witness is to contact the Common-

wealth’s expert witness to determine a mutually con-

venient time to inspect said evidence.

Motion to be Furnished with Identities of All Persons

at the Scene of the Arrest. Motion was allowed and

complied with, and the Commonwealth further

stated that:

a. No one was inside the building at 101-109 State

Street for the Commonwealth. The Bensons were

observed entering and leaving the building, but

no one observed their activities inside the build-

ing.

b. First Security, Inc. was not paid by the Common-

wealth.

c. The Commonwealth had two persons positioned

inside a vacant restaurant on Doane Street for sur-

veillance purposes.

Motion for a list of Commonwealth’s Witnesses. Mo-

tion was allowed and complied with, and the Com-

monwealth further stated that:

13.

14.

b.

Cc.

67a

Thomas Groom's attorneys are John Fox and

Frank Crosson.

No one from First Security, Inc. is expected to tes-

tify at the trial.

The informant will not testify at the trial.

Motion for Information Pertaining to Surveillance.

Motion was allowed and complied with, and the

Commonwealth further stated that:

b.

c.

The surveillance reports were forwarded to

defense counsel.

There was no surveillance done on the Bensons

prior to 12/20/78.

First Security, Inc. does not have any surveillance

on the Bensons, to the Commonwealths knowl-

edge at this time.

. Mr. Bonistalli indicated that the Commonwealth

has no electrical surveillance on the Bensons or

any other person on matters concerning any in-

dictments whatsoever.

. The Commonwealth does not have any film of the

said activities, but the police reports will indicate

that they saw activity on the third and fourth

floors of the building.

Mr. Bonistalli indicated that the fire department

checked the building after the fire to see if anyone

else was inside, Mr. Bonistalli will determine the

extent thereof.

Motion for a List of All Personal Property Found On

or About the Defendants at the Scene of the Alleged

Crime. Motion was allowed and complied with, and

the Commonwealth further stated:

Mr. Bonistalli will provide further information on

the keys (see No. 6 above).

68a

b. Mr. Bonistalli will find out where the police

c.

found the two sections of the plastic pail.

Regarding gloves — Mr. Bonistalli believes that

Viktor Benson was wearing the gloves while in-

side the building and will check and confirm such

information.

. Guns -- Mr. Bonistalli stipulates that any at-

tempts to introduce into evidence at the trial that

the defendants were armed, will be made at the

side bar with the judge and not be made in the

form of any sensational questioning. A motion in

limiting is to be heard before oral opening to the

jury.

Inasmuch as the parties are unable to reach an agreement

on the following defense motions, a Hearing will be held on

April 2, 1979 at 9:30 a.m. to argue the Motions before the

Court:

1,

Motion to Inspect Witnesses’ Statements. Motion

was allowed in part, and defendant counsel seeks full

compliance.

The Commonwealth does not possess any written

statement from Mr. Groom; however, the

substance of any such conversarion with the

police may be contained in the police reports

which will be furnished to defense counsel.

. The Commonwealth is unwilling to reduce oral

statements into written statements. The Defend-

ants demand the production of all statements.

Motion for Postponement of Trial Due to Pre-Trial

Publicity.

Mr. Bonistalli was unwilling to agree to this Mo-

tion, as he felt a thorough voire dire hearing

would cure any problems caused by the publicity.

69a

. Mr. Bonistalli is willing to stipulate that there was

media coverage of the incident on 12/20/78.

Mr. Bonistalli was initially unwilling to provide

us with copies of press releases issued from the At-

torney General's Office. However, he later indi-

cated a willingness to check the policy of the At-

torney General’s Office on such matters and if he

receives an O. K., he will then furnish us copies of

the press releases.

Motion for Production of Laboratory Reports.

Mr. Bonistalli indicated that the Commonwealth’s

expert witnesses would testify (a) as to the lack of

any evidence of accidental causation of the fire,

such as loose wiring; (b) as to the location and

pattern of the fire, etc,; and (c) all leading to a

conclusion of arson.

. Defense counsel requested further evidence per-

taining to the condition of the samples when

delivered to the police laboratory (specifying

whether said samples were wrapped or

otherwise), the time of delivery and the actual

date and time the samples were tested.

Mr. Reiser further requested that the Common-

wealth provide defendants with the substance of

the expert witnesses’ testimony and the basis for

their findings.

. Mr. Bonistalli was unwilling to reduce all of this

information to writing and suggested that counsel

and/or defendants’ expert witnesses contact the

Police Laboratory directly.

Defense counsel are dissatisfied with Mr. Bonistalli’s

suggestion, as they anticipate extensive expert testi-

mony at trial for each side, and are therefore afraid

that the Commonwealth’s experts will prove unac-

70a

cessible and noninformative unless ordered by the

Court to reduce to writing the basis for their find-

ings.

Motion for Information Pertaining to Informant.

a.

Mr. Bonistalli is unwilling to give the identity of

the informant or advise us as to what information

was provided by the informant.

. Mr. Bonistalli’s position is that this information is

unnecessary as the Commonwealth’s case is total-

ly independent of such information and the in-

formant will not testify at the trial.

Defense counsel insisted upon the allowance of

said Motion, as it could lead to exculpatory evi-

dence, such as motive.

. Mr. Bonistalli then brought up his fear regarding

the safety of the informant if the identity of the

informant was made public.

. Mr. Reiser then suggested an in-camera session of

the Court with the informant, but Mr. Bonistalli

would not go along with this suggestion, either.

Motion for Production of Police Department Rec-

ords,

Mr. Bonistalli is only willing to produce actual

police reports; said reports will be produced on

March 20, 1979.

. Defense counsel insist that the notes and diaries of

the investigating police officers also be produced

to prevent any surorise at trial from police officers

referring to something in their notes which is not

included in the reports.

Motion to Establish Motive.

This Motion was discussed after the conference,

and will also have to be argued at the Hearing on

April 2, 1979.

7Tla

The following Motions require the authorization of the

Court, and will also be presented for the Court’s determina-

tion on April 2, 1979:

1. Motion to Follow M. G. L. Chapter 278, Section 33

(a) - (g).

2. Motion to Furnish Criminal Records of Common-

wealth Witnesses.

3. Motion to Allow the Jury to Take Notes.

The parties hereby agree that the above memorandum and

stipulation is a fair and accurate record of the pre-trial con-

ference held on March 15, 1979.

For the Commonwealth:

John Bonistalli

Assistant Attorney General

For the defendant,

Albert B. Benson:

Jordan L. Ring

For the defendant,

Viktor E. Benson:

Murray Reiser

72a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS SUPERIOR COURT

No. 024292

COMMONWEALTH OF .

MASSACHUSETTS ¥

* AFFIDAVIT OF JORDAN

v. * L. RING IN SUPPORT OF

* LIMINE-1

ALBERT B. BENSON and :

and VIKTOR E. BENSON *

I, Jordan L. Ring, attorney for the Defendant Albert B.

Benson, do hereby dispose and state under oath that based

upon information and belief the opening statement at the trial

of the-above-referenced indictment by John Bonistalli, Assist-

ant Attorney General and the Prosecutor of the within action,

will show that the Commonwealth intends to introduce the

following evidence to prove the alleged agreement of Albert

Benson and Viktor Benson to commit arson at 101-109 State

Street, Boston, Suffolk County, Massachusetts, on December

20, 1978.

I. The Commonwealth will introduce evidence that on

December 20, 1978 State Police Officers assigned to the Attor-

ney General’s Office conducted a surveillance of the five story

commercial building located at 101-109 State Street and that

said surveillance was designed to result in placing Albert B.

Benson and Viktor E. Benson under arrest for arson and break-

ing and entering with the intent to commit a felony, to wit; ar-

son. The evidence of the State Police Troopers will include

the following:

73a

A. Lt. Cummings. That Lt. Cummings was the officer

in charge of the State Police surveillance conducted at

101-109 State Street on the evening of December 20,

1978.

1. That Lt. Cummings established surveillance head-

quarters at the offices of First Security Services, located

on the 4th floor of 92 State Street directly across the street

from the building at 101-109 State Street.

2. That Lt. Cummings assigned the State Police

Troopers to the various lookout locations.

3. That Lt. Cummings remained in radio contact with

all the State Troopers and directed the activities of the

State Troopers throughout the course of the surveillance.

4. That at approximately 10:30 P.M., Lt. Cummings

observed an unidentified individual open a window on

the second floor of 109 State Street and protrude out the

window for several minutes, said second floor being the

location where the subsequent fire originated.

B. Trooper Jarrett. That Trooper Jarrett conducted a

surveillance of 101-109 State Street during the early after-

noon on December 20, 1978. That he observed the Ben-

sons at 101-109 State Street during that time period, and

that he particularly saw them on the second floor above

the Camera Shop, the location of the origin of the subse-

quent fire that evening.

C. Sgt. Joyce, Trooper Flagherty and Trooper O’Brian.

1. That Sgt. Joyce, Trooper Flagherty and Trooper

O’Brian conducted a surveillance of 101-109 State Street

from a vacant restaurant located on Doane Street, direct-

ly behind the Groom Stationary Building.

These State Police Officers will testify that Viktor and

Albert Benson drove down Doane Street at approxi-

mately 9:35 P.M. and parked their automobile behind

101-109 State Street.

74a

2. That after several minutes Viktor Benson exited the

car and walked down Doane Street and turned left onto

Broad Street.

3. Viktor Benson was carrying a cardboard box and

several pieces of wood straplings.

4, That approximately 5 minutes later Albert Benson

exited the car and he also walked down Doane Street to

Broad Street. Albert Benson carried a cardboard box in

which a white bucket protruded.

5. That at approximately 11:05 P.M. these three offi-

cers approached Viktor Benson as he returned to his car

and placed him under arrest.

6. Trooper Flagherty subsequently took Viktor Ben-

son’s trousers and his handkerchief, both of which had

blood on them, for subsequent chemical analysis of the

contents contained therein.

7. Sgt. Joyce subsequently obtained a search warrent

to search the automobile that Viktor and Albert Benson

drove to Doane Street that evening. Subsequent search

produced a pair of gloves that the State Police also subse-

quently had chemically analyzed.

D. Trooper Dorn and Trooper McDonough.

1. Trooper Dorn and McDonough were in separate

unmarked State Police cars on Broad Street facing State

Street.

2. During their surveillance these officers saw Viktor

and Albert Benson separately come around Doane Street,

up Broad Street and over to State Street where they subse-

quently entered the building. That at a later time they

observed Albert Benson reappear on Broad Street with a

white bucket.

3. That Trooper Dorn followed Albert Renson and

after Albert Benson had deposited the white bucket on a

pile of trash Trooper Dorn recovered said bucket for sub-

sequent chemical analysis.

75a

4. That Trooper McDonough subsequently helped

Corporal Saccardo arrest Albert Benson on the corner of

State and Kilby Street.

5. That Trooper Dorn subsequently entered the

building after the fire, smelt a strong chemical odor, and

took samples of the carpeting from the second floor where

the fire originated for subsequent chemical analysis.

E. Surveillance conducted from headquarters at 92 State

Street.

1. Lt. Cummings, Trooper White and other persons

were at the 4th floor of 92 State Street observing the front

of 101-109 State Street.

2. Trooper White, after the Bensons entered the build-

ing at 109 State Street, assumed a position out in front of

92 State Street.

3. That Trooper White observed Albert Benson exit

the building with the white bucket and go down Broad

Street and reappear on State Street a few minutes later

where Albert Benson stood outside of 101-109 State

Street.

4. Trooper White subsequently assisted in the arrest of

Albert Benson on the corner of Kilby and State Street.

5. That Trooper White subsequently entered the

building and smelled a strong chemical odor and ob-

served a lot of trash and straw baskets scattered around

on the stairways.

6. That other officers watching the building from the

4th floor of 92 State Street observed people on the 3rd

floor of 105 and 109 State Street on the evening of De-

cember 20, 1978.

These people were identified as Bill Currin, the

operator of a print shop located on the 3rd floor of 105

State Street, and three individuals working for Pavo Real

Company located on the 3rd floor of 109 State Street.

76a

7. That the people from Pavo Real left the building

several times to visit their store at Quincy Market but

were in the building at the time of the fire.

8. That Bill Curren left his shop at approximately

10:00 P.M. and left the building.

9. That the State Police Officers did not observe any

other activity within the building during that evening

other than Lt. Cummings observation of a person at a

second story tloor window at approximately 10:35 P.M.

10. That after the Bensons left the building, Lt. Cum-

mings requested Chief McCarthy, who was also on the

4th floor office, to strike the alarm for the fire apparatus.

11. That within five minutes after the time Viktor

Benson exited the building a fire erupted on the 2nd floor

of 109 State Street.

F. Corporal Saccardo.

1. That Corporal Saccardo was in a State Police car

located on Kilby Street, near the corner of Doane Street.

2. That he arrested Albert Benson on the corner of

State Street and Kilby Street.

II. Expert Testimony Relating to the Cause of the Fire

Ill.

1. Deputy Chief John O'Mara and Chief McCarthy

will testify that in their opinion the fire that erupted at ap-

proximately 11:00 P.M. in an office on the second floor of

109 State Street was of an incendiary origin. They will

base their testimony on samples taken from the scene, two

pieces of carpeting and wood straplings, and the dena-

tured alcohol flammable fluid that was found present in

the carpeting after analysis by the State Police Chemist.

Anticipated Testimony of various tenants located in

101-109 State Street.

A. Mary Marrone

1. That she is the owner of the Smoke Shop located on

the first floor of 105 State Street.

77a

2. That she was not present at State Street on the even-

ing of December 20, 1978.

3. That she has a lease for the premises occupied at

State Street by the Smoke Shop.

4. That Thomas Groom & Co., during its bankruptcy

proceedings, attempted to terminate the lease pursuant to

a court order, said motion was denied.

5. That the Smoke Shop lease contains a termination

clause in the event of a fire in the building located at

101-109 State Street.

6. That the fire occurred directly above her leased

premises.

B. Ted Brody.

1. That he is the owner of the Camera Shop located

on the first floor of 105 State Street.

2. That he was not present at State Street on the even-

ing of December 20, 1978.

3. That he has a lease for the premises occupied at

State Street by the Camera Shop.

4. That Thomas Groom & Co., during its bankruptcy

proceedings, attempted to terminate the lease pursuant to

a court order, said motion was denied.

5. That the Camera Shop lease contains a termination

clause in the event of a fire in the building located at 105

State Street.

6. That the fire occurred directly above his leased

premises.

D. Pavo Real Personnel

1. That Pavo Real rents space on the third floor of

101-109 State Street which is used for storage purposes.

2. That various employees went to and from 101-109

State Street and the Pavo Real Store at Quincy Market

during the evening of December 20, 1978, using an en-

trance on Doane Street to gain access to 101-109 State

Street.

78a

3. That they were not involved in setting the fire on

the second floor of 109 State Street on December 2v.

1978.

4. That neither of the Bensons entered their third floor

facilities on the evening of December 20, 1978.

E. Thomas Groom ¢ Co. Personnel

1. Bill Burke, an employee, will testify that on Decem-

ber 20, 1978 he received a telephone cal! from a Helen

Brown informing him that the building at 101-109 State

Street was to be burned that evening.

2. That he secured the premises at Groom Stationary

on December 20, 1978, and in particular that he secured

the bolt lock on the office side of the door located on the

second floor of 101-109 State Street that leads into the

stairwell on 109 State Street.

3. That the stairways located at 109 State Street, the

entry point of the Bensons on December 20, 1978 does not

lead into the basement of the building.

4. That he returned to the building with Thomas

Groom V, the owner’s son, on the evening of December

20, 1978 to turn on the security system after having been

informed by the Sentry Security Company that the same

was not turned on.

5. That he was not involved in setting the fire at

101-109 State Street on December 20, 1978.

IV. Evidence Re: Hamilton Realty

A. Purchase of Building.

1. That Harold Brown d/b/a Hamilton Realty was the

high bidder in a sale of the building at 101-109 State

Street pursuant to a bankruptcy proceeding.

2. The conveyance was scheduled to occur on Decem-

ber 21, 1978.

3. On December 18, 1978, Hamilton Realty insured

the building against fire damage for $650,000.00.

79a

4. That the conveyance was continued as a result of

the fire on December 20, 1978 until January, 1979.

5. That the building was insured by Thomas Groom

for $350,000.00, said policy and the proceeds for the

December 20, 1978 fire were assigned to Hamilton Realty

at the subsequent conveyance.

B. Relationship with the Bensons

1. That Hamilton Realty had hired Benson Construc-

tion Company to renovate the building at 101-109 State

Street.

2. That a meeting with Hamilton Realty, Albert Ben-

son and Viktor Benson took place a day or two before the

fire.

3. That the Bensons were given a new lock and in-

structed to install the same on the entry way to 109 State

Street.

4. That the Bensons have done fire renovation work

for Hamilton Realty in the past.

5. That Benson Construction Company has subse-

quently renovated the building at 101-109 State Street.

V. Real Estate Evaluation of the Building at 101-109 State

Street.

A. That due to its close proximity to the Quincy Market

area, the building at 101-109 State Street is in a major

commercial setting.

B. That first floor office space of the commercial build-

ing is highly desirable and valued considerably higher

than commercial office space on floors above street level.

C. That the premises occupied by the Camera Shop and

the Smoke Shop are highly desirable commercial loca-

tions.

1. The leases held by the Smoke Shop and Camera

Shop prevent any tenant from occupying the entire first

floor premises at 101-109 State Street.

VI.

80a

2. The termination of the lease held by the Smoke

Shop and Camera Shop would be economically beneficial

to Hamilton Realty.

Conclusion.

A. That the agreement of Albert Benson and Viktor Ben-

son to conspire to commit arson at 101-109 State Street is

proven by the following:

1. That the Bensons were in a position to burn the

building on December 20, 1978.

2. That the State Police were specifically looking for

Albert Benson and Viktor Benson on December 20, 1978

and expected them to set a fire.

3. That a fire of incendiary origin occurred on Decem-

ber 20, 1978 at 101-109 State Street.

4, That the Bensons were seen earlier in the day on the

second floor of the building, the point of origin of the

subsequent fire.

5. That the fire occurred directly above the premises

of the Smoke Shop and the Camera Shop, the two tenants

whose leases contained fire termination clauses.

6. That the fire occurred within five minutes after the

Bensons left the building.

7. That the Bensons and Hamilton Realty, a company

for which they did a lot of work, would gain by a fire at

101-109 State Street.

8. In short, the Bensons set the fire and their surrepti-

tious activities on December 20, 1978 show they must

have had a plan and an agreement to set the fire.

Jordan L. Ring.

8la

Then personally appeared Jordan L. Ring and stated that

the foregoing statements are based upon information and

belief.

John C, Martland, Notary Public

My Commission Expires: May 11, 1986

82a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS: SUPERIOR COURT

DEPARTMENT

CRIMINAL NO, 024292

O82 2 22 2.8 6.6: 6.88 =e

COMMONWEALTH OF

MASSACHUSETTS

Plaintiff

V.

ALBERT B. BENSON

VIKTOR E, BENSON

Defendants

= * + ell _ * = > >

COMMONWEALTH'S TRIAL MEMORANDUM

The Commonwealth's evidence in the trial of the above

numbered indictment will generally be as follows:

A building located at 101-109 State Street, Boston was

owned by Thomas Groom Inc. In the fall of 1978 the building

was sold to Harold Brown as the high bidder in a bankruptcy

proceeding. The passing of papers for this conveyance was

scheduled to take place on December 21, 1978.

As the result of information received on the morning of De-

cember 20, 1978 the State Police commenced a surveilance of

the building on State Street. Lt. Cummings assigned Trooper

Bill Jarett and Trooper Michael Dorne to watch the building

during the afternoon of December 20, 1978. Trooper Jarett

will testify that he observed Viktor and Albert Benson at the

83a

State Street location on the afternoon of December 20, 1978.

Lt. Cummings will testify that he visited the area at 12:00

p.m. and made arrangements with First Security Services and

a landlord of a building on Doone Street to use their facilities

during the evening of December 20, 1978 to conduct a surveil-

lance. In addition to the State Police being present Lt. Cum-

mings had contacted Boston Fire Commissioner George Paul

who designated Deputy Chief John McCarthy to work with

the State Police on the liaison to the fire department. Deputy

Chief McCarthy was present at State Street throughout the

evening of December 20, 1978.

Various state police officers will testify that Viktor and

Albert Benson drove down Doane Street (9:35 p.m.) and

parked their automobile behind 101-109 State Street. After

several minutes Viktor Benson exited the car and walked

around to 109 State Street and entered the building. Approxi-

mately five minutes later Albert Benson exited the car and he

also walked to 109 State Street and entered the building. Vik-

tor Benson carried a cardboard box and several pieces of wood

strapping. Albert Benson also carried a cardboard box from

which a bucket protruded.

From 7:00 p.m. to 11:05 p.m. the State Police watched the

building from the 4th floor of 92 State Street. They observed

Bill Curren in his print shop on the 3rd floor of 105 State

Street. He left his shop at approximately 10:00 p.m. On the

3rd floor of 109 State Street were three individuals working for

Pavo Real unpacking goods delivered to the building that day.

They left the building several times to visit their shop at Quin-

cy Market but were in the building at the time of the fire. At

approximately 11:10 p.m. they were escorted by Ken Dorch of

First Security Services to 92 State Street where they were inter-

viewed. At approximately 10:30 p.m. an unidentified indivi-

due! opened a window on the 2nd floor of 109 State Street and

protruded out the window for several minutes. The State

84a

Police did not observe any other activity in the building during

that evening.

At approximately 11:00 p.m. Albert Benson exited 109 State

Street carrying a white bucket. He walked south on Broad

Street and deposited the bucket in a pile of trash. He then

walked to 92 State Street (opposite 101-109 State Street) where

he could observe the building opposite him. At apprcsimately

11:04 p.m. Viktor Benson exited the building and returned to

the automobile on Doane Street. Albert Benson walked

toward Kilby (north and away from Viktor). At this time Lt.

Cummings requested Chief McCarthy to strike the alarm for

the fire apparatus and he also ordered the State Troopers to

apprehend Viktor and Albert Benson.

Sergeant Joyce, Troopers Flaherty and O’Brien approached

Viktor Benson at the automobile. Trooper O’Brien patted

Viktor Benson down. In a subsequent search the police dis-

covered the following on Viktor Benson:

A. 44 Magnum handgun,

B. 2 books of matches and a Cricket lighter,

C. a screwdriver, and

D. a jack-knife and a utility knife.

The officers escorted Viktor Benson to the 4th floor of 92 State

Street.

Corporal Saccardo placed Albert Benson under arrest at the

corner of State Street and Kilby Street. Albert Benson was

frisked and then searched. He was carrying a .38 caliber

Smith-Wesson revolver. Albert Benson was then escorted to

the 4th floor of 92 State Street.

The fire apparatus arrived at State Street at approximately

11:07 p.m. At approximately 11:10 p.m. a fire erupted in an

office on the second floor. The fire department extinguished

the fire and conducted an investigation of the scene. In the

85a

opinion of Deputy Chief John O’Mara the cause of the fire was

incendiary. Sarnples from the scene (two pieces of carpeting)

were sent to the State Chemist for examination which revealed

a flammable fluid (denatured alcohol).

A day or so before the fire, Viktor and Albert Benson met

with Harold Brown and discussed the building at 101-109 State

Street. On December 18, 1978, Hamilton Realty (Harold

Brown, D.B.A.) insured the building against fire damage for

$650,000. The building was also insured by Thomas Groom for

$350,000 (Quincy Mutual Insurance Company). That policy

was assigned to Harold Brown after the property was conveyed.

There were five tenants in the building. The two tenants on

the first floor (the Smoke Shop and the Camera Store) were the

only tenants who had leases. The leases extend to 1983 and

1987, respectively, at the tenants option and neither tenant

wished to terminate their lease. Pursuant to a clause in the

leases, a fire in any part of the building permitted the lessor to

terminate the lease. The fire of December 20, 1978 was set in

an office on the 2nd floor just above the two stores. The first

floor of the building demands the highest rent and the tenants

are paying far below the current rental value which has in-

creased rapidly due to the success of the Quincy Market.

The activity of Bill Curren, Terrence Youk, Thomas Brush

and James Kornmen (people in the building on the night of the

fire) as described by the State Police will be substantiated by

the tenants.

Respectfully submitted,

FRANCIS X. BELLOTTI

BY:

JOHN J. BONISTALLI

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

Tel: 727-2240

86a

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

DEPARTMENT OF THE

TRIAL COURT

NO. 024292

ALBERT B. BENSON and VIKTOR E. BENSON

Petitioners

vs.

COMMONWEALTH OF MASSACHUSETTS

Respondent

MOTION TO DISMISS

I. Statement of the Case

ALBERT B. BENSON and VIKTOR E. BENSON respect-

fully move this Honorable Court pursuant to Mass. R. Crim.

P. 13(c) (1) to dismiss indictment No. 024292, or in the alterna-

tive, to grant relief in the nature of prohibition.

ALBERT B. BENSON and VIKTOR E. BENSON, previ-

ously acquitted of the substantive charges of arson and break-

ing and entering with intent to commit arson, state that the

doctrine of collateral estoppel, as embodied in the Double

Jeopardy clause of the Fifth Amendment to the Constitution of

the United States, bars the prosecution of the Defendants for

the crime of conspiracy to commit arson, or alternatively, bars

the relitigation of all facts and issues that were necessarily

determined in their favor at the prior trial.

The Defendants now await trial, presently scheduled for

May 17, 1982, on the conspiracy indictment. Yet the Com-

87a

monwealth has no more evidence today of the existence of a

conspiracy than that which it introduced during the previous

trial of the Defendants on the substantive charges, charges of

which they were acquitted. The Defendants maintain, there-

fore, that the Commonwealth will be unable to meet its

threshold burden of proof for the crime of conspiracy to com-

mit arson without again attempting to prove that the Defend-

ants committed the substantive crimes of arson and breaking

and entering with the intent to commit arson. To grant the

Commonwealth an opportunity to relitigate the attendant

tacts and issues, in an effort to discover the right combination

of convincing evidence and willing jurors to produce a convic-

tion, thereby putting the Defendants twice in jeopardy,

violates the fundamental rights secured to them by the Fifth

and Fourteenth Amendments to the United States Constitu-

tion.

In support of the within Motion, Albert B. Benson and Vik-

tor E. Benson state that:

1. On January 11, 1979, the Suffolk County Grand Jury in-

dicted Albert B. “enson and Viktor E. Benson, the Defendants

herein, on identical indictments for the offenses of arson (In-

dictment Nos. 024294 and 024296), breaking and entering

with the intent to commit a felony, to wit: arson (Indictment

Nos. 024293 and 024295) and conspiracy to commit arson (In-

dictment No. 024292).

2. Indictment No. 024292 alleged, in material part, that:

“VIKTOR E. BENSON, ALBERT B. BENSON

On December 20, 1978, and on diverse other dates, did

conspire together to willfully and maliciously cause a

building to be burned, and did conspire together to aid,

counsel, and procure the burning of a building situated at

101-109 State Street, Boston. . .” (App. 40).

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3. Indictment Nos. 024294 and 024296 alleged, in material

part, that Viktor E. Benson and Albert E. Benson respectively:

“On December 20, 1978, did willfully and maliciously

cause to be burned, and did aid, counsel and procure the

burning of a building situated at 101-109 State Street,

Boston. . .” (App. 41).

4. Indictment Nos. 024293 and 024295 alleged, in material

part, that Viktor E. Benson and Albert B. Benson respectively:

“On December 20, 1978, did break and enter in the

nighttime the building of Thomas Groom and Co., Inc.,

situated at 101-109 State Street in Boston, with the intent

to commit a felony, to wit: arson.” (App. 43).

5. On September 11, 1979, a trial was commenced in Suf-

folk Superior Court before Sullivan, J., and a jury on Indict-

ment Nos. 024293, 024294, 024295 and 024296 against the De-

fendants, Albert B. Benson and Viktor E. Benson.

6. On September 18, 1979, the jury returned verdicts of not

guilty on Indictment Nos. 024293, 024294, 024295 and 024296.

7. Prior to said trial, numerous pre-trial motions an@ other

pleadings were filed with the Court.

8. On or about February 14, 1979, counsel for the Defend-

ants, Albert B. Benson and Viktor E. Benson, filed a motion for

a Bill of Particulars as to Indictment No. 024292. (App. 45).

9. Said Motion, at Paragraph 4, inquired of the Common-

wealth:

“Whether or not there were any co-conspirators who

were not indicted. If the answer to the foregoing is in the

affirmative, the name and address of each such unindict-

ed co-conspirator;” (App. 47).

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The Commonwealth responded as follows:

“4, The Commonwealth is unable to specify the names

of any other co-conspirators at this time.” (App. 50).

10. On March 15, 1979, counsel for the Defendants and

counsel for the Commonwealth (Assistant Attorney General

John J. Bonistalli, Esquire) met at a pre-trial conference in

Suffolk Superior Court. By the terms of a Pre-Trial Confer-

ence Stipulation entered into that day, the Commonwealth

represented the following with respect to Defendants’ Motion

for a Bill of Particulars as to the conspiracy indictment:

“A. Mr. Bonistalli said there is no direct evidence per-

taining to diverse other times; and that the Common-

wealth will only rely on inference to prove said meeting.

B. The Commonwealth has no statements to support the

allegations contained in Paragraph 3 relating to an agree-

ment to commit arson.

C. The Commonwealth has no direct evidence relating

to a conspiracy, but if such evidence is discovered, Mr.

Bonistalli will so inform defense counsel.” (App. 53).

11. The Commonwealth has continually acknowledged,

through its responses to various motions, that it has no direct

evidence of a conspiracy; furthermore, as of this date, the

Commonwealth has neither informed defense counsel of the

existence of any direct evidence nor supplemented its plead-

ings to indicate such.

12. Following their acquittal of the substantive charges on

September 18, 1979, the Defendants filed a Motion to Dismiss

Indictment No. 024292, based upon double jeopardy and col-

lateral estoppel principles. During argument on the collateral

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estoppel issue before the Suffolk County Superior Court

(Hayer, J.), Mr. John J. Bonistalli, Assistant Attorney Gen-

eral, told the Court that there was additional evidence that

would be introduced at the trial on Indictment No. 024292,

and that the trial of said conspiracy indictment would not be

based on the same evidence as was introduced by the Com-

monwealth during the trial on the substantive offenses of arson

and breaking and entering with intent to commit a felony, to

wit: arson.

13. On December 26, 1979, Judge Hayer filed a written

Memorandum and Order denying the Defendants’ Motion to

Dismiss Indictment No. 024292. (App. 59). The Court, in re-

jecting the Defendants’ collateral estoppel argument,

specifically referred to the representation of Mr. Bonistalli,

stating:

“At this time posture what evidence will be presented by

the Commonwealth in the conspiracy trial is not known.

While the Defendants say it will be the same evidence

that was heard in the substantive trial, the Common-

wealth does not agree that it is so.” (App. 67).

14. On March 14, 1980, Mr. Bonistalli forwarded to the

Defendants’ counsel copies of various governmental reports

relating to arson investigations at 162 Naples Road, Brookline,

Massachusetts; MacArthur Boulevard, Bourne, Massachusetts;

and 502-508 Oak Street, Brockton, Massachusetts. The

reports concerned fires that had occurred at these locations

during the period of time from May, 1975 to January, 1976.

Mr. Bonistalli told Defendants’ counsel that at the trial of In-

dictment No. 024292, the Commonwealth would introduce

evidence of these three fires and the alleged involvement of the

Defendants therein in order to show a “common scheme” by

the Defendants to conspire to commit arson.

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15. On March 24, 1980, the Defendants filed their Motion

in Limine - III, seeking to preclude the Commonwealth at the

conspiracy trial from introducing into evidence and from mak-

ing any reference to the three fires at Brookline, Bourne and

Brockton and the alleged involvement of the Defendants

therein. (App. 70).

16. On April 14, 1980, a pre-trial hearing was held on De-

fendants’ Motion in Limine - III and on the issue of the ad-

missibility of evidence of other crimes, specifically the alleged

involvement of the Defendants in the fires at Brookline,

Bourne and Brockton.

17. On April 15, 1980, the Court (O'Neil, J.) issued an

Order precluding the Commonwealth from introducing evi-

dence of the fires in Brookline, Bourne and Brockton as part of

its case-in-chief during the conspiracy trial. (App. 80).

18. As of this date, the Commonwealth has not informed

Defendants’ counsel of any additional evidence of a con-

spiracy. The Commonwealth has told defense counsel that it

intends to introduce new evidence relating to (1) the alleged

motive of the Defendants to set the fire; (2) the activities of

other persons in the building on the evening of December 20,

1978; and (3) the fact that the Defendants were armed at the

time of their arrest.

Such evidence, however, does not even arguably suggest the

existence of an agreement by the Defendants to commit arson;

rather, it focuses on whether or not the Defendants committed

the substantive crime of arson, an issue previously decided

against the Commonwealth in the prior trial.

19. The Commonwealth, then, is attempting to prosecute

Indictment No. 024292, alleging a conspiracy to commit ar-

son, by relitigating the very facts determined against it by the

acquittal of the Defendants on the substantive charges of arson

and breaking and entering with intent to commit a felony, to

wit: arson.

92a

20. On March 20, 1980, the Defendants filed their Motion

in Limine - I, seeking to bar the Commonwealth from reliti-

gating all facts and issues necessarily determined against it by

the acquittal of the Defendants on the substantive charges.

(App. 87).

21. In addition, on April 13, 1980, in response to the Order

of the Court (O'Neil, J.) which precluded the Commonwealth

from introducing evidence of the fires at Bourne, Brookline

and Brockton, and the alleged involvement of the Defendants

therein, the Defendants filed their Motion to Dismiss - IV, in

which they sought to dismiss the conspiracy indictment alto-

gether on the grounds of collateral estoppel.

22. On May 14, 1980, at the Court’s request, the Common-

wealth filed a Trial Memorandum. (App. 100). By agree-

ment between the Commonwealth and counsel for the De-

fendants, the Court (O'Neil, J.) treated the Trial Memoran-

dum as a summary of the nature of the testimony to which the

Commonwealth would refer in its opening remarks to the

jury, and in turn, as being a summary of the proposed evi-

dence to be introduced by the Commonwealth at the conspir-

acy trial.

23. Prior to the hearing on the Defendants’ Motion in

Limine - I, Jordan L. Ring, Esquire, counsel of record for Al-

bert B. Benson, filed an Affidavit in Support of Motion in

Limine - I. (App. 105). Insofar as the Affidavit of Mr. Ring

was consistent with the Commonwealth’s Trial Memoran-

dum, the Court treated it as a more precise recitation of the

proposed testimony of the Commonwealth's witnesses.

24. After hearing argument on the collateral estoppel issues

on April 29, 1980, the Court (O’Neil, J.), on June 23, 1980, de-

nied the Defendants’ Motion in Limine - I and Motion to Dis-

miss - IV. (App. 120).

25. The defendants then filed an Application for leave to

File an Interlocutory Appeal pursuant to Mass. R. Crim. P.

15(b) (2) in the Supreme Judicial Court (App. 124).

93a

26. On October 3, 1980, after a hearing before a Single

Justice (Kaplan, J.), the Application was denied without prej-

udice to the Defendants’ right to renew their contentions dur-

ing the course of the trial proceedings. (App. 211).

27. On January 24, 1981, the Defendants filed a two-count

Complaint in the United States District Court for the District

of Massachusetts. (App. 4). Count I was a Petition for a Writ

of Habeas Corpus pursuant to 28 U.S.C. Sections 2241 and

2254, and Count II consisted of a Complaint for Declaratory

and Injunctive Relief pursuant to 42 U.S.C. Section 1983 and

28 U.S.C. Section 1343(3). Therein, the Defendants sought to

redress the deprivation under color of state law of their rights

secured by the United States Constitution. Both Count I and

Count II were founded upon the principle of collateral estop-

pel, as embodied in the Double Jeopardy clause of the Fifth

Amendment to the United States Constitution and made

applicable to the states through the Fourteenth Amendment.

28. After a hearing before Garrity, J., the Petition was de-

nied on February 26, 1981 (App. 215). In its Memorandum of

Decision, however, the Court declared that the Common-

wealth “. . . will be foreclosed (at the trial of the conspiracy in-

dictment) from claiming or arguing that the Petitioners set the

fire in the building.” (App. 219).

29. Thereafter, the Defendants filed a Motion for Recon-

sideration and Clarification of the District Court’s decision

(App. 221). On March 6, 1981, the District Court (Garrity,

J.) issued an Order amending the previous decision so as to

preclude the Commonwealth at the conspiracy trial from

claiming or arguing in any way that the Defendants set the fire

in the building or that they did aid, counsel or procure the

burning of the building. (App. 237).

30. On March 6, 1981, a Certificate of Probable Cause was

issued by the District Court pursuant to 28 U.S.C. Section

2253, Rule 22 of the Federal Rules of Appellate Procedure and

94a

Rule 17 (Habeas Corpus) of the Rules of the United States

Court of Appeals for the First Circuit, and the action was ap-

pealed to the United States Court of Appeals for the First Cir-

cuit (App. 234, 239).

31. On November 9, 1981, the Court of Appeals rendered a

decision in which the judgment of the District Court was

vacated in part and affirmed in part. (App. 240). Therein,

the Court (Coffin, C.J.) stated in pertinent part:

There can be no question here that the application for

leave to file a petition for interlocutory appeal did not

raise precisely the same issue presented in this petition for

a writ of habeas corpus. Despite the wording of the Mas-

sachusetts Rules of Criminal Procedure, which explicitly

recognize interlocutory appeal only for decisions on sup-

pression motions, appellants could — and still can — ap-

peal to the Massachusetts Supreme Judicial Court under

its supervisory power. See Mass. Gen. Laws Ch. 211s. 3;

Fadden v. Commonwealth, 382 N.E. 2d 1054, 1056

(Mass. 1978). We therefore find that the unusual cir-

cumstances justifying jurisdiction over a pre-trial petition

for a writ of habeas corpus do not exist in this instance.

32. On May 14, 1982, a hearing was held before the Single

Justice of the Supreme Judicial Court (Abrams, J.) on Defend-

ants’ Petition for Review by the Full Court pursuant to

M.G.L. C. 211, S. 3. The Single Justice, (Abrams, J.) sug-

gested to counsel that a more appropriate avenue for relief

would be for Defendants to file a Motion to Dismiss with the

Trial Judge [pursuant to the Order dated October 3, 1980,

(App. 211) by the Single Justice (Kaplan, J.)] and a Motion to

Reserve and Report the Motion to the Supreme Judicial Court.

33. The Single Justice (Abrams, J.) stated the impanelment

of the jury on Indictment No. 024292 would be stayed pending

95a

action on these matters by the Superior Court Trial Judge

(Lynch, Ch. J.). A certified, sealed copy of the tape of the

hearing held before the Single Justice of the Supreme Judicial

Court was submitted to the Superior Court with the filing of

the within Motion.

WHEREFORE, Albert B. Benson and Viktor E. Benson

move this Honorable Court pursuant to Mass. R. Crim. P.

13(c)(1) to dismiss Indictment No. 024292 or, in the alterna-

tive, barring the relitigation at the conspiracy trial of those

facts and issues that were necessarily determined in favor of

the Defendants by their previous acquittal of the substantive

charges of arson and breaking and entering with the intent to

commit arson.

Respectfully submitted,

VIKTOR E. BENSON ALBERT B. BENSON

By his Attorney, By his Attorney,

/s/ /s/

Murray P. Reiser, Esquire Jordan L. Ring, Esquire

Eric H. Karp, Esquire John C. Martland, Esquire

REISER & ROSENBERG RING & RUDNICK

73 Tremont Street 55 Union Street

Boston, MA 02108 Boston, MA 02108

(617) 742-1810 (617) 523-0250

96a

June 1, 1982

THE COURT: What’s the Commonwealth’s case going to

consist of? What would your opening be, in substance, to the

jury, assuming that you are precluded from contending that

either of these defendants actually participated in setting the

fire or procured or hired or contacted anybody to do it?

MR. BONISTALLI: Your Honor, the government’s evi-

dence would be that the property, prior to December 20th of

1978, had gone through a bankruptcy proceeding and was

purchased by Harold Brown of the Boston area, who was in-

volved in real estate; that he purchased the property and that

the Bensons were employed by Brown; and subsequent to tak-

ing over the property, the Benson’s were employed to rehabili-

tate that property: do some structural work, construction

work on the property; that Mr. Brown insured the property on

December 18th for some $650,000; that the property was

located in the area of Quincy Market, or just outside of Quincy

Market; and at that time, 1978, early 1978, property values in

that area were rising; that the first two stores — the first floor

stores in that building, a camera shop and a cigar shop, had a

long term lease; and in the lease, a clause of the lease was that

any structural damage as a result of fire terminates the lease.

An expert will testify that the value of those leases — the rental

value was grossly under the market value if it was to be rented

at the time of the fire; that the defendants, Viktor and Albert

Benson, met with Harold Brown a day or so before the fire;

that they were given a key to the property; and the — they ar-

rived at the scene that evening and were apprehended and ar-

rested.

The insurance was — subsequent to the fire, the day after

the fire, was attempted to be cancelled. A phone call was

made to the insurance broker requesting that the effective date

of the insurance, December 18th, be changed or amended to

some time after the fire, arguably demonstrating some type

97a

of consciousness of guilt on behalf of the people involved in in-

suring the property. And then coupled with the defendants

presence at the building at the time of the fire, Your Honor,

the Commonwealth would argue by inference that the defend-

ants were engaged, or had agreed upon setting the fire at 109

State Street.

And I think the question of the — obviously the fire itself,

the Commonwealth would move to introduce that evidence. It

was intentionally set; and would request the Court to give an

instruction to the jury that the evidence is being offered for a

limited purpose and that the jury is not to use it as a basis of

determining — or not — even in terms of informing the jury

that the defendants had previously been acquitted and there-

fore, they could not engage in any speculation with respect to

whether or not the defendants had set the fire. They could

merely use that evidence as it assisted them in making a deter-

mination as to whether or not the defendants had engaged in a

conspiracy or an agreement to set the fire by virtue of using

that information to demonstrate some knowledge on their part

that the fire did take place; and that the fire — and that they

knew it was going to take place that evening, Your Honor.

That, in summary, would be the Commonwealth’s evidence.

THE COURT: You've answered my question. You can

continue on arguing if you would.

98a

Sem eerrkrCATE

This is to certify that the foregoing, pages 1 through 3, is a true

and accurate record of my dictated tape voice recordings of a

portion of the transcript in the matter of Commonwealth vs.

Albert Benson and Viktor Benson, Suffolk Superior Court

Criminal Action No. 024292, heard at Boston on June 1, 1982,

before Lynch, CJ.

/s/

Patricia Bellusci

99a

MASS. GENERAL LAWS

Chapter 278

Section 2A - Separate trials for commission of offense and con-

spiracy to commit such offense

An indictment for conspiracy to commit a substantive of-

fence shall not be tried simultaneously with an indictment for

the commission of said substantive offence.

G.L. c. 278, s. 2A repealed by St. 1979, c. 344, s. 43

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

(e) CONSPIRACY. An indictment or complaint for con-

spiracy to commit a substantive offense shall not be tried

simultaneously with an indictment or complaint for the com-

mission of the substantive offense, unless the defendant moves

for joinder of such charges pursuant to subdivision (a) of this

rule.

378 Mass. 859 (1979)

100a

FINAL ARGUMENT BY MR. BONISTALLI:

MR. BONISTALLI: Mr. Ring, Mr. Reiser, ladies and

gentlemen: I would like to thank you very much for your at-

tention over the past week. You have been very alert and I

thank you for that attention and your patience during the

course of the last seven days.

As I indicated to you in my opening statement that your role

during the period of time in which the evidence was going to

be introduced would be a passive role and I think you all agree

it has been that. And you will come to find after my argument

and after the Judge instructs you on the law that your role will

become that of a very active role, and it will be your role to

decide the facts of the case.

Now, when I made my opening to you I made certain repre-

sentations to you. I told you what I would produce, I told you

what witnesses I would call, I told you what evidence would

be proved by the Commonwealth.

At this time I would just like to take an opportunity to

review that evidence and review what I represented to you

and what was proved. And how the police arrived at that

area, how Lieutenant Cummings was at the property and at

the area at approximately twelve o'clock that day with Ser-

geant Joyce.

Trooper Dorn testified that he was at the building at ap-

proximately 3:00 p.m. and the other officers arrived at ap-

proximately 5:30 to 6:30; that they were there and they were

watching the building at 109 State Street, 101 to 109 State

Street. And I indicated in my opening that I would prove to

you that this fire was set.

Let's just go to that issue for a second now. One of the in-

dictments charge both of the defendants with setting the prop-

erty on fire. One of the elements was that the fire was set,

that it was caused, intentionally set. Think of the testimony in

10la

that regard and think of my representations to you in the open-

ing and I told you about the people that the Commonwealth

would call. John O’Mara, 38 years in the fire department;

John McCarthy, 38 years in the fire department. Hundreds

and hundreds of fires they examine in the past years that they

were District Chief or Deputy Chief. They came in and told

you what they observed. How they were standing out on the

street and John McCarthy saw the fire erupt, saw it flare. He

told you in his opinion it was a set fire based on that observa-

tion and how it spread through the room. John McCarthy and

John O’Mara told you about the odor, the strong odor you

smelled in the bottle that was removed from the rug in the of-

fice.

The troopers testified as to the odor. Then the witnesses,

O’Mara and McCarthy with their collective years of experi-

ence, approximately 78 years of experience, testify as to their

opinion as to the cause of the fire and they told you that the

fire was set and Chief McCarthy and Chief O’Mara said there

was no doubt in their mind and then they went on and gave

you the basis of it, the odor, the type of fire that they observed,

the flash, the pattern of the fire. The low burn on the wall,

low burn on the cabinets, the burning on the carpeting. And

you recall how cross-examination tried to discredit them, tried

to go through the fact about three different points of origin or

the size of the room or what they observed or didn’t observe.

Well, that was an issue at that time but you didn’t hear

them argue that very strongly in their closing argument

because I think for the most part there is very real doubt that

that fire was set by somebody. It’s your job to find out who set

that fire. And again in my opening I told you about the facts

that I would present and that we presented that two people ar-

rived at the street behind 101-109 State Street. And that they

arrived at 9:39 approximately. And that three state police of-

ficers sat in a vacant restaurant maybe twenty feet or so from

102a

the position of that car from the other side of the street iden-

tified those people. And recall how it all happened, I think

there is very little dispute about that, ladies and gentlemen.

The driver of the car exits the car. He is carrying a box with

some sticks in it. He leaves the other person in the car. He

goes onto State Street and he enters the building and Trooper

White testified how he entered the building. He looked to his

right and his left. And later on Trooper Saccardo testified Mr.

Albert Benson looked to his right and left when he was up on

the top of Kilby Street. You didn’t hear any cross-examination

with respect to that. Five minutes later, the second person

leaves the car carrying a box with sticks. You heard Trooper

Flaherty testify as to how he was carrying the box, he was car-

rying his hands below the box. You have seen the defendant

Albert Benson, you have seen him stand up. You have heard

him described as approximately six-four, two hundred

pounds. If it weighed forty pounds or fifty pounds, do you

think he would have a lot of problems carrying that box. Do

you think Sergeant Joyce was concerned about or thought

about how he was carrying that box at the time when he was

cross-examined?

And when he was recross-examined on Monday, he told you

that he spoke to me, he wasn’t trying to hide anything from

you. He told you he had now remembered how he was carry-

ing the box.

In any event, think of their arrival, think of how they en-

tered the building separately. Was that typical of someone go-

ing in to do some kind of construction work or do some plan-

ning and had some other concern about the building. How he

walked around the corner and entered the building and let his

brother in. Or was that consistent with someone who didn’t

want to be noticed, didn’t want to go in with a plan to burn

the building.

103a

Then the second person left the automobile three or six

minutes later. And he was carrying the box with another

bucket in it, a perfectly good bucket from all appearances, still

could be used at this point if you put the top on as it was

found.

Was this consistent with him going in to help his brother to

do some construction work, consistent with them doing some

work in the building, some plumbing? Is it consistent with a

construction worker or consistent with somebody going to set

fire to a building, somebody who had a plan to set fire to a

building.

Now, think of their conduct when they enter the building.

They arrive at the area of the building. Both are in the build-

ing at approximately 9:40, 9:45, in that vicinity.

Now, you heard Mr. Burke testify and you have seen pic-

tures and you will take those pictures with you of that door

where they entered. The only place they could go was to the

second floor or crawl over those baskets up to the third or

fourth floor. There was absolutely no evidence at all, no evi-

dence at all of any noise or any activity in that building after

their arrival. No evidence of any lights going on on the second

floor. No evidence of any lights or additional people arriving

on the third floor with the people from Pablo or the sprinkler.

No evidence of any lights or activities going on on the fourth

floor. No evidence of activity in terms of lights or people ar-

riving on the fifth floor. Is that consistent with somebody go-

ing into the building to do some construction work, to find out

what work they had to do. Or was that consistent with

somebody going into the building that didn’t want to be

detected who had a plan to burn the building.

The defense suggests to you that the Commonwealth or the

Government or the police were overreaching. Well, keep in

mind when they say they are overreaching that they do ob-

serve somebody in the second floor area just adjacent to the

104a

room where the fire occurred. And keep in mind that they

spoke to you about that and keep in mind that they had

binoculars and a good line of viewing. Keep in mind if they

were trying to get Viktor and Albert Benson this would identi-

fy that person. They suggested to you they got on the stand

and overreached and distorted the truth. Keep in mind they

could have identified those people if that’s what their purpose

was. Their role in the investigation was just to be in that area

and to protect that building. Their role on the witness stand

was to relate to you as jurors, as finders of fact what they ob-

served that night. And I don’t think from the way they testi-

fied and I don’t think you will find from the way they testified

that they did anything but just tell you what their best

memory of the facts were, what they heard, what they ob-

served, what they did.

Going on with the facts. Eleven o’clock, very little dispute

or doubt about that time. One of the individuals leaves the

building and with him he is carrying the bucket. Now, recall

it was Albert Benson who exited the building first and was the

second individual to enter the building and he had a box. You

recall when he left the building he didn’t have any box. As a

matter of fact, all he had was a bucket, a bucket that seems to

me to be perfectly good and seems to you, I submit, perfectly

good at this time for some type of storage. They were using it

that night for some purpose. What did they do at this time —

they disposed of it. Did they leave the building with any

boxes? And then he walked down Doane Street — down

Broad Street. Does he return to the automobile on Doane

Street? There is a dumpster right at Doane Street on the pho-

tographs produced by the Commonwealth. Does he put the

bucket in the dumpster? No, he goes down and puts it in the

middle of a pile of trash. Does he return to the car then to

wait for his brother or does he return to State Street?

105a

Within a minute or so he is back on State Street. Does he go

back into the building to meet with his brother? He crosses

the street and walks up to Merchant's Row on the top of the

street at the shoe store. Is that consistent with somebody tak-

ing a view of the building he is going to do some remodeling

on? Consistent with somebody working in the building or

consistent with somebody looking over the area for any activi-

ty, any police or any other individuals that might apprehend

him or see him in the area.

Does he then return to the car by Kilby Street? He goes back

to the front of 101-109 State Street. He stands at 92 State

Street. Is that consistent with somebody working at the build-

ing in the rain at eleven o'clock after he just spent an hour-

and-a-half in the building. Or is it consistent with his stand-

ing there so his brother could see him in the window on the

second floor so he culd give some type of signal or mark that

things were clear so he could set an ignition device or fire.

Is it consistent with a construction worker or consistent with

somebody who had a plan to set a fire?

Also, as we stated in my opening statement of proof, Viktor

Benson, the second brother, exited at 11:04, the very earliest

11:03, according to Lieutenant Cummings. Does he come out

of the building and walk to his brother? Does his brother join

him as he walks back to the car or does he take a right on State

Street and go back to his automobile? Is he carrying any boxes

or any sticks with him? He is empty-handed. Is that consist-

ent with somebody who went with his brother to look over the

building to do construction work or is it consistent with some-

body who had a plan to burn the building and planning to get

away and get back to his automobile.

Then the last act with respect to that evening, one of the last

acts with respect to their activity, Albert Benson — does he

join his brother? He is at 92 State Street almost directly across

the street, maybe twenty feet or thirty feet away. Does he

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yell to his brother, does he walk with him back to the automo-

bile? He takes off in a direction opposite of his brother. Is that

consistent with somebody going together with his brother,

construction workers, good with their hands to remodel the

building or is it consistent with somebody who didn’t want to

be observed together, didn’t want to be together, didn’t want

to be conspicuous? Does he return to the automobile? You

heard Officer Saccardo pull up behind him on Kilby Street,

observed his activity, observed his conduct, Did he return to

the automobile in a casual way? No. He turned and looked

back down the street to see what was happening. Is that con-

sistent with somebody just going to the building planning to

rehabilitate it or going to the building with plans to set fire to

it?

Then, most importantly, Viktor Benson leaves the building

at 11:04, 11:03, the testimony varies. Everybody tried to give

you their best recollection, their best memory. The time of

the fire, a very important point.

You remember Chief McCarthy went through the time it

took him to get to the street, went through the time it took him

to observe the fire engines arrive on the street, 11:07, ran

around the street, Doane Street, 11:08, returned to State

Street and he observes the eruption of the fire in that window,

11:09. You recall Chief O’Mara, two or three minutes to get

there, 11:07, 11:08. Two or three minutes to set up, 11:09,

11:10. He hears somebody shout f

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