# Appendix — Benson v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0256%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 915 ## Text = | 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0256%3A2. Public record. Not legal advice.