COMMONWEALTH vs. ANTHONY J. DeCILLIS.

ARMSTRONG, J. The defendant was charged in thirteen indictments that arose from two incidents in March, 1993: the first incident being an attempt to blow up the State Police crime prevention and control unit in Auburn, by breaking a window and placing a bomb inside the office; and the second involving the throwing of live hand grenades in Grafton. The record suggests that the bomb may have been intended to destroy evidence to be used against the defendant's brother in an upcoming trial; that the bomb consisted of a container of gasoline and a grenade which was intended to explode, so as to spread the gasoline and ignite it; and that the Grafton

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incident involved an attempt to destroy the remaining grenades after the first one failed to explode. Eight of the indictments were for substantive offenses, [Note 1] and five were for conspiracy. [Note 2]

The Commonwealth elected to try the conspiracy offenses first, and a jury acquitted the defendant. His counsel then moved to dismiss six of the substantive offense indictments on the ground of collateral estoppel. [Note 3] The motion was allowed by a judge other than the judge who conducted the conspiracy trial. At a hearing on the Commonwealth's motion for reconsideration, the prosecutor acknowledged that the Commonwealth would offer the same evidence at the second trial that it had relied on at the conspiracy trial, all of which was evidence of the defendant's actual participation in the commission of the failed attempt to blow up the State Police facility. The Commonwealth also acknowledged that it would be depending on a joint venture theory to convict the defendant as the Commonwealth had insufficient evidence as to which of the participants actually broke the window and placed the bomb inside. In allowing the motion to dismiss, the judge reasoned that the shared intent and concerted acts that the Commonwealth would ask the jury to infer had necessarily been rejected by the jury in the conspiracy case, which, on identical evidence, had found no conspiracy. Given the Commonwealth's concession that it must rely on joint venture liability, the judge ordered the six substantive indictments dismissed on the ground that the verdicts of acquittal on the

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corresponding conspiracy indictments collaterally estopped the Commonwealth from proving the joint venture.

The ruling, in our view, was in error. There is a "fundamental distinction between a substantive offense and a conspiracy to commit that offence .... Each is a separate and distinct offence and each may be separately punished." Commonwealth v. Stasian, 349 Mass. 38, 48 (1965). See also Carrasquillo v. Commonwealth, 422 Mass. 1014, 1015 (1996). The shared purpose of joint venturers in the commission of a substantive offense differs from the prior agreement to commit the offense that is the essence of a conspiracy. "Criminal culpability for a substantive offense on the theory of joint venture is based on elements distinct from those involved in proof of a conspiracy." Commonwealth v. Benson, 389 Mass. 473, 479, cert. denied, 464 U.S. 915 (1983). "The conspiracy charge require[s] proof of an agreement and the substantive charge [does] not." Commonwealth v. Cannavo, 16 Mass. App. Ct. 977, 978 (1983). Thus, typically, "acquittal of a substantive offense does not preclude subsequent prosecution of charges of conspiracy to commit that offense," Commonwealth v. Royce, 20 Mass. App. Ct. 221, 227 (1985); and, conversely, acquittal of the conspiracy does not preclude subsequent prosecution on a charge of the substantive offense that was the object of the alleged conspiracy. Commonwealth v. Cannavo, supra.

In Commonwealth v. Cook, 10 Mass. App. Ct. 668, 675 (1980), we said that "proof of the conspiracy typically involves circumstantial evidence aimed at establishing a consensus prior to the commission of the target offense." Conversely, in Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 512 (1987), we ruled that there was no "need to show, when joint venture is claimed, that the partners had an antecedent agreement to encompass the commission of the substantive crime." As a general rule, it may be said that the agreement that must be shown to prove a conspiracy is a meeting of the minds of the conspirators separate and distinct from and prior to the common intent that is implicit in the commission of the substantive crime. Thus, it has been said that, "[t]o warrant a conviction for conspiracy to violate a criminal statute, the evidence must disclose something further than participating in the offense which is the object of the conspiracy; there must be proof of the unlawful agreement,

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either express or implied, and participation with knowledge of the agreement." Dickerson v. United States, 18 F.2d 887 893 (8th Cir. 1927), quoted with approval in Commonwealth v. Cook, supra at 675. It is entirely possible, therefore, that the jury in the conspiracy trial may have been unpersuaded only that the perpetrators of the bombing attempt acted in accordance with an antecedent, agreed-upon plan. There are cases, such as Sealfon v. United States, 332 U.S. 575 (1948), where such concerted advance planning is necessarily implied in the substantive offense [Note 4]; but this is not such a case. Compare Commonwealth v. Shea, 323 Mass. 406, 411 (1948) (conspiracy not implicit in joint entry into and theft of meat from a railroad freight car).

The party asserting collateral estoppel has the burden of showing that the jury in the first trial decided a particular question, so as to preclude its being retried to a second jury in the later action. Commonwealth v. Benson, 389 Mass. at 481. Rossetti v. Chairman, Mass. Parole Bd., 891 F. Supp. 36 44 (D. Mass. 1995), reversed in part on a different ground, 80 F.3d 1 (1st Cir. 1996). The general verdict that is normally rendered in a criminal case means that it is a "rare case where it is possible to determine with certainty what the jury in the earlier prosecution has decided." United States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), quoted with approval in Commonwealth v. Benson, 389 Mass. at 481. It is sometimes possible to determine that the jury's verdict necessarily implies one or more particular findings of fact, but such a determination requires a showing of the evidence adduced at the trial

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and the instructions under which the jury arrived at its verdict. Sealfon v. United States, 332 U.S. at 579. Commonwealth v. Benson, 389 Mass. at 478. The defendant did not carry this burden. The record in this case contains no portion of the first trial proceedings beyond the prosecutor's opening statement. The defendant made no effort to show, either in the trial court or here, the evidence or the instructions on which the conspiracy charges were sent to the jury. United States v. Perez-Perez, 72 F.3d 224, 226-227 (1st Cir. 1995). There was thus no basis for a finding that the jury decided that the defendant did not participate in the attempted bombing.

Order dismissing indictments reversed.