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SJC-12093

                COMMONWEALTH   vs.   BRANDON RODRIGUEZ.



        Bristol.      October 5, 2016. - February 1, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Receiving Stolen Goods. Larceny. Constitutional Law, Double
     jeopardy. Practice, Criminal, Dismissal, Double jeopardy,
     Collateral estoppel. Due Process of Law, Collateral
     estoppel, Prosecutorial vindictiveness. Estoppel.
     Collateral Estoppel. Judicial Estoppel.



     Complaint received and sworn to in the New Bedford Division
of the District Court Department on July 24, 2013.

     A motion to dismiss was heard by Lisa F. Edmonds, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Roger L. Michel, Jr., Assistant District Attorney, for the
Commonwealth.
     Timothy St. Lawrence for the defendant.


     BUDD, J.   In this case we consider whether an acquittal on

a charge of receipt of stolen property bars a subsequent

prosecution for larceny of the same property.     We conclude that
                                                                     2


principles of double jeopardy are not a bar to such action and

that the successive prosecutions here do not violate the

equitable principles that must be considered in such cases.

     Background and procedure.    1.   The Commonwealth's

allegations. 1   In 2012, the defendant went to his friend's house.

While the friend searched for his cellular telephone, he

discovered the defendant in his mother's bedroom, standing in

front of her jewelry box.    A drawer in the jewelry box was open.

The defendant claimed he had been petting the friend's dog, who

was in the bedroom.    The defendant asked his friend if he wanted

the defendant "to shake [his] pockets out," but the friend

declined.   The next day, the friend's mother discovered that a

family ring was missing.    Later, her daughter saw a photograph

online of the defendant in which he was wearing the ring on a

chain around his neck.

     2.   The receipt of stolen property charge.    The

Commonwealth initially sought a complaint in the New Bedford

Division of the District Court Department against the defendant

on the charges of both larceny in excess of $250 and receipt of

stolen property, pursuant to G. L. c. 266, §§ 30 (1) and 60,

respectively.    Apparently, because the friend was unavailable at

     1
       This background section is based on the prosecutor's
opening statement at trial, as the judge directed a verdict of
not guilty before any evidence was introduced. The defendant
maintains he is innocent. That the facts are disputed has no
bearing on our decision in this appeal.
                                                                        3


the time, the Commonwealth was unable to present the factual

evidence necessary to establish probable cause of larceny by the

defendant.      As a result, the clerk-magistrate issued a complaint

only for receipt of stolen property.       On the morning of trial,

the friend, who could supply the evidence supporting the larceny

charge, became available as a witness.       After jury empanelment,

the trial judge learned that the testimony of the new witness

related to larceny rather than receipt of stolen property.

       The judge told the parties that he would instruct the jury

that if they found that the defendant was the thief, then they

could not convict him of receiving stolen property. 2       The judge

denied the prosecutor's motion to amend the complaint to include

larceny but stated that the Commonwealth was free to bring a new

complaint for larceny at a later date.      Following the

Commonwealth's opening statement, the judge invited and allowed

the defendant's motion for a required finding of not guilty.

       3.    The larceny charge.   Weeks later, the Commonwealth

filed a complaint against the defendant for larceny over $250.

The defendant was arraigned on October 11, 2013.       He moved to

dismiss the complaint on the ground of double jeopardy, arguing

that he previously had been acquitted of receipt of stolen

property, and the object of both prosecutions was the same


       2
           As discussed infra, this was an erroneous statement of the
law.
                                                                     4


allegedly stolen ring.    A different judge denied the motion to

dismiss, as well as a motion for reconsideration.    A third

judge, however, allowed the defendant's motion to dismiss,

finding that larceny and receipt of stolen property were very

closely related and based on the same facts. 3   The Commonwealth

appealed from the dismissal of the larceny charge.    We allowed

the defendant's application for direct appellate review.

         We reverse the allowance of the motion to dismiss, as

larceny and receipt of stolen property are not the same offense

for double jeopardy purposes.    Further, other equitable

doctrines -- due process, collateral estoppel, and judicial

estoppel -- do not weigh in this defendant's favor.

     Discussion.   1.   Double jeopardy.   Both parties agree that

the trial judge erred in directing a verdict of not guilty on

the charge of receipt.    Under our common law, it has long been

the rule that a defendant may be charged with both larceny and

receipt of stolen property, although, for reasons unrelated to

double jeopardy, he may be convicted of only one of these

offenses.    See Commonwealth v. Haskins, 128 Mass. 60, 61 (1880).

This bar against convictions of both crimes does not mean that

the Commonwealth cannot prove receipt using evidence showing

     3
       It is not apparent from the record why this judge heard
this motion, as it had already been decided. The judge denied
the prosecutor's request for an opportunity to brief the matter
despite his protest that a different prosecutor had briefed and
argued the issue previously.
                                                                      5


that the defendant was the thief.   Commonwealth v. Corcoran, 69

Mass. App. Ct. 123, 127 (2007).

     The defendant argues that the subsequent larceny complaint

was properly dismissed on the ground of double jeopardy.     We

disagree.

     Because it involves a question of law, we review the motion

judge's decision de novo.   See Commonwealth v. Carlino, 449

Mass. 71, 72 n.7 (2007).    Double jeopardy protection stems from

the Fifth Amendment to the United States Constitution and from

Massachusetts common and statutory law. 4    Commonwealth v. Woods,

414 Mass. 343, 346, cert. denied, 510 U.S. 815 (1993).

Traditional double jeopardy principles bar a second prosecution

for the same offense after either an acquittal or a conviction,

as well as multiple punishments for the same offense.     Mahoney

v. Commonwealth, 415 Mass. 278, 283 (1993).     As the defendant

argues that his acquittal on the receipt of stolen property

charge bars a subsequent larceny prosecution, he must show that

receipt and larceny of the same property constitute the "same

offense" for double jeopardy purposes.      See Commonwealth v.

Gonzalez, 437 Mass. 276, 281 (2002), cert. denied, 538 U.S. 962

(2003).


     4
       General Laws c. 263, § 7, provides: "A person shall not
be held to answer on a second indictment or complaint for a
crime of which he has been acquitted upon the facts and merits
. . . ."
                                                                      6


     a.   Appropriate test.   The parties disagree as to the

appropriate test for determining whether two charges constitute

the same offense in the case of successive prosecutions. 5     The

Commonwealth asserts that we should apply the same elements

test, which normally governs our double jeopardy analysis.      The

defendant argues that, in addition to the same elements test, we

should also use the same conduct test, which, he maintains,

would address concerns unique to successive prosecutions. 6     We


     5
       In a case of successive prosecutions, the defendant has
already been "put in jeopardy" for the first charge. The
pertinent double jeopardy question that arises prior to the
second trial is whether the defendant is being prosecuted again
for an offense of which he was previously acquitted or
convicted. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871)
(prior acquittal or conviction is bar to subsequent prosecution
for same offense). In a single prosecution, the question of
double jeopardy arises at the sentencing stage. See, e.g.,
Commonwealth v. Valliere, 437 Mass. 366, 371-372 (2002) ("The
appropriate remedy for duplicative convictions, so as to prevent
multiple punishments, is to vacate both the conviction and
sentence on the lesser included offense, and to affirm on the
more serious offense" [emphasis added]).
     6
       We and the United States Supreme Court have already
rejected two other tests that have emerged over the years.

     The same transaction test would require a prosecutor to
bring "all charges arising out of the same incident or
transaction" in a single prosecution. See Commonwealth v.
Gallarelli, 372 Mass. 573, 578-579 (1977) (discussing and
rejecting same transaction test). It would bar separate
prosecutions for multiple crimes committed during the course of
a crime spree, or for conspiracy and the substantive act. See,
e.g., Glawson v. Commonwealth, 445 Mass. 1019, 1020 (2005),
cert. denied, 547 U.S. 1118 (2006). Although the Model Penal
Code and at least one Justice of the Supreme Court have
advocated for adoption of this test, see Model Penal Code
§ 1.07(2) (1962); Ashe v. Swenson, 397 U.S. 436, 452-456 (1970)
                                                                    7


conclude that the same elements test, firmly rooted in our

history and our case law, is the only appropriate test to apply

in both single and successive prosecution scenarios.

     i.   Same elements test.   The same elements test has a long

history in both Massachusetts and Federal double jeopardy

jurisprudence.   See, e.g., Morey v. Commonwealth, 108 Mass. 433,

434-435 (1871), citing Commonwealth v. Roby, 12 Pick. 496

(1832).   See Blockburger v. United States, 284 U.S. 299, 304

(1932) (adopting same elements test from Morey as applicable to

double jeopardy clause of Fifth Amendment).   See also Grady v.

Corbin, 495 U.S. 508, 535-536 (1990) 7 (Scalia, J., dissenting)

("We have applied the Roby-Morey-Gavieres-Blockburger


(Brennan, J., concurring), we and the Supreme Court have
consistently rejected it. See Mass. R. Crim. P. 9 (a), 378
Mass. 859 (1979) (permitting but not requiring joinder by
prosecutor of offenses based on same criminal conduct or
episode); United States v. Dixon, 509 U.S. 688, 709 n.14 (1993);
Glawson, supra ("no double jeopardy violation merely because a
defendant is tried separately for different offenses arising
from a single transaction or series of events").

     The same evidence test "would prevent the government from
introducing in a subsequent prosecution any evidence that was
introduced in a preceding prosecution." Grady v. Corbin, 495
U.S. 508, 521 n.12 (1990), overruled by Dixon, 509 U.S. at 704.
Here, for example, the Commonwealth could not introduce the
allegedly stolen ring in a trial on the larceny complaint if the
ring had been used in the prosecution of the receipt charge.
This test has been soundly rejected. See Dixon, supra;
Commonwealth v. Woods, 414 Mass. 343, 351, cert. denied, 510
U.S. 815 (1993).
     7
       As we discuss infra, the Grady case was expressly
overruled insofar as it required any test except the same
elements test. See Dixon, 509 U.S. at 704.
                                                                      8


formulation in virtually every case defining the 'same offense'

decided since Blockburger").       Under this test, a defendant may

face successive prosecutions "for two crimes arising out of the

same course of conduct provided that each crime requires proof

of an element that the other does not."       Commonwealth v.

Valliere, 437 Mass. 366, 371 (2002), citing Morey, 108 Mass. at

434.    This means that a defendant facing successive prosecutions

must show either that the new charge has the same elements as

the first charge, or that one of the charged crimes is a lesser

included offense of the other.       The defendant argues that, in

applying the same elements test, we have historically examined

whether the acts underlying both offenses "are so closely

related [in fact] as to constitute in substance [but] a single

crime."       Commonwealth v. Vick, 454 Mass. 418, 433 (2009).   We

have done so, however, only where one of the crimes was a lesser

included offense of the other, or where multiple counts of the

same charge were brought together.       See id. at 435, and cases

cited.       If a defendant cannot meet his burden under the same

elements test, the underlying facts are irrelevant.

       ii.    Same conduct test.   The same conduct test considers

what conduct the government would prove at trial, and would

"bar[] a subsequent prosecution if, to establish an essential

element of an offense charged in that prosecution, the

government will prove conduct that constitutes an offense for
                                                                     9


which the defendant has already been prosecuted."   Grady, 495

U.S. at 510.    The defendant argues that we should apply the same

conduct test to mitigate the uncertainty and expense that

defendants experience when facing successive prosecutions.

     Although the United States Supreme Court briefly adopted

the same conduct test in successive prosecutions in Grady, the

Court quickly reversed course, expressly overruling Grady three

years later in United States v. Dixon, 509 U.S. 688, 697, 704

(1993).   There, the Court held that the Federal Constitution

requires application only of the same elements test in both

single and successive prosecutions.   Id. at 710-712.   By arguing

that we should apply the same conduct test in the case of

successive prosecutions, the defendant asks us to provide a

higher level of protection than is required by the United States

Constitution.   Although State common law and statutory law may

provide greater protection against double jeopardy, Commonwealth

v. Carlino, 449 Mass. at 79 n.20, as a general matter, "we have

long recognized a protection against double jeopardy that is

coextensive with Federal protection."   MacLean v. State Bd. of

Retirement, 432 Mass. 339, 350 n.14 (2000).

     We decline to go further here.   Since the early Nineteenth

Century, we have held that a prior acquittal does not bar a

subsequent prosecution unless the two charges are legally the

same offense.   Roby, 12 Pick. at 504 (no double jeopardy where
                                                                    10


offenses are "perfectly distinct in point of law, however nearly

they may be connected in fact").    See Commonwealth v. Johnson,

406 Mass. 533, 536 (1990) (adhering to same elements test months

before Grady was decided).   We deviated from this tradition in

deference to Grady, which was subsequently overruled. 8   See

Woods, 414 Mass. at 346 (applying Grady test before Dixon was

decided).   Since Dixon, we have again rejected the same conduct

test in the context of a single prosecution.    See Vick, 454

Mass. at 433-434.   By urging us to differentiate between single

and successive prosecutions, the defendant would have us

overturn long-standing precedent:    Morey, the seminal case

articulating the same elements test, involved successive

prosecutions (albeit prosecutions in the same term of the

court).   See Morey, 108 Mass. at 434.   See also Commonwealth v.

Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) ("it is difficult

to see how . . . a conduct-based test could ever possibly mesh

with the Morey standard").




     8
       The cases to which the defendant cites do not change this
tradition, as those cases did not decide to apply any test other
than the same elements test, but only noted that defendants in
successive prosecutions may require additional protection. We
discuss this in more detail in part 3, infra, in the section on
equitable protections. See, e.g., Commonwealth v. Crocker, 384
Mass. 353, 359 n.7 (1981) ("Determining whether such cases
involve reprosecution for the 'same offense' may require
consideration of the actual facts developed at trial in support
of the charge tried first" [emphasis added]).
                                                                     11


     We are also guided by the historical adherence to the same

elements test, which best balances protection of the defendant

with other considerations:    due process and fairness,

prosecutorial discretion, a desire to allow for severance of

defendants and offenses into separate trials, and respect for

the dignity of multiple victims of criminal behavior.     See Ashe

v. Swenson, 397 U.S. 436, 468-469 (1970) (Burger, C.J.,

dissenting on other grounds); Commonwealth v. Gallarelli, 372

Mass. 573, 578 (1977).    Thus, the same elements test remains the

only appropriate analysis, in both single and successive

prosecutions.

     b.    Application of the same elements test.   To prove

larceny, the Commonwealth must show that (1) the defendant took

and carried away property; (2) the property was owned or

possessed by someone other than the defendant; and (3) the

defendant did so with the intent to deprive that person of the

property permanently.    G. L. c. 266, § 30 (1) ("Whoever steals

. . . the property of another . . . shall be guilty of larceny

. . .").    See Commonwealth v. Donovan, 395 Mass. 20, 25-26

(1985).    Receipt of stolen property requires that (1) the

property in question was stolen; (2) the defendant knew that the

property had been stolen; and (3) the defendant received or

aided in the concealment of the stolen property.     G. L. c. 266,

§ 60 ("Whoever buys, receives or aids in the concealment of
                                                                  12


stolen . . . property, knowing it to have been stolen . . .

shall be punished . . .").   See Commonwealth v. Donahue, 369

Mass. 943, 949, cert. denied, 429 U.S. 833 (1976).    Larceny thus

requires that the defendant be the thief, whereas receipt

"requires that the property already be stolen at the time of

receipt."   Corcoran, 69 Mass. App. Ct. at 127 n.6.   As a result,

the offenses are not identical, and neither is a lesser included

offense of the other.   Instead, any intuitive connection between

larceny and receipt arises because they have a principal-

accessory relationship.   See Commonwealth v. Finn, 108 Mass.

466, 468 (1871) ("The offence of receiving stolen goods is

accessory, only, to the principal offence of larceny.    The

receiver is an accessory after the fact").   See also

Commonwealth v. Berryman, 359 Mass. 127, 129 (1971) ("under our

law one cannot be both a principal in a crime and an accessory

after the fact to the same crime"); Commonwealth v. DiStasio,

297 Mass. 347, 357, cert. denied, 302 U.S. 683 and 302 U.S. 759

(1937) (principal and accessory offenses are distinct for double

jeopardy purposes), citing Roby, 12 Pick. at 504.     See generally

Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996) (defendant

may be charged with both larceny and receipt, but logically may

not be convicted of both offenses).   Because larceny and receipt

are not the same offense for double jeopardy purposes, dismissal
                                                                     13


of the larceny complaint on double jeopardy grounds is not

warranted.

       3.   Equitable protections.   Successive prosecutions raise

concerns not present in single prosecutions.      See Dixon, 509

U.S. at 724 (White, J., concurring in part and dissenting in

part) ("To subject an individual to repeated prosecutions

exposes him to embarrassment, expense and ordeal, . . . violates

principles of finality, . . . and increases the risk of a

mistaken conviction" [citations omitted]).      Despite these

concerns, "[i]t is quite central to a prosecutor's necessary

discretion that he retain the prerogative, after obtaining a

first set of indictments, to initiate additional prosecutions

for separate and distinct crimes."      Johnson, 406 Mass. at 538-

539.    See E.B. Cypher, Criminal Practice and Procedure § 25:56

(4th ed. 2014) ("there is no statutory or constitutional right

on the part of any person to be charged simultaneously, either

by complaint or indictment, with all the offenses of which the

police or prosecution might then be aware and which might have

been committed in the course of a single act").

       Defendants facing successive prosecutions have three

additional sources of protection aside from the bar against

double jeopardy:     due process protection (against prosecutorial

overreach), collateral estoppel, and judicial estoppel.      Given
                                                                    14


the procedural background that preceded the larceny complaint,

these factors are not present here.

     a.   Due process.   Due process concerns would arise when a

defendant could show prosecutorial vindictiveness or

retaliation.   See Commonwealth v. Gonzalez, 388 Mass. 865, 870

n.9 (1983) (same elements test is constitutionally sufficient

"unless successive prosecutions are used to harass the

defendant").   A defendant has a heavy burden to demonstrate that

there was prosecutorial vindictiveness:    there must be a high

likelihood of actual vindictiveness, and application of the

doctrine must not "unduly undermine normal prosecutorial

discretion" to bring charges in multiple prosecutions.    Johnson,

406 Mass. at 537.   Here, the Commonwealth brought the new charge

after the trial judge (erroneously) dismissed the pending charge

of receipt of stolen property.    The Commonwealth initially

applied for a single complaint charging both offenses, but

failed because a key witness was unavailable to the police until

the day of the trial.    See Glawson v. Commonwealth, 445 Mass.

1019, 1021 (2005, cert. denied, 547 U.S. 1118 (2006) (noting

that Commonwealth sought to consolidate issues).    As the second

complaint was not the result of prosecutorial vindictiveness,

due process concerns are inapplicable here.

     b.   Collateral estoppel.   Collateral estoppel, also known

as issue preclusion, is another possible form of protection for
                                                                  15


defendants who face successive prosecutions.    See generally

Yeager v. United States, 557 U.S. 110, 119 n.4 (2009).    The

doctrine bars relitigation of an issue where the defendant can

show that "there is (1) a common factual issue; (2) a prior

determination of that issue in litigation between the same

parties; and (3) a showing that the determination was in favor

of the party seeking to raise the estoppel bar" (footnotes

omitted).   Krochta v. Commonwealth, 429 Mass. 711, 715-716

(1999).   See Kimbroughtillery v. Commonwealth, 471 Mass. 507,

510–512 (2015) (principles of collateral estoppel barred

successive probation revocation proceedings).

     In applying the doctrine, courts recognize that even where

the offenses charged in successive prosecutions do not rise to

the level of double jeopardy, relitigation of issues that are

common to both cases may harm the defendant.    See Brown v. Ohio,

432 U.S. 161, 166 n.6 (1977); Commonwealth v. Scala, 380 Mass.

500, 505 (1980).   In this case, when the trial judge directed

the verdict of acquittal, he made a determination (erroneously)

only on the issue of receipt -- which is not an element of

larceny and thus not a common factual issue.    Collateral

estoppel does not apply.

     c.   Judicial estoppel.   The final doctrine potentially

available to a defendant in the case of successive prosecutions

is judicial estoppel, which "prevent[s] the manipulation of the
                                                                     16


judicial process by litigants" (citation omitted).     Commonwealth

v. DiBenedetto, 458 Mass. 657, 671 (2011), S.C., 475 Mass. 429

(2016).   As an equitable doctrine, judicial estoppel may be

appropriate where "a party has adopted one position, secured a

favorable decision, and then taken a contradictory position in

search of legal advantage."    Otis v. Arbella Mut. Ins. Co., 443

Mass. 634, 641 (2005), quoting InterGen N.V. v. Grina, 344 F.3d

134, 144 (1st Cir. 2003).    For example, where the Commonwealth

has already secured a conviction against a defendant, it may not

bring a new charge positing a different theory of the same

underlying act.    Commonwealth v. Gardner, 67 Mass. App. Ct. 744,

747-748 (2006) (conviction constituted favorable decision for

Commonwealth).     In the instant case, however, the defendant was

effectively acquitted of the charge of receipt.     As the trial

judge expressly rejected the Commonwealth's position with

respect to receipt, judicial estoppel does not preclude the

complaint for larceny.

     Conclusion.    Because the charges alleged in the two

complaints were not the same offense and other equitable

concerns do not weigh in favor of dismissal, we reverse the

allowance of the defendant's motion to dismiss on the ground of

double jeopardy.

                                      So ordered.
