
USCA1 Opinion

	




          March 25, 1996    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1978                                  STEPHEN ROSSETTI,                                Petitioner, Appellee,                                          v.                              JOHN J. CURRAN, CHAIRMAN,                     COMMONWEALTH OF MASSACHUSETTS PAROLE BOARD,                                Respondent, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of  this Court, issued  on March 21, 1996,  is amended        as follows:            On page  2, line  1, replace  "1991" with  "1981".  On  same page,        line 2, replace "1992" with "1982".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1978                                  STEPHEN ROSSETTI,                                Petitioner, Appellee,                                          v.                              JOHN J. CURRAN, CHAIRMAN,                     COMMONWEALTH OF MASSACHUSETTS PAROLE BOARD,                                Respondent, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Nancy J. Gertner, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Elisabeth  J.   Medvedow,  Assistant  Attorney  General,  Criminal            ________________________        Bureau, with whom  Scott Harshbarger, Attorney  General, was on  brief                           _________________        for respondent.            Matthew A.  Kamholtz with  whom Matthew  H. Feinberg  and Segal  &            ____________________            ____________________      ________        Feinberg were on brief for petitioner.        ________                                 ____________________                                    March 21, 1996                                 ____________________                 BOUDIN, Circuit Judge.   In  1981, Stephen  Rossetti was                         _____________            acquitted of armed robbery in  state court.  In 1982,  he was            convicted in  state court  of conspiracy  to commit  the same            robbery.  Much of the evidence used in the two trials was the            same.   In  a habeas  corpus proceeding,  the district  court            ruled that  the second  prosecution violated  double jeopardy            principles  and ordered Rossetti released without possibility            of  retrial. The Commonwealth  now appeals.   For the reasons            that follow, we modify the district court's judgment.                                         I.                  The  charges against  Rossetti  arose out  of the  armed            robbery of  a Brink's armored  truck in the parking  lot of a            bank  in the Jamaica Plain  section of Boston  on December 4,            1980.   A Brink's guard had  just removed a sack  filled with            $150,000  in cash from the  truck and was  carrying it toward            the bank  entrance  when  he was  approached  by  three  men,            possibly masked.   One of the  men asked  for the money;  and            another leveled  a shotgun  at the  guard.   Ultimately,  the            three  jumped into a car and drove  off, taking the money and            the guard's pistol.                 In both  trials, the  prosecution built its  case around            the  testimony of Joseph Smith,  who testified that  he was a            fourth participant  in the  December 4  robbery who  had been            waiting  in a second car  to assist if  necessary by blocking            pursuers.   His  testimony was  crucial to  the prosecution's                                         -2-                                         -2-            case.    Although there  was ample  evidence of  the robbery,            neither  the Brink's  guards nor  anyone else  could identify            Rossetti as one of the perpetrators.   Nor was there any eye-            witness  evidence,  other than  Smith's  testimony, to  prove            Rossetti's  participation  in  the conspiracy  to  commit the            robbery.                  Smith  was not an ideal  witness.  He  had been arrested            four  days after the  Brink's robbery  on a  warrant charging            escape from  the Deer  Island House  of  Correction; he  then            offered the government information about the Brink's job.  In            exchange, the Commonwealth promised  Smith parole on his Deer            Island sentence, immunity from prosecution for escape, and no            jail  time for his role in the  Brink's robbery.  He was also            promised a plane ticket to anywhere in the United States, the            restoration of his Massachusetts driver's license, and $1,500            in cash.                   In  the first trial  (Rossetti I),  which took  place in                                       __________            June 1981,  Rossetti was the  sole defendant and  was charged            with   armed   robbery.     Under   Massachusetts   law,  the            Commonwealth was prohibited from trying the conspiracy in the            same trial  as the  substantive offense unless  the defendant            moved for joinder.  Mass. R. Cr. P. 9(e).  Smith described in            detail the course of the robbery on the morning of December 4            and  Rossetti's participation in it.   He also described more            briefly the preparations for  the crime--including a visit to                                         -3-                                         -3-            the bank  on Thanksgiving  Day, the final  planning sessions,            and the theft of  cars on December 3--and Rossetti's  role in            those preparations.                 The Commonwealth also  presented physical evidence  that            the  police  had  recovered from  Rossetti's  home, including            hidden cash  with serial numbers corresponding  to the stolen            money.  The police  had also found  a key in Rossetti's  room            that led them to  a locker located in  another building.   In            the locker,  police discovered  clothing and weapons  tied to            the  robbery,  including the  Brink's  guard's  pistol and  a            sawed-off shotgun, which were also offered at trial.                 Rossetti vigorously attacked Smith on cross-examination,            and also offered police testimony that Smith had taken a much            more  active  role  in  the robbery  than  he  had  admitted.            Through  testimony  from  his  mother   and  his  girlfriend,            Rossetti  also sought to establish  an alibi for  the time of            the robbery (and for  Thanksgiving Day).  And to  explain the            physical  evidence,  witnesses  testified that  Rossetti  had            taken some items from Smith's apartment after Smith's arrest.            The jury acquitted Rossetti of armed robbery.                 In  the  second  trial (Rossetti  II),  Rossetti,  Louis                                         ____________            Royce, and Joseph Sousa were co-defendants, each charged with            conspiracy to  commit the Brink's  robbery.  This  trial took            place  in December  1982, and  the pattern  of the  trial was            similar  to  Rossetti  I.    After  the  two  Brink's  guards                         ___________                                         -4-                                         -4-            described  the  crime,  the  Commonwealth   called  Smith  to            testify.  In  the first  trial, the focus  of Smith's  direct            examination was the commission of the robbery; in Rossetti II                                                              ___________            Smith  described the  robbery and Rossetti's  role in  it but            also  dwelt at length on several meetings Smith had held with            Rossetti and other conspirators prior to December 4.                 Again,  Smith was  vigorously attacked,  both on  cross-            examination  and  by impeaching  testimony.    Rossetti again            offered alibi evidence  for the  date of the  crime.   Again,            witnesses  testified  that Rossetti  had  taken incriminating            items  from Smith's  apartment.   All  three defendants  were            convicted  of  conspiracy.   The  convictions  were affirmed,            Commonwealth v.  Royce, 479 N.E.2d 198  (Mass. App.), further            ____________     _____                                _______            rev.  denied, 482  N.E.2d  328, 484  N.E.2d  102 (1985),  and            ____________            Rossetti's request for post-conviction relief  in state court            was denied.                 In September 1990, Rossetti  filed in the district court            for habeas corpus relief.   The district court held  that the            second prosecution  was barred by the  double jeopardy clause            as construed  in  Ashe  v.  Swenson,  397  U.S.  436  (1970).                              ____      _______            Rossetti v. Curran, 891 F. Supp.  36 (D. Mass. 1995).  In the            ________    ______            alternative, the district court held that, even if the second            prosecution had  been proper,  the state court  had committed            constitutional  error  by  admitting evidence  of  Rossetti's            participation in the  robbery of which he had been previously                                         -5-                                         -5-            acquitted.    The court  granted  the writ  of  habeas corpus            without the possibility of retrial.                                         II.                 The district court's legal rulings are reviewed de novo,                                                                 _______            United  States  v. Aguilar-Aranceta,  957  F.2d  18, 21  (1st            ______________     ________________            Cir.), cert.  denied, 506 U.S.  834 (1992),  and we  consider                   _____________            first the district court's ruling that the second prosecution            was barred entirely under Ashe v. Swensen.   The Commonwealth                                      ____    _______            suggests that Rossetti's claim on this issue was not properly            presented in state  court and  was thus lost,  see Picard  v.                                                           ___ ______            Connor,  404 U.S.  270, 275-76  (1971), but  in our  view the            ______            issue was  adequately raised  and preserved.   See  Scarpa v.                                                           ___  ______            Dubois, 38  F.3d 1, 6 (1st  Cir. 1994), cert.  denied, 115 S.            ______                                  _____________            Ct. 940 (1995).                 The Fifth Amendment, held to apply to the states through            the  Fourteenth Amendment,  provides in  part that  no person            shall "be subject  for the same  offense to  be twice put  in            jeopardy of life or limb."  Benton v. Maryland, 395 U.S.  784                                        ______    ________            (1969).   A layman might  think that Rossetti  had been twice            prosecuted  for the same criminal venture.  But armed robbery            and conspiracy to commit armed robbery are separately defined            crimes under  Massachusetts law and each  requires an element            that  the  other  does  not.   Accordingly,  under  governing            Supreme  Court  precedent,  they  are  separate  offenses for            double jeopardy purposes.   Blockburger v. United States, 284                                        ___________    _____________                                         -6-                                         -6-            U.S. 299 (1932).  Rossetti does not suggest otherwise.                 But the  Supreme  Court has  broadened  double  jeopardy            protection by  incorporating into  the clause the  concept of            collateral estoppel, so 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,  397 U.S. at 443.  In                                   ____    _______            this  case, the district  court invoked  Ashe v.  Swenson and                                                     ____     _______            reasoned that, in light  of the evidence and instructions  in            the  armed robbery  trial, the  jury in  the first  trial had            necessarily determined  that Rossetti  had  not conspired  to                                                            _________            commit the armed robbery.                 Of course,  conspiracy was not the crime  charged in the            first  case, so  the  acquittal on  armed  robbery does  not,            standing alone tell us  what, if anything, the jury  found as            to  conspiracy.  And under  settled precedent, the burden was            upon Rossetti to  show that the  jury had  in the first  case            decided  the conspiracy  issue and  decided it  in Rossetti's            favor.  Aguilar-Aranceta,  957 F.2d  at 23.   In making  this                    ________________            assessment, the  district court  quite properly  examined the            evidence and instructions.  Id. at 23.                                        ___                 The district court reasoned that the jury at Rossetti  I                                                              ___________            was presented  with a  stark choice:   either  accept Smith's            testimony in its entirety, or conclude that he was a liar and            reject it all.  The jury had obviously rejected Smith's claim                                         -7-                                         -7-            that Rossetti had participated in the  robbery.  In rejecting            Smith's claim,  the district  court concluded, the  jury also            rejected his  briefer account of  Rossetti's participation in            the  conspiracy to commit the crime.  In the district court's            view,  the  first  trial  therefore  resolved  the  issue  of            Rossetti's participationin the conspiracy inRossetti's favor.                 We  do not share the  district court's assurance that in            acquitting Rossetti of armed robbery  the jury in Rossetti  I                                                              ___________            rejected the proposition that Rossetti had conspired with the            perpetrators of the robbery.   "The heart of a  conspiracy is            the formation  of [an]  unlawful  agreement or  combination."            Commonwealth  v. Pero, 524 N.E.2d 63, 65 (Mass. 1988). If the            ____________     ____            jury accepted Rossetti's alibi  for the day of the  crime, it            could  easily have  acquitted  him of  armed robbery  without            deciding whether Rossetti had agreed at some earlier  time to            play some role in the robbery.                 Rossetti's mother and his girlfriend each testified that            he  was with  them  at the  time  of the  robbery.   And  the            girlfriend  provided  an  exculpatory explanation  as  to how            Rossetti  came later to possess the money associated with the            robbery;  his possession of the  key to the  locker where the            weapons  were stored  was  never directly  explained.   Given            Smith's weakness  as a witness,  the alibi could  easily have            supplied reasonable doubt, and the alibi did not preclude the            possibility that Rossetti had conspired beforehand.                                         -8-                                         -8-                 The  district court's  conclusion rested  secondarily on            the criminal joint  venture instruction given to the  jury in            the   first  trial.      The  joint   venture  theory   under            Massachusetts law is designed to make "an active participant"            in  a crime,  Commonwealth v.  Stewart, 582  N.E.2d 514,  519                          ____________     _______            (Mass.  1991), liable  for  the crime  even  if his  role  is            limited to his presence coupled with an intent to aid in  the            crime if  necessary.  Commonwealth v.  Cunningham, 543 N.E.2d                                  ____________     __________            12,  15 (Mass. 1989).   But  the charge  given in  this case,            which  we reprint in an  appendix, was more  muddled than the            standard formulation.                 Under the charge  as given, the jury  might have thought            that it should convict Rossetti of armed robbery if he merely            conspired in  planning the robbery  or it might  instead have                                                __            thought that it could not convict unless Rossetti was present            at   the   robbery   and   ready   to   provide   assistance.            Unfortunately for  Rossetti, the latter  interpretation is at            least  as  likely as  the former;  there  is language  in the            charge  pointing  both ways.    Thus, the  jury's  verdict of            acquittal does  not necessarily, or even  probably, reflect a            finding that Rossetti was innocent of conspiracy.                                           III.                 The  district  court  held,  in  the  alternative,  that            Rossetti was entitled to a  new trial.  The acquittal  in the            first trial, the district  court reasoned, established at the                                         -9-                                         -9-            very  least that Rossetti had  not been engaged  in the armed            robbery itself  (or more precisely, found  a reasonable doubt            on  this point).   Yet,  in the  second trial  the prosecutor            again   offered   Smith's   testimony   that   Rossetti   had            participated in the robbery  itself, inviting the second jury            to contradict the first.                 For more than a decade after Ashe v. Swenson, this offer                                              ____    _______            of  evidence  by the  prosecutor--inviting  the  jury in  the            second trial  to find that  Rossetti had participated  in the            armed  robbery--would  clearly have  offended  the collateral            estoppel branch  of double  jeopardy doctrine.   E.g., United                                                             ____  ______            States  v. Gonzalez-Sanchez,  825 F.2d  572 (1st  Cir. 1987).            ______     ________________            True,  the  purpose  was  to  help  the  prosecutor  prove  a            different offense not foreclosed  by the first verdict, i.e.,                                                                    ____            that Rossetti had conspired to commit armed robbery.  But the            evidence  of  his  participation  in the  robbery  was  still            designed to prove the very  conduct (armed robbery) of  which            the first jury had acquitted Rossetti.                 Two  decades after  Ashe v.  Swenson, the  Supreme Court                                     ____     _______            decided  Dowling  v.  United  States, 493  U.S.  342  (1990).                     _______      ______________            There, the  federal government  prosecuted Dowling  for armed            bank robbery;  and because the bank robbers  had been masked,            the  prosecutor--as  identification  evidence  under  Fed. R.            Evid. 404--offered  proof that Dowling,  similarly masked and            armed, had sought  to rob a private home two  weeks later and                                         -10-                                         -10-            had  been  unmasked  and identified  in  the  struggle.   The            prosecutor's  problem  was that  prior  to  the bank  robbery            trial,  Dowling had  been tried  and acquitted  of the  house            robbery.                 In Dowling, as in this case, the defense argued that the                    _______            use  in  the second  trial  of  "acquitted conduct"  evidence            violated the  collateral estoppel branch of  double jeopardy.            The  Supreme  Court  rejected  the  claim,  pointing  to  the            difference in the burden of  proof.  In the first trial,  the            jury  had found that the  government had failed  to prove the            house  robbery  beyond a  reasonable  doubt;  in the  second,            Dowling's presence in the house merely needed to be proved as            a  likelihood in  order to  help the  government in  the bank            robbery case.  Id. at 348-49.                           ___                 If the  reasoning of Dowling is  applied mechanically to                                      _______            our  own case, the Commonwealth  was arguably free--so far as            federal constitutional  law is concerned--to  offer the  bank            robbery evidence in Rossetti  II.  No intermediate fact  need                                ____________            be proved beyond  a reasonable  doubt, so long  as the  crime            itself  is proved beyond a  reasonable doubt.   New Jersey v.                                                            __________            T.L.O., 469 U.S. 325, 345 (1985); In re Winship, 397 U.S. 358            ______                            _____________            (1970); Fed. R.  Evid. 401.   It was enough  for the jury  in            Rossetti  II to conclude that it was likely that Rossetti had            ____________            participated in the armed robbery.                 If the jury found  that Rossetti had likely participated                                         -11-                                         -11-            in the  bank robbery, this  could then have been  used by the            jury, together with other evidence, to prove Rossetti's guilt            on the conspiracy charge  beyond a reasonable doubt.   A jury            could  convict  without the  robbery  evidence:   Smith  gave            direct  testimony  in  the  second trial  that  Rossetti  had            conspired;  and  the  prosecutor  proved  that  proceeds  and            implements of the robbery had been linked with Rossetti.  But            if  the   jury  also   believed  that  Rossetti   had  likely                            ____            participated in  the robbery, guilt on  the conspiracy charge            could be found even more readily.                 The  district court took  note of Dowling  and sought to                                                   _______            distinguish it,  pointing out that in  Dowling's bank robbery            trial, the "other crime"  evidence, offered under Rule 404(b)            to  establish  identity,  related to  an  entirely  different            criminal transaction, i.e., the housebreaking.   The district                                  ____            court continued:                 While the offenses in Dowling occurred at different                                       _______                 times,  with  different  victims and  to  a  degree                 different participants, the  offenses at issue here                 involved  the same participants,  the same offense,                 and followed a day later.  Surely the admissibility                 of  acquitted  conduct  in  this  case  necessarily                 raises   issues  of  fairness   and  dimensions  of                 prejudice which the [Supreme] Court in Dowling  was                                                        _______                 not obliged to consider.            891 F. Supp. at 47.                   Perhaps so.  From a classic  double-jeopardy standpoint,            it may seem especially "unfair" to retry the  defendant after            acquittal  where  the two  crimes relate  to  the one  set of                                         -12-                                         -12-            events.   But to distinguish Dowling on this ground is simply                                         _______            to  quarrel  with  Blockburger's  test  of  when  two  crimes                               ___________            comprise  different offenses.   It  would be  easy enough  to            quarrel; in fact, the  Supreme Court for a brief  period came            closer to using a  same-transaction test for double jeopardy,            see Grady v. Corbin, 495 U.S. 508 (1990), overruled by United            ___ _____    ______                       ____________ ______            States v. Dixon,  113 S.  Ct. 2849 (1993).   But  Blockburger            ______    _____                                   ___________            binds us all.                 As for  "prejudice," the  inference of guilt  drawn from            the acquitted conduct may  be more weighty in this  case than            in Dowling precisely because of the close relationship of the               _______            two crimes.  Yet, that could easily be offered as an argument            for  admissibility here.   Cf. Fed.  R. Evid.  403 (balancing            ___                        ___            probative  value against  relevance).   Plainly  it would  be            highly  probative in  a  conspiracy trial  to  show that  the            defendant  accused  of  planning  a  crime  with  others  had            probably carried  out  the very  crime alleged  to have  been            planned.                   Further, in one important respect, there is less risk of            unfair  prejudice in this case than in Dowling.  The ordinary            ______                                 _______            threat  of unfair prejudice in a Rule 404(b) case is that the            jury  will infer  that  because the  defendant has  committed            other bad  acts, he has  a "bad character"  and is  likely to            have  acted   in  conformity  therewith.     This  inference,            forbidden by Rule  404(a), is largely  submerged by the  more                                         -13-                                         -13-            obvious and permissible inference that  because the defendant                        ___________            participated  in  the  crime  that  was  the  object  of  the            conspiracy, he was guilty of the conspiracy as well.1                   And  yet  the  Commonwealth   has  made  none  of  these            arguments, assuming  instead that  while it  was free  to try            Rossetti for conspiracy, the  prosecutor's use of evidence of            Rossetti's participation  in the armed robbery  was forbidden            by  Ashe  v.  Swenson.    Why  the   Commonwealth  made  this                ____      _______            concession   is  unclear:   its   brief  cites   only  to   a            Massachusetts case which  relied on Ashe  v. Swenson but  was                                                ____     _______            decided  prior to  Dowling.   Possibly, the  Commonwealth was                               _______            persuaded  by the  district court's  distinction  of Dowling;                                                                 _______            alternatively,  it  may  have   placed  undue  faith  in  its            argument--rejected by  the district court but  renewed by the            Commonwealth  here--that  the   armed  robbery  evidence  was            harmless error.  In  all events, we hold the  Commonwealth to            its waiver.                 Although  very  doubtful   about  the  district  court's            attempted distinction of Dowling,  we are inclined to reserve                                     _______                                            ____________________                 1The district court  thus erred in saying that the armed            robbery evidence in this case  "violated the express terms of            Rule 404(b)," even if we ignore the fact that Rule 404(b) did            not govern the  Massachusetts courts.   Subject to Rule  403,            evidence of a second crime transactionally related to charged            crime  is  admissible when,  as here,  it  is "so  blended or            connected  with the  one  on  trial  as  that  proof  of  one            incidentally involves the other."   United States v. Dworken,                                                _____________    _______            855 F.2d  12,  27 (1st  Cir.  1988) (emphasis  and  citations            removed).                                         -14-                                         -14-            the  issue for  a case  in which  the prosecution  chooses to            litigate the point.   Just how the Supreme Court  would apply            Dowling  in a  slightly different  context is  a matter  that            _______            could  at  least  be  debated.  Given  our  rejection  of the            district  court's main  ruling, the  Commonwealth is  free to            retry Rossetti if it desires, so there certainly is no threat            to public safety.  In fact, we were told that Rossetti was on            parole when his habeas petition was granted.                 Finally, something, but not much, needs to be said about            the   Commonwealth's  harmless   error  defense.     Assuming            dubitante that  the armed  robbery evidence was  precluded in            _________            the second  trial, that  "error" was  not harmless  under the            standard test.  Brecht  v. Abrahamson, 113 S. Ct.  1710, 1722                            ______     __________            (1993)  (error is  harmless  if it  has  no "substantial  and            injurious  effect  or  influence  in determining  the  jury's            verdict").  O'Neal v.  McAninch, 115 S. Ct. 992,  995 (1995).                        ______     ________            This is so even though we agree  with the government that the            other   evidence  of  conspiracy  (Smith's  testimony  as  to            conspiracy  and the  real evidence)  is impressive,  if taken            most favorably to the government.                 But in appraising harmless error, we do not look only at            the  government's best case but  rather at the  evidence as a            whole.   United States  v. Innamorati,  996 F.2d  456, 475-76                     _____________     __________            (1st Cir.), cert. denied, 114 S. Ct. 409 & 459 (1993).  Smith                        ____________            was   a  witness  that  the   jury  could  easily  choose  to                                         -15-                                         -15-            disbelieve.  And  Rossetti's possession of  some of the  real            evidence  was  explained, although  a  jury  might think  the            explanation  far-fetched  and  it was  certainly  incomplete.            Smith's  detailed evidence of Rossetti's actual participation            in the robbery itself could easily have altered the outcome.                 The  judgment  of  the  district court  is  modified  to                                                             ________            provide for issuance  of the writ unless, within a reasonable            time to be determined by the district court, the Commonwealth            chooses to  retry Rossetti on  the charge of  conspiracy, and            the matter is remanded to the district court for the entry of                          ________            a modified judgment.                 It is so ordered.                 ________________                                         -16-                                         -16-                                       APPENDIX            The charge, in relevant part, read as follows:                 Under our law and as a general rule, if two or more                 persons engage in  a joint criminal undertaking  in                 furtherance of its object each  is the agent of the                 other in all matters  relating to the common object                 of  the enterprise and the acts of one are the acts                 of all.    To be  engaged  in a  joint  enterprise,                 however, a person must  actively participate in it.                 Merely being  present at the  time when a  crime is                 committed is not sufficient even though a defendant                 may have had knowledge that the crime was going  to                 be committed and did absolutely nothing  to prevent                 it.   What must be proved is that the defendant who                 is  charged on  the theory  of joint  enterprise in                 some way associated himself  with the venture; that                 is, he participated in it as something he wished to                 bring   about   as   an   active   participant   as                 distinguished from merely being  present or at  the                 scene  when some other  person committed a criminal                 act.                   On the other hand, a person may be a participant in                 the commission of  a crime without  having actually                 performed  any physical  act at  the time  when the                 crime  was  committed.   If  the  defendant who  is                 charged  under the theory  of joint  enterprise has                 put himself in a position  or location where he can                 render   assistance   or   encouragement   in   the                 commission of the crime, then, and once again, as a                 general rule  he can be found guilty even though he                 did not commit the criminal act or made no physical                 contribution to  the execution of the criminal act.                 In order, therefore, to find this defendant  guilty                 of  the crime  of robbery,  you must  be satisfied,                 first  of all,  beyond a  reasonable doubt  that he                 participated with others in this  armed robbery and                 not that he was merely present at the time but that                 in some  active way he associated  himself with the                 crime before it was committed and  put himself in a                 position or  location where he might  aid or assist                 those  persons in the commission of the crime.  You                 must  be satisfied that this defendant combined and                 confederated   in  advance   with  the   others  to                 accomplish an illegal purpose.
