
USCA1 Opinion

	




          October 14, 1994      [NOT FOR PUBLICATION]                            UNITED STATE COURT OF APPEALS                            UNITED STATE COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1064                                    KEVIN WATKINS,                                Petitioner, Appellant,                                          v.                                   PAUL J. DiPAOLO,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Willie  J.  Davis  with  whom  Marie  Elena Saccoccio  and  Davis,            _________________              ______________________       ______        Robinson & White were on brief for petitioner.        ________________            Neil S. Tussel, Assistant Attorney General, Criminal Bureau,  with            ______________        whom Scott  Harshbarger, Attorney General, and  Elisabeth J. Medvedow,             __________________                         _____________________        Assistant  Attorney  General,  Criminal  Bureau,  were  on  brief  for        respondent.                                 ____________________                                 ____________________                      Per Curiam.  This  is a petition for  habeas corpus                      __________            by  Kevin Watkins,  hereinafter defendant,  who is  serving a            sentence  for rape  imposed following  his conviction  in the            Massachusetts Superior Court.  The case is properly here, his            state appeal having  been taken and denied.   Commonwealth v.                                                          ____________            Watkins,  33 Mass.  App.  7, review  denied,  413 Mass.  1105            _______                      ______________            (1992).  At the same time, of course, we confine ourselves to            the case  there  presented, and  presented  below.   Rose  v.                                                                 ____            Lundy,  455 U.S.  509, 518-19  (1982); Nadworny v.  Fair, 872            _____                                  ________     ____            F.2d 1093, 1096 (1st Cir. 1989).                      The principal issue  is somewhat unusual,  at least            until  recently.    Defendant  and the  victim  were  student            friends who  engaged in sex, and  then broke up.   Before the            break-up, defendant had made a video tape, and thereafter the            victim  asked for  it.   After  some negotiations,  defendant            agreed to sell it  to her for $10.  She came to his apartment            for  that purpose  and was,  allegedly, raped,  naturally and            "unnaturally" (orally).  Mass.  Gen. L. c. 271,   39.   There            followed  two indictments  in  customary  form,1  identically            worded, and  hence failing  to designate the  particular act.            Both were tried together, without identification; nor did the            jury ask.  Defendant did not complain.                                            ____________________            1.  Mass.  G. L. c. 277,   79.  See Commonwealth v. Hrycenko,                                            ___ ____________    ________            417 Mass. 309, 313, 630 N.E.2d 258, 261 (1994).                                         -2-                      This  blindman's bluff  continued,  with  the  jury            finding defendant not guilty on indictment 89-2834 and guilty            on 89-2835.  Defendant did not  ask the court to make inquiry            when the jury returned, and the verdicts were recorded, still            blind.   Although it  seems reasonable  to assume,  where the            evidence of the two acts had been introduced chronologically,            that the  jury  followed  the same  pattern,  we  agree  with            defendant that  this  is not  inescapably  so.   However,  we            cannot  agree that this means  that the petit  jury could not            know if "it was . . . deliberating on the same conduct in the            mind  of the  grand jury  in issuing  the indictments."   The            grand  jury  found  probable  cause for  both  charges,  and,            therefore, necessarily for the one the petit jury picked.                      Defendant concedes  that he had full  notice of the            charges, and adequate opportunity to prepare and defend.  "He            simply  did not have notice  as to which indictment pertained            to  which  activity.    Ordinarily,  the  indictments  simply                                    _____________________________________            charging 'rape' would have been sufficient.  But an ambiguity            __________________________________________            arose when the  jury acquitted  on one and  convicted on  the            other.   It was only at this time that the sufficiency of the            indictments   was  called   into  question."     (Defendant's            Memorandum  to  district  court;  emphasis   supplied).    No            ambiguity "arose"  upon the verdicts; if  lack of specificity            because of  special circumstance troubled  defendant, he  had            always   been  free  to  seek  particulars,  Commonwealth  v.                                                         ____________                                         -3-            Hrycenko, n.1, ante; Mass. R. Crim. P. 13(b)(1).  And how was            ________       ____            ignorance prejudicial?                      Defendant's  complaint  really  comes down  to  his            claim of inability, in the future, to plead double  jeopardy.            This claim  is exactly answered by  Hrycenko, which defendant                                                ________            cites.  It is irrelevant if Hrycenko may be bad federal law -                                        ________            -  which  we  would not  think.   As  only  state  crimes are            involved,  the  contention is  frivolous;  he  is necessarily            state protected.                      Affirmed.                      ________                                         -4-
