United States Court of Appeals

For the First Circuit

No. 01-2288

RICHARD J. NADEAU, JR.,

Petitioner, Appellant,

v.

JAMES MATESANZ,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker*, Senior U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Paul M. Freitas for appellant.

Linda A. Wagner, Assistant Attorney General, with whom Thomas

F. Reilly, Attorney General, was on brief, for appellee.

____________________

April 29, 2002

____________________

* Of the Southern District of New York, sitting by designation.
1See generally United States v. Trzcinski, 553 F.2d 851, 853

(3d Cir. 1977) ("Traditionally, receipt of stolen goods has been a

crime distinct from the theft. Under the general view, a thief who

actually carried away the goods could not 'receive' them from

himself. This principle is based either upon the theory of

avoiding the infliction of a double penalty or upon the philosophic

consideration that a single act may not constitute both the larceny

and the receiving. An accessory, however, may be guilty of both

larceny and receipt of stolen goods. See 2 F. Wharton, Criminal

Law and Procedure § 576 (12th ed. 1957), and R. Perkins, Criminal

Law 321 (1969). But these general observations are not controlling

because . . . the question is one of statutory construction, not

common law distinctions.").

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STAHL, Senior Circuit Judge. Appellant Richard Nadeau

appeals from the district court's denial of his petition for writ

of habeas corpus. In March 1996, a Middlesex Superior Court jury

convicted Nadeau of two counts of burglary, three counts of

receiving stolen property, and one count of receiving a stolen

motor vehicle. Appealing his convictions, Nadeau argued inter

alia that he could not lawfully be convicted of both the burglary

and the receiving of the stolen property. On April 2, 1999, the

Massachusetts Appeals Court agreed with Nadeau's argument and

vacated the possession of stolen property convictions but affirmed

the remaining convictions. Commonwealth v. Nadeau, 46 Mass. App.

Ct. 1121, 708 N.E.2d 154 (1999) (table).1 On June 3, 1999, the

Massachusetts Supreme Judicial Court denied Nadeau's application

for further appellate review. Commonwealth v. Nadeau, 429 Mass.

1109, 712 N.E.2d 99 (1999) (table).

On June 25, 2000, Nadeau filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, asserting three grounds

of error. The district court denied the petition on August 21,
2The third issue raised by Nadeau in his original petition,

but not presented on appeal, concerned the denial of his motion to

suppress the confession he made to the police on the date of his

arrest.

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2001, but issued a certificate of appealability on September 18,

2001. In this appeal, Nadeau continues to press two purported

grounds for relief. First, he maintains that the trial judge's

instructions to the jury violated his constitutional right to

present a defense and to have his guilt determined by a jury of his

peers. Second, he contends that the Massachusetts Appeals Court

erred when it chose merely to vacate the convictions for possession

of stolen property, and should instead have ordered a new trial.2

Finding neither of these arguments meritorious, we affirm.

I.

At trial, Nadeau's theory of defense consisted of two

main components. First, he offered an alibi to account for his

whereabouts during the times that the burglaries took place.

Second, he argued that someone else, namely, his friend Michael

Farese, had actually stolen the goods that the police recovered

during the search of Farese's apartment, where Nadeau had been

staying. When the time came to instruct the jury, the trial judge

offered a standard charge regarding reasonable doubt.

Specifically, the judge stated, 

The question is, has the government proved

beyond a reasonable doubt that Mr. Nadeau did

certain things. He is the only defendant.

You are not to focus on whether there were or

should have been anyone else accused of these

offenses. The question is, has the government
3A widely accepted federal pattern jury instruction provides:

You are here to determine whether the

government has proven the guilt of the

defendant[s] for the charge[s] in the

indictment beyond a reasonable doubt. You are

not called upon to return a verdict as to the

guilt or innocence of any other person or

persons. So, if the evidence in the case

convinces you beyond a reasonable doubt of the

guilt of Defendant[s] _______ for the crime[s]

charged in the indictment, you should so find,

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proved beyond a reasonable doubt that Mr.

Nadeau is guilty. 

Nadeau objected to this instruction at trial, arguing

that it was "confusing and contradictory" and, in essence, told the

jury to ignore Nadeau's arguments regarding the possible

culpability of Farese. On habeas review, the district court

rejected Nadeau's claim that the trial court's failure to modify or

correct the jury instructions violated his constitutional rights.

Nadeau's appeal is governed by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Therefore, in order

to prevail, Nadeau must show that the state court decision was

contrary to federal constitutional law or an unreasonable

application of clearly established federal law as determined by the

Supreme Court. Id. § 2254(d)(1). We review the district court's

denial of habeas relief de novo. See Almanzar v. Maloney, 281 F.3d

300, 303 (1st Cir. 2002).

Nadeau has not offered any Supreme Court case that would

suggest that the jury instructions were constitutionally

inadequate. The reasonable doubt instruction offered by the trial

judge closely parallels a model federal instruction,3 and the
even though you may believe that one or more

other unindicted persons are also guilty. But

if any reasonable doubt remains in your minds

after impartial consideration of all the

evidence in the case, it is your duty to find

Defendant[s] _______ not guilty.

O'Malley, et al., Federal Jury Practice and Instructions, § 12.11

(2000). 

4See United States v. Dennis, 645 F.2d 517, 522-23 (5th Cir.

1981), overruled on other grounds by United States v. Lane, 474

U.S. 438 (1986). 

5As a practical matter, we are also not convinced that

Nadeau's ability to present his defense was compromised by the jury

instruction. As the district court noted, "The instruction tells

jurors to ignore whether anyone else was accused (e.g.,

charged/indicted) with the crimes, not whether they actually

committed the crimes." In other words, the instruction directed

the jurors to render a verdict of not guilty unless they were

convinced beyond a reasonable doubt that the defendant before them,

and not some other person, had committed the crimes at issue in the

case.

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validity of comparable instructions has been upheld on previous

occasions.4 Furthermore, we have not independently identified

anything in the instruction chosen by the state court judge that

runs afoul of the minimum constitutional requirements identified by

the Supreme Court. Therefore, Nadeau's argument that the Appeals

Court's affirmance of the trial court's instruction was an

"unreasonable application" of Supreme Court precedent must fail.5

See 28 U.S.C. § 2254(d)(1).

II.

We can likewise dispose of Nadeau's second argument

without extensive discussion. Nadeau claims that the Supreme

Court's decision in Milanovich v. United States, 365 U.S. 551

(1961), requires the lower courts to grant a defendant a new trial
6We need express no view regarding what, if any, lingering

force Milanovich may have in light of the Supreme Court's later

decision in Gaddis. For purposes of habeas review, it is

sufficient to rest our decision on the ground that the

Massachusetts Appeals Court's application of the remedy supplied by

Gaddis rather than Milanovich is not unreasonable.

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when he is convicted of both a theft and possession of stolen

property stemming from the same incident. In reaching the

conclusion that Nadeau's argument was without merit, the

Massachusetts Appeals Court relied upon Commonwealth v. Nascimento,

421 Mass. 677, 683-84, 659 N.E.2d 745, 749-50 (1996), in which the

Massachusetts Supreme Judicial Court explained that Milanovich has

been limited by the later Supreme Court opinion in United States v.

Gaddis, 424 U.S. 544 (1976). Other courts of appeals have

concurred in this assessment, and accordingly have cited Gaddis as

the controlling Supreme Court pronouncement on this issue.

See United States v. Brown, 996 F.2d 1049, 1055 (10th Cir. 1993)

(citing cases from eight other circuits for the proposition that

Milanovich has been de facto overruled by Gaddis).

In light of this overwhelming consensus, we are

unconvinced that the decision of the Massachusetts Appeals Court

"involved an unreasonable application of[] clearly established

Federal law." 28 U.S.C. § 2254(d)(1).6 Therefore, we agree with

the district court that this assignment of error lacks merit.

III.

Accordingly, we affirm the district court's decision to

dismiss the appellant's petition for habeas relief.