# United Stat es Court of Appeals For the First C ircuit

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.1 See generally Unite d States v. Trzcinski , 553 F.2d 851, 853

(3dCir. 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 're ceive' 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 andthe receiving. An accessory, however, may be guilt y of both larceny and receipt of stol en 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 be cause . . . the question is one of statutory construction, not common law distinctions."). -2-

STAHL, Senior Circuit Judge . Appe llan t 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 convictedNadeau of two counts of burglary, three counts of receiving stolen property, and one count of receiving a stolen motor vehicle. Appeal ing his convictions, Nadeau argued inter alia that he could not lawfully be convicted of both the burglary andthe receiving of the stolen property. On April 2, 1999, the Massa ch usetts Appeals Court agreed with Nadeau's argument and vacatedthe 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 revi ew. C ommonwealth 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 err or. The d istrict court denied the petition on August 21,2 The third issue raised by Nadeau in his original petiti on ,

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. -3- 2 001, but issued a certificate of appealability on Septemb er 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 t he Mas sachusetts Appeals Court erredwhen it chose merely to vacate the convictions for possession of stolen pro perty, 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 a ccount for his whereabouts during the times that the burglaries took plac e. Second, he argued that someone else, namely, his friend Michael Farese, had actuall y s tolen 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 offereda 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 de fenda nt. You are not to focus on whether there were or should have been anyone else accused of these offenses. The question is, has the government3 Awidely 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 innoc en ce of any other person or persons. So, if the evidence in the case convinces you beyonda reasonable doubt of the guilt of Defendant[s] _______ for the crime[s] chargedin the indictment, you should so find, -4- provedbeyond a reasonable doubt that Mr. Nadeau is guilty. Nadeau objected to this instruction a t trial, arguing that it was "confusing and contradictory" and, in essence, told the jury to ignore Nadeau's arguments regarding the possible culpability of Fa rese. On habeas review, the district court rejectedNadeau'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 Antiterrori sm a nd 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 fed eral 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 theeven thoug h yo u 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).

4 See 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).

5 As a practical matt er, 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., c harged/indicted) with the crimes, not whether they ac tuall y committedthe crimes." In o ther words, the instruction directed the jurors to render a verdict of n ot guilty unless they were convincedbeyond a reasonable doubt that the defendant before them, andnot some other person, had committed the crimes at issue in the case. -5- validity of comparable instructions has been upheld on previous occasions. 4 Furthermore, we have not independen t ly 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 affi rman ce of the trial court's instruction was an "unr eas onable application" of Supreme Court precedent must fail. 5 See 28 U.S.C. § 2254(d)(1). II.

We ca n likewise dispose of Nadeau's second argument without extensive discussion. Nadeau claims that the Supreme Court's decision in Milanovich v. Uni ted St ates , 365 U.S. 551 (1961), requires the lower courts to grant a defendant a new trial6 We 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 ou r decision on the ground that the Massachusetts Appeals Court's application of the remedy supplied by Gaddis rather than Milanovich is not unreasonable. -6- whe n he is convicted of both a theft and possession of stole n property stemming from t he sam e incident. In reaching the conclusion that Nadeau's argument was without meri t , 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 concurredin this assessment, and accordingly have cited Gaddis as the controlling Supreme Court pronouncement on this issue. See UnitedStat es v. Brown , 996 F.2d 1049, 1055 (10th Cir. 1993) (citing cases fromeight other circuits for the proposition that Milanovich has been de facto overruled by Gaddis ).

In light of this ove rwhe lming consensus, we are unconvincedthat the decision of the Massa chus etts Appeals Court "involvedan unreasonable application of[] clearly established Federal law." 28 U.S.C. § 2254(d)(1). 6 Therefore, we a gree 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.