[Not for Publication - Not to be Cited as Precedent]

United States Court of Appeals

For the First Circuit

No. 01-1544

ARTHUR BLAKE,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY; THOMAS F. REILLY, D.A.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Margaret G. Barmack and Barmack & Boggs on brief for appellant.

James J. Arguin, Assistant Attorney General, and Thomas F. Reilly,

Attorney General, on brief for appellees.

February 12, 2002

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PER CURIAM. Petitioner-Appellant Arthur Blake appeals the

denial of his petition for writ of habeas corpus challenging his state

court conviction for armed assault with intent to murder, and related

assault and weapons charges. Citing Bruton v. United States, 391 U.S.

123 (1968), Blake claims first that the trial court violated his Sixth

Amendment right to confront his accusers by admitting statements made

by his non-testifying codefendants to the grand jury, and that the

Massachusetts Supreme Judicial Court (“SJC”) failed to correct this

error on appeal. Second, Blake argues that the evidence underlying his

conviction for assault with intent to murder as a joint venturer of

codefendant Damon Brown was constitutionally insufficient. Because

neither argument has merit, we affirm the district court’s order. 

The facts of this case have been explained previously, first

by the SJC on direct review, Commonwealth v. Blake, 696 N.E.2d 929,

930-31 (Mass. 1998), and then by this court on review of the habeas

petition filed by Damon Brown, Brown v. Maloney, 267 F.3d 36, 38-39

(1st Cir. 2001). For purposes of this opinion, the relevant facts are

recounted, albeit briefly, below. 

Petitioner and Brown attended a “Caribbean Festival” on

August 28, 1993, and were part of a large crowd gathered in Franklin

Park. Later that day in the evening, after attempting to snatch a gold

chain from the neck of Kerry Davis, who was also attending the

Festival, Brown shot and injured several bystanders. Blake and another
1 Rentas was acquitted at trial. Blake, 696 N.E.2d at 930

n.2. 

2 Blake claims that the Commonwealth introduced these

statements to prove that he had offered a false alibi. As his

defense rested on a theory of misidentification, Blake insists

that any evidence that he had previously offered a (false) alibi

would poison the jury against him by suggesting that he had

something to hide and was, in fact, one of the shooters.

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friend of Brown, Angel Rentas, apparently also shot into the crowd

after Brown fired his weapon.1

Identification of the shooters was the central issue before

the jury. Although none of the defendants testified at trial, the

prosecution introduced statements made by Blake and Brown to the grand

jury, in which they claimed that they had been at Rentas’s apartment

from about 7:30 or 8:00 p.m. until approximately midnight, and knew

nothing about the shootings. The government also introduced statements

made by Rentas to the grand jury that Blake and Brown left his

apartment somewhere between 9:00 and 9:30 p.m. Although Petitioner

vehemently opposed the use of these statements by the government at

trial, his objections were overruled. 

In his habeas petition, Petitioner alleges that the trial

court violated the Supreme Court’s instruction in Bruton by improperly

admitting into evidence inculpatory statements of non-testifying codefendants that also implicated him, thereby infecting the trial with

unfair prejudice.2 Damon Brown presented this precise argument in his
3 Although Brown’s and Blake’s habeas petitions raised

substantially similar issues, the motion to consolidate the two

petitions was denied by both judges to whom the petitions were

originally allotted. Consequently, Brown’s petition was

considered by Judge Lasker, and Blake’s petition was considered

by Chief Judge Young.

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habeas petition, the denial of which we recently affirmed.3 Brown, 267

F.3d at 40-43. As there is no reason for us to retread the same

ground, we reject Blake’s assignment of Bruton error for the reasons

offered in Brown. See id.

Blake’s contention that there was insufficient evidence to

sustain his conviction as a joint venturer is also meritless. To prove

the existence of a joint venture under Massachusetts law, the

prosecution must demonstrate that the defendant was “(1) present at the

scene of the crime, (2) with knowledge that another intend[ed] to

commit the crime or with intent to commit a crime, and (3) by agreement

[was] willing and available to help the other if necessary."

Commonwealth v. Longo, 524 N.E.2d 67, 70 (Mass. 1988). Blake

acknowledges that the evidence at trial proved that he was at the scene

and that he was firing a gun at approximately the same time as Brown.

Nevertheless, Blake maintains that the Commonwealth failed to satisfy

the third prong, citing the alleged lack of any direct evidence or

basis from which a jury could infer that he intended to help Brown kill

Davis. As the SJC concluded, however, the fact that Blake joined

Brown after the initial shots were fired and also began to shoot in
4 Even assuming that Blake had no knowledge of Brown’s

malice toward Davis at the beginning of the evening, once Brown

began shooting at Davis, Blake could no longer claim ignorance

of Brown’s criminal intent. Therefore, to the extent that Blake

also seeks to challenge the sufficiency of his conviction under

prong two, we reject his argument.

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Davis’s direction provides sufficient evidence to allow a jury to infer

not only “that Blake was available and willing to help Brown, but also

that he, in fact, did so.” Blake, 696 N.E.2d at 934 (citing

Commonwealth v. Williams, 661 N.E.2d 617, 625 (Mass. 1996)).4 We agree

with the district court that Blake has “fail[ed] to advance any

evidence of an unreasonable determination of the facts” by the SJC,

Blake v. Maloney, 142 F. Supp. 2d 135, 139 (D. Mass. 2000) (citing 28

U.S.C. § 2254(d)(2)), and find no error in the proceedings below.

For the foregoing reasons, the district court’s denial of

Petitioner’s habeas petition is affirmed.