USCA1 Opinion
October 11, 1996 UNITED STATES COURT OF APPEALS October 11, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-1614
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN HOULIHAN,
Defendant, Appellant.
_________________________
No. 95-1615
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH A. NARDONE
Defendant, Appellant.
_________________________
No. 95-1675
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL D. FITZGERALD
Defendant, Appellant.
_________________________
ERRATA SHEET ERRATA SHEET
The opinion of this court issued on August 22, 1996, is corrected
as follows:
On page 52, line 22, change "Boylan" to "O'Bryant" ______ ________
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-1614
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN HOULIHAN,
Defendant, Appellant.
_________________________
No. 95-1615
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH A. NARDONE
Defendant, Appellant.
_________________________
No. 95-1675
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL D. FITZGERALD
Defendant, Appellant.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_________________________
Charles W. Rankin, with whom Rankin & Sultan was on brief, _________________ _______________
for appellant Houlihan.
Jonathan Shapiro, with whom Angela Lehman and Stern, __________________ ______________ ______
Shapiro, Weissberg & Garin were on brief, for appellant Nardone. __________________________
Kevin S. Nixon, with whom Robert Y. Murray and Ramsey & _______________ _________________ ________
Murray were on brief, for appellant Fitzgerald. ______
Nina Goodman, Attorney, Dep't of Justice, with whom Donald ____________ ______
K. Stern, United States Attorney, Paul V. Kelly and Frank A. _________ ______________ ________
Libby, Jr., Assistant United States Attorneys, and Daniel S. ___________ __________
Goodman and David S. Kris, Attorneys, Dep't of Justice, were on _______ ______________
brief, for the United States.
_________________________
August 22, 1996
_________________________
SELYA, Circuit Judge. These appeals present a hothouse SELYA, Circuit Judge. _____________
of efflorescent issues set against a backdrop composed of roughly
equal parts of drugs, money, and mayhem. Two of those issues
one implicating the Confrontation Clause and the other involving
Fed. R. Crim. P. 24(c) raise important questions of first
impression in this circuit. In the pages that follow, we offer a
skeletal outline of the case and then put flesh on the bones by
addressing, first, the appellants' two flagship claims. We next
consider a series of discovery disputes and conclude by
discussing, albeit in a more abbreviated fashion, a laundry list
of other asseverations. In the end, after careful consideration
of the parties' arguments and close perscrutation of the
compendious record, we affirm the judgments below in large part,
but reverse one defendant's conviction on three related counts
and bring a contingent sentencing determination to closure.
I. BACKGROUND I. BACKGROUND
Overcoming the temptation to engage in Homeric
recitation of the riveting facts that emerged during a seventy-
day trial, we opt instead to sketch the evidence at this juncture
and reserve greater detail until the need arises to place
specific issues into workable context. We draw our sketch in
colors that coordinate with the jury's verdicts, consistent with
record support. See, e.g., United States v. Ortiz, 966 F.2d 707, ___ ____ _____________ _____
711 (1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993). _____ ______
For nearly four years Michael Fitzgerald and John
Houlihan ran a ruthlessly efficient drug ring from an unlikely
4
command post: Kerrigan's Flower Shop, Charlestown,
Massachusetts. The organization commanded the allegiance of
numerous distributors, stationary and mobile, including
Jennierose Lynch, William "Bud" Sweeney, George Sargent, and Alan
Skinner. These minions, and others like them, helped the
organization supply cocaine to hordes of buyers through an
elaborate street-level distribution network that arranged most of
its sales with the aid of electronic pagers, assigned customer
codes, and preset rendezvous points.
Fitzgerald and Houlihan imposed a strict code of
silence on all who came into contact with them, including their
own troops. They dealt severely with persons who seemed inclined
to talk too freely. Joseph Nardone, a professional assassin who
bragged that he was the "headache man" when the organization's
chieftains had a headache, Nardone got rid of it acted as the
principal enforcer. Over time, the gang's targets included
Sargent, Sweeney (who survived multiple attempts on his life, but
was left paralyzed from the chest down), a rival drug dealer,
James Boyden III, and the latter's son and helpmeet, James Boyden
IV.
The Fitzgerald-Houlihan axis dominated the Charlestown
scene through 1993. Ultimately, the authorities broke the code
of silence and a federal grand jury indicted twelve individuals
(including Fitzgerald, Houlihan, and Nardone) on a myriad of
5
charges.1 After trial, the two ringleaders and their enforcer
were found guilty of engaging in a racketeering enterprise (count
1), racketeering conspiracy (count 2), conspiracy to commit
murder in aid of racketeering (counts 5, 7 & 9), and conspiracy
to distribute cocaine (count 20). See 18 U.S.C. 1962(c) & ___
(d), 1959(a); 21 U.S.C. 846. The jury also convicted
Fitzgerald and Houlihan of aiding and abetting murder and
attempted murder in aid of racketeering (counts 6, 8, 11 & 12),
instigating murder for hire (counts 15, 16 & 17), engaging in a
continuing criminal enterprise (count 19), and distributing
cocaine (counts 21 through 29). See 18 U.S.C. 1959(a), 1958; ___
21 U.S.C. 848, 841(a)(1). The jury found Nardone guilty of
murder and attempted murder in aid of racketeering (counts 6, 8,
11 & 12), see 18 U.S.C. 1959(a), and using and carrying a ___
firearm during and in relation to crimes of violence (counts 39,
40, 42 & 43), see 18 U.S.C. 924(c). The jury also returned ___
special forfeiture verdicts. See 18 U.S.C. 1963; 21 U.S.C. ___
853. The district court sentenced each defendant to multiple
terms of life imprisonment. These appeals blossomed.
II. THE VOICE FROM THE GRAVE II. THE VOICE FROM THE GRAVE
The district court admitted over objection portions of
hearsay statements made by George Sargent on the theory that
____________________
1Of these twelve, only Fitzgerald, Houlihan, and Nardone
appear as appellants before us. Three of their codefendants
(Skinner, Lynch, and Joseph Houlihan) eventually pled guilty;
five others were granted a separate trial; and one (William Herd)
was acquitted by the same jury that convicted the three
appellants.
6
Sargent's murder constituted a waiver of the Confrontation Clause
vis- -vis the murderers.2 Houlihan and Nardone assign error to
this order and to a salmagundi of related rulings.
A. Setting the Stage. A. Setting the Stage. _________________
Sargent served as a distributor for the Fitzgerald-
Houlihan organization. The police arrested him twice during 1992
on drug-trafficking charges. Both times, Sargent made voluntary
statements that inculpated Fitzgerald and Houlihan in a sprawling
drug conspiracy and tended to link them with several murders.
The statements also furnished evidence probative of the elements
of the offenses with which Nardone had been charged, but Sargent
did not mention him by name. On June 28, 1992 within a month
after he gave the second statement police found Sargent's
corpse in a parking lot. He had been killed by a bullet wound to
the head inflicted at close range.
The government filed a pretrial motion for an order (1)
authorizing a state trooper, Mark Lemieux, to testify about
Sargent's statements following his March 1992 arrest, and (2)
permitting the jury to hear a redacted version of the taped May
1992 interview conducted by Boston police detectives following
Sargent's second arrest. The government argued that the
appellants who had been charged with Sargent's murder waived
their rights to object to the admission of his out-of-court
____________________
2Because the government did not prove to the district
court's satisfaction that Fitzgerald shared his codefendants'
intent to forestall Sargent from cooperating with the police, the
court ruled that Sargent's statements could not be used against
Fitzgerald. The correctness of that ruling is not before us.
7
statements on either Confrontation Clause or hearsay grounds when
they successfully conspired to execute him for the express
purpose of preventing his cooperation with the authorities. The
district court took the motion under advisement and, near the end
of the government's case in chief, admitted the challenged
evidence against Houlihan and Nardone, but not Fitzgerald, see ___
supra note 2, concluding that the government had shown by clear _____
and convincing evidence that those defendants conspired to kill
Sargent at least in part for the purpose of preventing him from
cooperating with the police, and that such actions were
tantamount to a knowing waiver of their confrontation rights.
See United States v. Houlihan, 887 F. Supp. 352, 363-65 (D. Mass. ___ _____________ ________
1995).3
B. Waiver by Homicide: The Confrontation Clause. B. Waiver by Homicide: The Confrontation Clause. _____________________________________________
To resolve Houlihan's and Nardone's main objections, we
must decide whether a defendant waives his rights under the
Confrontation Clause by murdering a potential witness to prevent
that witness from turning state's evidence and/or testifying
against him at trial. We believe that he does.
It is apodictic that "in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . ." U.S. Const. Amend. VI. This
trial right is designed to assure defendants of a meaningful
opportunity to cross-examine the witnesses who testify against
____________________
3The district court also published a preliminary opinion,
United States v. Houlihan, 871 F. Supp. 1495 (D. Mass. 1994), _____________ ________
which is of little moment in regard to these appeals.
8
them, see, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678 ___ ____ ________ ____________
(1986); United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. _____________ _____________
1996), thereby enhancing the jury's ability to separate fact from
fiction.
Though the Confrontation Clause is a cornerstone of our
adversary system of justice, it is not an absolute; there are
circumstances in which the prosecution may introduce an unsworn
out-of-court statement without procuring the declarant's presence
at trial. See, e.g., Puleio v. Vose, 830 F.2d 1197, 1205-07 (1st ___ ____ ______ ____
Cir. 1987) (discussing exception for spontaneous exclamations),
cert. denied, 485 U.S. 990 (1988). Moreover, a defendant may _____ ______
waive his right to confrontation by knowing and intentional
relinquishment. See Boykin v. Alabama, 395 U.S. 238, 243 (1969) ___ ______ _______
(holding that a guilty plea is an express waiver of the
constitutional right to confrontation); see also Johnson v. ___ ____ _______
Zerbst, 304 U.S. 458, 464 (1938). While a waiver of the right to ______
confront witnesses typically is express, the law is settled that
a defendant also may waive it through his intentional misconduct.
See, e.g., Taylor v. United States, 414 U.S. 17, 20 (1973) ___ ____ ______ _____________
(finding such a waiver when a defendant boycotted his trial);
Illinois v. Allen, 397 U.S. 337, 343 (1970) (ruling that a ________ _____
defendant waives the right to confrontation by engaging in
disruptive behavior requiring his removal from the courtroom
during the trial).
By the same token, courts will not suffer a party to
profit by his own wrongdoing. Thus, a defendant who wrongfully
9
procures a witness's absence for the purpose of denying the
government that witness's testimony waives his right under the
Confrontation Clause to object to the admission of the absent
witness's hearsay statements. See Reynolds v. United States, 98 ___ ________ _____________
U.S. (8 Otto) 145, 158 (1878) (holding that the defendant's
refusal to disclose the whereabouts of a witness constituted such
a waiver); Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir. ______ ______
1982) (holding that a defendant who silences a witness by
exploiting an intimate relationship waives the right to
confrontation), cert. denied, 460 U.S. 1053 (1983); United States _____ ______ _____________
v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (concluding that a ______
defendant waives his confrontation right by threatening a
witness's life and bringing about the witness's silence), cert. _____
denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d ______ _____________ _______
1346, 1358-60 (8th Cir. 1976) (similar), cert. denied, 431 U.S. _____ ______
914 (1977). Moreover, it is sufficient in this regard to show
that the evildoer was motivated in part by a desire to silence __ ____
the witness; the intent to deprive the prosecution of testimony
need not be the actor's sole motivation. Cf. United States v. ____ ___ ______________
Thomas, 916 F.2d 647, 651 (11th Cir. 1990) (stating that the ______
obstruction of justice statute, 18 U.S.C. 1503, requires proof
that the defendant's conduct was "prompted, at least in part," by
the requisite corrupt motive).
Houlihan and Nardone argue, however, that the waiver-
by-misconduct doctrine, even if good law, should not be employed
here because Sargent was not an actual witness no charges had ______
10
been lodged against Houlihan or Nardone at the time of Sargent's
murder, and no grand jury had as yet been convened but at most
a turncoat cooperating with the police. Thus, they could not
have been on notice that they were waiving a trial right. We
find this argument unpersuasive. Although the reported cases all
appear to involve actual witnesses, see, e.g., United States v. ___ ____ _____________
Thai, 29 F.3d 785, 798 (2d Cir.), cert. denied, 115 S. Ct. 456 & ____ _____ ______
496 (1994); United States v. Mastrangelo, 693 F.2d 269, 271-72 _____________ ___________
(2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984), we can _____ ______
discern no principled reason why the waiver-by-misconduct
doctrine should not apply with equal force if a defendant
intentionally silences a potential witness. _________
When a defendant murders an individual who is a
percipient witness to acts of criminality (or procures his
demise) in order to prevent him from appearing at an upcoming
trial, he denies the government the benefit of the witness's live
testimony. In much the same way, when a defendant murders such a
witness (or procures his demise) in order to prevent him from
assisting an ongoing criminal investigation, he is denying the
government the benefit of the witness's live testimony at a
future trial. In short, the two situations are fair congeners:
as long as it is reasonably foreseeable that the investigation
will culminate in the bringing of charges, the mere fact that the
homicide occurs at an earlier step in the pavane should not
affect the operation of the waiver-by-misconduct doctrine.
Indeed, adopting the contrary position urged by the appellants
11
would serve as a prod to the unscrupulous to accelerate the
timetable and murder suspected snitches sooner rather than later.
We see no justification for creating such a perverse incentive,
or for distinguishing between a defendant who assassinates a
witness on the eve of trial and a potential defendant who
assassinates a potential witness before charges officially have
been brought. In either case, it is the intent to silence that
provides notice.
We therefore hold that when a person who eventually
emerges as a defendant (1) causes a potential witness's
unavailability (2) by a wrongful act (3) undertaken with the
intention of preventing the potential witness from testifying at
a future trial, then the defendant waives his right to object on
confrontation grounds to the admission of the unavailable
declarant's out-of-court statements at trial.
Before applying this holding to the case at hand, we
must correctly calibrate the quantum of proof. The lower court,
paying obeisance to United States v. Thevis, 665 F.2d 616, 629-30 _____________ ______
(5th Cir. Unit B), cert. denied, 456 U.S. 1008 (1982), adopted _____ ______
the minority view and decided that the government must prove the
predicate facts essential to the waiver by "clear and convincing"
evidence. Houlihan, 887 F. Supp. at 360. This sets too high a ________
standard. Unlike the Fifth Circuit, we think that the government
need only prove such predicate facts by a preponderance of the
evidence.
The Thevis court compared the waiver-by-misconduct ______
12
problem to the admissibility of in-court identifications that
follow tainted out-of-court identifications. See, e.g., United ___ ____ ______
States v. Wade, 388 U.S. 218, 240 (1967) (requiring government to ______ ____
prove by "clear and convincing" evidence in such circumstances
that the proposed in-court identification has a reliable
independent basis). With respect, we believe the better
comparison is to the admission of out-of-court statements under
the coconspirator exception to the hearsay rule. See Fed. R. ___
Evid. 801(d)(2)(E). To invoke the coconspirator exception, the
proponent of the statement must "show by a preponderance of the
evidence" certain predicate facts, namely, "that a conspiracy
embracing both the declarant and the defendant existed, and that
the declarant uttered the statement during and in furtherance of
the conspiracy." United States v. Sepulveda, 15 F.3d 1161, 1180 _____________ _________
(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994); see also _____ ______ ___ ____
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). _________ _____________
Proving the conditions precedent to the applicability
of the coconspirator exception is analytically and functionally
identical to proving that a defendant's wrongdoing waives his
rights under the Confrontation Clause. See Steele, 684 F.2d at ___ ______
1203; United States v. White, 838 F. Supp. 618, 624 (D.D.C. ______________ _____
1993). We therefore align ourselves with the majority of federal
appellate courts that have considered the question, see, e.g., ___ ____
Mastrangelo, 693 F.2d at 273; Steele, 684 F.2d at 1202-03; ___________ ______
Balano, 618 F.2d at 629, and set the government's burden of proof ______
at the preponderance-of-the-evidence level.
13
Measured against this more conventional benchmark, the
district court's findings easily pass muster. The record amply
demonstrates that Houlihan and Nardone knew when they conspired
to murder Sargent that they were depriving the government of a
potential witness. First, the district court supportably found
that they believed Sargent was cooperating with the police and
could harm them and the organization by talking.4 See Houlihan, ___ ________
887 F. Supp. at 363-64. Second, Sargent was in fact cooperating
with law enforcement officials at the time and made two voluntary
statements in which he provided detailed accounts of the
organization's modus operandi, descriptions of the principals'
roles in various murders, and a frank admission of his own
involvement in the conspiracy. While the defendants' perception
of likely cooperation may well be enough to meet this prong of
the test, the fact of Sargent's cooperation reinforces the
inference that the killers believed Sargent was spilling the
beans and murdered him on that account. Last but not least, the
conspirators knew to a certainty that Sargent had keen insight
into their felonious activities both from his own work in the
distribution network and from sundry conversations in which they
spoke openly to him in retrospect, too openly of their
participation in serious crimes.
This evidentiary foundation sturdily supports the
____________________
4It is noteworthy that, after Judge Young ruled on the
admissibility of Sargent's statements, Sweeney testified that
Houlihan told him, flat out, that Sargent had been killed because
he "was talking to the cops."
14
conclusion that Houlihan and Nardone reasonably could have
foreseen Sargent becoming a witness against them and plotted to
kill him in order to deprive the government of his firsthand
testimony. Hence, the district court did not err in overruling
objections to the introduction of portions of Sargent's out-of-
court statements insofar as those objections stemmed from the
Confrontation Clause.5
C. Waiver by Homicide: The Hearsay Objections. C. Waiver by Homicide: The Hearsay Objections. ___________________________________________
Houlihan and Nardone next argue that, even if they
waived their confrontation rights, the district court should not
have admitted Sargent's hearsay statements because they were
tinged with self-interest (having been made in police custody
with a stiff sentence for distributing large quantities of
narcotics in prospect) and therefore lacked "circumstantial
guarantees of trustworthiness." Fed. R. Evid. 804(b)(5). On the
facts of this case, we agree with the district court, see ___
Houlihan, 887 F. Supp. at 362, 367, that Houlihan's and Nardone's ________
misconduct waived not only their confrontation rights but also
their hearsay objections, thus rendering a special finding of
reliability superfluous.
____________________
5In a related vein, Houlihan and Nardone complain that the
district court failed to conduct an evidentiary hearing prior to
ruling on the admissibility of Sargent's statements. This
complaint strikes us as a thinly-veiled effort to rehash a
discovery dispute that we discuss infra Part IV(B). In all _____
events, the district court heard arguments of counsel and thirty-
seven days of trial testimony before deciding that the statements
could be utilized. In these circumstances, the court did not
outstrip the bounds of its discretion in declining to convene a
special mid-trial evidentiary hearing.
15
The Supreme Court has yet to plot the crossroads at
which the Confrontation Clause and the hearsay principles
embedded in the Evidence Rules intersect. The question is subtly
nuanced. Though the two bodies of law are not coterminous, they
husband essentially the same interests. See California v. Green, ___ __________ _____
399 U.S. 149, 155-56 (1976). Both attempt to strike a balance
between the government's need for probative evidence and the
defendant's stake in testing the government's case through cross-
examination. See Ohio v. Roberts, 448 U.S. 56, 65 (1980). As a ___ ____ _______
result, whether hearsay principles are more or less protective of
a defendant's right to cross-examination than confrontation
principles depends on the point at which the balance is struck in
any particular instance (recognizing, however, that the balance
can be struck at different levels in different cases). See ___
Green, 399 U.S. at 156. _____
In this case, we can take matters a step further. In
constructing the balance the main interest that must be offset
against the government's need for evidence is the accused's right
to confrontation (for this is the right from which the right to
cross-examine springs). Once the confrontation right is lifted
from the scales by operation of the accused's waiver of that
right, the balance tips sharply in favor of the need for
evidence. See Thai, 29 F.3d at 841 (holding that a defendant who ___ ____
waives his confrontation right by wrongfully procuring a
witness's silence also waives hearsay objections vis- -vis that
witness); United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) _____________ ______
16
(similar); see also Steele, 684 F.2d at 1201 (noting that ___ ____ ______
"English and American courts have consistently relaxed the
hearsay rule when the defendant wrongfully causes the witness'
unavailability"). Here, then, inasmuch as Houlihan and Nardone
waived their confrontation right by colloguing to murder Sargent,
they simultaneously waived their right to object on hearsay
grounds to the admission of his out-of-court statements.6 Hence,
the district court appropriately eschewed the request for
findings under Fed. R. Evid. 804(b)(5).
Houlihan and Nardone have a fallback position. They
suggest that the district court's admission of Sargent's out-of-
court statements violated their rights to due process because the
admissions allowed them to be convicted on the basis of
unreliable evidence. See Green, 399 U.S. at 163 n.15 (ruminating ___ _____
that "considerations of due process, wholly apart from the
Confrontation Clause, might prevent convictions where a reliable
evidentiary basis is totally lacking"). We reject this
initiative. Whatever criticisms justifiably might be levelled
against Sargent's statements, the portions of those statements
that Judge Young allowed into evidence are not so unreliable as
____________________
6We caution that a waiver of confrontation rights does not
result in the automatic surrender of all evidentiary objections.
For example, a district court still should exclude relevant but
highly inflammatory evidence, misconduct notwithstanding, if the
danger of unfair prejudice substantially outweighs the evidence's
probative value. See Fed. R. Evid. 403. Presumably, such ___
evidence would have been excludable on a non-hearsay ground if
the declarant were available to testify, so there is no reason to
admit it when the defendant procures the declarant's
unavailability.
17
to raise due process concerns. Other evidence abundantly
corroborates (and in many instances replicates) Sargent's
account. For instance, his description of the organization's
modus operandi and his assessment of Houlihan's leadership role
were confirmed and described in excruciating detail by a galaxy
of live witnesses (e.g., Michael Nelson, Bud Sweeney, Cheryl
Dillon).7 No more is exigible.
D. The Redactions. D. The Redactions. ______________
After ruling that portions of Sargent's out-of-court
statements were admissible against Houlihan and Nardone, the
court limited the May 30, 1992 statements to those that "would
have been competent and admissible evidence had the declarant
been able to testify in person," and also excluded those portions
that "directly or through innuendo" might offend the rule of
Bruton v. United States, 391 U.S. 123, 126 (1968) (holding that ______ _____________
the introduction at a joint trial of a nontestifying defendant's
statements that implicate a codefendant constitutes prejudicial
error). Houlihan, 887 F. Supp. at 365. Houlihan and Nardone ________
objected, contending that the editing process heightened the
force of Sargent's statements, and that if the interviews were to
be introduced at all, then the entire text should be fair game.
The district court overruled the objections.
____________________
7Perhaps the weakest link in the chain is Sargent's
statement regarding a suggestive but ambiguous conversation that
he had with Houlihan shortly before the killing of James Boyden
III. But this tale is relevant principally to the three counts
against Houlihan on which we order his convictions reversed. See ___
infra Part V(B). Thus, any error in admitting it is harmless. _____
18
On appeal, Houlihan and Nardone argue less that
Sargent's statements should have been redacted somewhat
differently and more that they should not have been redacted at __
all.8 They assert that when a defendant waives his rights to ___
make Confrontation Clause and hearsay objections through
misconduct, the absent declarant's full out-of-court statement
should be admissible at the behest of either the proponent or
opponent of the statement. This assertion rests on a misguided
notion.
The cardinal purpose of the waiver-by-misconduct
doctrine is to ensure that a wrongdoer does not profit in a court
of law by reason of his miscreancy. By murdering Sargent,
Houlihan and Nardone denied the prosecution the benefit of his
live testimony. To compensate for that denial the court allowed
the government to introduce portions of the interviews that
Sargent gave to the police. The defense, however, was not
entitled to any compensation, and permitting it to introduce
additional hearsay statements (apart from statements necessary to
place the portions used by the government into context and to
render them not misleading) would be to reward bloodthirstiness.
We decline to stamp a judicial imprimatur on a calculated murder.
Thus, we hold that a homicidal defendant may by his misconduct
____________________
8Though the district court applied the same redaction
principles to the police officer's testimony concerning the March
interview (which was not recorded or transcribed) and the tape-
recorded May interview, the emphasis on appeal is on the latter.
While we restrict our discussion to that recording, our holding
applies with equal force to the earlier debriefing.
19
waive his hearsay objections, but that waiver does not strip the
government of its right to lodge hearsay objections. It is only
the party who wrongfully procures a witness's absence who waives
the right to object to the adverse party's introduction of the
witness's prior out-of-court statements. See White, 838 F. Supp. ___ _____
at 625; see also Steele, 684 F.2d at 1202. ___ ____ ______
To sum up, since courts should not reward parties for
their own misdeeds, a prior out-of-court statement made by a
witness whose unavailability stems from the wrongful conduct of a
party, aimed at least in part at achieving that result, is
admissible against that party as long as the statement would have
been admissible had the witness testified. But the party who
causes the witness's unavailability is not entitled to the same
prophylaxis. Consequently, under settled jurisprudence governing
totem-pole hearsay, see Fed. R. Evid. 805, the tape of Sargent's ___
interview itself constituted first-level hearsay not within any
recognized exception, and the district court did not err in
admitting some portions at the government's urging and refusing
to admit the rest of the recording at the appellants' behest.
Houlihan and Nardone offer a second reason why the
trial court erred in excluding the balance of Sargent's
statements. This construct pivots on Evidence Rule 106, a rule
that codifies principles of fairness and completeness.9 Under
____________________
9The rule provides in pertinent part:
When a . . . recorded statement or part
thereof is introduced by a party, an adverse
party may require him at that time to
20
it, a party against whom a fragmentary statement is introduced
may demand that the rest of the statement (or so much thereof as
is appropriate) be admitted into evidence in order to place the
excerpt in context.
It is readily evident that, as the appellants maintain,
Rule 106 can serve its proper function only if the trial court
from time to time is prepared to permit the introduction of some
otherwise inadmissible evidence. See United States v. Sutton, ___ _____________ ______
801 F.2d 1346, 1368 (D.C. Cir. 1986). Be that as it may,
completeness, like beauty, is frequently in the eye of the
beholder. The trial court is in the best position to assess the
competing centrifugal and centripetal forces that bear on this
calculus. Thus, when the trial court, acting in its discretion,
finds that proffered excerpts, standing on their own, are not
misleading, its judgment is entitled to great respect. See ___
United States v. Boylan, 898 F.2d 230, 256-57 (1st Cir.), cert. _____________ ______ _____
denied, 498 U.S. 849 (1990). So it is here. ______
Houlihan and Nardone dwell on incompleteness primarily
because Judge Young declared two sets of comments inadmissible.
(1) Sargent told the police, inter alia, that James Boyden IV was _____ ____
selling drugs in Lynch's territory; that Fitzgerald warned him
and had him beaten, but to no avail; and that he then told
Sargent that he would "just have to kill" the interloper.
____________________
introduce any other part . . . which ought in
fairness to be considered contemporaneously
with it.
Fed. R. Evid. 106.
21
Claiming that Fitzgerald's remarks to Sargent provided Fitzgerald
with a different motive to murder Sargent, Houlihan sought to
have this part of Sargent's statement admitted into evidence.
Houlihan claims that omitting references to Fitzgerald's
involvement in the murder made it appear that he, rather than
Fitzgerald, was the mastermind responsible for that crime. (2)
In a similar vein, Nardone claims that the court's refusal to
permit him to introduce references in the interviews to Herd's
putative involvement in the Boydens' killings made it appear that
Nardone carried out those murders single-handed.
The court found that these incremental excerpts were
"segregable" from the portions of the interviews that the
government had proffered and denied the appellants' requests to
admit them. Houlihan, 887 F. Supp. at 366. In assessing the ________
court's rulings, three facts are worthy of note: (1) the
interview segments admitted into evidence contained no explicit
reference whatever to the Boydens' murders; (2) neither Houlihan
nor Nardone were charged with the slaying of James Boyden IV; and
(3) Sargent never mentioned Nardone by name anywhere in the
course of either debriefing. Bearing these facts in mind, we
conclude that the lower court acted within the realm of its
discretion in refusing to invoke Rule 106.
Houlihan and Nardone also claim that the court should
have admitted other portions of Sargent's interviews to impeach
his credibility. See Fed. R. Evid. 806 (providing that the ___
credibility of a hearsay declarant "may be attacked . . . by any
22
evidence which would be admissible for those purposes if [the]
declarant had testified as a witness"). The district court
rejected this claim because it found the additional excerpts "too
convoluted, collateral, or cumulative to be admitted." Houlihan, ________
887 F. Supp. at 368. Having reviewed the items, we discern no
error in their exclusion.
Trial courts have considerable leeway in imposing
outside limits on cross-examination. See Van Arsdall, 475 U.S. ___ ___________
at 679; Laboy-Delgado, 84 F.3d at 28. Here, the record _____________
demonstrates that the appellants had a full and fair opportunity
during their cross-examination of the officers who interviewed
Sargent to cast doubts upon his veracity. They made the most of
this opportunity.10 By contrast, the extra material that the
appellants wished to introduce lacked genuine impeachment value
and promised to add virtually nothing of consequence to the
grueling cross-examination. Thus, we cannot fault the district
court for excluding this exiguous material. See Van Arsdall, 475 ___ ___________
U.S. at 679 (stating that cross-examination appropriately may be
limited if redundant or marginally relevant); Boylan, 898 F.2d at ______
255-56 (similar).
To say more would be supererogatory. Because our
painstaking review of the record reveals no solid grounding for
____________________
10For example, during cross-examination of Detective Harris
(who taped and testified about the May 1992 interview), the
appellants showed that Sargent had a lengthy criminal record;
that he gave up his confreres while facing the possibility of a
fifteen-year mandatory minimum sentence for drug trafficking; and
that he had been promised low bail, among other things, in
exchange for cooperation.
23
the claim that the district court flouted Rule 106 in any
respect, we refuse to meddle.
E. Prejudicial Spillover. E. Prejudicial Spillover. _____________________
There is one last leg to this phase of our journey.
Fitzgerald alleges that the admission of Sargent's statements
resulted in unfair prejudice to him. The record reveals none.
Because the prosecution must show the existence of a
conspiracy to prove a conspiracy charge, evidence implicating one
coconspirator is likely to be directly relevant to the charges
against his codefendants. See United States v. O'Bryant, 998 ___ ______________ ________
F.2d 21, 26 (1st Cir. 1993). Even if it is not, mistrials
grounded on spillover prejudice are rare. As long as the
district court limits the admission of the challenged evidence to
a particular defendant or defendants, the other defendants cannot
rewardingly complain unless the impact of the evidence is so
devastating that, realistically, instructions from the bench
cannot be expected to repair the damage. See Sepulveda, 15 F.3d ___ _________
at 1184.
Silhouetted against this set of rules, the flimsiness
of Fitzgerald's claim come into bold relief. What excites the
emotions in one case may be routine evidence in another case.
The material distilled from Sargent's statements which would
have stood out like a sore thumb in a prosecution rooted in the
relative gentility of white-collar crime does not seem
especially sensational when evaluated in light of the other,
plainly admissible evidence that permeated this seventy-day saga
24
of nonstop violence. Moreover, the district court instructed the
jurors on the spot that they were not to consider Sargent's
statements in deciding Fitzgerald's fate. To complement that
directive, the court redacted all references to Fitzgerald from
the portions of those statements that the jury heard, and it
repeated its prophylactic instruction on several occasions.
Under these circumstances, the presumption that jurors follow the
court's instructions is intact. Ergo, Fitzgerald suffered no
unfair prejudice.
III. ALTERNATE JURORS III. ALTERNATE JURORS
The appellants calumnize the district court because,
despite their repeated objections, the court refused to discharge
the alternate jurors once deliberations commenced and compounded
its obduracy by allowing the alternate jurors to have
intermittent contact with the regular jurors during the currency
of jury deliberations. This argument requires us to address, for
the first time, the interplay between violations of Fed. R. Crim.
P. 24(c) and the applicable test for harmless error.
The imperative of Rule 24(c) is clear and categorical:
"An alternate juror who does not replace a regular juror shall be
discharged after the jury retires to consider its verdict." Fed.
R. Crim. P. 24(c). The rule reflects the abiding concern that,
once a criminal case has been submitted, the jury's deliberations
shall remain private and inviolate.11 See United States v. ___ _____________
____________________
11Notwithstanding that Criminal Rule 23(b) permits the
remaining eleven jurors to return a valid verdict if a
deliberating juror is excused for cause, the wisdom of Rule 24(c)
25
Virginia Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964). _______________________
Here, the appellants' claim of error is well founded.
Rule 24(c) brooks no exceptions, and the district court
transgressed its letter by retaining the alternate jurors
throughout the deliberative period. The lingering question,
however, is whether the infraction requires us to invalidate the
convictions. The appellants say that it does. In their view, a
violation of Rule 24(c) automatically necessitates a new trial
where, as here, the defendants preserved their claim of error,
or, at least, the continued contact between regular and alternate
jurors that transpired in this case demands that result. The
government endeavors to parry this thrust by classifying the
error as benign. We find that the Rule 24(c) violation caused no
cognizable harm, and we deny relief on that basis.
The watershed case in this recondite corner of the law
is United States v. Olano, 507 U.S. 725 (1993). There the trial _____________ _____
court permitted alternate jurors, while under instructions to
refrain from engaging personally in the deliberative process, to
remain in the jury room and audit the regular jurors'
deliberations. See id. at 727-29. The jury found the defendants ___ ___
guilty. The court of appeals, terming the presence of alternate
jurors in the jury room during deliberations "inherently
prejudicial," granted them new trials although they had not
____________________
remains debatable. We can understand a district judge's
reluctance, following a long, complicated, and hotly contested
trial, to release alternate jurors before a verdict is obtained.
But courts, above all other institutions, must obey the rules.
26
lodged contemporaneous objections. United States v. Olano, 934 _____________ _____
F.2d 1425, 1428 (9th Cir. 1991). The Supreme Court demurred. It
noted that unless an unpreserved error affects defendants'
"substantial rights," Fed. R. Crim. P. 52(b), the error cannot
serve as a fulcrum for overturning their convictions. 507 U.S.
at 737. The Court then declared that the mere "presence of
alternate jurors during jury deliberations is not the kind of
error that `affect[s] substantial rights' independent of its
prejudicial impact." Id. Instead, the critical inquiry is ___
whether the presence of the alternates in the jury room during
deliberations actually prejudiced the defendants. See id. at ___ ___
739.
The Justices conceded that, as a theoretical matter,
the presence of any outsider, including an alternate juror, may
cause prejudice if he or she actually participates in the
deliberations either "verbally" or through "body language," or if
his or her attendance were somehow to chill the jurors'
deliberations. Id. The Court recognized, however, that a ___
judge's cautionary instructions to alternates (e.g., to refrain
from injecting themselves into the deliberations) can operate to
lessen or eliminate these risks. See id. at 740 (remarking "the ___ ___
almost invariable assumption of the law that jurors follow their
instructions") (quoting Richardson v. Marsh, 481 U.S. 200, 206 __________ _____
(1987)). Thus, absent a "specific showing" that the alternates
in fact participated in, or otherwise chilled, deliberations, the
trial court's instructions to the alternates not to intervene in
27
the jury's deliberations precluded a finding of plain error. Id. ___
at 741.
This case presents a variation on the Olano theme. _____
Here, unlike in Olano, the appellants contemporaneously objected _____
to the district court's retention of the alternate jurors, thus
relegating plain error analysis to the scrap heap. This
circumstance denotes two things. First, here, unlike in Olano, _____
the government, not the defendants, bears the devoir of
persuasion with regard to the existence vel non of prejudice. ___ ___
Second, we must today answer the precise question that the Olano _____
Court reserved for later decision. See id. Withal, the ___ ___
framework of the inquiry in all other respects remains the same.
See id. at 734 (noting that, apart from the allocation of the ___ ___
burden of proof, a claim of error under Fed. R. Crim. P. 52(b)
ordinarily requires the same type of prejudice-determining
inquiry as does a preserved error). We do not discount the
significance of this solitary difference, see, e.g., id. at 742 ___ ____ ___
(Kennedy, J., concurring) (commenting that it is "most difficult
for the Government to show the absence of prejudice"), but
"difficult" does not mean "impossible." Since Olano teaches that _____
a violation of Rule 24(c) is not reversible error per se,12 see ___
id. at 737, we must undertake a particularized inquiry directed ___
at whether the instant violation, in the circumstances of this
case, "prejudiced [the defendants], either specifically or
____________________
12On this score, Olano confirmed what this court _____
anticipated. See United States v. Levesque, 681 F.2d 75, 80-81 ___ ______________ ________
(1st Cir. 1982) (dictum).
28
presumptively." Id. at 739. ___
Our task, then, is to decide if the government has made
a sufficiently convincing case that the district court's failure
to observe the punctilio of Rule 24(c) did not affect the
verdicts. See, e.g., id. at 734; Kotteakos v. United States, 328 ___ ____ ___ _________ _____________
U.S. 750, 758-65 (1946). In performing this task, we find the
Court's reasoning in Olano instructive. Cf. Lee v. Marshall, 42 _____ ___ ___ ________
F.3d 1296, 1299 (9th Cir. 1994) (finding Olano Court's reasoning _____
transferable to harmless error analysis in habeas case). The
risks that were run here by retaining the alternates were
identical to the risks that were run at the trial level in
Olano,13 and the district judge's ability to minimize or _____
eliminate those risks was the same in both situations.
The operative facts are as follows. Although the
district court retained the alternates, subsequent physical
contact between them and the regular jurors occurred only
sporadically confined mostly to the beginning of each day (when
all the jurors assembled prior to the commencement of daily
deliberations) and lunch time (when court security officers were
invariably present).14 Judge Young at no time allowed the
____________________
13In one respect, treating this case as comparable to Olano _____
tilts matters in the appellants' favor. There, the undischarged
alternates actually stayed in the jury room during deliberations.
507 U.S. at 729-30. Here, they did not; indeed, the regular
jurors and the undischarged alternates were never in physical
proximity while the deliberative process was ongoing.
14On one occasion when the regular jurors were on a mid-
morning break, an alternate juror retrieved a plate of delicacies
from the jury room. Defense counsel brought this interlude to
Judge Young's attention, and the judge immediately agreed to
29
alternates to come within earshot of the deliberating jurors.
Equally as important, the court did not leave either
set of venirepersons uninstructed. At the beginning of his
charge, Judge Young told the alternates not to discuss the
substance of the case either among themselves or with the regular
jurors. He then directed the regular jurors not to discuss the
case with the alternates. Near the end of the charge, the judge
admonished all the talesmen that "if [the regular jurors are] in
the presence of the alternates or the alternates are in the
presence of the jurors, [there is to be] no talking about the
case, no deliberating about the case." The regular jurors
retired to the jury room for their deliberations, and the
undischarged alternates retired to an anteroom in the judge's
chambers (which remained their base of operations for the
duration of the deliberations).
____________________
instruct the alternates to stay out of the jury room during
breaks (except for retrieving snacks from the jury room when
court security officers confirmed that a break in deliberations
had occurred).
On another occasion defense counsel voiced suspicion that
a note from the jury to the judge (requesting transcripts of
several witnesses' testimony) had been written in the presence of
the alternates. At counsels' urging, Judge Young, in the course
of responding to the note in open court, asked each juror whether
"the alternates and the deliberating jurors, or vice versa, [had]
discussed the substance of the case" during the pertinent time
frame. All the jurors responded in the negative, and Judge Young
reinstructed the regular jurors not to discuss the case with, or
deliberate in the presence of, the alternate jurors. The
defendants took no exception either to the form of the inquiry or
to the instructions that the court gave.
30
The deliberations lasted eleven days.15 Each morning,
Judge Young asked the regular jurors and the alternate jurors, on
penalty of perjury, whether they had spoken about the case with
anyone since the previous day's adjournment. On each occasion,
all the jurors (regular and alternate) responded in the negative.
The judge reiterated his instructions to both the regular and
alternate jurors at the close of every court session. In
addition, he routinely warned the venire that, when they
assembled the next morning before deliberations resumed, "no one
is to talk about the case."
On this record, we believe that the regular jurors were
well insulated from the risks posed by the retention of the
alternates. The judge repeatedly instructed the jurors in far
greater detail than in Olano and those instructions were _____
delicately phrased and admirably specific. Appropriate
prophylactic instructions are a means of preventing the potential
harm that hovers when a trial court fails to dismiss alternate
jurors on schedule. See Olano, 507 U.S. at 740-41; United States ___ _____ _____________
v. Sobamowo, 892 F.2d 90, 97 (D.C. Cir. 1989) (Ginsburg, J.) ________
(attaching great importance to trial court's prophylactic
instructions in holding failure to discharge alternate jurors
harmless); cf. United States v. Ottersburg, 73 F.3d 137, 139 (7th ___ _____________ __________
Cir. 1996) (setting aside verdict and emphasizing trial court's
____________________
15On the third day a regular juror had to be excused. With
counsels' consent, Judge Young replaced the lost juror with an
alternate and instructed the jurors to begin deliberations anew.
On appeal, neither side contests the propriety of this
substitution.
31
failure to provide such instructions). Courts must presume "that
jurors, conscious of the gravity of their task, attend closely
the particular language of the trial court's instructions in a
criminal case," Francis v. Franklin, 471 U.S. 307, 324 n.9 _______ ________
(1985), and that they follow those instructions.
Here, we have more than the usual presumption that the
jury understood the instructions and followed them. The court
interrogated the entire panel regular jurors and undischarged
alternates on a daily basis, and received an unbroken string of
assurances that the regular jurors had not spoken with the
alternates concerning the substance of the case, and vice versa.
Just as it is fitting for appellate courts to presume, in the
absence of a contrary indication, that jurors follow a trial
judge's instructions, so, too, it is fitting for appellate courts
to presume, in the absence of a contrary indication, that jurors
answer a trial judge's questions honestly.
One last observation is telling. Over and above the
plenitude of instructions, there is another salient difference
between this case and Ottersburg (the only reported criminal case __________
in which a federal appellate court invalidated a verdict due to
the trial court's failure to discharge alternate jurors). Here,
unlike in Ottersburg, 76 F.3d at 139, the judge at no time __________
permitted the alternates to sit in on, or listen to, the jury's
deliberations (even as mute observers). Hence, the alternates
had no opportunity to participate in the deliberations, and
nothing in the record plausibly suggests that they otherwise
32
influenced the jury's actions. If the mere presence of silent
alternates in the jury room during ongoing deliberations cannot _______________________________________________
in and of itself be deemed to chill discourse or establish
prejudice, see Olano, 507 U.S. at 740-41, it is surpassingly ___ _____
difficult to imagine how absent (though undischarged) alternates,
properly instructed, could have a toxic effect on the
deliberative process.16
We will not paint the lily. Given the lack of any
contact between regular and alternate jurors during ongoing
deliberations, the trial judge's careful and oft-repeated
instructions, the venire's unanimous disclaimers that any
discussions about the case took place between the two subgroups,
the overall strength of the prosecution's evidence on virtually
all the counts of conviction, and the discriminating nature of
the verdicts that were returned (e.g., the jury acquitted the
appellants on sundry counts and also acquitted the fourth
defendant, Herd, outright), we conclude that the government has
carried its burden of demonstrating that the outcome of the trial
would have been precisely the same had the district court
dismissed the alternate jurors when the jury first retired to
deliberate. It follows that because the appellants suffered no
____________________
16In Cabral v. Sullivan, 961 F.2d 998 (1st Cir. 1992), a ______ ________
case that antedated Olano, we considered a civil analog to _____
Criminal Rule 24(c) and stated that "[w]hen a trial court allows
an . . . alternate juror[] to deliberate with the regular jurors
. . . an inherently prejudicial error is committed, and the
substantial rights of the parties are violated." Id. at 1002. ___
In the instant case, unlike in Cabral, there is neither proof nor ______
reason to suspect that the undischarged alternates participated
in the regular jurors' deliberations.
33
prejudice in consequence of the court's bevue, they are not
entitled to return to square one.
IV. DISCOVERY DISPUTES IV. DISCOVERY DISPUTES
The appellants stridently protest a series of
government actions involving document discovery. We first deal
with a claim that implicates the scope of the Jencks Act, 18
U.S.C. 3500, and then treat the appellants' other
asseverations.
A. Scope of the Jencks Act. A. Scope of the Jencks Act. _______________________
The Jencks Act provides criminal defendants, for
purposes of cross-examination, with a limited right to obtain
certain witness statements that are in the government's
possession. That right is subject to a temporal condition: it
does not vest until the witness takes the stand in the
government's case and completes his direct testimony. Id. ___
3500(a). It is also subject to categorical, content-based
restrictions delineated in the statute: a statement is not open
to production under the Jencks Act unless it (i) relates to the
same subject matter as the witness's direct testimony, id. ___
3500(b), and (ii) either comprises grand jury testimony, id. ___
3500(e)(3), or falls within one of two general classes of
statements, namely,
(1) a written statement made by [the] witness
and signed or otherwise adopted or approved
by him;
(2) a stenographic, mechanical, electrical,
or other recording, or a transcription
thereof, which is a substantially verbatim
recital of an oral statement made by said
witness and recorded contemporaneously with
34
the making of such oral statement . . . .
18 U.S.C. 3500(e)(1)-(2).
In this case, the government agents who led the
investigation instructed all but the most senior prosecutors to
refrain from taking notes during pretrial interviews. The
appellants decried this practice in the district court, but Judge
Young found that even the deliberate use of investigatory
techniques designed to minimize the production of written reports
would not violate the Jencks Act. Before us, the appellants
renew their challenge. We, too, think that it lacks force.
The Jencks Act does not impose an obligation on
government agents to record witness interviews or to take notes
during such interviews. After all, the Act applies only to
recordings, written statements, and notes that meet certain
criteria, not to items that never came into being (whether or not
a prudent investigator cynics might say an unsophisticated
investigator would have arranged things differently). See ___
United States v. Lieberman, 608 F.2d 889, 897 (1st Cir. 1979) _____________ _________
(rejecting a claim that the government has "a duty to create
Jencks Act material by recording everything a potential witness
says"), cert. denied, 444 U.S. 1019 (1980); accord United States _____ ______ ______ _____________
v. Bernard, 625 F.2d 854, 859 (9th Cir. 1980); United States v. _______ ______________
Head, 586 F.2d 508, 511-12 (5th Cir. 1978); United States v. ____ ______________
Fielbogen, 494 F. Supp. 806, 814 (S.D.N.Y. 1980), aff'd, 657 F.2d _________ _____
265 (2d Cir. 1981) (table). It has been suggested that if there
were evidence that lawmen "engaged in manipulative or coercive
35
conduct" during the course of an audience with a particular
witness, the failure to record that event might give rise to a
Jencks Act violation. Lieberman, 608 F.2d at 897 (dictum). But _________
this dictum, even if it might be of some moment in a proper case
(a matter on which we take no view) is cold comfort to the
appellants. There is no proof of such a scenario here,17 and,
without such proof, government interviews with witnesses are
"presumed to have been conducted with regularity." Id. ___
In the absence of a contrary legislative command and
none currently exists the choice among available investigatory
techniques is, within wide limits, for the Executive Branch in
contradistinction to the Judicial Branch. The practice
challenged here is not beyond the pale. Accordingly, we hold
that the government did not violate the Jencks Act by instructing
agents to minimize note-taking.18
Still, we do not mean to imply that we endorse the
practice. Eschewing tape recordings and ordering law enforcement
agents not to take notes during pretrial interviews is risky
____________________
17The appellants claim that instructing agents not to take
notes constitutes a deliberate strategy to manipulate the
quantity of discoverable material. But, this is simply not the
sort of manipulation to which the panel referred in Lieberman. _________
18In a related vein, we likewise reject the appellants'
assertion that the government violated the Jencks Act by parading
law enforcement officers rather than percipient witnesses before
the grand jury. "Hearsay evidence is a sufficient basis for an
indictment," and the mere fact that the government chooses to
rely on hearsay evidence in presenting its case before a grand
jury raises "no hint of government misconduct." United States v. _____________
Font-Ramirez, 944 F.2d 42, 46 (1st Cir. 1991), cert. denied, 502 ____________ _____ ______
U.S. 1065 (1992).
36
business and not guaranteed to redound either to the
sovereign's credit or to its benefit. By adopting a "what we
don't create can't come back to haunt us" approach, prosecutors
demean their primary mission: to see that justice is done. In
more parochial terms, the government also loses the advantage of
records that it may subsequently need to safeguard against
witnesses changing their stories or to refresh recollections
dimmed by the passage of time. By and large, the legitimate
interests of law enforcement will be better served by using
recording equipment and/or taking accurate notes than by playing
hide-and-seek.
B. Delayed Disclosures. B. Delayed Disclosures. ___________________
The appellants also complain that delays attributable
to governmental foot-dragging unfairly hampered their ability to
cross-examine witnesses. The centerpiece of this complaint is
the appellants' insistence that, in addition to going very slowly
in creating potentially discoverable materials, the prosecutors
withheld extant materials, such as existing notes, under various
pretexts, claiming that the notes comprised attorney work-product
and that they did not contain substantially verbatim recitals of
witnesses' statements.
The appellants' complaint is unproductive. Acting with
commendable thoroughness, the district court reviewed all the
prosecutors' notes and kindred materials in camera to determine
which documents (or portions of documents) were producible under
the Jencks Act. The government turned over what the court
37
ordered it to produce at the time(s) when the court ordered
production to be made.
In all events, we have held with a regularity bordering
on the echolalic that "delayed disclosure claims cannot succeed
unless the aggrieved defendant demonstrates prejudice arising
from the delay." Sepulveda, 15 F.3d at 1179 (citing cases); see _________ ___
also United States v. Saccoccia, 58 F.3d 754, 781 (1st Cir. ____ ______________ _________
1995), cert. denied, 116 S. Ct. 1322 (1996). In this context, _____ ______
demonstrating prejudice demands red meat and strong drink but
the appellants have served up much less hearty fare. They
articulate how the delayed disclosures supposedly impeded their
ability to cross-question witnesses largely by reference to two
examples. Neither example is compelling.
First, the appellants suggest that they were unfairly
surprised because, after Nardone's henchman, Michael Nelson,
testified at trial that Fitzgerald alone had given Nardone a
contract on the life of James Boyden III, they obtained the grand
jury testimony of a subsequent witness (a law enforcement
officer) which indicated that Nardone, in chatting with Nelson,
implicated both Houlihan and Fitzgerald in ordering the hit.19 ____
The appellants claim that the inconsistency between the officer's
grand jury testimony, on one hand, and Nelson's trial testimony,
____________________
19When this inconsistency surfaced, the government contended
that the grand jury witness simply made a mistake, and pointed
out that, according to the prosecutors' notes, Nelson stated in
his pretrial interview that Fitzgerald alone issued the order.
At this juncture the court directed the prosecutors to disclose
the summary prepared by a government attorney for the use of the
officer who appeared before the grand jury.
38
on the other hand, could have been exploited to discredit Nelson
on cross-examination. We are skeptical; given that Nelson's
statements during his pretrial interview, see supra note 19, and ___ _____
at trial were consistent, this tidbit would have been of dubious
value for impeachment purposes. Moreover, while Nelson was still ______________________
on the witness stand, the appellants had possession of other _____________________
documents that revealed the same inconsistency. For these
reasons, we are fully satisfied that any delay in the disclosure
of the law enforcement officer's grand jury testimony did not
affect the outcome of the trial. Consequently, the incident
fails to prove the appellants' point. See, e.g., United States ___ ____ _____________
v. Devin, 918 F.2d 280, 290-91 (1st Cir. 1990) (explaining that _____
delayed disclosure of impeachment material does not warrant
reversal if the material would not have altered the verdict).
The second vignette concerns a prosecutor's note to the
effect that Nardone told Nelson that there were two reasons why ___
Sargent had to be killed: first, because Houlihan felt that
Sargent "was a risk" and "could hurt [Houlihan] by talking"; and
second, "as a showing of respect to the Murrays" (a bookmaking
group to whom Sargent was heavily indebted). Regarding the
second reason, Nelson explained that Fitzgerald and Houlihan
asked the Murrays to post $50,000 bail for Bobby Levallee, an
organization stalwart, in exchange for having Sargent killed.
Because the government did not reveal this note until after
Nelson had completed his testimony, the appellants' thesis runs,
they were unable to cross-examine him efficaciously.
39
This proffer, too, is wide of the mark. Under any
circumstances, the note has only marginal evidentiary value in
light of the extensive proof confirming Houlihan's desire to
silence Sargent in order to keep him from telling the government
what he knew a desire that the note itself acknowledges. Even
more important, the appellants had sufficient notice of the
alternative "gambling debts" motive well before Nelson left the
stand. Nelson himself testified on direct examination that
Fitzgerald and Houlihan wanted Sargent killed for "two reasons":
because they believed that the police had coopted him and because ___
they were concerned about "all [Sargent's] gambling debts." And,
moreover, the record indicates that the appellants had the rest
of the prosecutors' notes (some of which discussed the
alternative motivation) in hand before Nelson completed his ______
testimony; indeed, Houlihan's counsel relied on those notes to
elicit information on cross-examination about Sargent's gaming
debts and his connection to the Murrays. Under these
circumstances, no reversible error inhered. See, e.g., ___ ____
Saccoccia, 58 F.3d at 781 (finding no prejudice from delay when _________
defense counsel obtained information in time to prepare cross-
examination); United States v. Hodge-Balwing, 952 F.2d 607, 609 ______________ _____________
(1st Cir. 1991) (finding no prejudice from late delivery of
documents when the prosecutor's opening statement alerted the
defense to the same information).
If more were needed and we doubt that it is the
sockdolager is the district court's volunteered ruling that the
40
appellants could recall Nelson during their case for further
cross-examination on the basis of the information disclosed in
the note. The appellants chose to let this opportunity pass.
The rule is clear that a defendant's failure to recall a witness,
despite permission to do so, undermines a claim of prejudice
based on a disclosure that materialized after the witness
finished testifying (but before the trial ended). See United ___ ______
States v. Arboleda, 929 F.2d 858, 864 (1st Cir. 1991); United ______ ________ ______
States v. Dunn, 841 F.2d 1026, 1030 (10th Cir. 1988). ______ ____
C. Supervisory Power. C. Supervisory Power. _________________
In a last-ditch effort to right a sinking ship, the
appellants embrace a dictum contained in United States v. Osorio, _____________ ______
929 F.2d 753, 763 (1st Cir. 1991) ("When confronted with extreme
misconduct and prejudice as a result of delayed disclosure, this
court will consider invoking its supervisory powers to secure
enforcement of better prosecutorial practice and reprimand of
those who fail to observe it.") (citation and internal quotation
marks omitted). Based on this dictum, they ask that we unleash
our supervisory power and vacate their convictions as an object
lesson to the government. In the bargain, they suggest that we
issue a blanket rule prohibiting prosecutors from instructing
their colleagues in law enforcement not to take notes during
witness interviews.20
____________________
20Respecting, as we do, the coordinate powers of the other
two branches of government, we decline to issue any such blanket
proscription. See supra Part IV(A) (discussing particulars of ___ _____
appellants' underlying objection).
41
Federal courts should refrain from dismissing charges
or overturning convictions merely as a device to conform
executive conduct to judicially favored norms. Rather, the
courts' supervisory power should be used in this way only if
plain prosecutorial misconduct is coupled with cognizable
prejudice to a particular defendant. See United States v. ___ ______________
Santana, 6 F.3d 1, 10-11 (1st Cir. 1993); United States v. _______ ______________
Pacheco-Ortiz, 889 F.2d 301, 310 (1st Cir. 1989); see also United _____________ ___ ____ ______
States v. Hasting, 461 U.S. 499, 507 (1983) (holding that when ______ _______
prosecutorial misconduct constitutes no more than harmless error,
no relief is warranted under supervisory power).
Here, both prerequisites for judicial intervention are
wanting. First and foremost, the tactics complained of if
improper at all fall far short of a showing of egregious
misconduct that might impel a federal court to consider the
drastic step of vacating a conviction as a sanction against
overzealous prosecutors. Second, the delayed disclosures did not
harm the defendants' substantial rights. See United States v. ___ ______________
Walsh, 75 F.3d 1, 8 (1st Cir. 1996) (demonstrating prejudice _____
requires more than mere "assertions that the defendant would have
conducted cross-examination differently").
That ends the matter. The supervisory power is strong
medicine and, as we have said, "[p]otent elixirs should not be
casually dispensed." Santana, 6 F.3d at 10. There is no reason _______
to write such a prescription in the circumstances of this case.
V. MISCELLANEOUS V. MISCELLANEOUS
42
The appellants, represented by able counsel, marshal a
plethora of other arguments. We address some of these arguments,
explaining briefly why we accept or reject them. The points that
we do not mention are insubstantial and may be dismissed without
elaboration.
A. Murder for Hire. A. Murder for Hire. _______________
Fitzgerald and Houlihan, in chorus, challenge the
sufficiency of the evidence supporting their murder-for-hire
convictions arising out of the annihilations of Boyden III (count
15) and Sargent (count 16), and the attempts on Sweeney's life
(count 17). With one exception, the sole ground on which these
challenges rest is the allegation that the prosecution fell short
of establishing the requisite nexus between the use of interstate
facilities and the defendants' biocidal activities.21 The
challenge fails.
The controlling legal standard is prosaic. "When a
criminal defendant undertakes a sufficiency challenge, all the
evidence, direct and circumstantial, must be viewed from the
government's coign of vantage, and the viewer must accept all
reasonable inferences from it that are consistent with the
verdict." United States v. Valle, 72 F.3d 210, 216 (1st Cir. _____________ _____
1995). Though each element of the offense must be proven beyond
a reasonable doubt, the government's burden "may be satisfied by
either direct or circumstantial evidence, or any combination
____________________
21The exception relates to count 15, as to which Houlihan
offers a wider-ranging sufficiency challenge. We address that
challenge separately. See infra Part V(B). ___ _____
43
thereof." United States v. Gifford, 17 F.3d 462, 467 (1st Cir. ______________ _______
1994). If a rational jury, indulging all credibility calls in
favor of the verdict, could find the defendant guilty on this
basis, then the inquiry terminates. See United States v. David, ___ _____________ _____
940 F.2d 722, 730 (1st Cir. 1991), cert. denied, 502 U.S. 1046 _____ ______
(1992).
Moving from the general to the specific, the murder-
for-hire statute makes it unlawful to use or cause another person
to use "any facility in interstate or foreign commerce, with
intent that a murder be committed . . . as consideration for . .
. anything of pecuniary value." 18 U.S.C. 1958. In this case,
the prosecution sought to convict by proving, inter alia, that _____ ____
the plotters used telephone calls as a means of accomplishing
their ends. The appellants did not claim below, and do not now
claim, that telephone lines fall outside the rubric of
"facilities in interstate commerce." We therefore assume that
point in the government's favor, see United States v. Slade, 980 ___ _____________ _____
F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when a
party has not presented an argument to the district court, she
may not unveil it in the court of appeals."); United States v. ______________
Zannino, 895 F.2d 1, 17 (1st Cir.) (noting "settled appellate _______
rule" that issues not briefed and properly developed on appeal
are waived), cert. denied, 494 U.S. 1082 (1990), and consider _____ ______
only the claim that they do advance: that the evidence fails to
show the use of telephones in the course of committing the
charged crimes.
44
In interpreting 18 U.S.C. 1958, it is entirely
appropriate to look to case law construing the Travel Act, 18
U.S.C. 1952. See United States v. Edelman, 873 F.2d 791, 794 ___ _____________ _______
(5th Cir. 1989) (explaining that Travel Act jurisprudence is a
proper referent because "the obvious purpose" of the murder-for-
hire statute is "to supplement" the Travel Act); see also S. Rep. ___ ____
No. 225, 98th Cong., 1st Sess. 306, reprinted in 1984 _________ __
U.S.C.C.A.N. 3182, 3485 (noting that the murder-for-hire statute
"follows the format" of the Travel Act). In United States v. _____________
Arruda, 715 F.2d 671 (1st Cir. 1983), a Travel Act case, we ______
stated: "There is no requirement that the use of the interstate
facilities be essential to the scheme: it is enough that the . .
. use of interstate facilities makes easier or facilitates the
unlawful activity." Id. at 681-82 (citations and internal ___
quotation marks omitted). This is the commonly held view, see, ___
e.g., United States v. Lozano, 839 F.2d 1020, 1022 (4th Cir. ____ _____________ ______
1988); United States v. Smith, 789 F.2d 196, 203 (3d Cir.), cert. _____________ _____ _____
denied, 479 U.S. 1017 (1986), and we confirm today that the non- ______
essentiality principle announced in Arruda is embodied in the ______
murder-for-hire statute.
The key, then, is whether the jury plausibly could have
found that the appellants actually used a telephone to facilitate
Sargent's and Boyden the elder's deaths and the attempts on
Sweeney's life. We hasten to add, however, that there is no
requirement that each accused use a facility in interstate
commerce, or that each accused intend such a facility to be used,
45
or even that each accused know that such a facility probably will
be used. See Edelman, 874 F.2d at 795; see also United States v. ___ _______ ___ ____ _____________
Heacock, 31 F.3d 249, 255 n.10 (5th Cir. 1994) (applying _______
identical principle under Travel Act); United States v. Sigalow, _____________ _______
812 F.2d 783, 785 (2d Cir. 1987) (same); United States v. _____________
McPartlin, 595 F.2d 1321, 1361 (7th Cir.) (same), cert. denied, _________ _____ ______
444 U.S. 833 (1979). Hence, if the government proves that one of
the participants used the telephone or some comparable interstate
facility in furtherance of the scheme, then the required
facilitative nexus is established as to all participants.
In this case, we think that the jury rationally could
find a facilitative nexus between the use of telephones and the
criminal activities underlying the counts of conviction. By
March of 1992, Fitzgerald, a parole violator, had taken up
involuntary residence in a state penitentiary. The record,
together with reasonable inferences extractable therefrom,
permitted the jury to find that he made daily telephone calls
from prison to an indicted coconspirator, John Doherty, at
Kerrigan's Flower Shop; and that Doherty, acting as Fitzgerald's
internuncio, supplied Nardone with the weaponry needed to mount
the attacks. Telephone records introduced into evidence also
indicate that Fitzgerald called Nardone several times at Lynch's
apartment in and around the dates on which the murders were to
occur. Since the jury reasonably could regard the various calls
as an important link in the communicative chain that led to
46
murder and attempted murder, the appellants' challenge
founders.22
B. The Murder of James Boyden III. B. The Murder of James Boyden III. ______________________________
Houlihan asserts that his convictions on count 5
(conspiring to murder James Boyden III in aid of racketeering),
count 6 (abetting that murder), and count 15 (hiring another to
perform that murder) cannot stand. His major theme is that the
government failed to link him to the murder in any meaningful
way. We find merit in this proposition.
To convict Houlihan for conspiring to murder in aid of
racketeering, see 18 U.S.C. 1959(a), or for abetting the ___
murder, see id., the government had to prove that (1) the ___ ___
organization masterminded by Fitzgerald and Houlihan constituted
a racketeering enterprise; (2) that, depending on the count,
Houlihan conspired to commit, or aided and abetted the commission
of, the murder; and (3) that Houlihan participated in the
arrangement "for the purpose of maintaining or increasing [his]
position in a [racketeering] enterprise." Id. By like token, ___
under the murder-for-hire statute the government had to prove (1)
that Houlihan joined in causing the killing of another, (2)
____________________
22Although not an element of the offense, it is pellucid
that the jury easily could have believed Fitzgerald's actions
vis- -vis Sargent and Sweeney were undertaken with Houlihan's
knowledge and consent. To cite just one example, Houlihan
personally paid Nardone his $5,000 "headache elimination" fee at
Kerrigan's Flower Shop on the day after Nardone ended Sargent's
life. Further examples are unnecessary. It suffices to say that
extensive evidence pointed to the conclusion that Fitzgerald and
Houlihan jointly orchestrated both Sargent's slaying and
Sweeney's travails.
47
paying a price or other consideration, (3) with the specific
intent to commit the substantive crime (murder), and (4) that
interstate facilities were used by one or more of the
participants in the course of perpetrating the crime. See 18 ___
U.S.C. 1958.
A common thread runs through all three counts. In one
form or another, the government had to prove beyond a reasonable
doubt that in the spring of 1992 Houlihan "conspired to murder
James Boyden III" (count 5), and/or "aided, abetted, counselled,
commanded [or] induced" that murder (count 6), and/or used
"facilities in interstate commerce . . . to hire other
individuals and to arrange the intended murder of James Boyden
III" (count 15). Under each of these counts, the government had
to show at a bare minimum that Houlihan intended the murder of
James Boyden III to take place and that he acted upon that
intent. See, e.g., United States v. Santiago, 872 F.2d 1073, ___ ____ ______________ ________
1079 (1st Cir.) (explaining that proof of a charged conspiracy
requires, inter alia, proof of intent to commit the substantive _____ ____
offense), cert. denied, 492 U.S. 910 & 493 U.S. 832 (1989); _____ ______
United States v. Loder, 23 F.3d 586, 591 (1st Cir. 1994) (stating _____________ _____
that an aider and abettor must "consciously share[] the specific
criminal intent of the principals"); 18 U.S.C. 1958
(specifically requiring proof that the defendant acted with
"intent that a murder be committed"). In other words, as Judge
Young instructed the jury, the government had to show that
Houlihan "intentionally arranged for the murder of James Boyden
48
III by Joseph Nardone," or "aided and abetted that crime," and
that he had the "specific intent" of causing the murder.
We have combed the record in light of this highly
specific subset of charges to determine whether the government
satisfied its burden of proving beyond a reasonable doubt that
Houlihan perpetrated these three interrelated crimes. We have
come up empty. In our judgment there is insufficient evidence
that Houlihan, whatever other atrocities he may have committed,
intended to bring about the execution of James Boyden III, or
that he participated in any culpable way in the commission of
that crime.
The evidence depicts Fitzgerald as the leader of the
organization and Houlihan as his second-in-command. The
government's theory is that Nardone killed Boyden III, and that
Fitzgerald and Houlihan jointly directed him to do so. But the
government's star witness, Nelson, testified that, according to
Nardone, Fitzgerald alone ordered the murder.23
This seems reasonable in view of the fact that the
murder grew out of events surrounding the assassination of the
victim's son (Boyden IV). The younger Boyden, against
Fitzgerald's explicit warning, had continued to sell cocaine in
the "sales territory" assigned to Jennierose Lynch (Fitzgerald's
paramour). After several violent encounters, Boyden IV turned up
____________________
23Indeed, when it was pointed out that a grand jury witness
had testified otherwise, the government protested that the
witness had made a mistake. See supra note 19. The grand jury ___ _____
testimony was not admitted at the trial.
49
dead. The government charged Fitzgerald, Lynch, and Herd but
not Houlihan with that murder. As recounted earlier, the judge
granted Fitzgerald's motion for a mistrial on those charges (and
he presumably remains subject to retrial); the judge ordered the
charges against Lynch dropped as part of an overall plea bargain;
and the jury acquitted Herd.
The record strongly suggests that the son's murder set
the stage for the father's murder, and that the killings were
related. The government makes no effort to implicate Houlihan in
the former crime, and there is only a tenuous set of inferences
linking him to the latter crime.
Virtually the only intimation that Houlihan may have
played a role in the killing of Boyden III comes from Sargent's
tape-recorded statement during which the following colloquy
transpired (references in the colloquy to "Boyden, Sr." refer to
James Boyden III):
SARGENT: I was having a couple of drinks, SARGENT:
and [Houlihan] mentioned . . . that that
there's two . . . that's going to go.
* * *
. . . John Houlihan mentioned before that he
could have somebody kill anybody he wants.
* * *
DET. HARRIS: There was the homicide of James DET. HARRIS:
Boyden, Sr.
SARGENT: Right. SARGENT:
DET. HARRIS: Would you tell us about that DET. HARRIS:
homicide?
SARGENT: All I know is when I had talked to SARGENT:
50
John in the bar, he had mentioned there was
going to be two . . . people dead, and that
night that same night that I talked to him,
that's when Boyden Sr. got killed . . .
DET. HARRIS: How many hours before Boyden DET. HARRIS:
Sr. was killed did that conversation with
[Houlihan] take place?
SARGENT: I'd say about three hours. SARGENT:
Passing obvious questions about the reliability of this
uncorroborated hearsay statement, see supra note 7 & accompanying ___ _____
text, this seems too porous a foundation on which to rest
homicide charges.
Laying out the inferential chain on which the
government's theory depends illustrates its weakness. From the
dialogue that we have quoted, the government suggests that a jury
could plausibly infer that Houlihan was referring to the upcoming
murder of James Boyden III in his "two . . . that's going to go"
comment; and that, from this inference, the jury could plausibly
infer that Houlihan intended to bring about that murder and
participated in it in some meaningful way. This is simply too
great a stretch. Houlihan did not mention James Boyden III in
his conversation with Sargent, and it is not even clear that
Sargent understood Houlihan to be referring to any particular
individuals. Rather, the import of Sargent's comment seems to be
that succeeding events filled in the blanks. And even if we
accept the first suggested inference, the record hardly will
support the further inference that Houlihan had a specific intent
to murder James Boyden III, or that he abetted the ensuing crime.
At most, the conversation suggests an awareness of a planned
51
slaying, not necessarily participation in it.
The government tries to buttress these strained
inferences by pointing to Sargent's parroting of Houlihan's
statement that he "could have somebody kill anybody" and
labelling this as evidence that Houlihan directed the commission
of this particular murder. But that argument proves too much.
On the government's reasoning, Houlihan could have been charged
and convicted of any murder. The government also points out ___
that, on the day after the murder, Nardone collected his fee at
Kerrigan's Flower Shop. Because this bore some resemblance to
the method of payment that Houlihan employed after Nardone
murdered Sargent, see supra note 22, the government asks us to ___ _____
infer that Houlihan also must have arranged this payment. We
think for two reasons that the suggested inference is dubious.
First, the difference in payment methodology is significant: on
the latter occasion (Sargent's murder), the government proved
that Houlihan personally paid the fee to Nardone; on the former
occasion (Boyden the elder's murder), it did not. Second, the
record shows that Fitzgerald not only ordered the murder of James
Boyden III but also, though imprisoned, remained in daily contact
with Doherty, and that Doherty (who was based at Kerrigan's) or
any of several other underlings could have arranged the payment.
Even so, given the working relationship between
Houlihan and Fitzgerald and their use of Nardone as a triggerman
in connection with Sargent's murder and the attempts on Sweeney's
life, the question of evidentiary sufficiency is close. In the
52
end, however, we do not think that the evidence measures up to
the requirement which we apply de novo that a reasonable jury
be able to find each element of the crime to have been proven
beyond a reasonable doubt. Given Nelson's uncontradicted
testimony that only one individual Fitzgerald sanctioned the
execution of James Boyden III, and also given the nexus between
the Boydens' murders, we believe that the chain of inferences
forged by the prosecution is too loose (albeit by the slimmest of
margins) to hold Houlihan criminally responsible for the charged
crimes.
C. Severance. C. Severance. _________
The reader will recall that the indictment charged
Herd, Lynch, and Fitzgerald but not Houlihan and Nardone with
offenses related to the murder of James Boyden IV. Houlihan and
Nardone contend that the court had an obligation to sever their
trials from the trial of the counts relating to the Boyden IV
murder.24 We disagree.
When several defendants are named in a unified
indictment, there is a strong presumption that they should be
tried together. See Zafiro v. United States, 506 U.S. 534, 538- ___ ______ _____________
39 (1993); O'Bryant, 998 F.2d at 25. To obtain a severance under ________
such circumstances, a defendant must demonstrate extreme
prejudice, such as by showing a "serious risk that a joint trial
____________________
24Ironically, none of the counts related to this murder bore
fruit: the jury found Herd not guilty; the court relieved Lynch
of responsibility when she pleaded guilty to other counts; and
the court granted Fitzgerald a mistrial.
53
would compromise a specific trial right," or would "prevent the
jury from making a reliable judgment about guilt or innocence."
Zafiro, 506 U.S. at 539. ______
Houlihan and Nardone cannot scale these heights. Their
central thesis is that the government's evidence concerning the
Boyden IV murder tended to show that the victim was slaughtered
in an organization-related turf battle, and therefore threatened
to infect the jury's consideration of other counts. But they
dress this thesis in the gossamer vestments of speculation and
surmise. That is not enough. "There is always some prejudice in
any trial where more than one offense or offender are tried
together but such `garden variety' prejudice, in and of itself,
will not suffice" as a basis for obligatory severance. O'Bryant, ________
898 F.2d at 246.
To be sure, there is a gray area in which reasonable
people might disagree about the advisability of a severance. In
the vast majority of those cases, however, the severance battle
is conclusively won or lost in the district court. See O'Bryant, ___ ________
998 F.2d at 25 (explaining that the court of appeals ordinarily
should defer to the district court's evaluation of the necessity
for separate trials); United States v. Natanel, 938 F.2d 302, 308 _____________ _______
(1st Cir. 1991) (holding that a denial of severance will only be
reversed for a "manifest abuse of discretion"), cert. denied, 502 _____ ______
U.S. 1079 (1992). This case falls within the sweep of that
generality, not within the long-odds exception to it. Not only
is the inference of undue prejudice that the appellants seek to
54
draw somewhat attenuated, but also any possible prejudice was
dissipated by the trial court's firm, carefully worded, and oft-
repeated instructions to the jurors, forbidding them from
considering the evidence anent the murder of Boyden the younger
in deciding the charges against either Houlihan or Nardone.25 On
this record, we are confident that the trial court did not abuse
its considerable discretion in denying the requested severance.
See, e.g., Boylan, 998 F.2d at 25; United States v. Gomez-Pabon, ___ ____ ______ _____________ ___________
911 F.2d 847, 859-60 (1st Cir. 1990), cert. denied, 498 U.S. 1074 _____ ______
(1991).
D. The Ford/McDonald Conundrum. D. The Ford/McDonald Conundrum. ___________________________
At trial the government called Steven Ford and Edwin
McDonald as witnesses regarding the murder of James Boyden IV.
Houlihan and Nardone successfully solicited limiting
instructions. Prior to each witness's testimony Judge Young
admonished the jury that the testimony was admissible only
against Fitzgerald, Herd, and Lynch, and not against Houlihan or
Nardone. Notwithstanding these limiting instructions, Houlihan
and Nardone asked to cross-examine Ford and McDonald. The court
blocked that maneuver. Houlihan and Nardone press the point in
this venue, alleging that the court's ruling violated their
confrontation rights and otherwise constituted an improper
exercise of discretion.
____________________
25The court enhanced the efficacy of the limiting
instructions by insisting that all the government's evidence
relating to this murder be presented compactly at the same point
in the trial. This is a salutary practice, and we commend it
generally to trial courts confronted with analogous situations.
55
To demonstrate a violation of the Confrontation Clause,
a defendant must show that he was "prohibited from engaging in
otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness." Van ___
Arsdall, 475 U.S. at 680. Here, there was no abridgement of the _______
defendants' constitutional rights. The Confrontation Clause
demands that a defendant have the opportunity to confront and
cross-examine the witnesses against him; at least in the absence ___________
of special circumstances and none appear here the Clause does
not create a right to confront or cross-examine persons who
appear as witnesses exclusively against others (even if the
others are codefendants in a joint trial). Because neither Ford
nor McDonald was a witness "against" either Houlihan or Nardone,
the constitutional claim is stillborn.
Absent a constitutional violation, "appellate courts
will grant relief from the shackling of cross-examination only
for manifest abuse of discretion." Boylan, 898 F.2d at 254. We ______
discern no trace of abuse in this instance. Despite the lack of
cross-examination,26 the limiting instructions fully protected
Houlihan's and Nardone's legitimate interests. Furthermore,
allowing counsel for Houlihan and Nardone to cross-examine Ford
and McDonald could well have had a boomerang effect, leading the
jury to believe that, contrary to the judge's instructions, the
testimony had some relevance to the charges against their
____________________
26Of course, these witnesses did not emerge unscathed. Ford
and McDonald were vigorously cross-examined by counsel for the
implicated defendants, Fitzgerald included.
56
clients. Hence, the restriction on cross-examination was well-
tailored to the occasion.
E. Rulings Related to the Partial Mistrial. E. Rulings Related to the Partial Mistrial. _______________________________________
After granting Fitzgerald a partial mistrial on the
counts pertaining to the murder of James Boyden IV, the district
court refused to grant his motion to strike the testimony of
three witnesses, each of whom testified to some extent about that
murder,27 or in the alternative, to declare a mistrial on the
remaining counts against him. Before us, Fitzgerald claims that
the testimony had no relevance to the surviving counts, and
included details about the slaying of the younger Boyden that
might well have horrified the jurors and prejudiced them against
him.
We review the district court's ruling to admit or
exclude particular evidence for abuse of discretion. See United ___ ______
States v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995); United ______ ____________ ______
States v. Holmquist, 36 F.3d 154, 163 (1st Cir. 1994), cert. ______ _________ _____
denied, 115 S. Ct. 1797 (1995). The same standard pertains to ______
motions to strike evidence previously admitted. See Sepulveda, ___ _________
15 F.3d at 1184. Here, the district court styled the disputed
testimony as being "probative . . . of other counts in the case,"
and denied the motion to strike on that basis. Having
scrutinized the testimony in light of the surviving charges
against Fitzgerald, we are persuaded that, as Fitzgerald
____________________
27The witnesses in question are Veronica Boyden (the mother
of James Boyden IV), Marie Boyden-Connors (his sister), and
Frances Hannigan (a former owner of Kerrigan's Flower Shop).
57
maintains, it was prejudicial to some degree. But that is not
the end of the road. "[A]ll evidence is meant to be prejudicial;
it is only unfair prejudice which must be avoided." United ______ ______
States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) ______ _________________
(emphasis in original). Thus, our inquiry must proceed.
Fitzgerald cast the motion to strike in "all or
nothing" terms. In ruling on it, the district court had to
compose a balance between the probative value of the evidence as
a whole and the risk of unfair prejudice attendant to keeping it
before the jury. See Fed. R. Evid. 403. And though the evidence ___
was prejudicial in a sense, it was also plainly probative of
Fitzgerald's role as the kingpin in the organization and bore
directly on the remaining charges against him.28
While the question is admittedly close, we are
unprepared to say that the evidence's unfairly prejudicial impact
substantially outweighed its probative worth. "Only rarely and
in extraordinarily compelling circumstances will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighting of probative
____________________
28A few examples may assist in giving texture to this
conclusion. Veronica Boyden testified that she heard Lynch, an
indicted coconspirator, threaten to call Fitzgerald if James
Boyden IV continued to poach on her sales territory. Similarly,
Boyden-Connors testified that Fitzgerald himself warned her to
keep her brother away from Lynch's territory. Hannigan's
testimony, overall, related more to the structure and operating
practices of the Fitzgerald-Houlihan organization and less to the
slaying of James Boyden IV. By way of illustration, Hannigan
testified at length about Fitzgerald's presence at Kerrigan's
Flower Shop, his meetings there with other members of the
conspiracy, and his daily telephone calls to Doherty from his
prison cell during the period of his immurement.
58
value and unfair effect." Freeman v. Package Mach. Co., 865 F.2d _______ _________________
1331, 1340 (1st Cir. 1988). This is not such an occasion. It
follows that the lower court did not misuse its discretion in
denying both Fitzgerald's motion to strike and his alternative
motion to declare an across-the-board mistrial.
F. The Armed Robbery Reference. F. The Armed Robbery Reference. ___________________________
Nardone had also been charged with committing several
armed robberies. The district court severed the armed robbery
counts before trial. When Nelson (one of Nardone's alleged
coconspirators) testified, Houlihan's counsel cross-examined him.
In the course of the cross-examination, the lawyer proffered a
copy of Nelson's cooperation agreement with the government. No
objection appearing, the court admitted the document into
evidence. Appended to the cooperation agreement (now a full
exhibit) was a copy of the information that the government had
filed against Nelson (which contained, inter alia, a count that _____ ____
described an alleged Nelson/Nardone armed robbery). Four days
later, Nardone's counsel asked the district court to delete all
references to him from the exhibit before it went to the jury.
The court refused. Nardone assigns error. We uphold the ruling.
There is danger in delay, and the contemporaneous
objection rule is, for the most part, strictly enforced in this
circuit. See, e.g., United States v. Taylor, 54 F.3d 967, 972 ___ ____ _____________ ______
(1st Cir. 1995); United States v. Griffin, 818 F.2d 97, 99-100 _____________ _______
(1st Cir.), cert. denied, 484 U.S. 844 (1987). While it is true _____ ______
in this case that Nardone's attorney ultimately objected, a
59
belated objection does not cure the original default.
To be sure, we might be impelled to intervene if we
thought that, despite the lack of a contemporaneous objection,
the district court committed plain error by refusing to redact
the references to Nardone which appeared in the information. See ___
Olano, 507 U.S. at 732-37 (discussing dimensions of plain error _____
review); see also Fed. R. Crim. P. 52(b). But here, no plain ___ ____
error looms. During cross-examination of Nelson two days after _____
Houlihan's counsel introduced the cooperation agreement into
evidence without objection and two days before Nardone's counsel ______
broached the idea of redaction the latter questioned Nelson
extensively about the armed robbery and drug conspiracy described
in the information. Although these questions were artfully
phrased to avoid any explicit reference to Nardone's
participation in those crimes, we believe that this harping on
the contents of the information bolsters the district court's
decision not to excuse the lack of a contemporaneous objection.
We conclude, therefore, that the court acted within its
discretion in declining to relax the usual rule and in rejecting
Nardone's tardy request for redaction.29
G. Jury Instructions. G. Jury Instructions. _________________
____________________
29As an aside, we note that there is no inkling of any
prejudice stemming from this ruling. For one thing, the jury
acquitted Nardone on several counts, so it is impossible to argue
convincingly that the unredacted information irretrievably
poisoned the jurors against him. For another thing, given the
powerful evidentiary strands that tied Nardone tightly to two
brutal murders and several other murder attempts, we doubt that
the references about which he now complains could conceivably
have altered the jury's verdicts.
60
The appellants posit that the district court's charge
did not impart the degree of participation required to convict a
defendant of conspiracy charges under the Racketeer Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1969.
The RICO statute criminalizes "conduct[ing] or participat[ing],
directly or indirectly, in the conduct of [an] enterprise's
affairs" through a pattern of racketeering activity. 18 U.S.C.
1962(c). To convey this element of the RICO offenses, Judge
Young instructed the jury that the prosecution must prove beyond
a reasonable doubt,
that by engaging in a pattern of racketeering
activity the specific individual accused . .
. conducted or participated in the conduct of
the enterprise's affairs. The term conduct
and participate in the conduct of an
enterprise includes the performance of acts,
functions or duties which are related to the
operation of the enterprise. A person may be
found to participate in the conduct of the
enterprise even though he has no part in the
management or control of the enterprise.
The appellants fault this instruction because it told
the jury that a defendant could be found guilty even if he did
not participate "in the management or control of the enterprise."
In their view, the Court's opinion in Reves v. Ernst & Young, 507 _____ _____________
U.S. 170 (1993), signifies the opposite. But this asseveration
misconstrues Reves. There, the Court interpreted the words _____
"conduct or participate" as they appear in section 1962(c), and
determined that those words require a defendant's participation
in either "the operation or management of the enterprise itself."
Id. at 185. But because the defendant in Reves was an outside ___ _____
61
accounting firm that had only a contractual relationship with the
allegedly corrupt enterprise it audited the books and issued
financial reports, but neither controlled the enterprise nor
participated in either its operation or management RICO
liability did not attach. See id. at 186. ___ ___
The case at hand is of a distinctively different
stripe. Unlike the accountants in Reves, who were classic _____
"outsiders," the appellants here are quintessential "insiders,"
that is, persons whom the evidence places in the maw of the
criminal activity.30 We have previously held that insiders who
are integral to carrying out the enterprise's racketeering
activities and the appellants clearly fit that description
come within the definitional sweep of section 1962(c). See ___
United States v. Hurley, 63 F.3d 1, 9 (1st Cir. 1995), cert. ______________ ______ _____
denied, 116 S. Ct. 1322 (1996); United States v. Oreto, 37 F.3d ______ _____________ _____
739, 750-51 (1st Cir. 1994), cert. denied, 115 S. Ct. 1161 _____ ______
(1995). The instructions given in this case are in all material
respects identical to those that we approved in Hurley and Oreto. ______ _____
Consequently, we reject this assignment of error without further
____________________
30Nardone's claim that he was an independent contractor is
imaginative but unconvincing. The evidence supports the view
that Nardone was an insider. He maintained regular contact with
Fitzgerald and Houlihan throughout the duration of the
conspiracy; he obtained his armaments directly from them; and he
took orders from them. Indeed, Nardone's description of himself
as the organization's "hit man" and "headache man" belies his
more recently manufactured "independent contractor" label.
62
elaboration.31
H. Forfeiture. H. Forfeiture. __________
Houlihan contends that the government failed to produce
sufficient evidence to support the forfeiture of a house located
at 80 Ferncroft Road, Tewksbury, Massachusetts. The government
lodged the forfeiture count under 18 U.S.C. 1963(a)32 and the
jury found in its favor. The property had been deeded by a
third-party seller to Francis Jackson (Houlihan's uncle), and
Houlihan's contention is that, because title stood in Jackson's
name, the property could not be forfeited in consequence of his
(Houlihan's) peccadilloes.
"[C]riminal forfeiture is a punishment, not a separate
criminal offense." Saccoccia, 58 F.3d at 783. In such a _________
____________________
31The appellants also claim that the district court erred by
refusing to repeat its concededly correct definition of what
constitutes a racketeering "enterprise" in its instructions to
the jury on those counts that charged murder and attempted murder
in aid of racketeering. Judge Young chose instead to incorporate
by reference his correct definition of a RICO enterprise (given
to the jury earlier in the charge); and, in the same vein, he
specifically informed the jury that, as to all racketeering-
related counts, they must find the existence of an enterprise
meeting the statutory criteria as an element of each offense. In
light of the perfectly sensible course taken by the judge, the
appellants' claim is unfounded. A trial court has broad
discretion to formulate jury instructions as it sees fit, as long
as it touches all the bases. See United States v. DeStefano, 59 ___ _____________ _________
F.3d 1, 4 (1st Cir. 1995). Here, taking the charge as an
integrated whole, see, e.g., United States v. Cintolo, 818 F.2d ___ ____ _____________ _______
980, 1003 (1st Cir. 1987), cert. denied, 484 U.S. 913 (1988), we _____ ______
find no error.
32Insofar as it is germane to Houlihan's situation, the
statute provides in substance that a RICO offender shall forfeit
to the government any property interest or thing of value
acquired with the proceeds of racketeering activity. See 18 ___
U.S.C. 1963(a).
63
proceeding, the government can satisfy its burden of proof by
either direct or circumstantial evidence. See id. at 782. In ___ ___
this instance we conclude without serious question that a
rational factfinder could determine as this jury did that
Houlihan was the de facto owner of the house, and that it had
been purchased with proceeds derived from racketeering
activity.33
Real estate agents testified that they took Houlihan
and his wife, along with Jackson, on tours of the dwelling
several times during 1993; that Houlihan told them that he was
"interested" in buying it; that Houlihan attended the pre-sale
inspection and the two closings that proved to be necessary; and
that the property was purchased entirely for cash (approximately
$195,000). And, moreover, both Houlihan and his wife were in
residence at the premises when the authorities arrested Houlihan
in October of 1993.
These pieces of evidence combine to form a picture that
____________________
33The district court instructed the jury that the government
had the burden of proving entitlement to forfeiture beyond a
reasonable doubt. The proof here is capable of satisfying that
standard. We note, however although we leave the question open
that the government may have conceded too much. Compare United _______ ______
States v. Tanner, 61 F.3d 231, 234 (4th Cir. 1995) (holding that ______ ______
criminal forfeiture under 21 U.S.C. 853 requires a
preponderance of the evidence, not proof beyond a reasonable
doubt), cert. denied, 116 S. Ct. 925 (1996) and United States v. _____ ______ _____________
Elgersma, 971 F.2d 690, 695 (11th Cir. 1992) (en banc) (holding ________
that the preponderance-of-the-evidence standard applies generally
in criminal forfeiture cases involving drug proceeds) with United ____ ______
States v. Pelullo, 14 F.3d 881, 906 (3d Cir. 1994) (holding that ______ _______
government, in a criminal forfeiture proceeding under 18 U.S.C.
1963(a), must prove beyond a reasonable doubt that the targeted
property was derived from the defendant's racketeering activity).
64
reveals Houlihan as the actual owner of the home in Tewksbury,
with Jackson serving merely as a straw. Then, too, the evidence
is reinforced by the utter absence of any proof indicating how
Jackson might have acquired so large an amount of cash. Given
the totality of the circumstances, the jury was entitled to find
that the house was forfeitable as a fruit of Houlihan's
racketeering. See id. ("Jurors, after all, are not expected to ___ ___
resist common-sense inferences based on the realities of human
experience.").
I. Sentencing. I. Sentencing. __________
The sentences imposed by the district court are
unremarkable in most respects. The sole exception relates to
count 20. That count charged Fitzgerald and Houlihan, among
others, with conspiracy to distribute a controlled substance
(cocaine) in violation of 21 U.S.C. 846. As to Fitzgerald and
Houlihan, Judge Young imposed contingent sentences of life
imprisonment, to take effect "only if the sentence on count 19
[which charged a continuing criminal enterprise in violation of
18 U.S.C. 848] is reversed [or] otherwise dismissed." Because
we affirm the conviction and sentence on count 19, the
contingency that Judge Young envisioned has not materialized.
Hence, we now vacate Fitzgerald's and Houlihan's convictions and
sentences on count 20. We explain briefly.
If an indictment charges a defendant with participating
in both a conspiracy and a continuing criminal enterprise (CCE),
and if the former is used as a predicate act to prove the latter,
65
then the conspiracy is in actuality a lesser-included offense of
the CCE charge, and the defendant may not lawfully be sentenced
for both crimes. See United States v. Rivera-Martinez, 931 F.2d ___ _____________ _______________
148, 152-53 (1st Cir.), cert. denied, 502 U.S. 862 (1991); _____ ______
Stratton v. United States, 862 F.2d 7, 9 (1st Cir. 1988) (per ________ _____________
curiam). To do otherwise would result in cumulative punishment
violative of the Double Jeopardy Clause. See Jeffers v. United ___ _______ ______
States, 432 U.S. 137, 154-58 (1977) (plurality op.); Rivera- ______ _______
Martinez, 931 F.2d at 152-53. ________
We need not wax longiloquent, for the government, to
its credit, concedes the point. Thus, our affirmance of
Fitzgerald's and Houlihan's convictions and sentences on count 19
necessitates the vacation of their convictions and sentences on
count 20. See Rivera-Martinez, 931 F.2d at 153 (holding that the ___ _______________
Double Jeopardy Clause requires vacation of conviction and
sentence on conspiracy count when a defendant is convicted and
sentenced on both conspiracy and CCE counts).
VI. CONCLUSION VI. CONCLUSION
We need go no further. For the reasons we have
discussed at length perhaps at too much length we affirm the
convictions and sentences of all three appellants in all
respects, save only for (a) Houlihan's convictions on counts 5, 6
and 15 (which are reversed), and (b) Fitzgerald's and Houlihan's
convictions on count 20 (which are vacated).
So Ordered. So Ordered. __________
66