USCA1 Opinion

October 11, 1996

October 11, 1996

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.
_________________________

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,
____________
K. Stern, United
_________

Attorney, Dep't of Justice,

States Attorney,

Libby, Jr., Assistant

___________

United

with whom Donald

______

Paul V. Kelly and

______________

States Attorneys,

and Daniel S.
__________

Goodman and David S. Kris, Attorneys, Dep't of Justice,

_______
______________
brief, for the United States.

_________________________

August 22, 1996

_________________________

Frank A.
________

were on

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

These appeals present a hothouse

of efflorescent issues set against a backdrop composed of roughly

equal parts of

drugs, money, and mayhem.

one implicating the Confrontation

Fed.

R.

Crim. P.

24(c)

raise

impression in this circuit.

skeletal

consider

of those issues

Clause and the other involving

important questions

put flesh on the bones by

first, the appellants' two flagship claims.

series

of

of first

In the pages that follow, we offer a

outline of the case and then

addressing,

Two

discovery

disputes

and

We next

conclude

discussing, albeit in a more abbreviated fashion, a laundry

of other asseverations.

of

the

parties'

In

arguments

by

list

the end, after careful consideration

and

close

perscrutation

of

the

compendious record, we

but reverse

affirm the judgments below in large part,

one defendant's

conviction on three

related counts

and bring a contingent sentencing determination to closure.

I.
I.

BACKGROUND
BACKGROUND

Overcoming

recitation of the

the

temptation

to

engage

riveting facts that emerged

in

Homeric

during a seventy-

day trial, we opt instead to sketch the evidence at this juncture

and

reserve

greater

specific issues into

detail

workable context.

colors that coordinate with

record support.

until the

need

arises

We draw

to

place

our sketch

in

the jury's verdicts, consistent with

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

command

post:

Massachusetts.

numerous

Kerrigan's

The

organization

distributors,

Flower

Shop,

commanded

stationary

and

Charlestown,

the allegiance

mobile,

of

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

silence on all who

own troops.

to

imposed

strict

code

of

including their

They dealt severely with persons who seemed inclined

Joseph Nardone, a professional assassin who

that he was the "headache man"

chieftains had a

principal

Houlihan

came into contact with them,

talk too freely.

bragged

and

when the organization's

headache, Nardone got rid of it

enforcer.

Over

time,

the

acted as 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

scene

through 1993.

Ultimately,

of silence and a federal

(including

the Charlestown

the authorities broke the code

grand jury indicted twelve

Fitzgerald, Houlihan,

and

Nardone) on

individuals

a myriad

of

charges.1

After

trial, the two

ringleaders and their

enforcer

were found guilty of engaging in a racketeering enterprise (count

1),

racketeering

conspiracy

murder in aid of

to distribute

(d),

1959(a);

Fitzgerald

and

2), conspiracy

racketeering (counts 5, 7 &

cocaine (count 20).

21

U.S.C.

Houlihan

attempted murder in

instigating murder

continuing

(count

criminal

of

See
___

to

9), and conspiracy

18 U.S.C.

1962(c) &

convicted

846.

The

jury

aiding

and

abetting

also

murder

aid of racketeering (counts 6, 8,

for hire (counts 15, 16

enterprise

cocaine (counts 21 through 29).

(count

See
___

commit

and

11 & 12),

& 17), engaging in a

19),

18 U.S.C.

and

distributing

1959(a), 1958;

21 U.S.C.

murder

11

848,

firearm

jury found Nardone guilty

of

see 18
___

U.S.C.

1959(a), and

using and

carrying a

during and in relation to crimes of violence (counts 39,

40, 42 &

special

43), see 18
___

U.S.C.

forfeiture verdicts.

The district

924(c).

See 18
___

court sentenced

terms of life imprisonment.

II.
II.

The

and attempted murder in aid of racketeering (counts 6, 8,

& 12),

853.

841(a)(1).

The jury also

U.S.C.

returned

1963; 21 U.S.C.

each defendant

to multiple

These appeals blossomed.

THE VOICE FROM THE GRAVE

THE VOICE FROM THE GRAVE

The district

hearsay

statements made

court admitted over objection portions of

by George

Sargent on

the

theory that

Fitzgerald, Houlihan,

and Nardone

____________________

1Of

these

twelve, only

appear

as appellants

(Skinner, Lynch,

and

before us.

Three

Joseph Houlihan)

of their

codefendants

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.

Sargent's murder constituted a waiver of the Confrontation Clause

vis- -vis the murderers.2

Houlihan and Nardone

this order and to a salmagundi of related rulings.

A.

Setting the Stage.

assign error to

A.

Sargent

Setting the Stage.

_________________

served as

Houlihan organization.

distributor for

the Fitzgerald-

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

The statements also furnished

of

them with

several murders.

evidence probative of the elements

the offenses with which Nardone had been charged, but Sargent

did not mention him by name.

after

he

gave the

second

corpse in a parking lot.

On June 28, 1992

statement

police

within a

month

found Sargent's

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

state trooper,

Mark

Lemieux,

to testify

about

Sargent's

statements following

permitting the jury

1992

second

1992 arrest,

to hear a redacted version of

interview conducted

Sargent's

his March

by Boston police

arrest.

The

the taped May

detectives following

government

argued

appellants

who had been charged with Sargent's murder

their rights

to

object to

the

and (2)

admission of

his

that

the

waived

out-of-court

____________________

2Because
court's

the

government

satisfaction

did

not prove

that Fitzgerald

shared

to

the

district

his codefendants'

intent to forestall Sargent from cooperating with the police, the

court ruled that
Fitzgerald.

Sargent's statements could not be

used against

The correctness of that ruling is not before us.

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

evidence against

case

Houlihan and

supra note 2, concluding

_____

and convincing

Sargent at

in chief,

admitted

Nardone, but not

the

Fitzgerald, see
___

that the government had shown

evidence that those defendants

least in part for the

challenged

by clear

conspired to kill

purpose of preventing him from

cooperating

tantamount

with

to a

the

police,

and

knowing waiver

that

of their

such

actions

were

confrontation rights.

See United States v. Houlihan, 887 F. Supp. 352, 363-65 (D. Mass.
___ _____________
________

1995).3

B.
B.

Waiver by Homicide: The Confrontation Clause.

Waiver by Homicide: The Confrontation Clause.
_____________________________________________

To resolve Houlihan's and Nardone's main objections, we

must

decide

whether a

defendant

Confrontation Clause by murdering

that witness

from

waives his

under the

a potential witness to prevent

turning state's

against him at trial.

rights

evidence

and/or

testifying

We believe that he does.

It is apodictic that "in all criminal prosecutions, the

accused shall

enjoy the right

witnesses against

him .

. . ."

. . .

to be confronted

U.S. Const.

with the

Amend. VI.

This

trial right

is

designed to

assure defendants

opportunity to cross-examine

the witnesses

of a

meaningful

who testify

against

____________________

3The district
United States v.
_____________

court also

published a

Houlihan, 871
________

preliminary opinion,

F. Supp. 1495

(D. Mass.

1994),

which is of little moment in regard to these appeals.

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

circumstances in

justice, it

is not an

which the prosecution may

absolute; there

are

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

cert. denied, 485

_____ ______

waive

his

(holding

U.S. 990

right to

relinquishment.

that

exception for spontaneous

(1988).

confrontation

Moreover,

by

exclamations),

a defendant

knowing and

may

intentional

See Boykin v. Alabama, 395 U.S. 238, 243 (1969)

___ ______
_______

guilty

plea

is

an

express

waiver

of

the

constitutional

right

to

confrontation); see
___

Zerbst, 304 U.S. 458, 464 (1938).

______

confront

also
____

Johnson
_______

v.

While a waiver of the right to

witnesses typically is express, the law is settled that

a defendant also may waive it through his intentional misconduct.

See,
___

e.g., Taylor
____ ______

(finding such

a waiver

Illinois
________

v. Allen,
_____

defendant

waives

disruptive

v.

397

the

United States,
_____________

when a

behavior requiring

U.S. 17,

20

defendant boycotted

U.S. 337,

right

414

343

his

his trial);

(1970) (ruling

to confrontation

removal

by

(1973)

that

engaging

from the

in

courtroom

during the trial).

By

the same token, courts

profit by his own

wrongdoing.

will not suffer

Thus, a defendant

a party to

who wrongfully

procures

witness's absence

government that

witness's testimony

Confrontation Clause

to object to

witness's hearsay statements.

U.S. (8

Otto)

for

145, 158

(1878)

the purpose

of

waives his right

the admission

denying the

under the

of the

absent

See Reynolds v. United States, 98

___ ________
_____________

(holding that

the

defendant's

refusal to disclose the whereabouts of a witness constituted such

a waiver); Steele
______

1982) (holding

exploiting

v. Taylor,
______

that

an

684 F.2d 1193,

defendant

intimate

who

relationship

1201-02 (6th

silences

waives

the

Cir.

witness

by

right

to

confrontation), cert. denied, 460 U.S. 1053 (1983); United States

_____ ______
_____________

v. Balano, 618 F.2d 624, 629 (10th

______

defendant

waives

witness's life

his

confrontation

and bringing about the

denied, 449 U.S. 840

______

that the

by

threatening

sufficient in this regard

evildoer was motivated

in part by a
__ ____

intent to deprive the

witness's silence), cert.

_____

547 F.2d

1976) (similar), cert. denied, 431

_____ ______

Moreover, it is

the witness; the

right

(1980); United States v. Carlson,

_____________
_______

1346, 1358-60 (8th Cir.

914 (1977).

Cir. 1979) (concluding that a

U.S.

to show

desire to silence

prosecution of testimony

need not

Thomas,
______

be the actor's sole

____

916 F.2d

647, 651

motivation.

(11th Cir.

obstruction of justice statute, 18 U.S.C.

Cf. United States v.

___ ______________

1990) (stating

1503,

that the

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

by-misconduct doctrine, even if good law,

here because Sargent was

should not be employed

not an actual witness

______

10

waiver-

no charges had

been

lodged against Houlihan or Nardone at the time of Sargent's

murder, and no grand jury had as yet been convened

a turncoat cooperating

have been on

with the

notice that they

find this argument unpersuasive.

appear to involve actual

police.

Thus,

were waiving a

but at most

they could

not

trial right.

We

Although the reported cases all

witnesses, see, e.g., United States

___ ____ _____________

Thai, 29 F.3d 785, 798 (2d Cir.), cert. denied, 115 S. Ct.
____
_____ ______

496

(1994); United States

_____________

(2d

Cir. 1982),

discern

no

cert.
_____

principled

v. Mastrangelo, 693
___________

denied, 467
______

reason

why

U.S.

the

v.

456 &

F.2d 269, 271-72

1204 (1984),

we

can

waiver-by-misconduct

doctrine

should

not

apply

with equal

force

if

defendant

intentionally silences a potential witness.

_________

When

percipient

defendant

witness

demise) in order

to

murders

acts

an

individual

of criminality

to prevent

(or

him from appearing

who

is

procures

at an

his

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

assisting an

government

ongoing criminal

the benefit

future trial.

as long as

his demise)

In

of

in order to

prevent him

investigation, he is

the witness's

live

short, the two situations are

it is reasonably

foreseeable that the

from

denying the

testimony at

fair congeners:

investigation

will culminate in the bringing of charges, the mere fact that the

homicide

affect

occurs

the

at an

operation

Indeed, adopting

earlier step

of

the

the contrary

in

the pavane

waiver-by-misconduct

position urged by

should not

doctrine.

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

witness

on

the

between

eve of

trial

assassinates a potential

been

brought.

a defendant

and

who assassinates

potential defendant

witness before charges

In either case, it

who

officially have

is the intent to silence that

provides notice.

We

emerges

as

unavailability

therefore hold

defendant

(2) by

confrontation

grounds

(1)

causes

a wrongful

intention of preventing the

a future trial, then

that when

a person

act (3)

who eventually

potential

witness's

undertaken with

the

potential witness from testifying at

the defendant waives his right to object on

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

the

Cir. Unit B), cert.

_____

denied, 456 U.S.

______

1008 (1982), adopted

minority view and decided that the government must prove the

predicate facts essential to the waiver by "clear and convincing"

evidence.

Houlihan, 887
________

standard.

Unlike the Fifth Circuit, we think that the government

need

F. Supp. at 360.

only prove such predicate

facts by a

This

sets too high a

preponderance of the

evidence.

The

Thevis
______

court

compared

12

the

waiver-by-misconduct

problem

to the

follow tainted

admissibility of

in-court identifications

out-of-court identifications.

See,
___

that

e.g., United
____ ______

States v. Wade, 388 U.S. 218, 240 (1967) (requiring government to

______
____

prove by

that

"clear and

the

convincing" evidence in

proposed

in-court

basis).

With

independent

comparison is

identification

respect,

to the admission of

the coconspirator exception

such circumstances

to the

we

has

believe

the

reliable

better

out-of-court statements under

hearsay rule.

See Fed.
___

R.

Evid. 801(d)(2)(E).

To invoke the

proponent of the statement

evidence" certain

coconspirator exception, the

must "show by a preponderance

predicate

facts, namely,

"that a

conspiracy

embracing both the declarant and the defendant existed,

the declarant uttered

the

conspiracy."

of the

and that

the statement during and in furtherance of

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

of

the conditions precedent

the coconspirator exception

identical

to proving

that a

rights under the Confrontation

1203;

United

States v.

to the applicability

is analytically and functionally

defendant's wrongdoing

Clause.

White, 838

F.

waives his

See Steele, 684

___ ______

Supp. 618,

F.2d at

624 (D.D.C.

______________

1993).

_____

We therefore align ourselves with the majority of federal

appellate courts

Mastrangelo,
___________

693

that have

F.2d

considered the question,

at 273;

Steele,
______

684

F.2d

see, e.g.,
___ ____

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

demonstrates that

to

easily pass muster.

Houlihan and Nardone knew

murder Sargent that they

potential witness.

that they

could

The record amply

when they conspired

were depriving the

First, the district

believed Sargent was

government of a

court supportably found

cooperating with the

harm them and the organization by talking.4

887 F. Supp. at 363-64.

police and

See Houlihan,
___ ________

Second, Sargent was in fact cooperating

with law enforcement officials at the time and made two voluntary

statements

in

organization's

roles

which

he

provided

modus operandi,

in various

murders,

descriptions of

and a

involvement in the conspiracy.

detailed

frank

accounts

of

the

the principals'

admission of

his

own

While the defendants' perception

of

likely cooperation may

the

test,

the

fact

well be enough to

of Sargent's

cooperation

inference

that the

beans and

murdered him on that account.

conspirators knew

killers

believed Sargent

to a certainty

into their felonious

spoke

openly to

him

in

reinforces

the

was spilling

the

Last but not least, the

that Sargent had

activities both

distribution network and from

meet this prong of

from his own

keen insight

work in

the

sundry conversations in which they

retrospect, too

openly

of

their

participation in serious crimes.

This

evidentiary

foundation

sturdily

supports

the

____________________

4It

is

admissibility

noteworthy that,
of Sargent's

after

Judge Young

statements,

ruled

Sweeney testified

on the

that

Houlihan told him, flat out, that Sargent had been killed because
he "was talking to the cops."

14

conclusion

that

Houlihan

foreseen Sargent becoming

kill

him in

testimony.

order to

Hence, the

objections to

court

and

Nardone

reasonably

a witness against them

deprive the

could

have

and plotted to

government of

his firsthand

district court did not err

in overruling

the introduction of portions

statements insofar

as those

of Sargent's out-of-

objections stemmed

from the

Confrontation Clause.5

C.
C.

Waiver by Homicide: The Hearsay Objections.

Waiver by Homicide: The Hearsay Objections.
___________________________________________

Houlihan

and Nardone

next

waived their confrontation rights,

have admitted

tinged

with

Sargent's

narcotics

stiff

sentence

in

prospect)

(having been

therefore

guarantees of trustworthiness."

facts

of

this

case, we

agree

because

made in

for distributing

and

even if

they

the district court should not

hearsay statements

with self-interest

argue that,

large

lacked

they

police custody

quantities

the

of

"circumstantial

Fed. R. Evid. 804(b)(5).

with

were

On the

district court,

see
___

Houlihan, 887 F. Supp. at 362, 367, that Houlihan's and Nardone's

________

misconduct waived

their

not only

hearsay objections,

their confrontation rights

thus rendering

a special

but also

finding of

reliability superfluous.

____________________

5In

a related vein, Houlihan

district court failed to conduct

ruling

on

the

admissibility

complaint

strikes us

discovery

dispute

as

that we

and Nardone complain that the

an evidentiary hearing prior to

of Sargent's

thinly-veiled
discuss infra
_____

statements.
effort to
Part

IV(B).

This

rehash

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

outstrip the bounds of

these circumstances, the

court did

its discretion in declining to

special mid-trial evidentiary hearing.

15

not

convene a

The

which

the

Supreme Court

Confrontation

has yet to

Clause

plot the

and

the

embedded in the Evidence Rules intersect.

nuanced.

between

hearsay

principles

The question is subtly

Though the two bodies of law are not coterminous, they

husband essentially the same interests.

399 U.S.

crossroads at

149, 155-56 (1976).

the government's

need

See California v. Green,

___ __________
_____

Both attempt to

for probative

strike a balance

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

defendant's

right

to

cross-examination

than

confrontation

principles depends on the point at which the balance is struck in

any particular instance

can

be

struck at

(recognizing, however, that

different levels

in

the balance

different cases).

See
___

Green, 399 U.S. at 156.

_____

In this case,

constructing

we can take matters a step

the balance the

main interest that

further.

In

must be offset

against the government's need for evidence is the accused's right

to confrontation (for

this is the right from which

cross-examine springs).

from

right,

the scales

waives

by operation

the balance

evidence.

his

Once the confrontation

tips

of the

sharply

in

the right to

right is lifted

accused's waiver

favor

of

the

of that

need

for

See Thai, 29 F.3d at 841 (holding that a defendant who

___ ____

confrontation

right

by

wrongfully

procuring

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);

"English

see
___

and

hearsay rule

also
____

American

when the

Steele,
______

courts

684

have

F.2d

at

1201

consistently

defendant wrongfully causes

(noting that

relaxed

the

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

the

district

court

appropriately

eschewed

the

Hence,

request

for

findings under Fed. R. Evid. 804(b)(5).

Houlihan and

Nardone have

suggest that the district

a fallback position.

They

court's admission of Sargent's out-of-

court statements violated their rights to due process because the

admissions

allowed

unreliable evidence.

that

them

to

be

convicted

of

due

process, wholly

Confrontation Clause, might prevent

basis

the

basis

of

See Green, 399 U.S. at 163 n.15 (ruminating

___ _____

"considerations

evidentiary

on

is

totally

apart

from

the

convictions where a reliable

lacking").

We

reject

this

initiative.

Whatever criticisms

against Sargent's

justifiably might

statements, the portions

that Judge Young allowed

be levelled

of those

into evidence are not so

statements

unreliable as

____________________

6We

caution that a waiver

result in the automatic

surrender of all evidentiary objections.

For example, a district court

highly

of confrontation rights does not

still should exclude relevant

but

inflammatory evidence, misconduct notwithstanding, if the

danger of unfair prejudice substantially outweighs the evidence's

probative

value.

evidence would have

See
___

Fed. R.

Evid.

been excludable on

403.

Presumably,

a non-hearsay ground

such

if

the declarant were available to testify, so there is no reason to

admit

it

when

the

defendant

unavailability.

17

procures

the

declarant's

to

raise

due

corroborates

account.

For

modus operandi

process

(and

concerns.

in

many

instances

instance, his

and his assessment of

live witnesses

Dillon).7

(e.g.,

evidence

abundantly

replicates)

Sargent's

description of

were confirmed and described in

of

Other

the organization's

Houlihan's leadership role

excruciating detail by a

Michael Nelson,

Bud Sweeney,

galaxy

Cheryl

No more is exigible.

D.
D.

After

The Redactions.
The Redactions.
______________

ruling that

portions of

Sargent's out-of-court

statements

court

have

were

admissible against

limited the May 30,

been competent

Houlihan

1992 statements to

and admissible

and

Nardone, the

those that "would

evidence had

the declarant

been able to testify in person," and also excluded those portions

that "directly

or

through innuendo"

Bruton v. United States,

______
_____________

391 U.S. 123, 126 (1968)

the introduction at a joint trial

statements

error).

objected,

that implicate a

Houlihan,
________

the rule

of

(holding that

of a nontestifying defendant's

codefendant constitutes prejudicial

887 F. Supp.

contending that

might offend

the

at 365.

Houlihan and Nardone

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

The district court overruled the objections.

game.

____________________

7Perhaps

the

weakest

statement regarding
he had with Houlihan
III.

link

in

the

chain

is

Sargent's

a suggestive but ambiguous conversation that

shortly before the killing of

But this tale is relevant

James Boyden

principally to the three counts

against Houlihan on which we order his convictions reversed.

infra Part V(B).
_____

See
___

Thus, any error in admitting it is harmless.

18

On

appeal,

Houlihan

and

Nardone

argue

less

that

Sargent's

statements

should

differently and more that

all.8
___

Confrontation

misconduct,

should be admissible

redacted

when a defendant

Clause

the absent

been

they should not have been

They assert that

make

have

and

at the

opponent of the statement.

redacted at
__

waives his rights

hearsay

declarant's full

somewhat

objections

to

through

out-of-court statement

behest of either

the proponent

This assertion rests on

or

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

Houlihan and Nardone

live

testimony.

miscreancy.

By

denied the prosecution

murdering

Sargent,

the benefit of

his

To compensate for that denial the court allowed

the

government

Sargent

gave to

entitled

to any

to introduce

the

portions

police.

compensation,

The

of

the interviews

defense, however,

and permitting

it to

was

that

not

introduce

additional hearsay statements (apart from statements necessary to

place the portions

used by

render them not misleading)

the government into

context and

to

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

recorded or transcribed) and

the tape-

May interview, the emphasis on appeal is on the latter.

While we restrict

our discussion to that recording,

applies with equal force to the earlier debriefing.

19

our holding

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

witness's prior out-of-court statements.

introduction of the

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

causes

the witness

testified.

the witness's unavailability is

prophylaxis.

totem-pole

But

the party

who

not entitled to the same

Consequently, under settled jurisprudence governing

hearsay, see Fed. R. Evid. 805, the tape of Sargent's

___

interview itself

constituted first-level hearsay not

recognized exception,

admitting some

and

the district

court

portions at the government's

within any

did not

err

in

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

statements.

erred

in

excluding

This construct

that codifies

principles of

the

balance

of

pivots on Evidence Rule 106,

a rule

fairness and completeness.9

Under

____________________

9The rule provides in pertinent part:

When

. .

recorded

statement or

thereof is introduced by a party, an

party

may

require

Sargent's

him

20

at

that

part

adverse
time

to

it, a party

may demand

against whom a

fragmentary statement is

introduced

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

from time

can serve its

F.2d 1346,

completeness,

beholder.

1368

evidence.

(D.C. Cir.

like beauty,

is

See United States

___ _____________

1986).

frequently

Be

in

that

v. Sutton,
______

as it

the eye

of

may,

the

The trial court is in the best position to assess the

competing centrifugal

calculus.

the trial court

to time is prepared to permit the introduction of some

otherwise inadmissible

801

proper function only if

and centripetal

forces that bear

on this

Thus, when the trial court, acting in its discretion,

finds

that proffered excerpts,

misleading,

its judgment

United States v. Boylan,

_____________
______

is

standing on

entitled to

great

are not

respect.

898 F.2d 230, 256-57 (1st

denied, 498 U.S. 849 (1990).

______

See
___

Cir.), cert.
_____

So it is here.

Houlihan and Nardone

because Judge

their own,

dwell on incompleteness primarily

Young declared two sets

of comments inadmissible.

(1) Sargent told the police, inter alia, that James Boyden IV was
_____ ____

selling drugs

in Lynch's

and had

him beaten,

Sargent

that

he

but

would

territory; that Fitzgerald

to no

"just

avail; and

have

that

to kill"

the

warned him

he then

interloper.

____________________

introduce any other part . . . which ought in

fairness
with it.

to be

told

considered contemporaneously

Fed. R. Evid. 106.

21

Claiming that Fitzgerald's remarks to Sargent provided Fitzgerald

with a

have

different motive

this part

Houlihan

to murder

of Sargent's

claims

involvement in the

that

statement admitted

omitting

murder made

Fitzgerald, was the mastermind

Sargent, Houlihan

references

it appear that

sought to

into evidence.

to

Fitzgerald's

he, rather

than

responsible for that crime.

(2)

In a similar

permit

vein, Nardone

him to introduce

claims that the

references in the

court's refusal

to

interviews to Herd's

putative involvement in the Boydens' killings made it appear that

Nardone carried out those murders single-handed.

The

"segregable"

government had

admit

them.

court's

court found that

from

the

these incremental

portions

of

the

proffered and denied the

Houlihan,
________

rulings,

interview segments

three

887 F. Supp.

facts are

interviews

that

the

appellants' requests to

at 366.

worthy

of

In assessing the

note:

admitted into evidence contained

reference whatever to the

excerpts were

(1)

the

no explicit

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

conclude

that

debriefing.

the lower

Bearing these facts

court acted

within

in mind,

the realm

we

of its

discretion in refusing to invoke Rule 106.

Houlihan and

have admitted

his

other portions of Sargent's

credibility.

credibility of

Nardone also claim that

See
___

Fed. R.

Evid.

the court should

interviews to impeach

806 (providing

that the

a hearsay declarant "may be attacked . . . by any

22

evidence which would

declarant

be admissible for

had testified

as

those purposes if

a witness").

The district

[the]

court

rejected this claim because it found the additional excerpts "too

convoluted, collateral, or cumulative to be admitted."

887 F.

Supp. at 368.

Having reviewed the items,

Houlihan,
________

we discern no

error in their exclusion.

Trial

outside limits on

at

679;

courts

have

considerable

cross-examination.

Laboy-Delgado,
_____________

84

F.3d

at

in

imposing

See Van Arsdall,

___ ___________

475 U.S.

28.

leeway

Here,

demonstrates that the appellants had a full and fair

during

their cross-examination of

the officers

the

record

opportunity

who interviewed

Sargent to cast doubts upon his

this opportunity.10

By

contrast, the

appellants wished to introduce

and

promised to

add

veracity.

extra material that

lacked genuine impeachment

virtually nothing

grueling cross-examination.

They made the most of

of

Thus, we cannot

court for excluding this exiguous material.

U.S. at 679 (stating

consequence to

the

value

the

fault the district

See Van Arsdall, 475

___ ___________

that cross-examination appropriately may be

limited if redundant or marginally relevant); Boylan, 898 F.2d at

______

255-56 (similar).

To

painstaking

say

more would

be

review of the record

supererogatory.

Because

our

reveals no solid grounding for

____________________

10For
(who

example, during cross-examination of Detective Harris

taped and

appellants

testified

showed that

about the

Sargent had

May

1992 interview),

a lengthy

the

criminal record;

that he gave up his

confreres while facing the possibility of

fifteen-year mandatory minimum sentence for drug trafficking; and

that

he had

been

promised low

bail,

among other

things,

in

106 in

any

exchange for cooperation.

23

the

claim

that

the district

court

flouted

Rule

respect, we refuse to meddle.

E.
E.

There is one

Prejudicial Spillover.
Prejudicial Spillover.
_____________________

last leg

to this phase

of our

journey.

Fitzgerald

alleges that

the

admission of

resulted in unfair prejudice to him.

Because the

Sargent's statements

The record reveals none.

prosecution must

show the existence

of a

conspiracy to prove a conspiracy charge, evidence implicating one

coconspirator is

against

F.2d

his codefendants.

21,

grounded

likely to be

26 (1st

on

directly relevant to

See United States v.

___ ______________

Cir. 1993).

spillover

Even

prejudice are

if

O'Bryant, 998
________

it is

rare.

the charges

not, mistrials

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

devastating

unless the

that, realistically,

impact of

the

instructions

cannot be expected to repair the damage.

See
___

evidence is

from

the

so

bench

Sepulveda, 15 F.3d
_________

at 1184.

Silhouetted against

of

this set of

Fitzgerald's claim come into

emotions in one

The material

case may

relative

especially

gentility

bold relief.

be routine evidence

distilled from

have stood out like a

rules, the flimsiness

What excites the

in another

Sargent's statements

which would

sore thumb in a prosecution rooted

of

white-collar

sensational when

evaluated

crime

in light

does

not

of the

plainly admissible evidence that permeated this seventy-day

24

case.

in the

seem

other,

saga

of nonstop violence.

Moreover, the district court instructed the

jurors

that they

on

statements

the spot

in deciding

directive, the

the

its

not to

Fitzgerald's fate.

court redacted all references

portions of

repeated

were

those statements

prophylactic

that the

instruction

on

consider Sargent's

To

complement that

to Fitzgerald from

jury heard,

several

and it

occasions.

Under these circumstances, the presumption that jurors follow the

court's

instructions is

unfair prejudice.

III.
III.

ALTERNATE JURORS
ALTERNATE JURORS

intact.

Ergo, Fitzgerald

suffered no

The

appellants calumnize

the district

court because,

despite their repeated objections, the court refused to discharge

the

its

alternate jurors once deliberations commenced and compounded

obduracy

by

allowing

intermittent contact with the

of jury deliberations.

the

alternate

jurors

to

have

regular jurors during the currency

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."

R. Crim. P. 24(c).

The rule reflects the abiding

Fed.

concern that,

once a criminal case has been submitted, the jury's deliberations

shall

remain private

and

inviolate.11

See
___

United States
_____________

v.

____________________

11Notwithstanding
remaining

eleven

that

jurors

Criminal
to

return

Rule
a

23(b)

valid

permits

verdict

the
if

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

Rule

24(c)

brooks

appellants' claim of error

no

exceptions,

and

the

is well founded.

district

court

transgressed

throughout

its

letter

by

the deliberative

however, is

retaining

period.

the

The

alternate

lingering

question,

whether the infraction requires us to invalidate the

convictions.

The appellants say that it does.

violation of

Rule 24(c)

where, as

jurors

In

their view, a

automatically necessitates a

here, the defendants

preserved their claim

new trial

of error,

or, at least, the continued contact between regular and alternate

jurors that transpired

government

endeavors to

error as benign.

in this

parry

case demands that

this thrust

result.

by classifying

The

the

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,

refrain from engaging personally

remain

in

the

jury

deliberations.

guilty.

jurors

room

while under

instructions to

in the deliberative process, to

and

audit

See id. at 727-29.

___ ___

the

regular

jurors'

The jury found the defendants

The court of appeals, terming the presence of alternate

in

prejudicial,"

the

jury

granted

room

during

them new

deliberations

trials

although

"inherently

they had

not

____________________

remains

debatable.

reluctance, following
trial,

We

can

a long,

understand

complicated, and

district

judge's

hotly contested

to release alternate jurors before a verdict is obtained.

But courts, above all other institutions, must obey the rules.

26

lodged contemporaneous

objections.

F.2d 1425, 1428 (9th Cir. 1991).

noted

that

unless

an

at

737.

The

Court then

that `affect[s]

prejudicial

error

R. Crim. P.

affects

52(b), the error

impact."

declared that

the mere

jury deliberations

substantial

Id.

rights'

Instead,

the

is not

It

defendants'

for overturning their convictions.

alternate jurors during

error

v. Olano, 934
_____

The Supreme Court demurred.

unpreserved

"substantial rights," Fed.

serve as a fulcrum

United States
_____________

cannot

507 U.S.

"presence of

the kind

of

independent of

its

critical inquiry

is

___

whether

the presence of the

deliberations actually

alternates in the

jury room during

prejudiced the defendants.

See
___

id. at
___

739.

The

Justices conceded

the presence of any outsider,

cause

prejudice if

he

or

that, as a

theoretical matter,

including an alternate juror,

she

actually

participates

in

may

the

deliberations either "verbally" or through "body language," or if

his

or

her

attendance

deliberations.

Id.
___

judge's cautionary

The

were

Court

to

chill

the

recognized, however,

instructions to alternates

from injecting themselves into

lessen or eliminate

somehow

jurors'

that

(e.g., to refrain

the deliberations) can operate to

these risks.

See id. at 740 (remarking "the

___ ___

almost invariable assumption

instructions") (quoting

(1987)).

Thus, absent

of the law that jurors follow their

Richardson v.
__________

Marsh, 481 U.S.

_____

a "specific showing" that the

200, 206

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

variation on

Here, unlike in Olano, the appellants

_____

to the district court's retention

relegating

plain

error

analysis

circumstance denotes two things.

the

government,

persuasion with

Second,

Court

not

the

regard to

the Olano
_____

theme.

contemporaneously objected

of the alternate jurors,

to

the

scrap

heap.

First, here, unlike

defendants,

the existence

bears

vel non
___ ___

the

thus

This

in Olano,
_____

devoir

of

of prejudice.

we must today answer the precise question that the Olano

_____

reserved for

framework

See id. at

later

decision.

See
___

id.
___

Withal,

the

of the inquiry in all other respects remains the same.

734 (noting

that, apart from

the allocation of

the

___ ___

burden of

proof, a claim of

ordinarily

inquiry

requires

as does

the

error under Fed. R.

same

a preserved

significance of this

type

error).

the Government

to

show

the

a violation of Rule 24(c) is

at

at 737, we must

"prejudiced

____________________

not discount

the

at 742

that it is "most difficult

prejudice"),

but

Since Olano teaches that

_____

not reversible error per se,12

see
___

undertake a particularized inquiry directed

whether the instant

case,

We do

absence of

"difficult" does not mean "impossible."

id.
___

prejudice-determining

solitary difference, see, e.g., id.

___ ____ ___

(Kennedy, J., concurring) (commenting

for

of

Crim. P. 52(b)

[the

violation, in the

circumstances of this

defendants],

specifically

either

or

12On

this

anticipated.

score,

Olano
_____

confirmed

what

this

See United States v. Levesque, 681 F.2d

___ ______________
________

court

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

Rule

observe

the

punctilio of

24(c)

did

not affect

the

verdicts.

See, e.g., id. at 734; Kotteakos v. United States, 328

___ ____ ___
_________
_____________

U.S. 750,

758-65 (1946).

Court's

F.3d

In performing this task,

reasoning in Olano instructive.

_____

we find the

Cf. Lee v. Marshall, 42

___ ___
________

1296, 1299 (9th Cir. 1994) (finding Olano Court's reasoning

_____

transferable to

risks

that

harmless error

were

identical

to

Olano,13
_____

and

run

here

the risks

the

analysis in

by

that

district

retaining

were run

judge's

habeas case).

the

at the

ability

The

alternates were

trial

to

level in

minimize

or

eliminate those risks was the same in both situations.

The

operative

district

court

contact

between

facts are

retained

them

and

the

the

as

follows.

alternates,

regular

Although

subsequent

jurors

the

physical

occurred

only

sporadically

all

confined mostly to the beginning of each day (when

the jurors

assembled

prior to

deliberations) and lunch time

invariably

present).14

the

commencement of

daily

(when court security officers were

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.
jurors

at 729-30.
and the

Here, they

did not;

undischarged alternates

indeed, the

were never

regular

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
Judge

the jury room.

Defense counsel brought

Young's attention,

and

the judge

29

this interlude to

immediately agreed

to

alternates to come within earshot of the deliberating jurors.

Equally as

set

of venirepersons

charge, Judge

Young

important, the

uninstructed.

told

court did not

At

the alternates

the

not

leave either

beginning of

to

discuss

his

the

substance of the case either among themselves or with the regular

jurors.

He then directed the

case with the alternates.

admonished

the

regular jurors not to discuss the

Near the end of the

charge, the judge

all the talesmen that "if [the regular jurors are] in

presence

of the

alternates or

the

alternates are

in the

presence of

case,

no

retired

the jurors,

deliberating about

to

the

undischarged

chambers

[there is to

jury

room

the

for

alternates retired

(which

remained

be] no talking

case."

their

regular

jurors

deliberations, and

to an

their

The

about the

anteroom in

base

of

the

the judge's

operations

for

the

duration of the deliberations).

____________________

instruct

the

alternates to

stay out

of

breaks (except

for retrieving

snacks from

court security

officers confirmed that a

the jury
the

room during

jury room

when

break in deliberations

had occurred).
On another
a

note from

occasion defense counsel voiced suspicion that

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
frame.

substance of the

case" during the

pertinent time

All the jurors responded in the negative, and Judge Young

reinstructed
deliberate

the regular jurors not to discuss the case with, or

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

alternate

jurors

addition,

he

at

his instructions

the close

routinely

warned

assembled the next morning

of

to both the

every

the

court

venire

regular and

session.

that,

when

In

they

before deliberations resumed, "no one

is to talk about the case."

On this record, we believe that the regular jurors were

well

insulated

alternates.

greater

risks posed

by

the retention

The judge repeatedly instructed the jurors

detail

delicately

from the

than

phrased

in

and

Olano
_____

and

admirably

those

of the

in far

instructions were

specific.

Appropriate

prophylactic instructions are a means of preventing the potential

harm

that hovers when a

jurors on schedule.

v.

Sobamowo, 892
________

(attaching

to dismiss alternate

See Olano, 507 U.S. at 740-41; United States

___ _____
_____________

F.2d 90,

great

instructions

trial court fails

97 (D.C.

importance

in holding

to

Cir. 1989)

trial

failure to

(Ginsburg, J.)

court's

discharge

prophylactic

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.

counsels' consent, Judge

Young replaced the

lost juror with

With

an

alternate and instructed the

jurors to begin deliberations anew.

On

contests

appeal,

neither

side

substitution.

31

the

propriety

of

this

failure to provide such instructions).

jurors, conscious

the particular

criminal case,"

of the gravity

language of the

Francis
_______

v.

Courts must presume "that

of their task,

attend closely

trial court's instructions

Franklin, 471
________

U.S.

307,

324

in a

n.9

(1985), and that they follow those instructions.

Here, we

have more than the usual presumption that the

jury understood the

interrogated the

instructions and followed

entire panel

regular

them.

The

court

jurors and undischarged

alternates

assurances

on a daily basis, and received an unbroken string of

that the

regular

jurors

had

alternates concerning the substance of

Just

as it is

absence

of a

fitting for appellate

contrary indication,

not spoken

with

the

the case, and vice versa.

courts to presume,

that jurors

follow

in the

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

plenitude

last observation is

of instructions, there

telling.

is another

Over

and above the

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
__________

permitted the alternates

deliberations (even

had

no

nothing

F.3d

at 139,

the judge

to sit in on, or

as mute

Hence,

opportunity to

participate

in the

plausibly suggests

record

no time

listen to, the jury's

observers).

in

at

the alternates

the deliberations,

that they

and

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

prejudice,

be deemed

see Olano,
___ _____

to

507 U.S.

chill discourse

at 740-41,

it

or

establish

is surpassingly

difficult to imagine how absent (though undischarged) alternates,

properly

instructed,

could

have

toxic

effect

on

the

the lily.

Given

the lack

of any

jurors

during

ongoing

deliberative process.16

We will

contact

between

not paint

regular

and alternate

deliberations,

the

trial

instructions,

the

venire's

judge's

careful

unanimous

and

disclaimers

discussions about the case took place between the

the overall

all

strength of the prosecution's

the counts of

conviction, and the

oft-repeated

that

any

two subgroups,

evidence on virtually

discriminating nature of

the

verdicts that

appellants

on

were returned

sundry

defendant, Herd,

counts

(e.g., the jury

and

also

acquitted the

acquitted

outright), we conclude that

the

fourth

the government has

carried its burden of demonstrating that the outcome of the trial

would

have

been

dismissed the

deliberate.

precisely

the

alternate jurors

same

had

when the

It follows that because

the

district court

jury first

retired to

the appellants suffered no

____________________

16In Cabral v.
______
case

that

antedated

Sullivan, 961
________
Olano,
_____

F.2d 998 (1st

we considered

Cir. 1992),
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

substantial

inherently prejudicial
rights of the parties

error

is committed,

are violated."

and the

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.
IV.

DISCOVERY DISPUTES
DISCOVERY DISPUTES

The

appellants

government actions

with a

stridently

protest

involving document discovery.

claim that implicates

the scope

of the

series

of

We first deal

Jencks Act,

18

U.S.C.

3500,

and

then

treat

the

appellants'

other

asseverations.

A.
A.

The

purposes

certain

Act

provides

of cross-examination,

witness

possession.

does

Jencks

Scope of the Jencks Act.

Scope of the Jencks Act.
_______________________

not

statements

vest

until

It

is

the

that

witness

and completes

also subject

restrictions delineated in

matter as

the

limited right

are

in

the

takes

the

government's

stand

testimony.

categorical,

in

it

the

Id.
___

content-based

Act unless it (i) relates

witness's direct

for

to obtain

a temporal condition:

his direct

to

defendants,

the statute: a statement is

to production under the Jencks

same subject

with a

That right is subject to

government's case

3500(a).

criminal

not open

to the

testimony, id.
___

3500(b), and

3500(e)(3),

(ii) either comprises

or

falls

within

one

grand jury testimony,

of

two

general classes

statements, namely,

(1) a written statement made by [the] witness

and signed or

otherwise adopted or

approved

by him;
(2)
or

a stenographic,
other

thereof,

mechanical, electrical,

recording,
which

is a

recital

of an

oral

witness

and recorded

or

transcription

substantially verbatim
statement made

by said

contemporaneously with

34

id.
___

of

the making of such oral statement . . . .

18 U.S.C.

3500(e)(1)-(2).

In

this

case,

investigation instructed

refrain

from

taking

the

government

all but the most

notes

agents

who

led

the

senior prosecutors to

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

renew their challenge.

The

government

Jencks

Act.

Before us,

the appellants

We, too, think that it lacks force.

Act

does

not

impose

agents to record witness interviews

an

obligation

on

or to take notes

during

such

recordings,

interviews.

After all,

written statements,

and

the

notes

Act applies

that

only to

meet

certain

criteria, not to items that never came into being (whether or not

prudent investigator

investigator

would

United States v.
_____________

cynics might

have

arranged things

Lieberman, 608
_________

that the

say an

differently).

F.2d 889, 897

(rejecting

a claim

government has

Jencks Act

material by recording everything

unsophisticated

(1st Cir.

"a duty

Head,
____

586 F.2d

1979)

to create

a potential witness

says"), cert. denied, 444 U.S. 1019 (1980); accord

_____ ______
______

v. Bernard, 625 F.2d

_______

See
___

United States
_____________

854, 859 (9th Cir. 1980); United States v.

______________

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).

were evidence

that lawmen

It has been suggested

that if there

"engaged in manipulative

or coercive

35

conduct"

during

the course

witness, the failure to

Jencks Act violation.

of

an audience

with

record that event might

Lieberman, 608 F.2d at

_________

this dictum, even if it might be of

a particular

give rise to

897 (dictum).

But

some moment in a proper case

(a

matter

on which

appellants.

without

we take

There is no

such

proof,

no view)

is

proof of such a

cold comfort

scenario here,17 and,

government interviews

with

witnesses are

"presumed to have been conducted with regularity."

In the absence of a

none currently exists

techniques is,

challenged here is

to

Id.
___

contrary legislative command

and

the choice among available investigatory

within wide limits,

contradistinction

to the

the

for the Executive

Judicial

not beyond

Branch.

the pale.

The

Branch in

practice

Accordingly, we

hold

that the government did not violate the Jencks Act by instructing

agents to minimize note-taking.18

Still,

practice.

we do

not mean

to imply

that we

endorse the

Eschewing tape recordings and ordering law enforcement

agents

not to

take notes

during pretrial

interviews is

risky

____________________

17The appellants
notes

constitutes

claim that instructing agents

deliberate

strategy

quantity of discoverable material.

to

not to take

manipulate

But, this is simply

the

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.

indictment," and
rely

"Hearsay evidence is
the mere

on hearsay evidence in

fact that

a sufficient basis for an

the government

presenting its case

jury raises "no hint of government misconduct."

Font-Ramirez,
____________

chooses to

before a grand

United States v.
_____________

944 F.2d 42, 46 (1st Cir. 1991), cert. denied, 502

_____ ______

U.S. 1065 (1992).

36

business

and

not

sovereign's credit or

guaranteed

to its

to

redound

benefit.

don't

create can't come back to

demean

their primary mission:

By

either

that

it

may

witnesses

changing

dimmed by

the passage

to see

interests

of law

stories or

of time.

enforcement

we

haunt us" approach, prosecutors

that justice is done.

subsequently need

their

the

adopting a "what

more parochial terms, the government also loses

records

to

to

to

In

the advantage of

safeguard

against

refresh recollections

By

and large,

will be

better

the legitimate

served by

using

recording equipment and/or taking

accurate notes than by playing

hide-and-seek.

B.
B.

Delayed Disclosures.
Delayed Disclosures.
___________________

The appellants also

to governmental

complain that delays

attributable

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

withheld extant materials, such

materials, the prosecutors

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

prosecutors' notes

and kindred materials in

which documents (or portions

the

Jencks Act.

district court

reviewed all

the

camera to determine

of documents) were producible under

The government

turned

over what

the

court

37

ordered

it

to produce

production to be made.

at the

time(s)

when the

court ordered

In all events, we have held with a regularity bordering

on the

echolalic that "delayed disclosure

unless the

aggrieved

from the delay."

also
____

defendant demonstrates

Saccoccia, 58
_________

denied, 116 S. Ct.

______

demonstrating prejudice demands

the

prejudice

Sepulveda, 15 F.3d at 1179

_________

United States v.
______________

1995), cert.
_____

claims cannot succeed

appellants have

served

(citing cases); see

___

F.3d

754, 781

1322 (1996).

less

how the delayed

ability to

cross-question witnesses largely by

this context,

drink

but

They

disclosures supposedly impeded their

reference to two

Neither example is compelling.

First, the appellants suggest

surprised

(1st Cir.

hearty fare.

articulate

examples.

In

red meat and strong

up much

arising

because,

after

that they were

Nardone's henchman,

Michael

unfairly

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

officer) which

implicated both
____

of

subsequent

witness

indicated that Nardone, in

Houlihan and

(a

law

enforcement

chatting with Nelson,

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

out that, according

his
At
the

simply made a

mistake, and pointed

to the prosecutors' notes,

pretrial interview

Nelson stated in

that Fitzgerald alone issued

this juncture the court directed

the order.

the prosecutors to disclose

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

___ _____

at

19, and

trial were consistent, this tidbit would have been of dubious

value for impeachment purposes.

on the witness stand,

_____________________

documents

that

Moreover, while Nelson was still

______________________

the appellants

revealed

the

had

possession of

same inconsistency.

For

other

these

reasons,

of the

we are fully satisfied that any delay in the disclosure

law enforcement

affect the

outcome of

officer's grand

the

trial.

jury testimony

Consequently, the

fails to prove the

appellants' point.

v. Devin, 918 F.2d

_____

280, 290-91 (1st Cir. 1990)

delayed disclosure

of

impeachment

See, e.g.,
___ ____

material

did not

incident

United States
_____________

(explaining that

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

___

Sargent

had to

Sargent

"was a risk" and "could hurt [Houlihan] by talking"; and

second,

"as a showing of

group

to whom

be killed:

Sargent

first,

because Houlihan

reasons why

respect to the

was heavily

felt that

Murrays" (a bookmaking

indebted).

Regarding

the

second

reason,

asked the Murrays

organization

Because

Nelson

explained that

to post

$50,000 bail for

stalwart, in

the government

Nelson had completed his

Fitzgerald

exchange for

did

not reveal

and Houlihan

Bobby Levallee,

having Sargent

this

note until

an

killed.

after

testimony, the appellants' thesis runs,

they were unable to cross-examine him efficaciously.

39

This

proffer, too,

circumstances, the

light

of the

note has

extensive

is wide

of the

mark.

only marginal evidentiary

proof confirming

Under any

value in

Houlihan's desire

to

silence

Sargent in order to keep him from telling the government

what he

knew

more

important,

a desire that the note itself acknowledges.

the appellants

alternative "gambling

stand.

had

sufficient

debts" motive well before

Nelson himself

testified

Fitzgerald and Houlihan wanted

on

notice of

Even

the

Nelson left the

direct examination

that

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."

moreover,

of

the

the record indicates that the

prosecutors'

notes

(some

of

And,

appellants had the rest

which

discussed

the

alternative

motivation) in

testimony; indeed,

information on

debts

and

circumstances,

no

Nelson

to

reversible

the

completed

relied on those

cross-examination about

connection

Saccoccia, 58 F.3d at
_________

defense counsel

before
______

Houlihan's counsel

elicit

his

hand

inhered.

781 (finding no prejudice from

obtained information

in time to

Cir.

documents

1991) (finding

when the

no

prejudice from

prosecutor's opening

Under

these

See,
___

e.g.,
____

delay when

prepare cross-

examination); United States v. Hodge-Balwing, 952

______________
_____________

(1st

notes to

Sargent's gaming

Murrays.

error

his

F.2d 607, 609

late

delivery of

statement alerted

the

defense to the same information).

If more were

sockdolager is

needed

and

we doubt that

the district court's volunteered

it is

the

ruling that the

40

appellants

could recall

cross-examination on

the note.

Nelson

the basis

The appellants

during their

case for

of the information

chose to let

further

disclosed in

this opportunity

pass.

The rule is clear that a defendant's failure to recall a witness,

despite permission

based

on

to

disclosure

do so,

undermines a

claim of

that

materialized

after

the

prejudice

witness

finished testifying (but

States v. Arboleda,
______
________

before the

929 F.2d

trial ended).

858, 864 (1st

See
___

United
______

Cir. 1991);

United
______

States v. Dunn, 841 F.2d 1026, 1030 (10th Cir. 1988).

______
____

C.
C.

In a

Supervisory Power.
Supervisory Power.
_________________

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

court

will consider

enforcement

those

of better

invoking its

delayed disclosure, this

supervisory powers

prosecutorial practice

to secure

and reprimand

of

who fail to observe it.") (citation and internal quotation

marks omitted).

Based on

this dictum, they ask that

we unleash

our supervisory

lesson to

power and vacate their convictions

the government.

issue

a blanket

their

colleagues in

In the

rule prohibiting

as an object

bargain, they suggest that we

prosecutors

law enforcement

not to

from instructing

take

notes during

witness interviews.20

____________________

20Respecting, as we do,
two

the coordinate powers of

the other

branches of government, we decline to issue any such blanket

proscription.

See supra
___ _____

Part IV(A) (discussing

appellants' underlying objection).

41

particulars of

Federal courts should

or

overturning

executive

courts'

plain

conduct

prosecutorial

to

6 F.3d

merely

to judicially

supervisory power

prejudice

Santana,
_______

convictions

refrain from dismissing

favored

should be

misconduct

is

particular defendant.

1,

10-11 (1st

as

Cir.

device

norms.

used in

coupled

See
___

to

conform

Rather,

this way

with

charges

the

only if

cognizable

United States v.
______________

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

wanting.

First

improper at

misconduct

drastic

all

and foremost,

fall

that might

step

far

impel

of vacating

overzealous prosecutors.

harm the

Walsh, 75
_____

for judicial intervention are

the tactics

short of

a showing

a federal

court

conviction as

of

if

egregious

to consider

the

sanction against

Second, the delayed disclosures did not

defendants' substantial rights.

F.3d 1,

complained of

(1st Cir.

See United States v.

___ ______________

1996) (demonstrating

prejudice

requires more than mere "assertions that the defendant would have

conducted cross-examination differently").

That ends the

medicine

and, as we have

matter.

The supervisory power is strong

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.
V.

MISCELLANEOUS
MISCELLANEOUS

42

The appellants, represented by

plethora of other arguments.

able counsel, marshal a

We address some of these arguments,

explaining briefly why we accept or reject them.

we

The points that

do not mention are insubstantial and may be dismissed without

elaboration.

A.
A.

Fitzgerald

sufficiency

of

the

and

Murder for Hire.

Murder for Hire.
_______________

Houlihan,

evidence

in

chorus,

supporting

challenge

the

their murder-for-hire

convictions arising out of the annihilations of Boyden III (count

15)

and Sargent (count 16),

(count 17).

With

and the attempts

on Sweeney's life

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

challenge fails.

the

defendants'

biocidal

activities.21

The

The

controlling legal

criminal defendant undertakes

evidence,

direct and

government's

coign of

a sufficiency

circumstantial,

inferences

from

verdict."

United States
_____________

it

Though each element of the

"When a

challenge, all

viewed from

viewer must

that are

v. Valle, 72
_____

prosaic.

must be

vantage, and the

reasonable

1995).

standard is

the

the

accept all

consistent

F.3d 210, 216

with

the

(1st Cir.

offense must be proven beyond

a reasonable doubt, the government's burden "may

be satisfied by

either

any combination

direct

or circumstantial

evidence,

or

____________________

21The exception
offers a

relates to count

wider-ranging sufficiency

challenge separately.

15, as to

challenge.

See infra Part V(B).

___ _____

43

which Houlihan
We

address that

thereof."

1994).

United States v. Gifford, 17 F.3d

______________
_______

If a rational

favor of the

basis,

940 F.2d

jury, indulging all

verdict, could

credibility calls in

find the defendant

then the inquiry terminates.

722, 730 (1st Cir.

462, 467 (1st Cir.

guilty on

this

See United States v. David,

___ _____________
_____

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

intent that a

interstate or

the prosecution

the plotters

claim,

The appellants

that

F.2d

party

18 U.S.C.

sought to convict

used telephone

"facilities in

point

with

murder be committed . . . as consideration for . .

. anything of pecuniary value."

their ends.

foreign commerce,

telephone

1958.

In this case,

by proving, inter
_____

calls as

a means of

alia, that
____

accomplishing

did not claim below, and do

lines

fall

interstate commerce."

outside

the

We therefore

not now

rubric

of

assume that

in the government's favor, see United States v. Slade, 980

___ _____________
_____

27, 30 (1st Cir.

1992) ("It is a

has not presented an

may not unveil

it in the

bedrock rule that when a

argument to the

district court, she

court of appeals."); United States v.

______________

Zannino, 895
_______

F.2d 1, 17

rule" that issues

are

(1st Cir.)

not briefed and

(noting "settled

appellate

properly developed on

appeal

waived), cert. denied,

_____ ______

494 U.S.

1082 (1990),

only the claim that they do

advance:

that the evidence fails to

show

the use

of

telephones in

the

charged crimes.

44

course of

and consider

committing

the

In

interpreting

appropriate to look

U.S.C.

1952.

(5th Cir. 1989)

18

to case

U.S.C.

1958,

law construing the

See United States v. Edelman,

___ _____________
_______

(explaining that Travel

proper referent because "the

it

is

entirely

Travel Act,

18

873 F.2d 791, 794

Act jurisprudence is

obvious purpose" of the murder-for-

hire statute is "to supplement" the Travel Act); see also S. Rep.
___ ____

No.

225,

98th

Cong.,

1st

Sess.

U.S.C.C.A.N. 3182, 3485 (noting

"follows the format"

Arruda, 715
______

stated:

F.2d 671

reprinted
_________

in
__

1984

that the murder-for-hire statute

of the Travel

(1st Cir.

306,

Act).

1983), a

In

United States
_____________

Travel

Act case,

v.

we

"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

unlawful

activity."

Id.
___

quotation marks omitted).

e.g.,
____

United States
_____________

at 681-82

easier or facilitates

(citations

and

This is the commonly held

v. Lozano,
______

839 F.2d

the

internal

view, see,
___

1020, 1022

(4th Cir.

1988); United States v. Smith, 789 F.2d 196, 203 (3d Cir.), cert.
_____________
_____
_____

denied, 479
______

essentiality

U.S. 1017 (1986), and we confirm today that the non-

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

Sweeney's life.

Boyden

We

the elder's

hasten to

deaths

and the

add, however,

attempts

on

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

812

F.2d

783,

785 (2d

Cir.

McPartlin, 595 F.2d 1321,

_________

444 U.S. 833 (1979).

Act); United States v. Sigalow,

_____________
_______

1987)

(same);

United States
_____________

1361 (7th Cir.) (same), cert.

_____

v.

denied,
______

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

find a facilitative nexus

criminal

March

1992,

involuntary

together

between the use of telephones

activities underlying

of

Fitzgerald,

residence

with

in a

reasonable

jury rationally could

the

counts of

a parole

state

conviction.

violator,

penitentiary.

inferences

and the

extractable

had

By

taken up

The

record,

therefrom,

permitted the jury

from

prison

to

to find

an

internuncio, supplied

attacks.

Nardone with the weaponry

Telephone records

apartment in and around

as

an

John

calls

Doherty,

at

that Doherty, acting as Fitzgerald's

indicate that Fitzgerald called

occur.

daily telephone

indicted coconspirator,

Kerrigan's Flower Shop; and

the

that he made

introduced into

needed to mount

evidence also

Nardone several times at Lynch's

the dates on

which the murders were

to

Since the jury reasonably could regard the various calls

important link

in the

communicative

46

chain that

led to

murder

and

attempted

murder,

the

appellants'

challenge

founders.22

B.
B.

The Murder of James Boyden III.

The Murder of James Boyden III.
______________________________

Houlihan

asserts

that

(conspiring to murder James Boyden

count 6 (abetting that

way.

convictions

III in aid of

on

link him

His major theme is

to the murder

We find merit in this proposition.

count

racketeering),

murder), and count 15 (hiring

perform that murder) cannot stand.

government failed to

his

in any

another to

that the

meaningful

To convict Houlihan for conspiring to murder in aid

racketeering,

murder,

see
___

organization

see
___

18 U.S.C.

id.,
___

the government

of

1959(a),

or for

abetting

the

had

prove

that (1)

the

to

masterminded by Fitzgerald and Houlihan constituted

racketeering enterprise;

(2)

that, depending

on the

count,

Houlihan conspired to commit, or aided and abetted the commission

of,

the

murder;

arrangement "for

position

and

(3)

that Houlihan

the purpose of maintaining

in a [racketeering] enterprise."

participated

in

the

or increasing [his]

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

vis- -vis

Sargent and

knowledge

and consent.

Sweeney were
To

personally paid Nardone his

Kerrigan's Flower Shop
life.

have believed

cite

Fitzgerald's actions

undertaken with
just one

Houlihan's

example,

Houlihan

$5,000 "headache elimination" fee at

on the day after

Nardone ended Sargent's

Further examples are unnecessary.

It suffices to say that

extensive evidence pointed to

Houlihan

jointly

the conclusion that Fitzgerald and

orchestrated

both

Sargent's

slaying

and

Sweeney's travails.

47

paying a

intent to

price or

other

commit the

consideration, (3)

substantive crime

with the

specific

(murder), and

(4) that

interstate

facilities

participants in the

U.S.C.

course of

by

one

or

more

perpetrating the crime.

of

the

See
___

18

common thread runs through all three counts.

In one

or another, the government had to prove beyond a reasonable

doubt

that in the spring

James Boyden III" (count

commanded

[or]

"facilities

in

James

that

murder (count

commerce

to arrange the

6),

and/or

used

hire

other

to

intended murder of

James Boyden

Under each of these counts, the government had

bare minimum that Houlihan

Boyden III

"conspired to murder

5), and/or "aided, abetted, counselled,

interstate

III" (count 15).

show at a

of 1992 Houlihan

induced"

individuals and

to

used

1958.

form

were

to

take place

and

intended the murder of

that he

acted

upon that

intent.

1079

See,
___

e.g., United States v. Santiago,

____ ______________
________

(1st Cir.) (explaining

requires, inter alia,

_____ ____

offense),

cert.
_____

that proof of

proof of intent to

denied, 492
______

U.S. 910

872 F.2d

1073,

a charged conspiracy

commit the substantive

&

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[]

criminal

intent

(specifically

"intent

Young

of

requiring

the

principals");

proof

that the

that a murder be committed").

instructed

the

Houlihan "intentionally

jury, the

18

U.S.C.

defendant

acted

1958

with

In other words, as Judge

government

had

arranged for the murder

48

the specific

to show

that

of James Boyden

III

by Joseph Nardone," or

"aided and abetted

that crime," and

that he had the "specific intent" of causing the murder.

We

have combed

specific subset

satisfied

of charges

its burden of

Houlihan perpetrated

come

up empty.

the

In

record in

light

to determine whether

proving beyond a

these three

of this

the government

reasonable doubt that

interrelated crimes.

our judgment there

highly

We have

is insufficient evidence

that Houlihan,

whatever other atrocities he

intended to bring

about the

that he participated

in any

may have committed,

execution of James

culpable way in

Boyden III,

or

the commission

of

that crime.

The evidence

organization

and

depicts Fitzgerald

Houlihan

as

government's star

of the

second-in-command.

The

killed Boyden III, and

that

his

government's theory is that Nardone

Fitzgerald and Houlihan jointly

as the leader

directed him to do so.

witness, Nelson, testified that,

But the

according to

Nardone, Fitzgerald alone ordered the murder.23

This

murder grew out

victim's

son

seems reasonable

in view

of events surrounding

(Boyden

Fitzgerald's explicit

IV).

The

of the

fact that

the

the assassination of

the

younger

warning, had continued to

Boyden,

against

sell cocaine in

the "sales territory" assigned

paramour).

to Jennierose Lynch (Fitzgerald's

After several violent encounters, Boyden IV turned up

____________________

had

23Indeed,

when it was pointed out that a grand jury witness

testified

otherwise,

witness had made a

mistake.

the

government

protested

See supra note 19.

___ _____

testimony was not admitted at the trial.

49

that

the

The grand jury

dead.

The government

not Houlihan

charged Fitzgerald, Lynch, and Herd

with that murder.

As recounted earlier, the judge

granted Fitzgerald's motion for a mistrial on those

he presumably remains

but

charges (and

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

the stage for

related.

the father's

that the son's murder set

murder, and that

the killings

were

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

played

only intimation that

a role in the killing of

tape-recorded

statement

during

Houlihan may

have

Boyden III comes from Sargent's

which

the

following

colloquy

transpired (references

in the colloquy to "Boyden, Sr." refer to

James Boyden III):

SARGENT:
SARGENT:

I was

and [Houlihan]

having a couple
mentioned .

of drinks,

. . 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:
DET. HARRIS:

There was the homicide of James

Boyden, Sr.

SARGENT:
SARGENT:

Right.

DET. HARRIS:
DET. HARRIS:

Would

you tell us

about that

homicide?

SARGENT:
SARGENT:

All I know is when I had talked to

50

John in

the bar, he had

going to be two
night

mentioned there was

. . . people dead,

and that

that same night that I talked to him,

that's when Boyden Sr. got killed . . .

DET. HARRIS:
DET. HARRIS:
Sr.

was

How

many hours before

killed did

that

conversation with

[Houlihan] take place?

SARGENT:
SARGENT:

Boyden

I'd say about three hours.

Passing

obvious

questions

about

the

reliability

of

this

uncorroborated hearsay statement, see supra note 7 & accompanying

___ _____

text,

this

seems

too porous

foundation

on

which to

rest

homicide charges.

Laying

out

government's theory

the

inferential

chain

on

depends illustrates its weakness.

which

the

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 .

comment; and that, from this

infer

that Houlihan

participated in it in

great a stretch.

intended

. . that's going to go"

inference, the jury could plausibly

to bring

about

some meaningful way.

Houlihan did not mention

that murder

and

This is simply

too

James Boyden III

in

his

conversation with

Sargent

understood Houlihan

individuals.

to be

it is

not even

referring to

clear that

any particular

Rather, the import of Sargent's comment seems to be

that succeeding

accept

Sargent, and

events filled in

the first

suggested

the blanks.

inference, the

And

even if

record hardly

we

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

51

an awareness

of

a planned

slaying, not necessarily participation in it.

The

government

inferences

by

statement

that

pointing

he

tries

to

of

and

have

that, on

somebody

any murder.
___

The

the day after the murder,

the

that Houlihan

murdered

payment

Houlihan's

and

Sargent, see supra note

___ _____

proves too much.

have been charged

points out

Nardone collected his fee at

Because this

of

strained

anybody"

government also

Kerrigan's Flower Shop.

method

of

kill

But that argument

government's reasoning, Houlihan could

convicted of

these

that Houlihan directed the commission

this particular murder.

On the

buttress

Sargent's parroting

"could

labelling this as evidence

to

bore some resemblance

employed

after

22, the government

to

Nardone

asks us to

infer that Houlihan

think

for two reasons

First, the

the

also must

that the suggested

payment.

(Sargent's murder),

that Houlihan personally paid

the government

the fee to Nardone; on

(Boyden the elder's murder),

We

inference is dubious.

difference in payment methodology is significant:

latter occasion

occasion

have arranged this

it did not.

on

proved

the former

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

Houlihan

so,

given

the

working

relationship

between

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

the requirement

be able

beyond

the evidence measures up

which we apply de novo

to find each

not think that

reasonable

element of the

doubt.

testimony that only one individual

that a reasonable jury

crime to have

Given

to

Nelson's

Fitzgerald

been proven

uncontradicted

sanctioned the

execution of James Boyden

the Boydens' murders,

III, and also given the

we believe

that the

nexus between

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.
C.

The

reader will

Severance.
Severance.
_________

recall

Herd, Lynch, and Fitzgerald

that the

indictment

but not Houlihan and Nardone

offenses related to the murder of James Boyden

Nardone contend that the

trials from

murder.24

the trial of

charged

IV.

Houlihan and

court had an obligation to

the counts

with

sever their

relating to the

Boyden IV

We disagree.

When

several

defendants

are

named

in

unified

indictment,

there is

tried together.

a strong presumption

that they

should be

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

must

circumstances,

defendant

demonstrate

prejudice, such as by showing a "serious risk that a joint

extreme

trial

____________________

24Ironically, none of the counts related to this murder bore

fruit:
of

the jury found Herd not guilty; the court

responsibility when she

pleaded guilty to

the court granted Fitzgerald a mistrial.

53

relieved Lynch

other counts; and

would compromise

a specific trial right," or

jury from making

a reliable judgment about

would "prevent the

guilt or innocence."

Zafiro, 506 U.S. at 539.

______

Houlihan and Nardone cannot scale these heights.

central thesis

is that the government's

Boyden IV murder tended

in an

evidence concerning the

to show that the victim

was slaughtered

organization-related turf battle, and therefore threatened

to infect the

dress this

surmise.

any

Their

trial

jury's consideration

thesis in the

gossamer vestments of

That is not enough.

where more

of other counts.

But

they

speculation and

"There is always some prejudice in

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

people

be sure, there is

a gray area

in which reasonable

might disagree about the advisability of a severance.

the vast majority

of those cases, however, the

severance battle

is conclusively won or lost in the district court.

998 F.2d at 25

(explaining that the court of

should defer to the district

In

See O'Bryant,
___ ________

appeals ordinarily

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

generality, not within the

is the inference of

case falls

within the

sweep

long-odds exception to it.

of that

Not only

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

jurors,

instructions

to

the

forbidding

them

from

considering

the evidence anent the

murder of Boyden the younger

in deciding the charges against either Houlihan or Nardone.25

this record, we are confident that the trial court

its considerable discretion in

See,
___

On

did not abuse

denying the requested

severance.

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.
D.

At trial

The Ford/McDonald Conundrum.

The Ford/McDonald Conundrum.
___________________________

the government

McDonald as witnesses

Houlihan

and

instructions.

admonished

the

regarding the murder

Nardone

Prior

jury

called Steven Ford

to

that

successfully

each witness's

the testimony

and Edwin

of James Boyden

solicited

limiting

testimony Judge

was

IV.

admissible

Young

only

against

Fitzgerald, Herd, and Lynch, and not against Houlihan or

Nardone.

and

Notwithstanding these limiting

Nardone asked to cross-examine Ford and McDonald.

blocked that maneuver.

this

instructions, Houlihan

venue,

Houlihan and Nardone press the

alleging that

confrontation

rights

and

the

court's

otherwise

The court

point in

ruling violated

constituted

their

an

improper

the

limiting

government's

evidence

exercise of discretion.
____________________

25The

court

instructions by
relating
in

enhanced

insisting

the

efficacy

that all

the

of

to this murder be presented compactly at the same point

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,

defendant must show that

otherwise

appropriate

prototypical form

cross-examination

of bias

Arsdall, 475
_______

U.S. at 680.

defendants'

constitutional

demands that a

cross-examine

he was "prohibited

on the

part

from engaging in

designed

of the

to

show

witness."

Van
___

Here, there was no abridgement of the

rights.

defendant have

The

Confrontation

the opportunity

Clause

to confront

and

the witnesses against him; at least in the absence

___________

of special circumstances

not

create

a right

and none appear here

to

confront or

witnesses exclusively

cross-examine

appear

as

others

are codefendants in a joint trial).

nor McDonald was

the Clause does

against

others

persons who

(even if

the

Because neither Ford

a witness "against" either Houlihan or Nardone,

the constitutional claim is stillborn.

Absent

will grant

for manifest

constitutional violation,

relief from

the shackling of

abuse of discretion."

discern no trace of abuse in

cross-examination,26

Houlihan's

and

allowing counsel

and

the

Nardone's

"appellate courts

cross-examination only

Boylan, 898 F.2d at 254.

______

this instance.

Despite the lack of

limiting instructions

legitimate

interests.

for Houlihan and Nardone

We

fully protected

Furthermore,

to cross-examine Ford

McDonald could well have had a boomerang effect, leading the

jury to believe that, contrary

testimony

had

some

relevance

to the judge's instructions,

to

the

charges

against

the

their

____________________

26Of course, these witnesses did not emerge unscathed.

and McDonald

were vigorously

cross-examined by counsel

Ford

for the

implicated defendants, Fitzgerald included.

56

clients.

Hence, the restriction on

cross-examination was well-

tailored to the occasion.

E.
E.

Rulings Related to the Partial Mistrial.

Rulings Related to the Partial Mistrial.
_______________________________________

After granting

counts

court

Fitzgerald

a partial

mistrial on

the

pertaining to the murder of James Boyden IV, the district

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,

remaining counts against him.

the

testimony

had no

included details

mistrial on

the

Before us, Fitzgerald claims that

relevance

about the

to declare a

to the

slaying of

surviving

counts, and

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,
_________

denied, 115
______

36 F.3d

154, 163

S. Ct. 1797 (1995).

(1st Cir.

The same

standard pertains to

motions to

strike evidence previously admitted.

15 F.3d at

1184.

Here,

1994), cert.
_____

See Sepulveda,
___ _________

the district court styled

the disputed

testimony as being "probative . . . of other counts in the case,"

and

denied

scrutinized

against

the

the

motion

to

strike

on

that

light

of

the surviving

testimony in

Fitzgerald,

we

are

persuaded

basis.

that,

as

Having

charges

Fitzgerald

____________________

27The witnesses in question

of

James

Boyden IV),

Marie

are Veronica Boyden (the mother

Boyden-Connors

(his sister),

Frances Hannigan (a former owner of Kerrigan's Flower Shop).

and

57

maintains, it was prejudicial

the end of the road.

it

is

only unfair
______

But that is

not

"[A]ll evidence is meant to be prejudicial;

prejudice which

States v. Rodriguez-Estrada,
______
_________________

(emphasis in original).

Fitzgerald

to some degree.

must

877 F.2d 153,

be avoided."

United
______

156 (1st Cir.

1989)

Thus, our inquiry must proceed.

cast

the

motion

to

strike

in

"all

or

nothing"

compose

terms.

In ruling

on it,

the

district court

a balance between the probative value of the evidence as

a whole and the risk of unfair prejudice attendant to

before the jury.

was

had to

See Fed. R. Evid. 403.

___

prejudicial in

Fitzgerald's role

a sense,

it was

as the kingpin

And though the evidence

also plainly

in the

keeping it

probative of

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

in extraordinarily

will

vista

compelling circumstances

and

we, from the

of a cold appellate record, reverse a district court's on-

the-spot judgment concerning the relative weighting of

probative

____________________

28A

few

conclusion.

examples

in

giving

Veronica Boyden testified that

indicted coconspirator,
Boyden

may assist

threaten

to call

texture to

she heard Lynch, an

Fitzgerald

IV continued to poach on her sales territory.

Boyden-Connors testified

that Fitzgerald himself

keep

from

her

brother

away

testimony, overall,

Lynch's

if

James

Similarly,

warned her

territory.

related more to the

this

to

Hannigan's

structure and operating

practices of the Fitzgerald-Houlihan organization and less to the

slaying of James
testified at
Flower

Boyden IV.

length

Shop,

conspiracy, and

his

By way

of illustration,

about Fitzgerald's
meetings

his daily

there

with

presence at
other

telephone calls to

prison cell during the period of his immurement.

58

Hannigan

Kerrigan's

members of

the

Doherty from

his

value and unfair effect."

1331,

Freeman v. Package Mach. Co., 865 F.2d

_______
_________________

1340 (1st Cir. 1988).

follows that the

denying both

lower court

This is not such

did not misuse

Fitzgerald's motion

an occasion.

It

its discretion

in

to strike and

his alternative

motion to declare an across-the-board mistrial.

F.
F.

The Armed Robbery Reference.

The Armed Robbery Reference.
___________________________

Nardone had also been

armed

counts

robberies.

The

before trial.

charged with committing

district court severed

When Nelson

(one

several

the armed robbery

of Nardone's

alleged

coconspirators) testified, Houlihan's counsel cross-examined him.

In the

copy

course of the

cross-examination, the lawyer

of Nelson's cooperation agreement with

proffered a

the government.

No

objection

appearing,

the

evidence.

Appended

exhibit)

was a copy of

to the

references to

There

(1st

See, e.g.,
___ ____

(now a

full

in

count that

armed robbery).

delay,

and

Cir. 1995); United States

_____________

the jury.

We uphold the ruling.

the

contemporaneous

the most part, strictly enforced

United States v.
_____________

Four days

to delete all

before it went to

Nardone assigns error.

objection rule is, for

into

the government had

asked the district court

is danger

document

contained, inter alia, a

_____ ____

him from the exhibit

The court refused.

the

cooperation agreement

alleged Nelson/Nardone

later, Nardone's counsel

circuit.

admitted

the information that

filed against Nelson (which

described an

court

in this

Taylor, 54 F.3d 967,

______

v. Griffin, 818
_______

972

F.2d 97, 99-100

(1st Cir.), cert. denied, 484 U.S. 844 (1987).

_____ ______

in

this

case that

Nardone's

attorney

While

it is true

ultimately objected,

59

belated objection does not cure the original default.

To be sure,

thought that,

we might

despite the

the district court

be impelled to

lack of a

intervene if

we

contemporaneous objection,

committed plain error

by refusing to

redact

the references to Nardone which appeared in the information.

Olano, 507 U.S. at

_____

732-37 (discussing dimensions of plain

review); see also

___ ____

error looms.

Houlihan's

Fed. R. Crim.

But here, no

During cross-examination of Nelson

counsel

introduced

evidence without objection and

broached the

P. 52(b).

idea of

the cooperation

See
___

error

plain

two days after

_____

agreement

into

two days before Nardone's counsel

______

redaction

the latter

questioned Nelson

extensively about the armed robbery and drug conspiracy described

in

the

phrased

information.

to

avoid

Although

any

explicit

participation in

those crimes, we

the

the information

contents of

these

questions were

reference

artfully

to

Nardone's

believe that this

harping on

bolsters the

district court's

decision not to

We

conclude,

discretion

excuse the lack of a

therefore,

that

the

contemporaneous objection.

court

acted

within

its

in declining to relax the usual rule and in rejecting

Nardone's tardy request for redaction.29

G.
G.

Jury Instructions.
Jury Instructions.
_________________

we

note that

____________________

29As

an aside,

prejudice stemming from

there is

this ruling.

no inkling

For one

thing, the

of any

jury

acquitted Nardone on several counts, so it is impossible to argue

convincingly

that

the

unredacted

poisoned

the jurors against him.

powerful

evidentiary strands

brutal
the

information
For another

that tied

murders and several other murder

references about

which he

60

thing, given the

Nardone tightly

to two

attempts, we doubt that

now complains

have altered the jury's verdicts.

irretrievably

could conceivably

The appellants

did

posit that the district

court's charge

not impart the degree of participation required to convict a

defendant of conspiracy

charges under

and

Corrupt Organizations

The

RICO statute criminalizes

directly

or

Act (RICO),

indirectly, in

the Racketeer

18 U.S.C.

1961-1969.

"conduct[ing] or participat[ing],

the

conduct

of [an]

affairs" through a pattern of racketeering activity.

1962(c).

To

convey this

element of

Young instructed the jury that

Influenced

the RICO

enterprise's

18 U.S.C.

offenses, Judge

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
and

enterprise's affairs.
participate

in

The term conduct

the

conduct

enterprise includes the performance

functions or

an

of acts,

duties which are related to the

operation of the enterprise.

found to

of

participate in

A person may be

the conduct

enterprise even though he

of the

has no part in the

management or control of the enterprise.

The appellants fault

the jury

this instruction because it

that a defendant could

be found guilty even

told

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.

misconstrues

Reves.
_____

There,

the

Court

But this asseveration

interpreted the

words

"conduct or participate" as they

determined that those

appear in section 1962(c),

words require a defendant's

and

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,

participated

in

but neither

either

its

liability did not attach.

The

stripe.

Unlike

"outsiders,"

that is,

case

at

to

hand

is of

the

in

Reves,
_____

management

RICO

carrying

out

and the appellants

come

the definitional

the

who were

in the

classic

sweep

enterprise's

of section

1, 9

maw of

the

that insiders who

clearly fit that

63 F.3d

different

are quintessential "insiders,"

We have previously held

United States v. Hurley,

______________
______

enterprise nor

distinctively

evidence places

activities

within

or

the

See id. at 186.

___ ___

the appellants here

persons whom

integral

operation

the accountants

criminal activity.30

are

controlled

(1st Cir.

racketeering

description

1962(c).

See
___

1995), cert.
_____

denied, 116 S. Ct.

______

739,

750-51 (1st

(1995).

1322 (1996); United States v.

_____________

Cir.

1994), cert.
_____

denied,
______

Oreto, 37 F.3d
_____

115 S.

The instructions given in this case are

Ct.

1161

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
imaginative
that

that he was an

but unconvincing.

Nardone was an insider.

Fitzgerald

and

Houlihan

The

independent contractor is
evidence supports

He maintained regular contact with

throughout

the

conspiracy; he obtained his armaments directly

took orders from them.
as the

duration

man" and "headache

of

the

from them; and he

Indeed, Nardone's description

organization's "hit

the view

of himself

man" belies

more recently manufactured "independent contractor" label.

his

62

elaboration.31

H.
H.

Forfeiture.
Forfeiture.
__________

Houlihan contends that the government failed to produce

sufficient evidence to

at 80

support the forfeiture of a house located

Ferncroft Road, Tewksbury, Massachusetts.

lodged the forfeiture count

under 18 U.S.C.

The government

1963(a)32

and the

jury

found in

third-party

its favor.

seller to

Houlihan's contention

The

property had

Francis Jackson

by a

(Houlihan's uncle),

is that, because title

name, the property could

been deeded

and

stood in Jackson's

not be forfeited in consequence

of his

(Houlihan's) peccadilloes.

"[C]riminal forfeiture is a punishment, not a

criminal

offense."

Saccoccia, 58
_________

F.3d

at

783.

separate

In

such a

____________________

31The appellants also claim that the district court erred by

refusing

to repeat

constitutes a

its

concededly correct

racketeering "enterprise"

definition of

in its

what

instructions to

the jury on those counts that charged murder and attempted murder
in aid of racketeering.
by

Judge Young chose instead to incorporate

reference his correct definition

to the

jury earlier in

specifically
related

the charge); and,

informed the

counts, they

of a RICO enterprise (given

jury

that, as

must find the

in the same

vein, he

to all

racketeering-

existence of

an enterprise

meeting the statutory criteria as an element of each offense.

In

light

of the perfectly sensible

appellants'

claim

is

course taken by

unfounded.

trial

the judge, the

court

has

broad

discretion to formulate jury instructions as it sees fit, as long

as it

touches all the bases.

F.3d

1,

4 (1st

Cir.

1995).

integrated whole, see,

___

See United States v. DeStefano, 59

___ _____________
_________
Here,

taking the

e.g., United States v.

____ _____________

charge

as an

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

statute provides in substance that a

to

the

acquired
U.S.C.

government
with the

any

property

proceeds of

Houlihan's situation,

RICO offender shall forfeit

interest

racketeering

1963(a).

63

the

or

thing of

activity.

value

See 18
___

proceeding,

the government

can satisfy its

either direct or circumstantial

this

instance

we

conclude

rational factfinder could

Houlihan

been

was the de

purchased

evidence.

without

burden of

See id.
___ ___

serious

as this jury

facto owner of

the house, and

with

proceeds

derived

at 782.

question

determine

proof by

did

In

that

that

that it had

from

racketeering

that they

took Houlihan

activity.33

Real estate

and

his wife,

several

along

agents testified

with Jackson,

times during 1993; that

"interested" in

inspection

buying it;

on

tours of

Houlihan told them

that Houlihan attended

the

dwelling

that he was

the pre-sale

and the two closings that proved to be necessary; and

that the property was

$195,000).

And,

purchased entirely for cash (approximately

moreover, both

residence at the premises

Houlihan and his

wife were

in

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

reasonable doubt.
standard.

proving entitlement
The

to

forfeiture beyond

proof here is capable of

We note, however

satisfying that

although we leave the question open

that the government may have conceded too much.

States v. Tanner, 61 F.3d 231,
______
______
criminal

forfeiture

preponderance

of the

under

Compare United
_______ ______

234 (4th Cir. 1995) (holding that

21

evidence,

U.S.C.

853

requires

not proof

beyond a

695 (11th Cir. 1992) (en

reasonable

doubt), cert. denied, 116 S. Ct. 925 (1996) and United States
_____ ______
_____________
Elgersma, 971 F.2d 690,
________

v.

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

with Jackson serving merely

as a straw.

is

absence of any

reinforced by the utter

home in Tewksbury,

Then, too, the evidence

proof indicating how

Jackson

the

that

might have acquired so

large an amount

of cash.

Given

totality of the circumstances, the jury was entitled to find

the

house

racketeering.

was

See id.
___ ___

resist common-sense

forfeitable

as

fruit

of

("Jurors, after all, are not

inferences based

Houlihan's

expected to

on the realities

of human

experience.").

I.
I.

The

sentences

unremarkable in

count

20.

others,

imposed

most respects.

That count

with

Sentencing.
Sentencing.
__________

conspiracy

by

Judge

Young

district

The sole

to distribute

imposed

court

exception relates

charged Fitzgerald

(cocaine) in violation of 21 U.S.C.

Houlihan,

the

and

are

to

Houlihan, among

controlled substance

846.

As to Fitzgerald and

contingent

sentences

of

life

imprisonment,

to take effect "only

[which charged

18

U.S.C.

we

affirm

if the sentence

a continuing criminal enterprise

on count 19

in violation of

848] is reversed [or] otherwise dismissed."

the

contingency

conviction

that Judge

Hence, we now vacate

sentences on count 20.

and

sentence

Young envisioned

on

has

count

Because

19,

the

not materialized.

Fitzgerald's and Houlihan's convictions and

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

the CCE charge, and

for

both crimes.

the defendant may not lawfully

(1st

Stratton v.
________

United States, 862

_____________

To do

Cir.),

cert. denied,
_____ ______

502

F.2d 7,

U.S.

862

(1991);

9 (1st Cir.

1988) (per

otherwise would result in cumulative

punishment

violative of the Double

Jeopardy Clause.

States,
______

154-58 (1977)

432 U.S.

be sentenced

See United States v. Rivera-Martinez, 931 F.2d

___ _____________
_______________

148, 152-53

curiam).

of

137,

See Jeffers
___ _______

(plurality op.);

v. United
______

Rivera_______

Martinez, 931 F.2d at 152-53.

________

We need

its

credit,

not wax

concedes

longiloquent, for the

the

point.

Thus,

our

government, to

affirmance

of

Fitzgerald's and Houlihan's convictions and sentences on count 19

necessitates the

count 20.

Double

vacation of their convictions

and sentences on

See Rivera-Martinez, 931 F.2d at 153 (holding that the

___ _______________

Jeopardy

Clause

sentence on conspiracy

requires

vacation

count when a

of

conviction

and

defendant is convicted

and

sentenced on both conspiracy and CCE counts).

VI.
VI.

CONCLUSION
CONCLUSION

We

discussed at

convictions

need

go

length

and

no further.

For

the

perhaps at too much length

sentences

of

all

three

reasons we

have

we affirm the

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