U.S. v. Boylan

Decision Date06 December 1989
Docket NumberNos. 88-2214,s. 88-2214
Citation898 F.2d 230
Parties29 Fed. R. Evid. Serv. 1223 UNITED STATES of America, Appellee, v. Peter BOYLAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. John E. CAREY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Thomas J. CONNOLLY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Matthew A. KILROE, Defendant, Appellant. UNITED STATES of America, Appellee, v. John F. McCORMICK, Defendant, Appellant. UNITED STATES of America, Appellee, v. Kenneth J. NAVE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Francis X. SHEEHAN, Defendant, Appellant. to 88-2220. . Heard
CourtU.S. Court of Appeals — First Circuit

Thomas R. Dyson, Washington, D.C., with whom Albert Cullen, Jr., Boston, Mass., Robert D. Luskin, Jonathan A. Knee, Powell, Goldstein, Frazer & Murphy, Clifford M. Sloan, and Onek, Klein & Farr, Washington, D.C., were on brief, for appellant Thomas J. Connolly.

Robert D. Luskin, with whom Jonathan A. Knee, Powell, Goldstein, Frazer & Murphy, Clifford M. Sloan, and Onek, Klein & Farr, Washington, D.C., were on brief, for remaining appellants.

Paul Buckley, Milton, Mass., on brief, for appellant Peter Boylan.

Regina Quinlan, Boston, Mass., on brief, for appellant John E. Carey.

Anthony Traini and Leppo & Traini, Randolph, Mass., on brief, for appellant Matthew A. Kilroe.

Anthony M. Cardinale, Boston, Mass., on brief, for appellant John F. McCormick.

Paul F. Markham, Boston, Mass., on brief, for appellant Kenneth J. Nave.

Robert Muse, Washington, D.C., on brief, for appellant Francis X. Sheehan.

Diane M. Kottmyer and James B. Farmer, Sp. Attys., U.S. Dept. of Justice, with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for U.S.

Before TORRUELLA and SELYA, Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

Oliver Wendell Holmes is generally credited with pointing out that "we live by symbols"--and few symbols are better recognized than the lawman's badge. Yet the badge, like other emblemata of power, can be tarnished. These appeals present what the government believes--and defendants steadfastly deny--is a classic example of the genre.

I. TRAVEL OF THE CASE

A federal grand jury returned a 58-count indictment against appellants, former members of the Boston Police Department (BPD). During the relevant period, defendant Carey was a detective sergeant. Defendants Boylan, Kilroe, McCormick, Nave, and Sheehan were under Carey's supervision. Defendant Connolly was Sheehan's partner for a time. The indictment charged the defendants with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), by participating in the affairs of an enterprise, the BPD, through a pattern of racketeering activity, 18 U.S.C. Sec. 1962(c) (1982), and with racketeering conspiracy, 18 U.S.C. Sec. 1962(d) (1982). The remainder of the indictment was checkerboarded, charging various defendants with various violations, and combinations of violations, of the Hobbs Act, 18 U.S.C. Secs. 1951, 1952 (1982), certain mail fraud statutes, 18 U.S.C. Secs. 1341, 1342 (1982), and the like. The specific offenses did double duty, serving (with some supplementation) as predicate acts undergirding the RICO charges.

Count 33 was dropped before trial. The defendants were tried together on the remaining charges. With minor exceptions--the jury acquitted Nave and Sheehan on one Hobbs Act count and acquitted Nave on a mail fraud charge--all defendants were convicted on all counts. Following the denial of sundry posttrial motions and the imposition of sentence, appeals were taken across the board.

Initially, we set forth the case's background. We then turn to the meat of defendants' menu of assigned errors, discussing the more colorable contentions and rejecting the remainder without comment. In the interests of clarity and for ease in reference, we have prepared an appendix summarizing the indictment and will henceforth assume the reader's familiarity with it.

II. BACKGROUND

In Boston, a Licensing Board (Board) regulates the dispensation and service of liquor, licensing vendors and enforcing state and municipal laws and regulations governing, inter alia, sales of alcoholic beverages, occupancy limits, conduct of licensed premises, and hours of operation. If rules are broken, the Board may impose penalties ranging from a warning, to probation, to suspension or revocation of an establishment's license. All Boston police detectives are considered agents of the Board responsible for inspecting licensed premises and reporting infractions; they are empowered to apply for criminal complaints and file charges with the Board as may be necessary.

Detectives are also eligible for private duty on their own time--duty which can be quite lucrative. The BPD's rules prohibit policemen from providing such private services except through official channels, i.e., in accordance with the police unions' collective bargaining agreements and BPD regulations, and for set fees. These rules safeguard the equal distribution of income-supplementing opportunities, ensure that matters remain aboveboard, and deter potential abuses. Officers are flatly prohibited from accepting more generous remuneration or performing details not posted and assigned through the proper departmental offices.

Between 1975 and 1986 each defendant was assigned for some period of time to work nights in District 4, encompassing Back Bay, the Fenway section, and certain other Boston neighborhoods. District 4 is a hotbed of nightclubs, saloons, and other establishments, including some so-called "gay bars," where appetites can be satisfied and thirsts slaked. According to the indictment, many of the alleged offenses occurred when defendants accepted cash payments outside the rules from proprietors of licensed establishments. Typically, the payments--anywhere from $100 to $600 per officer per occasion--were made during holiday season and at "vacation time." The defendants were said to have reciprocated by rendering favors ranging from the relatively innocuous (e.g., the provision of escort services when bank deposits were made; preferentially quick responses to disturbances) to the downright sinister (e.g., behind-the-scenes "help" in handling "problems" with the police; quashing of charges; influencing the Board's regulatory and enforcement actions). In the indictment, these events were clustered into several series of racketeering acts. Each series bore a letter designation corresponding to a separate person with some interest in a particular locus.

III. RACKETEERING

We begin with the contention that the evidence failed to show either a linked pattern of racketeering activity or a RICO conspiracy.

A. Evidentiary Sufficiency.

Defendants claim that the aggregate proof indicated only dubious free-lancing by some officers or, at worst, a cluster of small, disconnected, nickel-beer conspiracies. 1 We summarize the alphabetized series of racketeering acts which the indictment alleged and the proof depicted, basing our narrative upon "the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, in an effort to ascertain whether a rational trier of the facts could have found the appellant[s] guilty beyond any reasonable doubt." United States v. Tierney, 760 F.2d 382, 384 (1st Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985).

1. Series A. Norman Chaletzky owned interests in three nightclubs: 88 Queensbury; the 1270; and the Kentucky Tavern. From 1979 to 1986, Chaletzky paid Sheehan and Connolly semi-annually, in $500 increments, so that they would remain his "friends" rather than become his "enemies." In return, Connolly gave Chaletzky his home telephone number and the telephone number for the detectives' room at the precinct house. He promised that he and Sheehan would hold themselves available to "help" with license violations and would deal with the authorities on Chaletzky's behalf.

2. Series B. Five defendants (Boylan, Carey, Kilroe, McCormick, and Nave) received money from Joseph McGowan, a co-owner of the 1270, during the period 1983-85. The amounts ranged from $200 to $600 per payment. In return, the detectives forewarned McGowan of inspections, assisted him by "fixing" citations, and interceded with Board personnel to sidetrack adversary proceedings. The interventions appear to have been effective: during the relevant period, there were no disciplinary hearings involving the 1270 despite numerous reports of serious violations occurring there.

3. Series C and D. These counts involved Thomas Moloney, owner of Frank 'N Steins S and Play It Again Sam's (PIAS), and co-owner, with Warren Frank, of Patrick Brady's Grand Back Bay Pub and Grill (Brady's). From 1980 to 1986, Moloney made periodic payments of $200 to $300 to Kilroe and the defendant who happened to be Kilroe's partner at the time. In December 1984, Frank also paid Kilroe $200. Kilroe gave Moloney the telephone number to the detectives' room, offered escort services, tried to exert influence when a citation for overcrowding was issued to PIAS, and prompted an unusually celeritous police response when an untoward incident occurred at FNS. Kilroe volunteered escort services to Frank and gave him a business card on which McCormick's name was written.

4. Series F. The Blacke brothers, George and Lawrence, operated Nine Lansdowne. They made frequent payments to Nave and Sheehan in the 1984-86 time frame. The detectives gave the brothers their home telephone numbers and assisted them in divers ways: for example, the officers "straightened out" a patron who had frightened the Blackes; on another occasion, they resolved a dispute which arose out of a fight in the club. Nave and Sheehan would pick up George Blacke in their police cruiser, ask if he "needed anything" and if "everything...

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