U.S. v. Houlihan

Decision Date05 June 1996
Docket Number95-1615 and 95-1675,Nos. 95-1614,s. 95-1614
Citation92 F.3d 1271
Parties44 Fed. R. Evid. Serv. 1189 UNITED STATES of America, Appellee, v. John HOULIHAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph A. NARDONE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Michael D. FITZGERALD, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Charles W. Rankin, Boston, MA, with whom Rankin & Sultan was on brief, for appellant Houlihan.

Jonathan Shapiro, Boston, MA, with whom Angela Lehman and Stern, Shapiro, Weissberg & Garin were on brief, for appellant Nardone.

Kevin S. Nixon, Medford, MA, with whom Robert Y. Murray and Ramsey & Murray, Boston, MA, were on brief, for appellant Fitzgerald.

Nina Goodman, Attorney, Dept. of Justice, Washington, DC, with whom Donald K. Stern, Unites States Attorney, Boston, MA, Paul V. Kelly and Frank A. Libby, Jr., Assistant United States Attorneys, Boston, MA, and Daniel S. Goodman, Los Angeles, CA, and David S. Kris, Attorneys, Dept. of Justice, Washington, DC, were on brief, for the United States.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, 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. Two of those issues--one implicating the Confrontation Clause and the other involving Fed.R.Crim.P. 24(c)--raise important questions of first impression in this circuit. In the pages that follow, we offer a skeletal outline of the case and then put flesh on the bones by addressing, first, the appellants' two flagship claims. We next consider a series of discovery disputes and conclude by discussing, albeit in a more abbreviated fashion, a laundry list of other asseverations. In the end, after careful consideration of the parties' arguments and close perscrutation of the compendious record, we affirm the judgments below in large part, but reverse one defendant's conviction on three related counts and bring a contingent sentencing determination to closure.


Overcoming the temptation to engage in Homeric recitation of the riveting facts that emerged during a seventy-day trial, we opt instead to sketch the evidence at this juncture and reserve greater detail until the need arises to place specific issues into workable context. We draw our sketch in colors that coordinate with the jury's verdicts, consistent with record support. See, e.g., United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, 506 U.S. 1063, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993).

For nearly four years Michael Fitzgerald and John Houlihan ran a ruthlessly efficient drug ring from an unlikely command post: Kerrigan's Flower Shop, Charlestown, Massachusetts. The organization commanded the allegiance of numerous distributors, stationary and mobile, including Jennierose Lynch, William "Bud" Sweeney, George Sargent, and Alan Skinner. These minions, and others like them, helped the organization supply cocaine to hordes of buyers through an elaborate street-level distribution network that arranged most of its sales with the aid of electronic pagers, assigned customer codes, and preset rendezvous points.

Fitzgerald and Houlihan imposed a strict code of silence on all who came into contact with them, including their own troops. They dealt severely with persons who seemed inclined to talk too freely. Joseph Nardone, a professional assassin who bragged that he was the "headache man"--when the organization's chieftains had a headache, Nardone got rid of it--acted as the principal enforcer. Over time, the gang's targets included Sargent, Sweeney (who survived multiple attempts on his life, but was left paralyzed from the chest down), a rival drug dealer, James Boyden III, and the latter's son and helpmeet, James Boyden IV.

The Fitzgerald-Houlihan axis dominated the Charlestown scene through 1993. Ultimately, the authorities broke the code of silence and a federal grand jury indicted twelve individuals (including Fitzgerald, Houlihan, and Nardone) on a myriad of charges. 1 After trial, the two ringleaders and their enforcer were found guilty of engaging in a racketeering enterprise (count 1), racketeering conspiracy (count 2), conspiracy to commit murder in aid of racketeering (counts 5, 7 & 9), and conspiracy to distribute cocaine (count 20). See 18 U.S.C. §§ 1962(c) & (d), 1959(a); 21 U.S.C. § 846. The jury also convicted Fitzgerald and Houlihan of aiding and abetting murder and attempted murder in aid of racketeering (counts 6, 8, 11 & 12), instigating murder for hire (counts 15, 16 & 17), engaging in a continuing criminal enterprise (count 19), and distributing cocaine (counts 21 through 29). See 18 U.S.C. §§ 1959(a), 1958; 21 U.S.C. §§ 848, 841(a)(1). The jury found Nardone guilty of murder and attempted murder in aid of racketeering (counts 6, 8, 11 & 12), see 18 U.S.C. § 1959(a), and using and carrying a firearm during and in relation to crimes of violence (counts 39, 40, 42 & 43), see 18 U.S.C. § 924(c). The jury also returned special forfeiture verdicts. See 18 U.S.C. § 1963; 21 U.S.C. § 853. The district court sentenced each defendant to multiple terms of life imprisonment. These appeals blossomed.


The district court admitted over objection portions of hearsay statements made by George Sargent on the theory that Sargent's murder constituted a waiver of the Confrontation Clause vis-a-vis the murderers. 2 Houlihan and Nardone assign error to this order and to a salmagundi of related rulings.

A. Setting the Stage.

Sargent served as a distributor for the Fitzgerald-Houlihan organization. The police arrested him twice during 1992 on drug-trafficking charges. Both times, Sargent made voluntary statements that inculpated Fitzgerald and Houlihan in a sprawling drug conspiracy and tended to link them with several murders. The statements also furnished evidence probative of the elements of the offenses with which Nardone had been charged, but Sargent did not mention him by name. On June 28, 1992--within a month after he gave the second statement--Sargent was ambushed outside his dwelling and was shot several times. He died as a result.

The government filed a pretrial motion for an order (1) authorizing a state trooper, Mark Lemieux, to testify about Sargent's statements following his March 1992 arrest, and (2) permitting the jury to hear a redacted version of the taped May 1992 interview conducted by Boston police detectives following Sargent's second arrest. The government argued that the appellants--who had been charged with Sargent's murder--waived their rights to object to the admission of his out-of-court statements on either Confrontation Clause or hearsay grounds when they successfully conspired to execute him for the express purpose of preventing his cooperation with the authorities. The district court took the motion under advisement and, near the end of the government's case in chief, admitted the challenged evidence against Houlihan and Nardone, but not Fitzgerald, see supra note 2, concluding that the government had shown by clear and convincing evidence that those defendants conspired to kill Sargent at least in part for the purpose of preventing him from cooperating with the police, and that such actions were tantamount to a knowing waiver of their confrontation rights. See United States v. Houlihan, 887 F.Supp. 352, 363-65 (D.Mass.1995). 3

B. Waiver by Homicide: The Confrontation Clause.

To resolve Houlihan's and Nardone's main objections, we must decide whether a defendant waives his rights under the Confrontation Clause by murdering a potential witness to prevent that witness from turning state's evidence and/or testifying against him at trial. We believe that he does.

It is apodictic that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. Amend. VI. This trial right is designed to assure defendants of a meaningful opportunity to cross-examine the witnesses who testify against them, see, e.g. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1434, 89 L.Ed.2d 674 (1986); United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir.1996), thereby enhancing the jury's ability to separate fact from fiction.

Though the Confrontation Clause is a cornerstone of our adversary system of justice, it is not an absolute; there are circumstances in which the prosecution may introduce an unsworn out-of-court statement without procuring the declarant's presence at trial. See, e.g., Puleio v. Vose, 830 F.2d 1197, 1205-07 (1st Cir.1987) (discussing exception for spontaneous exclamations), cert. denied, 485 U.S. 990, 108 S.Ct. 1297, 99 L.Ed.2d 506 (1988). Moreover, a defendant may waive his right to confrontation by knowing and intentional relinquishment. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) (holding that a guilty plea is an express waiver of the constitutional right to confrontation); see also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). While a waiver of the right to confront witnesses typically is express, the law is settled that a defendant also may waive it through his intentional misconduct. See, e.g., Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973) (finding such a waiver when a defendant boycotted his trial); Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (ruling that a defendant waives the right to confrontation by engaging in disruptive behavior requiring his removal from the courtroom during the trial).

By the same token, courts will not suffer a party to profit by his own wrongdoing. Thus, a defendant who wrongfully procures a witness's absence for the purpose of denying the government...

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