US v. Houlihan, Crim. No. 93-10291-WGY.

• Decision Date: 04 May 1995
• Docket Number: Crim. No. 93-10291-WGY.
• Citation: 887 F. Supp. 352
• Parties: UNITED STATES of America v. John HOULIHAN, Michael Fitzgerald, William Herd, and Joseph Nardone, Defendants.
• Court: U.S. District Court — District of Massachusetts

887 F. Supp. 352

UNITED STATES of America v. John HOULIHAN, Michael Fitzgerald, William Herd, and Joseph Nardone, Defendants.

Crim. No. 93-10291-WGY.

United States District Court, D. Massachusetts.

May 4, 1995.

COPYRIGHT MATERIAL OMITTED

John C. McBride, McBride, Wheeler & Widegren, Richard M. Egbert, Law Office of Richard Egbert, Boston, MA, for defendant John Houlihan.

Denis M. King, Goulston & Storrs, John F. Herlihy, Michael J. Liston, Glass, Seigle & Liston, Frank Mondano, Balliro & Mondano, Boston, MA, for defendant Alan Skinner.

Charles A. Clifford, Law Offices of Charles A. Clifford, Charlestown, MA, for defendants Joseph Houlihan, John Doherty.

Melvin Ravech, Ravech, Aronson, Shuman & Lewis, Boston, MA, for defendant Jennierose Lynch.

AnneMarie Hassett, Federal Defender Office, Boston, MA, for defendant Thomasina Brennan.

Robert Y. Murray, Ramsey, Murray & Jenkins, Boston, MA, for defendant Michael Fitzgerald.

Jonathan Shapiro, Stern, Shapiro, Weissberg & Garin, Boston, MA, for defendant Joseph Nardone.

Walter B. Prince, Peckham, Lobel, Casey, Prince & Tye, Leslie Feldman-Rumpler, Fitch, Wiley, Richlin & Tourse, P.C., Boston, MA, for defendant Robert Allen.

Michael C. Bourbeau, Boston, MA, for defendant Ellen Houlihan.

Charles W. Rankin, Rankin & Sultan, Boston, MA, for defendant William R. Hurd.

Kevin J. O'Dea, Boston, MA, for defendant Kevin Haugh.

James E. Costello, East Boston, MA, for defendant Brian Davis.

Keith S. Halpern, Boston, MA, for defendant John Houlihan, Jr.

George W. Vien, U.S. Attys. Office, OCDETF Div., Crim., Frank A. Libby, Jr., Richard L. Hoffman, Paul V. Kelly, Antoinette E.M. Leoney, U.S. Attys. Office, Boston, MA, for U.S.

MEMORANDUM

YOUNG, District Judge.

Once again,¹ this complex criminal case has presented an issue of first impression in the First Circuit, namely whether a defendant who causes the absence from trial of a potential witness against him has waived the right to object on Confrontation Clause and hearsay grounds to the admission of the witness' prior out-of-court statements. More specifically, this Court here explains what standard of proof it applied in resolving preliminary questions concerning the admissibility of such hearsay evidence under a waiver theory; what state of mind, if any, the government was required to prove as to each defendant to support such a waiver theory; and whether hearsay statements can be admitted not only for the purpose of proving the factual matters asserted, but also as circumstantial evidence — i.e., that the decedent was "ratting" to the police — in support of the charge of murdering the out-of-court declarant himself. Because this Court determined that the answers to these questions favored admissibility in this case, the Court here explains what evidence it admitted out of a melange of factual assertions, opinions, and street rumors. Finally — and perhaps most intriguing of all — having determined to admit redacted portions of these hearsay statements, the Court explains to what use it allowed the defendants to put the portions of the statements the Court ordered redacted.

I. BACKGROUND

This case involves the prosecution of twelve defendants alleged to be members of a ruthless cocaine trafficking enterprise. The defendants, or certain of them, were charged in a forty-eight count indictment with distribution of cocaine, conspiracy to distribute cocaine, engaging in a racketeering enterprise, racketeering conspiracy, three murders in furtherance of a racketeering enterprise, conspiracy to commit murder in furtherance of a racketeering enterprise, four attempted murders in furtherance of a racketeering enterprise, using firearms in relation to a federal crime of violence, engaging in a continuing criminal enterprise, and criminal forfeiture.² Three of the defendants — John Houlihan ("Houlihan"), Michael Fitzgerald ("Fitzgerald"), and Joseph Nardone ("Nardone") — were charged, inter alia, with murder in aid of racketeering for the homicide of George Sargent ("Sargent"), an alleged foot-soldier in the so-called criminal enterprise who, at the time of his murder, was cooperating with law enforcement authorities.³

The government alleged that, prior to his death, Sargent told law enforcement officers that he was a street distributer for a Charlestown narcotics ring allegedly run by Houlihan and Fitzgerald. In his conversations with police, Sargent described the structure of the Houlihan-Fitzgerald cocaine operation, his role in the organization, and how he became involved.⁴ Moreover, according to the government, Sargent made statements that inculpated Fitzgerald and Houlihan in the murder of James Boyden III ("Boyden Sr."), and which inculpated Fitzgerald in the murder of James Boyden IV ("Boyden Jr."), and the attempted murder of William "Bud" Sweeney ("Sweeney"). Sargent further made statements that indicated he feared Houlihan might want him killed, and told the police that in an attempt to protect himself he had stressed to Houlihan that he was "on his side."

On June 28, 1992, George Sargent was killed by multiple gunshot wounds. The government alleged that Houlihan and Fitzgerald ordered Nardone to commit the murder because, among other things, they feared that Sargent was talking to the police about Houlihan and Fitzgerald's criminal conduct.

Prior to the commencement of the proceedings, the government moved in limine to introduce at trial Sargent's statements to the police⁵ despite the fact that Sargent was obviously unable to take the stand and therefore could not be subject to cross-examination by the defense. In support of the motion, the government argued that by murdering Sargent for the purpose of preventing him from cooperating with law enforcement authorities, Fitzgerald, Houlihan, and Nardone waived their rights to object to the admission of Sargent's out-of-court declarations. The government explained that, if admitted, Sargent's prior statements would be used to prove Fitzgerald's involvement in the murders of Boyden Jr., Boyden Sr., and Sargent himself, as well as his involvement in the conspiracy to distribute cocaine and in a continuing criminal enterprise; to prove Houlihan's involvement in the murders of Sargent and Boyden Sr., and his involvement in the drug conspiracy and in the continuing criminal enterprise; and as proof that Nardone killed Sargent and Boyden Sr. in aid of racketeering upon orders from Houlihan and Fitzgerald.

The Court deferred a determination of the issue until the government had presented the great bulk of its case so that the Court could make its decision upon a complete trial record and after extensive oral argument.⁶ On January 23, 1995, this Court heard argument on the matter. Pursuant to FED.R.EVID. 104(a), this Court was not bound by the rules of evidence in making its determination.⁷ Accordingly, the Court considered all relevant portions of the trial record as well as the Sargent hearsay statements themselves. See Bourjaily v. United States, 483 U.S. 171, 178-80, 107 S.Ct. 2775, 2780, 97 L.Ed.2d 144 (1987). At the January 23rd hearing, the Court determined that substantially redacted portions of Sargent's statements to law enforcement authorities would be admissible at trial against Houlihan, Fitzgerald, and Nardone. On February 1, 1994, having reviewed the prosecutors' witness interview/trial preparation notes,⁸ the Court revised its earlier order, further redacting the Sargent statements and declining to admit any of them against Fitzgerald. This memorandum now sets out the legal reasoning for these decisions and goes on to consider various related issues.

II. DISCUSSION

A. The Waiver Theory

1. Sixth Amendment⁹

A waiver of a constitutional right is ordinarily valid only where there is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The United States Supreme Court has long recognized, however, that the Sixth Amendment right of a criminal defendant to confront the witnesses against him can be waived not only by consent, but also by the defendant's misconduct. See Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (constitutional rights may be waived by misconduct); see also Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (disruptive courtroom conduct waived confrontation right); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878) (defendant's refusal to reveal location of witness to U.S. Marshal waived confrontation right).

More recently, the Sixth, Eighth, and Tenth Circuits have held that when a defendant threatens or coerces a potential witness out of testifying at trial, the Confrontation Clause does not prohibit the admission of the witness' prior out-of-court declarations. See Steele v. Taylor, 684 F.2d 1193, 1198-99, 1204 (6th Cir.1982), cert. denied sub nom. Kilbane v. Marshall, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983) (where defendant procured the silence of a witness by cohabitating with her, the admission of earlier out-of-court statements that the witness made to law enforcement officials did not violate the Confrontation Clause);¹⁰United States v. Balano, 618 F.2d 624, 626 (10th Cir.1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980) (where defendant had coerced a witness into silence by threatening the witness' life, defendant waived his right of confrontation and his right to make hearsay objections); United States v. Carlson, 547 F.2d 1346, 1359-60 (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977) (in drug prosecution, silencing of witness through threats of violence waived right to confront witness).

The Second and Fifth Circuits, as well as a district court in the District of Columbia, have adopted this analysis but taken it a step further. In addition to holding that a witness'...