Zeigler v. Callahan, 81-1015

Citation659 F.2d 254
Decision Date22 September 1981
Docket NumberNo. 81-1015,81-1015
PartiesPaul A. ZEIGLER, Plaintiff, Appellant, v. William T. CALLAHAN, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Harvey R. Peters, Boston, Mass., with whom Paul T. Smith and Jeffrey M. Smith, Boston, Mass., were on brief, for plaintiff-appellant.

Joseph P. Gordon, Jr., Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for defendant-appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, MAZZONE, District Judge.

MAZZONE, District Judge.

I.

During the early morning hours on Sunday, December 7, 1975, a fire occurred in a building at 62 Louis Prang Street in Boston. The building was owned by the petitioner and his business associate, David Siersdale. A twenty year old Boston University student died as a result of third degree burns sustained during the fire. Zeigler was indicted for murder in the second degree, arson, and arson with intent to defraud an insurance company. He was convicted of manslaughter, arson, and arson to defraud.

Petitioner subsequently moved for a new trial and, following evidentiary hearings, the motion was denied. See Commonwealth v. Zeigler, Nos. 014563-65, Findings of Fact and Rulings of Law on Defendant's Motion for a New Trial, (April 25, 1977) ("Findings and Rulings"). The Massachusetts Appeals Court affirmed both the convictions and the denial of Zeigler's motion for a new trial. Commonwealth v. Zeigler, --- Mass.App. ---, 80 Mass.App.Ct.Adv.Sh. 119, 399 N.E.2d 47 (1980). The Massachusetts Supreme Judicial Court denied Zeigler's application for further appellate review. Thereafter Zeigler filed the instant petition for habeas corpus relief under 28 U.S.C. § 2254. The district court denied his application and this appeal followed.

The petitioner relies upon three general grounds to support his argument that his convictions were obtained in violation of his constitutional rights: (1) the Commonwealth's alleged non-disclosure of part of an agreement with George Lincoln, a government witness, and its subsequent failure to "correct" Lincoln's allegedly false testimony concerning the agreement; (2) the Commonwealth's failure to disclose allegedly exculpatory evidence including prior statements by Lincoln, a psychological profile of Lincoln written some 9 years prior to Zeigler's trial, and the grand jury testimony of James DeFuria, a former member of the state police arson squad who did not testify at petitioner's trial; and (3) the admission into evidence of a stipulation that, had he been called to testify, DeFuria would have invoked his Fifth Amendment right against self-incrimination and refused to answer questions.

A proper evaluation of petitioner's allegations of constitutional violations and their probable effect, if any, on the jury's verdict, requires us to examine the record of the trial in detail.

II.

The Commonwealth's theory of the case was that Zeigler and Siersdale, who together owned nearly 35 parcels of real estate in the Boston area, were under mounting financial pressure during the latter part of 1975, and that Zeigler procured the burning of 62 Louis Prang Street in order to alleviate some of that pressure.

The undisputed evidence indicated that S & Z Realty, the name under which Zeigler and his partner operated, was indeed experiencing severe cash-flow problems during the summer and fall of 1975. During that time, Zeigler and Siersdale decided to stop paying certain debts, such as mortgage payments and insurance premiums. Robert S. Mirabito, an insurance agent, testified that he cancelled the fire insurance policy covering 62 Louis Prang Street on November 20, 1975 for non-payment of premiums.

Shortly thereafter, the South Boston Savings Bank, which held a first mortgage on the property in the amount of $40,000, paid the insurance premium and the policy was reinstated. Mirabito testified that he sent notices of the reinstatement to all interested parties, including Zeigler and Siersdale, by regular mail on November 25, 1975.

Nicholas Shaheen testified that he was the real estate broker who arranged for the purchase of the 62 Louis Prang Street property by Siersdale and Zeigler from South Boston Savings in 1974. Shaheen was also an insurance broker who, through Mirabito, had procured the original fire insurance policy on the 62 Louis Prang Street property.

Shaheen acknowledged that he had previously been convicted and was presently serving a 15 to 20 year sentence on unrelated arson charges. He also admitted that he had been indicted together with Zeigler and had recently pleaded guilty to arson and related charges involving 62 Louis Prang Street. He testified that, in exchange for his cooperation in the Zeigler case, the Commonwealth had agreed to recommend a sentence of 8 to 12 years on those charges to be served on and after his present sentence.

Shaheen testified that it was he who instructed Mirabito to cancel the fire insurance policy on 62 Louis Prang Street. Upon receiving notice of the reinstatement, however, he testified that he sent a copy of the notice to Siersdale and Zeigler, and specifically informed Zeigler by telephone of the reinstatement.

Shaheen stated that during the latter part of fall 1975, Zeigler told him he was having financial problems with several buildings in the City of Boston, including 62 Louis Prang Street. Specifically, Zeigler mentioned non-payment of rent and a lot of pimping and prostitution going on at 62 Louis Prang Street, and wanted to know whether there was a way that the building could be burned. Shaheen testified that he introduced Zeigler to George Lincoln, a contract arsonist with whom Shaheen had dealt in the past. According to Shaheen, the three met in a lounge in the South End and discussed the transaction. In response to a price of $8,000 mentioned by Lincoln, Zeigler indicated he would have to talk to his partner and get "the okay." Shaheen testified that, prior to meeting with Zeigler he had spoken with Lincoln and indicated that he wanted a $3,000 fee for his services in bringing Lincoln and Zeigler together.

Shaheen testified that he spoke with Zeigler by phone after the meeting, and asked whether Zeigler was satisfied with the price. Zeigler said he was not satisfied and could get someone else to do the job. After speaking briefly with Zeigler, Lincoln reportedly accused Shaheen of being "greedy," and of losing the job for him.

Shaheen next testified that after the fire Zeigler told him the arson squad had been to see him and he had a problem because there had been a death. Zeigler allegedly went to Shaheen's office, said he was disturbed because he'd set the fire, and asked whether Shaheen could put him together with Lieutenant James DeFuria of the Boston arson squad. Shaheen claimed he told Zeigler that DeFuria would try to scare him, but that he simply wanted to get paid for his services in "taking care of" the report on the fire. Zeigler asked how much DeFuria would charge and Shaheen said he told Zeigler it was between him and DeFuria.

Shaheen testified that he had another meeting with Zeigler at which they discussed the insurance policy on 62 Louis Prang Street and Shaheen furnished a proof of loss statement. A completed statement signed by Zeigler and Siersdale, was identified by Shaheen as the one he had furnished Zeigler and received into evidence as an exhibit. Shaheen stated that after this meeting he again met Zeigler in the South End and Zeigler said he was happy because DeFuria was whitewashing the death at 62 Louis Prang Street. Finally, Shaheen testified that he had a conversation with George Lincoln after the fire in which Lincoln said he had not started the fire at 62 Louis Prang Street.

On cross-examination, Shaheen was questioned at length about his involvement in an arson and manslaughter at 45 or 48 Milford Street, and the fact that he was presently serving a 15 to 20 year sentence. He was also asked about his agreement with the Commonwealth and about his previous dealings with George Lincoln, the contract arsonist. Defense counsel elicited the fact that Shaheen had received a commission on the sale of 62 Louis Prang Street to Zeigler, that he had received a commission when he obtained fire insurance for the property, and that he unsuccessfully tried to get a commission for arranging the arson at 62 Louis Prang Street.

Shaheen denied having a conversation several weeks after the fire in which Zeigler told him that there was no insurance on the property at the time of the fire and asked him to backdate a binder for insurance so that the loss would be covered. Shaheen then repeated that he had informed Zeigler by phone and by mail about the reinstatement of the policy.

Shaheen admitted having lied to a grand jury about whether he had solicited Lincoln to burn the property at 62 Louis Prang Street, and about whether he had put Lincoln in touch with Zeigler.

Shaheen was followed by George Lincoln. Lincoln described himself, among other things, as a "contract arsonist," i. e., a person who burned buildings for pay. Lincoln stated that he was testifying pursuant to an agreement with the Commonwealth. He described his understanding of the agreement, which is reported in the trial transcript as follows:

Their agreement is that if I would reveal to the Attorney General truthful information concerning all criminal matters in which I've been involved and if I would testify truthfully according to all criminal matters in which I've been involved, that the indictments which were procured from the grand jury of Suffolk County, and perhaps other counties in the Commonwealth, that the Attorney General, upon disposition of seventeen indictments pending against me for arson and fraud, would recommend to the Court that because of my cooperation, I would...

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