US v. Houlihan
Case Date: 08/22/1996
Court: United States Court of Appeals
Docket No: 95-1614
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October 11, 1996 UNITED STATES COURT OF APPEALS October 11, 1996 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, Attorney, Dep't of Justice, with whom Donald ____________ ______ K. Stern, United States Attorney, Paul V. Kelly and Frank A. _________ ______________ ________ Libby, Jr., Assistant United States Attorneys, and Daniel S. ___________ __________ Goodman and David S. Kris, Attorneys, Dep't of Justice, were on _______ ______________ brief, for the United States. _________________________ August 22, 1996 _________________________ SELYA, Circuit Judge. These appeals present a hothouse SELYA, Circuit Judge. _____________ 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. I. BACKGROUND I. BACKGROUND 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 (1993). _____ ______ For nearly four years Michael Fitzgerald and John Houlihan ran a ruthlessly efficient drug ring from an unlikely 4 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 5 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. II. THE VOICE FROM THE GRAVE II. THE VOICE FROM THE GRAVE The district court admitted over objection portions of hearsay statements made by George Sargent on the theory that ____________________ 1Of these twelve, only Fitzgerald, Houlihan, and Nardone appear as appellants before us. Three of their codefendants (Skinner, Lynch, and Joseph Houlihan) 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. 6 Sargent's murder constituted a waiver of the Confrontation Clause vis- -vis the murderers.2 Houlihan and Nardone assign error to this order and to a salmagundi of related rulings. A. Setting the Stage. 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 police found Sargent's corpse in a parking lot. 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 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 ____________________ 2Because the government did not prove to the district court's satisfaction that Fitzgerald shared his codefendants' intent to forestall Sargent from cooperating with the police, the court ruled that Sargent's statements could not be used against Fitzgerald. The correctness of that ruling is not before us. 7 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. 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 ____________________ 3The district court also published a preliminary opinion, United States v. Houlihan, 871 F. Supp. 1495 (D. Mass. 1994), _____________ ________ which is of little moment in regard to these appeals. 8 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 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 (1988). Moreover, a defendant may _____ ______ waive his right to confrontation by knowing and intentional relinquishment. See Boykin v. Alabama, 395 U.S. 238, 243 (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 (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 (1973) ___ ____ ______ _____________ (finding such a waiver when a defendant boycotted his trial); Illinois v. Allen, 397 U.S. 337, 343 (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 9 procures a witness's absence for the purpose of denying the government that witness's testimony waives his right under the Confrontation Clause to object to the admission of the absent witness's hearsay statements. See Reynolds v. United States, 98 ___ ________ _____________ U.S. (8 Otto) 145, 158 (1878) (holding that the defendant's refusal to disclose the whereabouts of a witness constituted such a waiver); Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir. ______ ______ 1982) (holding that a defendant who silences a witness by exploiting an intimate relationship waives the right to confrontation), cert. denied, 460 U.S. 1053 (1983); United States _____ ______ _____________ v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (concluding that a ______ defendant waives his confrontation right by threatening a witness's life and bringing about the witness's silence), cert. _____ denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d ______ _____________ _______ 1346, 1358-60 (8th Cir. 1976) (similar), cert. denied, 431 U.S. _____ ______ 914 (1977). Moreover, it is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence __ ____ the witness; the intent to deprive the prosecution of testimony need not be the actor's sole motivation. Cf. United States v. ____ ___ ______________ Thomas, 916 F.2d 647, 651 (11th Cir. 1990) (stating that the ______ obstruction of justice statute, 18 U.S.C. 1503, 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 waiver- by-misconduct doctrine, even if good law, should not be employed here because Sargent was not an actual witness no charges had ______ 10 been lodged against Houlihan or Nardone at the time of Sargent's murder, and no grand jury had as yet been convened but at most a turncoat cooperating with the police. Thus, they could not have been on notice that they were waiving a trial right. We find this argument unpersuasive. Although the reported cases all appear to involve actual witnesses, see, e.g., United States v. ___ ____ _____________ Thai, 29 F.3d 785, 798 (2d Cir.), cert. denied, 115 S. Ct. 456 & ____ _____ ______ 496 (1994); United States v. Mastrangelo, 693 F.2d 269, 271-72 _____________ ___________ (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984), we can _____ ______ discern no principled reason why the waiver-by-misconduct doctrine should not apply with equal force if a defendant intentionally silences a potential witness. _________ When a defendant murders an individual who is a percipient witness to acts of criminality (or procures his demise) in order to prevent him from appearing at an 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 his demise) in order to prevent him from assisting an ongoing criminal investigation, he is denying the government the benefit of the witness's live testimony at a future trial. In short, the two situations are fair congeners: as long as it is reasonably foreseeable that the investigation will culminate in the bringing of charges, the mere fact that the homicide occurs at an earlier step in the pavane should not affect the operation of the waiver-by-misconduct doctrine. Indeed, adopting the contrary position urged by 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 between a defendant who assassinates a witness on the eve of trial and a potential defendant who assassinates a potential witness before charges officially have been brought. In either case, it is the intent to silence that provides notice. We therefore hold that when a person who eventually emerges as a defendant (1) causes a potential witness's unavailability (2) by a wrongful act (3) undertaken with the intention of preventing the potential witness from testifying at a future trial, then the defendant waives his right to object on confrontation grounds 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 Cir. Unit B), cert. denied, 456 U.S. 1008 (1982), adopted _____ ______ the minority view and decided that the government must prove the predicate facts essential to the waiver by "clear and convincing" evidence. Houlihan, 887 F. Supp. at 360. This sets too high a ________ standard. Unlike the Fifth Circuit, we think that the government need only prove such predicate facts by a preponderance of the evidence. The Thevis court compared the waiver-by-misconduct ______ 12 problem to the admissibility of in-court identifications that follow tainted out-of-court identifications. See, e.g., United ___ ____ ______ States v. Wade, 388 U.S. 218, 240 (1967) (requiring government to ______ ____ prove by "clear and convincing" evidence in such circumstances that the proposed in-court identification has a reliable independent basis). With respect, we believe the better comparison is to the admission of out-of-court statements under the coconspirator exception to the hearsay rule. See Fed. R. ___ Evid. 801(d)(2)(E). To invoke the coconspirator exception, the proponent of the statement must "show by a preponderance of the evidence" certain predicate facts, namely, "that a conspiracy embracing both the declarant and the defendant existed, and that the declarant uttered the statement during and in furtherance of the conspiracy." 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 the conditions precedent to the applicability of the coconspirator exception is analytically and functionally identical to proving that a defendant's wrongdoing waives his rights under the Confrontation Clause. See Steele, 684 F.2d at ___ ______ 1203; United States v. White, 838 F. Supp. 618, 624 (D.D.C. ______________ _____ 1993). We therefore align ourselves with the majority of federal appellate courts that have considered the question, see, e.g., ___ ____ Mastrangelo, 693 F.2d at 273; Steele, 684 F.2d 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 easily pass muster. The record amply demonstrates that Houlihan and Nardone knew when they conspired to murder Sargent that they were depriving the government of a potential witness. First, the district court supportably found that they believed Sargent was cooperating with the police and could harm them and the organization by talking.4 See Houlihan, ___ ________ 887 F. Supp. at 363-64. Second, Sargent was in fact cooperating with law enforcement officials at the time and made two voluntary statements in which he provided detailed accounts of the organization's modus operandi, descriptions of the principals' roles in various murders, and a frank admission of his own involvement in the conspiracy. While the defendants' perception of likely cooperation may well be enough to meet this prong of the test, the fact of Sargent's cooperation reinforces the inference that the killers believed Sargent was spilling the beans and murdered him on that account. Last but not least, the conspirators knew to a certainty that Sargent had keen insight into their felonious activities both from his own work in the distribution network and from sundry conversations in which they spoke openly to him in retrospect, too openly of their participation in serious crimes. This evidentiary foundation sturdily supports the ____________________ 4It is noteworthy that, after Judge Young ruled on the admissibility of Sargent's statements, Sweeney testified that Houlihan told him, flat out, that Sargent had been killed because he "was talking to the cops." 14 conclusion that Houlihan and Nardone reasonably could have foreseen Sargent becoming a witness against them and plotted to kill him in order to deprive the government of his firsthand testimony. Hence, the district court did not err in overruling objections to the introduction of portions of Sargent's out-of- court statements insofar as those objections stemmed from the Confrontation Clause.5 C. Waiver by Homicide: The Hearsay Objections. C. Waiver by Homicide: The Hearsay Objections. ___________________________________________ Houlihan and Nardone next argue that, even if they waived their confrontation rights, the district court should not have admitted Sargent's hearsay statements because they were tinged with self-interest (having been made in police custody with a stiff sentence for distributing large quantities of narcotics in prospect) and therefore lacked "circumstantial guarantees of trustworthiness." Fed. R. Evid. 804(b)(5). On the facts of this case, we agree with the district court, see ___ Houlihan, 887 F. Supp. at 362, 367, that Houlihan's and Nardone's ________ misconduct waived not only their confrontation rights but also their hearsay objections, thus rendering a special finding of reliability superfluous. ____________________ 5In a related vein, Houlihan and Nardone complain that the district court failed to conduct an evidentiary hearing prior to ruling on the admissibility of Sargent's statements. This complaint strikes us as a thinly-veiled effort to rehash a discovery dispute that we discuss infra Part IV(B). 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 these circumstances, the court did not outstrip the bounds of its discretion in declining to convene a special mid-trial evidentiary hearing. 15 The Supreme Court has yet to plot the crossroads at which the Confrontation Clause and the hearsay principles embedded in the Evidence Rules intersect. The question is subtly nuanced. Though the two bodies of law are not coterminous, they husband essentially the same interests. See California v. Green, ___ __________ _____ 399 U.S. 149, 155-56 (1976). Both attempt to strike a balance between the government's need for probative 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 a defendant's right to cross-examination than confrontation principles depends on the point at which the balance is struck in any particular instance (recognizing, however, that the balance can be struck at different levels in different cases). See ___ Green, 399 U.S. at 156. _____ In this case, we can take matters a step further. In constructing the balance the main interest that must be offset against the government's need for evidence is the accused's right to confrontation (for this is the right from which the right to cross-examine springs). Once the confrontation right is lifted from the scales by operation of the accused's waiver of that right, the balance tips sharply in favor of the need for evidence. See Thai, 29 F.3d at 841 (holding that a defendant who ___ ____ waives his confrontation right by wrongfully procuring a 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); see also Steele, 684 F.2d at 1201 (noting that ___ ____ ______ "English and American courts have consistently relaxed the hearsay rule when the defendant wrongfully causes 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 Hence, the district court appropriately eschewed the request for findings under Fed. R. Evid. 804(b)(5). Houlihan and Nardone have a fallback position. They suggest that the district court's admission of Sargent's out-of- court statements violated their rights to due process because the admissions allowed them to be convicted on the basis of unreliable evidence. See Green, 399 U.S. at 163 n.15 (ruminating ___ _____ that "considerations of due process, wholly apart from the Confrontation Clause, might prevent convictions where a reliable evidentiary basis is totally lacking"). We reject this initiative. Whatever criticisms justifiably might be levelled against Sargent's statements, the portions of those statements that Judge Young allowed into evidence are not so unreliable as ____________________ 6We caution that a waiver of confrontation rights does not result in the automatic surrender of all evidentiary objections. For example, a district court still should exclude relevant but highly inflammatory evidence, misconduct notwithstanding, if the danger of unfair prejudice substantially outweighs the evidence's probative value. See Fed. R. Evid. 403. Presumably, such ___ evidence would have been excludable on a non-hearsay ground if the declarant were available to testify, so there is no reason to admit it when the defendant procures the declarant's unavailability. 17 to raise due process concerns. Other evidence abundantly corroborates (and in many instances replicates) Sargent's account. For instance, his description of the organization's modus operandi and his assessment of Houlihan's leadership role were confirmed and described in excruciating detail by a galaxy of live witnesses (e.g., Michael Nelson, Bud Sweeney, Cheryl Dillon).7 No more is exigible. D. The Redactions. D. The Redactions. ______________ After ruling that portions of Sargent's out-of-court statements were admissible against Houlihan and Nardone, the court limited the May 30, 1992 statements to those that "would have been competent and admissible evidence had the declarant been able to testify in person," and also excluded those portions that "directly or through innuendo" might offend the rule of Bruton v. United States, 391 U.S. 123, 126 (1968) (holding that ______ _____________ the introduction at a joint trial of a nontestifying defendant's statements that implicate a codefendant constitutes prejudicial error). Houlihan, 887 F. Supp. at 365. Houlihan and Nardone ________ objected, contending that the 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 game. The district court overruled the objections. ____________________ 7Perhaps the weakest link in the chain is Sargent's statement regarding a suggestive but ambiguous conversation that he had with Houlihan shortly before the killing of James Boyden III. But this tale is relevant principally to the three counts against Houlihan on which we order his convictions reversed. See ___ infra Part V(B). Thus, any error in admitting it is harmless. _____ 18 On appeal, Houlihan and Nardone argue less that Sargent's statements should have been redacted somewhat differently and more that they should not have been redacted at __ all.8 They assert that when a defendant waives his rights to ___ make Confrontation Clause and hearsay objections through misconduct, the absent declarant's full out-of-court statement should be admissible at the behest of either the proponent or opponent of the statement. This assertion rests on 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 miscreancy. By murdering Sargent, Houlihan and Nardone denied the prosecution the benefit of his live testimony. To compensate for that denial the court allowed the government to introduce portions of the interviews that Sargent gave to the police. The defense, however, was not entitled to any compensation, and permitting it to introduce additional hearsay statements (apart from statements necessary to place the portions used by the government into context and to render them not misleading) 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 or transcribed) and the tape- recorded May interview, the emphasis on appeal is on the latter. While we restrict our discussion to that recording, our holding applies with equal force to the earlier debriefing. 19 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 introduction of the witness's prior out-of-court statements. 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 the witness testified. But the party who causes the witness's unavailability is not entitled to the same prophylaxis. Consequently, under settled jurisprudence governing totem-pole hearsay, see Fed. R. Evid. 805, the tape of Sargent's ___ interview itself constituted first-level hearsay not within any recognized exception, and the district court did not err in admitting some portions at the government's 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 erred in excluding the balance of Sargent's statements. This construct pivots on Evidence Rule 106, a rule that codifies principles of fairness and completeness.9 Under ____________________ 9The rule provides in pertinent part: When a . . . recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to 20 it, a party against whom a fragmentary statement is introduced may demand 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 can serve its proper function only if the trial court from time to time is prepared to permit the introduction of some otherwise inadmissible evidence. See United States v. Sutton, ___ _____________ ______ 801 F.2d 1346, 1368 (D.C. Cir. 1986). Be that as it may, completeness, like beauty, is frequently in the eye of the beholder. The trial court is in the best position to assess the competing centrifugal and centripetal forces that bear on this calculus. Thus, when the trial court, acting in its discretion, finds that proffered excerpts, standing on their own, are not misleading, its judgment is entitled to great respect. See ___ United States v. Boylan, 898 F.2d 230, 256-57 (1st Cir.), cert. _____________ ______ _____ denied, 498 U.S. 849 (1990). So it is here. ______ Houlihan and Nardone dwell on incompleteness primarily because Judge Young declared two sets of comments inadmissible. (1) Sargent told the police, inter alia, that James Boyden IV was _____ ____ selling drugs in Lynch's territory; that Fitzgerald warned him and had him beaten, but to no avail; and that he then told Sargent that he would "just have to kill" the interloper. ____________________ introduce any other part . . . which ought in fairness to be considered contemporaneously with it. Fed. R. Evid. 106. 21 Claiming that Fitzgerald's remarks to Sargent provided Fitzgerald with a different motive to murder Sargent, Houlihan sought to have this part of Sargent's statement admitted into evidence. Houlihan claims that omitting references to Fitzgerald's involvement in the murder made it appear that he, rather than Fitzgerald, was the mastermind responsible for that crime. (2) In a similar vein, Nardone claims that the court's refusal to permit him to introduce references in the interviews to Herd's putative involvement in the Boydens' killings made it appear that Nardone carried out those murders single-handed. The court found that these incremental excerpts were "segregable" from the portions of the interviews that the government had proffered and denied the appellants' requests to admit them. Houlihan, 887 F. Supp. at 366. In assessing the ________ court's rulings, three facts are worthy of note: (1) the interview segments admitted into evidence contained no explicit reference whatever to the 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 debriefing. Bearing these facts in mind, we conclude that the lower court acted within the realm of its discretion in refusing to invoke Rule 106. Houlihan and Nardone also claim that the court should have admitted other portions of Sargent's interviews to impeach his credibility. See Fed. R. Evid. 806 (providing that the ___ credibility of a hearsay declarant "may be attacked . . . by any 22 evidence which would be admissible for those purposes if [the] declarant had testified as a witness"). The district court rejected this claim because it found the additional excerpts "too convoluted, collateral, or cumulative to be admitted." Houlihan, ________ 887 F. Supp. at 368. Having reviewed the items, we discern no error in their exclusion. Trial courts have considerable leeway in imposing outside limits on cross-examination. See Van Arsdall, 475 U.S. ___ ___________ at 679; Laboy-Delgado, 84 F.3d at 28. Here, the record _____________ demonstrates that the appellants had a full and fair opportunity during their cross-examination of the officers who interviewed Sargent to cast doubts upon his veracity. They made the most of this opportunity.10 By contrast, the extra material that the appellants wished to introduce lacked genuine impeachment value and promised to add virtually nothing of consequence to the grueling cross-examination. Thus, we cannot fault the district court for excluding this exiguous material. See Van Arsdall, 475 ___ ___________ U.S. at 679 (stating that cross-examination appropriately may be limited if redundant or marginally relevant); Boylan, 898 F.2d at ______ 255-56 (similar). To say more would be supererogatory. Because our painstaking review of the record reveals no solid grounding for ____________________ 10For example, during cross-examination of Detective Harris (who taped and testified about the May 1992 interview), the appellants showed that Sargent had a lengthy criminal record; that he gave up his confreres while facing the possibility of a fifteen-year mandatory minimum sentence for drug trafficking; and that he had been promised low bail, among other things, in exchange for cooperation. 23 the claim that the district court flouted Rule 106 in any respect, we refuse to meddle. E. Prejudicial Spillover. E. Prejudicial Spillover. _____________________ There is one last leg to this phase of our journey. Fitzgerald alleges that the admission of Sargent's statements resulted in unfair prejudice to him. The record reveals none. Because the prosecution must show the existence of a conspiracy to prove a conspiracy charge, evidence implicating one coconspirator is likely to be directly relevant to the charges against his codefendants. See United States v. O'Bryant, 998 ___ ______________ ________ F.2d 21, 26 (1st Cir. 1993). Even if it is not, mistrials grounded on spillover prejudice are rare. 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 unless the impact of the evidence is so devastating that, realistically, instructions from the bench cannot be expected to repair the damage. See Sepulveda, 15 F.3d ___ _________ at 1184. Silhouetted against this set of rules, the flimsiness of Fitzgerald's claim come into bold relief. What excites the emotions in one case may be routine evidence in another case. The material distilled from Sargent's statements which would have stood out like a sore thumb in a prosecution rooted in the relative gentility of white-collar crime does not seem especially sensational when evaluated in light of the other, plainly admissible evidence that permeated this seventy-day saga 24 of nonstop violence. Moreover, the district court instructed the jurors on the spot that they were not to consider Sargent's statements in deciding Fitzgerald's fate. To complement that directive, the court redacted all references to Fitzgerald from the portions of those statements that the jury heard, and it repeated its prophylactic instruction on several occasions. Under these circumstances, the presumption that jurors follow the court's instructions is intact. Ergo, Fitzgerald suffered no unfair prejudice. III. ALTERNATE JURORS III. ALTERNATE JURORS The appellants calumnize the district court because, despite their repeated objections, the court refused to discharge the alternate jurors once deliberations commenced and compounded its obduracy by allowing the alternate jurors to have intermittent contact with the regular jurors during the currency of jury deliberations. 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." Fed. R. Crim. P. 24(c). The rule reflects the abiding concern that, once a criminal case has been submitted, the jury's deliberations shall remain private and inviolate.11 See United States v. ___ _____________ ____________________ 11Notwithstanding that Criminal Rule 23(b) permits the remaining eleven jurors to return a valid verdict if a 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 appellants' claim of error is well founded. Rule 24(c) brooks no exceptions, and the district court transgressed its letter by retaining the alternate jurors throughout the deliberative period. The lingering question, however, is whether the infraction requires us to invalidate the convictions. The appellants say that it does. In their view, a violation of Rule 24(c) automatically necessitates a new trial where, as here, the defendants preserved their claim of error, or, at least, the continued contact between regular and alternate jurors that transpired in this case demands that result. The government endeavors to parry this thrust by classifying the error as benign. 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, while under instructions to refrain from engaging personally in the deliberative process, to remain in the jury room and audit the regular jurors' deliberations. See id. at 727-29. The jury found the defendants ___ ___ guilty. The court of appeals, terming the presence of alternate jurors in the jury room during deliberations "inherently prejudicial," granted them new trials although they had not ____________________ remains debatable. We can understand a district judge's reluctance, following a long, complicated, and hotly contested trial, to release alternate jurors before a verdict is obtained. But courts, above all other institutions, must obey the rules. 26 lodged contemporaneous objections. United States v. Olano, 934 |