## Facts

- Federal prosecutors charged John Houlihan, Joseph A. Nardone, and Michael D. Fitzgerald for operating a cocaine distribution enterprise based in Charlestown, Massachusetts, using Kerrigan’s Flower Shop as an operational hub.
- The government alleged the organization used a strict code of silence and violent enforcement, including murders and attempted murders of suspected informants and associates who talked to authorities.
- A key cooperating figure, George Sargent, provided detailed information to law enforcement about the enterprise and was later murdered.
- The indictment included racketeering-related charges (including RICO), drug-trafficking offenses, violent crimes in aid of racketeering (including murder/attempted murder counts), and related firearms offenses.
- After a lengthy jury trial in the District of Massachusetts, the jury convicted each defendant on most counts.
- During deliberations, the district court substituted an alternate juror for a regular juror and instructed the reconstituted jury to restart deliberations.
- On appeal, defendants raised numerous claims, including (1) Confrontation Clause and hearsay objections to admitting the murdered informant’s out-of-court statements and (2) challenges to the alternate-juror substitution after deliberations began.

## Issues

1. Whether defendants who intentionally caused a witness’s unavailability to prevent testimony forfeited Confrontation Clause and related hearsay objections to that witness’s out-of-court statements.
2. Whether substituting an alternate juror after deliberations had begun violated Federal Rule of Criminal Procedure 24(c) or constitutional fair-trial guarantees.
3. Whether additional trial, evidentiary, sufficiency, discovery, and sentencing claims required reversal on any counts.

## Decision

- The First Circuit affirmed the judgments in large part.
- The court held that a defendant who wrongfully causes a witness’s unavailability, with intent to prevent testimony, forfeits Confrontation Clause objections to admission of the witness’s statements; the court applied this doctrine to admit the murdered informant’s statements upon a clear-and-convincing showing of causation and intent.
- The court held that the post-deliberation substitution of an alternate juror did not warrant reversal on this record because the trial judge employed safeguards (including an instruction to begin deliberations anew) and defendants did not show actual prejudice.
- The court reversed one defendant’s convictions on three related counts and remanded for limited sentencing adjustments consistent with that reversal.

## Legal Principles

- A defendant forfeits Confrontation Clause protections when the government proves by clear and convincing evidence that the defendant engaged in wrongdoing that caused the witness’s unavailability and did so with the purpose of preventing the witness from testifying.
- The forfeiture doctrine rests on the principle that a defendant may not benefit from wrongful interference with the judicial process; once forfeiture is established, the Sixth Amendment does not bar admission of the unavailable witness’s statements, assuming ordinary evidentiary requirements are satisfied.
- Although Rule 24(c) contemplates discharging alternates when deliberations begin, substitution after deliberations have started is not automatically reversible error if the court takes steps to protect the deliberative process (including directing the jury to restart deliberations) and the defendant cannot show prejudice.

## Conclusion

The First Circuit largely sustained convictions arising from a drug-and-violence racketeering prosecution, holding that intentional witness elimination can waive Confrontation Clause objections to the witness’s statements and that a mid-deliberation alternate substitution may stand when the court orders full re-deliberation and no prejudice is shown, while still reversing three related counts against one defendant and ordering limited resentencing.


United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996)