United States District Court, E.D. Pennsylvania
For JOSEPH DOUGHERTY, Defendant: FORTUNATO N. PERRI, JR., LEAD ATTORNEY, MC MONAGLE, PERRI & MC HUGH, PHILADELPHIA, PA; WILLIAM M. DAVIS, MCMONAGLE PERRI MCHUGH & MISCHAK, PHILADELPHIA, PA.
For EDWARD SWEENEY, Defendant: CARMEN C. NASUTI, III, LEAD ATTORNEY, GERALD A. STEIN PC, PHILADELPHIA, PA.
For JAMES WALSH, Defendant: WILLIAM BRENNAN, LEAD ATTORNEY, LAW OFFICES OF WILLIAM J. BRENNAN, PHILADELPHIA, PA; ROSSMAN D. THOMPSON, DEFENDER ASSOCIATION OF PHILADELPHIA, PHILADELPHIA, PA.
For FRANCIS SEAN O'DONNELL, Defendant: NIALENA CARAVASOS, LEAD ATTORNEY, LAW OFFICE OF NIALENA CARAVASOS LLC, PHILADELPHIA, PA.
For CHRISTOPHER PROPHET, Defendant: TIMOTHY J. TARPEY, LEAD ATTORNEY, JAMES R. LLOYD, III, PARKINSON, TARPEY & LLOYD, PHILADELPHIA, PA.
For WILLIAM GILLIN, Defendant: MAUREEN CLAIRE COGGINS, LEAD ATTORNEY, MAUREEN C.COGGINS, ATTY AT LAW, NORRISTOWN, PA.
For WILLIAM O'DONNELL, Defendant: GREGORY J. PAGANO, GREGORY J PAGANO PC, PHILADELPHIA, PA.
For RICHARD RITCHIE, Defendant: JACK J. MCMAHON, JR., LEAD ATTORNEY, LAW OFFICE OF JACK MCMAHON, PHILADELPHIA, PA.
For DANIEL HENNIGAR, Defendant: ROBERT GAMBURG, LAW OFFICES OF ROBERT M. GAMBURG, PHILADELPHIA, PA.
For GREG SULLIVAN, Defendant: ROCCO C. CIPPARONE, JR., LEAD ATTORNEY, LAW OFFICES OF ROCCO C. CIPPARONE, HADDON HEIGHTS, NJ.
For USA, Plaintiff: ROBERT JAMES LIVERMORE, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
MEMORANDUM RE: POST-TRIAL MOTION
MICHAEL M. BAYLSON, UNITED STATES DISTRICT JUDGE.
Who finds the heifer dead and bleeding fresh,
And sees fast by a butcher with an axe,
But will suspect 'twas he that made the slaughter?
--Shakespeare, Henry VI, Pt. II, Act III, Scene 2
Shakespeare's prescient verse encapsulates the role of circumstantial evidence as a basis of criminal responsibility. Defendant Joseph Dougherty, business manager of Local 401 of the Ironworkers Union, was convicted of six counts of RICO conspiracy, maliciously damaging property by arson, and extortion which interferes with interstate commerce. Principally through the testimony of cooperating defendants and intercepted telephone conversations, the government presented largely circumstantial evidence that Dougherty, although not personally committing any act of arson or violence, had knowledge of, encouraged, and approved multiple acts of sabotage against businesses employing non-union ironworkers.
Dougherty has filed a post-trial motion for judgment of acquittal on Counts V, VI, VII, VIII, and X, and/or for a new trial on all Counts (ECF 375). After briefing, the Court will DENY the motion.
I. Procedural History
Dougherty was indicted on eight Counts for extortion, RICO conspiracy, and arson crimes arising out of his conduct as Business Manager of the Ironworkers Local 401 union. A jury trial on all these Counts began on January 5, 2015. At the close of the government's evidence, the Court granted defendant's motion for acquittal as to Counts III and IV relating to an arson at the Quaker Meetinghouse in Chestnut Hill, Philadelphia. The defendant presented certain character witnesses but otherwise did not present any substantive evidence. The jury convicted defendant of the remaining six Counts. On March 31, 2015, this Court filed a lengthy Memorandum (ECF 421) detailing the history of union violence in Philadelphia and summarizing the charges and criminal conduct alleged in this case. United States v. Dougherty, 98 F.Supp.3d 721, No. 14-cr-69, 2015 WL 1455908 (E.D. Pa. Mar. 31, 2015). The Memorandum was a precedent to the sentencings of the other 11 defendants, stemming from the indictment in this case and three related indictments, all arising out of the same long-running criminal conduct by the Philadelphia Ironworkers union.
II. Motion for New Trial
Dougherty's motion for a new trial is confined to two issues relating to the jury.
A. Jury Voir Dire
Dougherty asserts that the Court erred by denying a request to excuse Juror Number 12. Juror 12 testified that two of her friends are friends with Robert O'Neill, who was involved with O'Neill Properties Group, which the government identified during the first day of testimony as one of the intended " victims" in this case. Tr. 1/5/2015 at 164:19, 174:7, 176:12, 178:11, 180:19 (references to O'Neill Properties Group during testimony of Special Agent Dimario); Tr. 1/6/2015 at 3:6 -- 13:10 (colloquy with Juror 12). Juror 12 did not know anything about the case, had never met O'Neill, did not know his first name, and did not know anything concerning his connection with the case. Tr. 1/6/2015 at 4:24 -- 5:22, 6:14-16 (ECF 469) (colloquy with Juror 12). Dougherty did not dispute that O'Neill Properties Group was an intended victim. Id. 9:22 -- 10:3 (colloquy with counsel). Although Juror 12 initially equivocated as to whether she could be fair and impartial, after several questions from the Court to determine whether she could in fact be fair and impartial, Juror 12 said that she could be and the request to excuse the juror was taken under advisement. Id. 10:6-13, 11:8-15 (colloquy with Juror 12 and counsel). At the conclusion of the trial, Dougherty's renewed request to excuse Juror 12 was denied because O'Neill's relationship to the case was fleeting and Juror 12's relationship to O'Neill was remote. Tr. 1/13/2015 at 194:8 -- 198:20 (colloquy with counsel).
As the evidence turned out, O'Neill's company was not a " victim" in this case, but was a real estate developer for a property where a contractor using non-union labor was targeted for damage by several of the defendants. Tr. 1/5/2015 ...