USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1502

UNITED STATES,
Appellee,

v.

JAIME CATANO,
Defendant - Appellant.

____________________

No. 94-1503

UNITED STATES,
Appellee,

v.

MICHAEL MURRAY,
Defendant - Appellant.

____________________

No. 94-1504

UNITED STATES,
Appellee,

v.

LEONEL CATANO,
Defendant - Appellant.

____________________

No. 94-1505

UNITED STATES,

Appellee,

v.

JAMES MURRAY,
Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and John R. Gibson,* Senior Circuit Judge.

____________________

_____________________

William A. Brown, by Appointment of the Court, for appellant

________________
Jaime Catano.
Daniel J. O'Connell III for appellant Michael Murray.
_______________________
Robert L. Sheketoff, with
_____________________

whom Sheketoff & Homan

__________________

was on

brief for appellant Leonel Catano.

Steven J. Brooks, with whom James P. Duggan, by Appointment

_________________
_______________
of the Court, was on brief for appellant James Murray.

George W. Vien, Assistant United States, with whom Donald K.

______________
_________
Stern, United States Attorney,
_____

and Geoffrey E. Hobert, Assistant

__________________

United States Attorney, were on brief for appellee.

____________________

September 18. 1995

____________________

____________________

Of the Eighth Circuit, sitting by designation.

-2-

JOHN
JOHN

R. GIBSON,
R. GIBSON,

Senior Circuit Judge.

Senior Circuit Judge
_____________________

James Murray appeal their convictions

to

distribute

marijuana, three

with

intent to distribute, and

with

intent to

loads

1989

of marijuana from Texas

and February

1991.

possessing marijuana

one count of

attempt to possess

relating to

transporting truck

to Boston in

Jaime

and

of one count of conspiracy

counts of

distribute, all

Michael

Catano

August and November

was convicted

of

two

possession

counts, the attempt

criminal enterprise.

possession

Leonel

counts, as

count and a

Catano was convicted of one

well as the

All challenge their convictions

Murray appeals his

count of continuing

conspiracy and

of the

the attempt.

on numerous grounds, and Michael

sentence.

We affirm the

judgments, but

we

remand Michael Murray's sentence for further findings.1

Beginning in 1987 the Murrays and Catanos

organization

trailers

that transported

from

Texas to

government's case

truck

drivers,

loads

of

or

the

Boston

marijuana in

New

consisted principally of the

Halcott Lawrence

and

headed up an

Morton

tractor-

York area.

The

testimony of two

Todd; of

Richard

Baker, who allowed the storage of marijuana on his property; of a

government

agents.

informant,

Frank

Nigro;

and

of

DEA

surveillance

Leonel Catano first recruited Lawrence in 1987 to drive

a truck load of 1,000 pounds of marijuana from Houston, Texas

to

____________________

The

published

version of

this

Opinion includes

only

the

background statement of facts and discussion of those issues that

may

be

of general

Opinion addresses

interest.
other

precedential importance.

The

issues

that

unpublished portion
do

not

See First Cir. R. 36.2.

___

-3-

appear

of the
to

have

New York.

After

that, Lawrence drove other, similar

Beeville, Texas to Boston.

loads from

Lawrence would first pick up a cover

cargo, usually of onions or plastic pellets, then drive to a farm

near

Beeville,

Texas,

where

cellophane-wrapped marijuana

when

workers

under the

would

hide

bales

cover cargo.

of

Each time

Lawrence would arrive in Boston, he would call James Murray

to announce his arrival,

then drive to a rendezvous

point where

one or both of the Murrays

and "a bunch of . . . guys"

would be

there to unload the truck.

James Murray usually paid Lawrence.

In August 1989, Lawrence recruited Morton Todd to drive

a load from Texas to Boston.

Todd

and Lawrence

Jaime Catano and

got to

the two

Lawrence drove up separately.

Boston with

Murrays.

the marijuana,

Jaime

When

they met

Catano paid Todd

wages of $12,000, less expenses Todd had already received.

his

Todd drove another load to Boston in November 1989.

received

the

Catano.

When

marijuana

in Texas

he arrived

from

in Boston,

the

Murrays and

the Murrays

He

Jaime

unloaded the

truck and paid him.

Frank

who

Nigro, an

agreed to supply him

informant, solicited

1,000-2,000 pounds of

Michael Murray,

marijuana.

The

government introduced a tape of a conversation that took place on

November

1,

1991, between

discussed procuring

had been "down there"

Nigro

marijuana from

and Michael

"Mexicans."

Murray.

Murray

Murray

said he

and "seen merchandise," and that

go down and personally make the acquisition.

-4-

he would

Richard

Baker twice

permitted

the

Murrays to

store

loads of marijuana on his farm near Boston in the winter of 1989-

90. In the winter of 1991, Leonel Catano and Roberto L pez showed

up at Baker's

farm in

a tractor-trailer hauling

James and

Michael

pounds of

marijuana into a

next

weeks they

two

Murray were

there, and

a steel

tank.

they unloaded

2,000

shed on Baker's property.

parcelled out

the marijuana

Over the

into several

cars.

Baker said he

saw Michael Murray and Jaime Catano

with a

sports bag full of cash after they had disposed of the marijuana.

At the time of

government

the last delivery to Baker's

was closing in.

The truck driver, Roberto L pez, was

actually working undercover for the government.

Catano left on

itinerary.

to stay in Kingston,

them into

conversation

Catano and

bugged room.

between L pez,

November 2, 1991, in

Texas.

Boston, the DEA

Before L pez and

was aware of

their

The DEA planted monitoring devices in the hotel where

Leonel planned

to book

the trip to

farm, the

The

agents

Catano and

video taped

the Murrays

which they coordinated an imminent

Michael Murray

was to

L pez were to "go

come, ah, bobtail2

Leonel

Massachusetts, and arranged

. . . you

"get

the money

to Dallas, drop the

know, with the

on

trip to

ready;" Leonel

box then just

money;" and

James

Murray was "to go

and . . . pay the other

transportation people

in Dallas."

____________________

To

behind.

"bobtail"

means to

drive

a tractor

without

a trailer

In this context, the "box" would be the trailer.

-5-

After this

and

Leonel

Catano and

followed Catano

off

conversation, Michael Murray left

the tank

L pez left

and L pez to

and

trailer.

the truck.

DEA agents

Luling, Texas, where

they dropped

They

in

in a car

then "bobtailed"3

south

to

McAllen, Texas on the Mexican border, where they met James Murray

on November 5, 1991.

On

mistaken

November 6,

lead that

1991, government

the

marijuana had

agents (acting

already been

arrested both Murrays and both Catanos in McAllen.

Leonel Catano's truck and

The

agents found

no

hidden in a compartment

James

Murray's

truck

in the tractor

at

the

they

cab.

Dallas-Fort

delivered)

They searched

the steel tank left behind

marijuana, but

did find

in Luling.

$1,149,650

They also

Worth

searched it, finding about $100,000 hidden in it.

on a

located

airport

and

This

purposes

appeal.

of

brief

outline

considering most

of

the

of the

evidence

suffices

arguments raised

for

on this

As other facts are material to the various arguments, we

will supply more details.

I.

MICHAEL MURRAY'S SIMMONS4

I.

ARGUMENT
MICHAEL MURRAY'S SIMMONS4 ARGUMENT
__________________________________

Before

for relief,

trial, Michael Murray brought an omnibus motion

which

included

claims

based on

an

alleged

plea

____________________

See footnote 1.
___

In Simmons v. United States, 390 U.S. 377 (1968), the Supreme

_______
______________

Court held that a defendant's testimony in support of a motion to

suppress evidence is inadmissible against him at a later trial to

prove

his guilt because the Court found it "intolerable that one

constitutional

right should have

to be surrendered

in order to

assert another."

Id. at 394.
___

-6-

bargain

with the

suppression

of evidence

government.

his

immunity from

derived from

prosecution and

his cooperation

with the

The plea agreement was not memorialized in any way.

Michael Murray

the lower

government for

contended that the government

agreed to advocate

end of a zero to five-year sentence if he would change

plea, assist

the

government

in

its

investigation

of

fentanyl

manufacturing laboratory,

six million

dollars in

testify in this case.

help the

government acquire

offshore accounts, and

be available

to

The government claimed it had extended two

separate offers to Michael Murray:

one for complete

and one

for partial cooperation.

Complete cooperation required

Michael

Murray to plead guilty, assist the government in any and

all

investigations

debriefed,

which

surrender the

requested.

Complete

recommendation

for

Alternatively, the

incarceration

the

six

DEA

suggested,

million dollars,

cooperation would

five

or

government

if Michael

fully cooperate in any way.

fewer

years

pleaded guilty

completely

and testify

result in

would recommend

Murray

be

cooperation

as

a government

incarceration.

seventeen

years

and failed

to

The

district

court

held

an

evidentiary

pre-trial

hearing to determine what the agreement was and if Michael Murray

was entitled to

the agreement

district court

Simmons
_______

hearing,

specific performance due

as

determined.

erred in

to his fulfillment

Michael Murray

refusing to

grant

argues that

him immunity

of

the

under

v. United States, 390 U.S. 377 (1968), at this pre-trial

_____________

forcing him "to

elect between his

-7-

Fifth Amendment due

process right to

with

the

be heard on the question

government and

his Fifth

of his plea agreement

Amendment

right not

to be

compelled to incriminate himself."

At

counsel to

Both

the hearing, the

call one

testified about

believed Michael

Michael

Murray

performance.

he

the

prosecutors and

offer and

the

Murray's cooperation to be

Murray's

if

of the

court permitted

counsel

testified

requested

regarding

Michael Murray's

a DEA

areas in

which

plea

immunity for

offer

The district court refused to grant this

but suggested that Michael

they

less than complete.

Simmons-type
_______

the

case agent.

Murray testify in two parts:

and

his

immunity,

first,

on the terms of the government's offer; and then, after the court

ruled

The

on the offer's terms, on his performance under that offer.

court made clear that Michael Murray could refuse to testify

on his performance of

on its

then

terms.

granted

regarding the

the agreement even if he

Michael

Murray declined

Michael

Murray's

plea offer

be

to testify.

request

made part

chose to testify

that

of

The court

his

affidavit

the record

of

the

hearing.

The court found

offers as

it

substantially

alleged

that the government had

and

performed,

that, although

he

had

Specifically, the court noted that

not

Michael

completely

made the plea

Murray

performed.

Michael Murray had not

cooperated because, among other things:

had

fully

he did not plead guilty;

he did not allow the government to debrief him in preparation for

testifying against a defendant

in the fentanyl case; he

did not

-8-

testify against that defendant; and he refused adequate access to

his offshore accounts.

could

accept

before the jury

The

court determined that Michael Murray

the government's

was impanelled.

plea

offer

If Michael

by pleading

guilty

Murray did

plead,

then the question would arise of whether he cooperated completely

or

partially.

At one

point during the

hearing, the prosecutor

also

stated,

"Your

Honor,

completely debriefed to

. .

. . That's

Murray did not plead

Mr.

testify in

completely cooperate, the

offer

if

Murray's

any and all

willing

to

be

matters and

to

government is willing to

been our

stand by its

position throughout."

guilty, did not accept the plea

Michael

offer, and

went to trial on all counts.

Entitlement to

review

(1st

de novo.

Cir. 1994)

immunity is a legal

See United States

___ _____________

(holding that

question, which we

v. Hardy, 37
_____

F.3d 753, 756

legal questions are

reviewed de

novo).

We affirm the

immunity

district court's denial of

on these facts because

surrender one

Michael Murray did

constitutional right

in order to

Simmons-type
_______

not have to

assert another.

See
___

Simmons, 390
_______

U.S. at 394.

The

procedure followed

by the

district court did not implicate Michael Murray's Fifth Amendment

right

prohibiting

compelled

self-incrimination.

If

Murray had testified regarding his understanding of

the

Michael

the terms of

plea agreement, the district judge stated that he would have

limited

cross-examination

district judge

to that

topic.

We

agree

with the

that "what was the deal is a lot more bland [than

-9-

is the performance issue] and has nothing to do either with

case or, one would imagine, any other investigation."

see how Michael Murray's

offered and what he

in any proceeding.

this

We fail to

testimony regarding what the government

understood would incriminate him in

any way

He chose, however, not to testify.

After Michael Murray's counsel announced his intent not

to testify, the district judge

the

agreement.

The

prosecution agreed,

plea offer prior

reached

the issue

made findings as to the

judge

that Michael

to trial.

of

He

specifically

Murray could still

did not.

Michael Murray's

relevant only to determine

stated,

Thus, the

terms of

and

the

accept the

judge never

performance, which

was

whether Michael Murray had completely

performed and

accepted the

more generous governmental

offer or

had only partially performed and accepted the lesser offer.

Because he did not plead guilty prior to trial, Michael

Murray failed to

cooperate as promised

the plea agreement.

170, 179

may

See United States v. Baldacchino,

___ _____________
___________

(1st Cir. 1985).

any obligations

under either version

of

762 F.2d

Thus, the government is released from

under the

agreement "regardless of

have promised earlier."

United States v.
_____________

whatever it

Tilley, 964 F.2d

______

66, 70-71 (1st Cir. 1992).

Simmons is inapplicable on these facts.

_______

II.
II.

NIGRO'S TESTIMONY
NIGRO'S TESTIMONY
_________________

Frank Nigro testified

regarding several

conversations

he

had with Michael

government recorded

Murray in

and

October 1991,

played to

the

one of

jury.

which the

Michael

Murray

-10-

argues error in the admission of the substance of both the direct

examination and of the redirect examination.

A.
A.

Nigro's Direct Testimony

Nigro's Direct Testimony

Michael

Murray's

counsel

objected

that

Nigro's

testimony was "gratuitous talk" about marijuana, unrelated to the

crimes

charged or

Before

Nigro testified,

statements

to

by Michael

"any particular

the district

Murray

questions to

when Nigro

direct examination,

the period

past."

that "[t]he

admissions so

they're

Fed. R. Evid. 801(d)(2)(A).

the

government

from September

was cooperating

in the

judge stated

. . . are

admissible as against Mr. Murray."

On

incident

with the DEA

1991 to

on this

confined

its

November 1991,

case.

Nigro

testified that he met with Michael Murray and asked if Murray had

any marijuana for

sale.

Nigro stated that

after several

such

meetings, Michael Murray agreed to "front" Nigro between 1000 and

2000

pounds

examination,

of marijuana.

Near

the

the government played a

close of

Nigro's direct

tape of one

of the Nigro-

Murray meetings.

described

his

In

that conversation, Michael Murray generally

experience

with

importation

Colombia and Mexico, from getting

of

marijuana from

the marijuana across the river

to weighing marijuana to piecing together loads of marijuana from

different suppliers.

discretion

examination

by

The

admitting

or the

Murray and Nigro.

district court

either

tape-recorded

Both were

Nigro's

did

not

testimony

abuse

on

conversation between

its

direct

Michael

properly admissible against Michael

-11-

Murray

as

admissions.5

conversations

Fed.

Michael

constituted

1007 (1st Cir. 1990).

served

as "'reciprocal and

918 F.2d at 1007 (quoting

1197,

1199

(8th

Cir.

[Murray's] admissions

to

the

omitted).

jury."

of

of

the

a party.

v. McDowell, 918 F.2d

________

Nigro's part

of the conversations

integrated utterance(s),'" McDowell,

________

United States v. Metcalf, 430 F.2d

_____________
_______

1970)), "reasonably

required

into context" and "make

Id. (internal
___

Because Nigro's

part

admissions

R. Evid. 801(d)(2)(A); United States

_____________

1004,

at

non-hearsay

Murray's

quotation

statements

place

them intelligible

marks

were

to

and

citation

offered only

for

context

and

not for

the truth

of

the matter

asserted, those

statements are not hearsay under Federal Rule of Evidence 801(c).

B.
B.

Nigro's Testimony on Redirect Examination

Nigro's Testimony on Redirect Examination

On

attempted

Nigro

cross-examination,

to discredit

barely

knew

Nigro's

Michael

Murray's

testimony

Murray.6

On

counsel

by insinuating

redirect

examination,

that

the

____________________

Michael Murray's

argument

admissible as statements
co-conspirator
statements

that

are

statements

of a co-conspirator is

exception applies

here

the

to

hearsay

non-hearsay

under

were

not

misplaced.

The

statements.
Rule

801(c)

801(d)(2)(A).

MICHAEL
that you

MURRAY'S

COUNSEL:

And

this man

had seen on several occasions for

ten minutes

at a

time over seven

to ten,

maybe twelve times, is going to front you a

half a

ton or

a ton of

you paying for it,

marijuana without

and you don't know even

The

and

where he lives?

NIGRO:

The following

Yes.

day, Michael

Murray's counsel again

attempted to

minimize the relationship between Nigro and Murray:

-12-

government

Murray's

government

asked Nigro how he first met Michael Murray.

counsel

objected.

argued that,

At

sidebar

on cross-examination,

Michael

conference,

the

Michael Murray's

counsel opened the door to the earlier relationship between Nigro

and Murray.

think

is

The

district court

this is all opened up

absolutely

bizarre

background, the

ruled that

"[a]s to

scope, I

because of the suggestion that this

conduct"

and

because,

without

this

meeting between Nigro and

Michael Murray "seems

to be such an isolated and strange event."

When Michael Murray's

counsel

pressed

404(b), the

have to be

crowd

under Federal

stated that "[the

admitted as 404(b) but that

and trying

court

Rule

of Evidence

evidence] doesn't

is an alternative ground

You have opened this up, it's admitted to him

that this was

district

ruling

district court

for the admission.

to show

for a

not a

to entice

then

ruled

bizarre picking someone

them into

that

the

out of

drug trafficking."

government's

line

The

of

questioning was permissible, but admitted the resulting testimony

only

against Michael Murray.

Nigro then testified

that he was

introduced to Michael Murray when Murray began working for

in the

marijuana business in 1977 or

1978.

According to Nigro,

in the following year, Michael Murray and Nigro's

three partners

____________________

MICHAEL MURRAY'S COUNSEL:

your

testimony

that

encounters with Mr.

Mr. Nigro, is it

from

these

brief

Murray that he's going

to front you, meaning give you for nothing,

some

quantity

of

marijuana,

uncertain,

between a thousand pounds and 4,000 pounds,

for nothing, without ever
a price?

having discussed

Is that your testimony?

-13-

Nigro

took full control of

for

them in

the operation, and Nigro continued

more limited

capacity.

Three

more

to work

marijuana

shipments occurred under this arrangement.

At

the conclusion of

Nigro's testimony,

the district

court gave the jury the following limiting instruction:

THE COURT:
Mr.

And I will tell you that

Michael Murray

is not

here charged

with any of the events which this witness

testifies

took place

back

seventies,

perhaps

the early

eighties.

do with

this case

That

has nothing

except, if you

to

in the

late

believe his testimony, it

tends

to

place

the conversation

which

he

testified, the

tape

about

that was

played, if you

believe that, in context.

That's the only reason you heard it.

Michael

Murray

anything

is

back

not

then,

charged
you're

consider that, except that to

that

you,

yourself,

Mr.
with

not

to

the extent

determine

in

the

manner that I've just described.

We

review

the

district

admissibility of evidence only

court's

rulings

for abuse of discretion.

on

the

United
______

States v. McCarthy, 961 F.2d 972, 977 (1st Cir. 1992).

______
________

The

district court

permitting the government on

past business dealings of

did

not abuse

its discretion

in

redirect examination to explore the

Nigro and Michael Murray.7

The scope

of redirect examination is discretionary with the trial court and

should

be reversed only upon

a showing of

abuse of discretion.

United States v. Braidlow, 806 F.2d 781, 782 (8th Cir.

_____________
________

1986).

district court may allow testimony on redirect which clarifies an

____________________

The

Michael

district court

admitted

Murray and gave a

defendants.

In this

this

testimony only

limiting instruction as

appeal,

the

other

against

to the other

appellants claim

no

prejudice by the admission of Nigro's testimony on redirect.

-14-

issue which the defense opened up on cross-examination even

this evidence is otherwise inadmissible.

when

United States v. Geer,

_____________
____

923

F.2d

F.2d 892, 896-97 n.4

at 783).

evidence

Otherwise,

to

create

knowledge that

jury.

door

(1st Cir. 1991)

litigants could exploit

misleading

the other

(citing Braidlow, 806

________

impressions,

side was

On cross-examination,

barred

the rules of

secure

in

the

from disabusing

the

Michael Murray's counsel opened the

to the past relationship between Murray and Nigro by making

it seem that

Murray did not

drug business

with him.

know Nigro well

The district

discretion by allowing redirect

and exercised

enough to

court did not

conduct

abuse its

testimony to clarify that issue,

abundant caution in

instructing the

jury on

the

limited consideration to be given such testimony.

III.
III.

There

are two

BAKER'S TESTIMONY
BAKER'S TESTIMONY
_________________

arguments concerning

the testimony

of

Richard Baker, the

marijuana

witness who

at his farm near Boston.

marijuana operation

his

property

to

at issue in

be

used

manufacturing fentanyl, a

claimed to

have

by

Murrays to

store

Besides participating in the

this trial, Baker

also allowed

an

involved

organization

dangerous synthetic drug,

have caused numerous deaths.

Murray

permitted the

in

reported to

This was the operation that Michael

uncovered pursuant

to his

cooperation

agreement with the government.

First,

should

be

Michael Murray

inadmissible because

claims

it

immunized statements, citing Kastigar

________

-15-

was

that Baker's

derived from

testimony

Murray's

v. United States, 406 U.S.

_____________

441

(1972).

He

access to Baker

in

exposing

argues that the

government would not

had not Murray introduced

the

fentanyl

"flipped" Baker and

operation.

used Baker against

have had

him while cooperating

The

government

then

Murray, instead of

vice

versa.

Simply

put, this is not a Kastigar issue, in which the

________

government must prove it

statements.

did not derive evidence

from immunized

The district court in this case specifically found:

"There

was no

Indeed,

of immunity

having reviewed

find, that

testimony

here,

my notes,

implicit or

it's clear

and not

any

derivative use."

the terms the

reviewable only

McLaughlin,
__________

for

The

I so

clear error.

free

to

make

accept this testimony, especially

offered no

contrary evidence

derivative use immunity.

Murray

See United States

___ ______________

derivative

anything he said . . . against him."

agreement of

district court's

957 F.2d 12, 16-17 (1st Cir. 1992).

government was

Murray

to me, and

government offered Michael

supported by the prosecutor's testimony that

to

explicit.

the only offer was an offer against direct use of the

findings as to

are

grant

v.

This finding is

he told Murray "the

or

indirect

use

of

The district court was free

in light of

that he

the fact that

had obtained

These findings

any

were not

clearly erroneous.

Second, the Catanos argue that the district court erred

in refusing to

recall Baker

as part of

after the mid-trial discovery of certain

say would have helped

them impeach Baker.

the government's

case,

notes which the Catanos

After

Baker had been

-16-

cross-examined,8 he failed to

appear on time for court

the next

day, apparently

its

because of a

snowstorm.

The

government waived

right to redirect, but also revealed that the government had

located for the first time notes DEA Agent O'Hara had

meeting with Baker.

The prosecutor explained that the government

had not been able

to locate O'Hara's notes earlier

were

personal files

in O'Hara's

office

dealing

prosecutor

with

the

case

was

the

crisis

notes,

his

affected by

his

hopes

his

of

The

that

operation.

earlier in

whether

from the

family.

revealed

fentanyl operation, the

Baker about

because they

was away

in

which

produced documents

in the

cross-examined

present

health

and O'Hara

involvement in the fentanyl

government had

implicated Baker

not

summarized

admitted knowing

taken of a

Baker

Though

which others

defendants had

testimony in

the

leniency in

the

fentanyl case.

Counsel

for Leonel Catano explained his

decision not to

cross-examine Baker about

fear of opening

a "Pandora's box" without any

to

indicate

operation.

what

(The

Baker

had said

fear of

chimerical, since the

the fentanyl case

before

a "Pandora's

earlier

written documents

about

box" was

same notes which state

the

fentanyl

certainly not

Baker confessed to

knowing participation in the fentanyl business also refer

involvement

in

the fentanyl

business

of

as

"two Hispanic

to the

males

____________________

Counsel for Leonel Catano

had noted that he would have cross-

examined Baker regarding fentanyl if he had documentation showing

what
On
his

Baker had or had not admitted about the fentanyl operation.

the other hand, Jaime

Catano's counsel stated

at trial that

client had ordered "not to get into the subject of fentanyl"

with Baker.

-17-

[Baker]

. . . thought were brothers, one of whom he testified to

be Jaime Catano.")

After the disclosure of O'Hara's notes, which

counsel

could use to impeach Baker on the stand, Leonel Catano's

counsel

asked to

fentanyl

case.

part

of the

recall Baker

The district

for cross-examination

court declined to

government's case,

could call Baker as their

but stated that

about the

recall Baker as

the defendants

witness and that the court

would give

them "latitude in examining him."

The defendants refused to call

Baker in their cases.

The Catanos

violation in

that the

information

examining

disclosure

now argue

in time

Baker.

government failed to

for

"When

rather

that there was

than

the defendants

the [Brady]
_____

of

a Brady-Giglio9
_____ ______

produce impeachment

to

use it

in

issue

is one

of delayed

nondisclosure, . . .

the

cross-

test

is

whether defendant's counsel was prevented by the delay from using

the disclosed

the

material effectively

defendant's case."

411-12

(1st Cir. 1986).

on how to handle

of discretion.

in preparing

and presenting

United States v. Ingraldi, 793 F.2d 408,

_____________
________

We review the district court's decision

delayed disclosure of Brady material

_____

See United States v. Sep lveda,

___ ______________
_________

for abuse

15 F.3d

1161,

1178-79 (1st. Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).
____________

In

explanation

this case,

of

importantly, the

the

its failure

prosecution

to find

the

offered a

reasonable

notes earlier.

Most

Catanos have not shown that the delay prevented

____________________

Brady v. Maryland, 373

_____
________

U.S. 83 (1963), and

States, 405 U.S. 150 (1972).

______

-18-

Giglio v. United
______
______

them

from using

the materials.

Baker at length on the

The

defendants cross-examined

theme that he was testifying in

get a

lenient sentence for

ring.

Further impeachment about his hopes to receive leniency in

an

additional

case

admittedly the

his participation

would

fentanyl case

deaths involved.

simply chose not

would

been the

was more

to.

In

serious

although

because of

the

were perfectly free

view of the possibility

open the door

better part

cumulative,

marijuana

to

explore the fentanyl issue, and they

implicate them

decision not to

been

Moreover, the Catanos

call Baker in their case to

notes

have

in the

order to

in

the

to this

of valor, rather

that O'Hara's

fentanyl operation,

testimony seems to

than the

result of

their

have

the

government's

delayed disclosure.

abuse its discretion on this issue.

The district

court did

not

-19-

IV.
IV.

JURY INSTRUCTIONS ON STANDARD OF PROOF

JURY INSTRUCTIONS ON STANDARD OF PROOF
______________________________________

The defendants

the

same conclusion:

make various

that

the jurors

arguments all

tending to

were misled

about what

standard of proof to apply.

A.
A.

Objection to Use of the Phrase "Common Sense"

Objection to Use of the Phrase "Common Sense"

James

Murray argues

that

the prosecutors

repeatedly

urged the jurors to use "common sense" in evaluating the case and

that this

effectively lowered

reasonable doubt

standard.

James

mistrial

on this ground.

mistrial

motion, it agreed to

the

standard

is

beyond

equivalent of common

doubt

Murray's counsel moved

reasonable

and that's

not

fact addressed

the

and proof beyond

Murray did not

The court stated:

Now, focusing on
how do
with

you analyze it?

it?

the evidence
What do

You're expected

a reasonable

object that the court's

____________________

10

for a

[its] charge that

doubt,

The court in

the

court denied the

"make clear in

common sense

in its charge.10

proof below

Though the district

sense."

distinction between

the standard of

to use

now,
you do
your

common sense. You don't check your common

sense at the door to the jury room.
the reverse.
your

I charge you

common sense.

You

Just

that you use

consider

the

evidence in the case for the purposes for

which it has been admitted, you give it a
reasonable and fair construction in light
of your

common knowledge of

tendencies

and

the natural

inclinations

of

human

beings.

Now, mention has been made of common

sense,

and make no

use your common

in

the

jury

doubt about

it, you

sense while you're there

room.

I'm interpolating

here, going beyond what I've written out,

-20-

treatment of

contends

the issue

that

arguments."

review

the court

Since

only for

resulting

was inadequate in

failed

there was

plain error

"to

respond to

no contemporaneous

affecting substantial

in a miscarriage of justice.

40 F.3d 1306, 1317-19 (1st

any way,

but he

the

now

improper

objection, we

rights, and

United States v. DeMasi,

_____________
______

Cir. 1994), cert. denied, 115 S. Ct.

____________

947 (1995).

There is nothing improper about instructing the jury to

use its common

sense in deliberations.

See DeMasi, 40
___ ______

F.3d at

1317-18; United States v. Ocampo-Guarin, 968 F.2d 1406, 1412 (1st

_____________
_____________

Cir. 1992).

The district court's instructions drew a distinction

between

common

sense,

as

methodology,

and

the

reasonable-doubt standard, as a quantum of proof.

told

the jury specifically

determinative

appropriate

closings.

statements

that arguments

of

now for counsel to

That's helpful.

reasonable probability

this record, and

the

law:

The court also

of counsel

"It

is

have mentioned the

that the jury

could have been

see nothing that

plain error resulting in a miscarriage of justice.

____________________

it's

important

to explain

the

difference.

While

you use

your common

sense, don't

think that the

standard of

proof here
standard
reasonable

is, well, common sense.

of

proof
doubt.

is

proof

You use

beyond

were not

perfectly

law in their

But take the law from me."

we most certainly

because

beyond-a-

The
a

your common

We see no

misled on

approaches

sense to

figure

And then

you

separate

out what

you

ask yourself

charge

and

as

each

believe.
to

each

separate

individual has the government proved that

charge beyond a reasonable doubt.

-21-

There was no error in either respect.

B.
B.

Objection to Instructing Jurors Not to Surrender

Objection to Instructing Jurors Not to Surrender
"Strongly-held Views"
"Strongly-held Views"

Leonel Catano

argues that the court

misled the jurors

when

it

instructed

them

about

the

deliberation

follows:

Now about deliberations.

about
to

the case together.

reassess or

Deliberate

Don't hesitate

reexamine your

light of the views

views in

of your fellow jurors

who have heard and seen exactly the

evidence that

you've heard and

are under the same oath as you

same

seen and
are to do

justice.

If you have a strong view

about any

aspect of this case, no one suggests that

you

surrender it.

means

the

verdict

unanimous verdict
of

independently agreeing.

each

juror

You're permitted

to deliberate together to see whether the

views of other jurors do affect your view
of the case.

So it's probably not a good idea

take a

straw vote at the

deliberations

lest

your oath you're

to

outset of your

you feel

that under

somehow committed

then

process

as

to that
Jury

particular view.

deliberations are,

that, deliberations.
together
by

That's not so.

the

You're

as I

But

say, just

you deliberate

to see whether you are affected

views

of

your

permitted

to

fellow
be,

jurors.

but

don't

surrender your own views if you have some

strongly-held
the

case.

whether

view

We

about any

aspect of

see through deliberations

twelve

jurors

can

come

to

unanimous verdict either of not guilty or

of guilty.
but

do

There's no pressure
understand

that

on you,
you

are

deliberating together.

Leonel

to

surrender

Catano contends that

"strongly-held

view[s],"

-22-

by instructing jurors not

the

court

lowered the

standard of proof below the reasonable-doubt standard.

on Cage v. Louisiana,
____
_________

Supreme

498 U.S. 39 (1990) (per curiam), which the

Court overruled in Estelle

_______

n.4 (1991).

He also relies

1239 (1994), which teaches

an instruction

jury

did
___

original).

so

apply

been

applied in

a reasonable

114

S.

Ct.

U.S. 62, 73

Nebraska, 114 S.
________

that our inquiry must not

there is

it."

v. McGuire, 502
_______

on Victor v.
______

"'could have'

manner, but whether

He relies

be whether

unconstitutional

likelihood that

at

Ct.

1243

the

(emphasis in

We must consider the phrase Leonel Catano objects to

("strongly-held

charge.

view[s]")

in the

context

of the

rest

of the

See id. at 1247.

___ ___

The

court's instruction

about deliberations

does not

directly relate to the quantum of proof and could only affect the

jury's

of

conception of the standard of proof indirectly.

the sentence Leonel complains of is to inform the jurors that

they need not

surrender their

deliberation

instruction

pressure

proof,

that

on

you."

the court

We

opinions.

reminded

When addressing

specifically and

the government

doubt."

the

The gist

must prove

remainder of

jurors

that

the

subject of

"there's

repeatedly charged

its case

see no likelihood that

The

"beyond a

the jury would

the

no

burden of

the jury

reasonable

have thought

instructions on standard of proof to have been superseded by

some implication in the deliberation instruction.

-23-

Leonel

analogous

to

Catano also

an Allen11
_____

argues

instruction,

that

with

the instruction

was

its potential

for

improperly

coercing

jurors to

States
______

Angiulo,
_______

485 F.2d

v.

instruction

reach

37,

Catano complains of

agreement,

40

(1st

citing United
______

Cir. 1973).

was not coercive,

The

as it simply

informed the jurors of their right to maintain their opinions and

did not pressure them to change.

instruction

not

to

reasonably likely to

as a whole

114 S.

surrender

We conclude that the particular

"strongly-held

cause the jurors to

"in a way that

views"

was

not

apply the instructions

violated the Constitution."

Victor,
______

Ct. at 1251.

V.
V.

MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT

MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT
________________________________________________

Michael Murray argues that

enhancing

his

3B1.1(a)

due to

base

offense

the district court erred by

level four

his aggravating

levels

role in the

under

offense.

section

USSG

3B1.1(a)

(Nov.

1993).

He

argues

that

the district

court's

findings at the time of sentencing do not indicate either that he

was

an

"organizer

or leader,"

as

opposed

to

a "manager

or

supervisor," or that the "criminal activity involved five or more

participants or was otherwise extensive," as required for a four-

level enhancement under section 3B1.1(a).12

____________________

11

Allen v. United States, 164 U.S. 492 (1896).

_____
_____________

12

At sentencing,

the

upward adjustment

organizer

or leader.

calls for a
calls

Michael Murray's counsel essentially conceded

for a

for manager

The difference is significant.

sentence of 235
range of

or supervisor,

292 to

to 293 months,
365 months.

sentenced near the top of the range.

-24-

but not

The former

whereas the
Michael

for

latter

Murray was

18 U.S.C.

at the time of

for its

3553(c)

sentencing, shall state in open court the reasons

imposition of the

here, the

court stated

Michael Murray

of the

figure, the organizer, and

court

did

not,

particular sentence."

only that

4 levels is

fair preponderance

The

(1988) requires that "[t]he court,

in

At sentencing

"[t]he upward adjustment

appropriate.

evidence that

The Court finds

he

was the

for

by a

principal

a 4-level adjustment is appropriate."

open

court,

make

specific

findings

regarding Murray's involvement either

by detailing on the record

the facts developed during trial supporting its conclusion, or by

adoption of findings

in the presentence report.

States
______

970

v.

Schultz,
_______

F.2d

960,

(affirming two-level enhancement under

district

court stated that

963-64

USSG

Compare United
_______ ______

(1st

Cir.

1992)

3B1.1(c) where the

the enhancement was

"agreed upon by

this court," and that the "largely uncontested facts set forth in

the PSR"

supported the

denied, 113 S. Ct.

______

918 F.2d

defendant's exercise of

1020 (1993), with United States

____ _____________

1004, 1011-12 (1st

enhancement where

control), cert.
_____

Cir. 1990) (remanding

neither the PSR nor

indicated the basis for enhancement).

v. McDowell,
________

a four-level

the sentencing transcript

In

Schultz, we
_______

held that

the district

court managed

minimal compliance with Section 3553(c) where the court impliedly

adopted the

PSR

and denoted

each

guideline sentencing

range. 970 F.2d

"[t]he

central focus

PSR

sentencing."

was the

Id.
___

The

element in

at 963 n.7.

of

court in Schultz
_______

-25-

determining

the issues

the

Furthermore,

presented at

stressed that the

PSR

gave substantial

support for

the district court's

for a reasoned appellate review.

In

PSR

by

statement:

application

cases this

appellate

Id. at 963 n.7, 964.

___

the case before us, the

checking

the

box

on

the

district judge adopted the

judgment

"The court adopts the factual

in the

findings and

form

before

the

findings and guideline

presentence report."

While in

many simple

would be sufficient to impart to the defendant and an

court sufficient

sentence, Michael

reasons

for

imposing a

Murray's PSR does not

particular

clearly demonstrate why

he was considered to be an "organizer or leader" as distinguished

from

a "manager or supervisor."

conduct

pages

over some

of taped

twenty-two

conversations

The PSR

discusses the offense

pages, containing

read to

the

jury.

some

fourteen

While

some

statements in the discussion might support a finding that Michael

Murray played a leadership role, much in the report would support

a finding

The

that James Murray or

PSR does

not

specifically, in

come to

grips with

the issue

a case with considerable

why Michael Murray was

rather

the Catanos played such

analysis of the facts

by explaining

scope and complexity,

concluded to be an "organizer

than a "manager or

supervisor."

a role.

Without

or leader"

even a minimal

or articulation of its reasoning,

the PSR

simply states: "Michael Murray is regarded as the principle [sic]

figure;

he was the organizer

under

3B1.1(a) is warranted, and

makes

no

reference

recommendation.

to

and paymaster.

specific

A role adjustment

is being applied."

evidence

The PSR

supporting

that

-26-

The

judge's

adoption

of

the

factual

findings

and

guideline application by checking the box on the judgment form on

the

which

facts of

this case

does not

requires a statement of

sentence.

The lengthy

comply with

section 3553(c),

reasons for imposing a particular

recitation of evidence in the

PSR simply

does not focus on the distinction required by the guidelines.

If

the PSR had set out a clearly stated, unequivocal explanation for

holding Murray to

that

it

be an

did not)

adequate.

the

Further,

organized

every

organizer or leader

judge's reference

if

facet

witnesses had

of

the

drug

to

(which we

believe

the PSR

might be

testified

that

operation

and

Murray

was

the

unequivocal leader, the bare finding that he was the organizer or

leader

might,

standing

alone,

be

sufficient.

Under

the

circumstances before us, however, section 3553(c) can only be met

by

the

district

"organizer

or

court's explanation

leader" label,

of

why

rather than

it

selected the

that of

"manager or

supervisor."

We underscore

themselves adequately

sentence,

district

that in

set forth

judge

a case

where the

PSR findings

a meaningful rationale

does

not

err

in

for the

adopting

such

findings.

In a

lengthy chain

case such

as that before

of transactions

and dealings between

individuals

involved, and with

and

does

which

considerations

categories,

it

not

even

necessary

is

to

necessary

us, however,

a PSR which

minimally

focus

-27-

the

the several

is overly inclusive

differentiate

that

with a

on

the

between

district

specific

the

two

judge

make

sufficient

findings

to

articulate

the

rationale

for

the

sentencing decision.

Unlike

total lack of

rather,

cannot

findings on

their

position as

McDowell, the
________

adequacy.

in McDowell,
________

tell the

criminal activity

basis on

before us

the question of

However,

we

"[w]ithout

which the

nor the sentencing

918 F.2d

concerns not

the adjustment

are

left

in the

substantial guesswork,

judge determined

was sufficiently extensive to

level upward enhancement."

identifies why he

case

at 1012.

to be

an "organizer

but,

same

we

that the

permit the four

Neither

the PSR

transcript discusses Murray's involvement

was held

or leader"

or

as

opposed to a "manager or supervisor."

In

short,

although

the

case record

may

very

well

support the four-level enhancement:

there is nothing in the sentencing record

about

any

of

findings,

this.

it

for

us, on

jump

to

Absent

would be

requirements

defendant

in

reasoned

of

the

assumptions

that

dock,

not

on

[the

were met].

sentence, is

findings,

standard,

predicate, to

conclusion

enhancement

imposition

overly impetuous

so exiguous a
the

explicit

awaiting
entitled to

preponderance

to

an appellate

drawn

free-form

court's
from

an

inscrutable record.

Id.
___

at 1012 n.8.

This is

conclude, however, that the

not

been met

a troublesome, borderline

case.

We

requirements of section 3553(c) have

because the district

judge did not

state in open

court, with sufficient specificity, the reasons for deciding this

particular issue,

sentence.

which substantially impacted

Michael Murray's

We are satisfied that justice is best served by remand

-28-

for

further

articulation

of

the

reasons

adjustment in accordance with 18 U.S.C.

VI.
VI.

The

reject

suppression

of

motion;

imposing

the

issues.

We

3553(c).

REMAINING CLAIMS OF ERROR

REMAINING CLAIMS OF ERROR
_________________________

appellants raise

the claims

for

a number

error in:

(2)

denying

of other

(1) denying

Jaime

James

Catano's

Murray's

motion

for

severance; (3)

Michael

denying Jaime

participate in

Murray's omnibus motion hearing; (4) managing the use of

peremptory challenges;

(6) convicting Jaime

and

Catano's motion to

(7)

refusing

acceptance

(5) refusing to define

Catano of

to

adjust

reasonable doubt;

continuing criminal

Michael

Murray's

of responsibility or to depart

enterprise;

sentence

downward.

for

We discuss

these issues in the attached unpublished portion of this opinion,

as their disposition is not

of sufficient precedential value

to

merit publication.

We

affirm
______

the

convictions,

but

vacate
______

and

remand
______

Michael Murray's sentence for further findings in accordance with

this opinion.

-29-