United States v. Murray
65 F.3d 207 | 1st Cir. | 1995
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.
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JOHN R. GIBSON, Senior Circuit Judge. Michael and JOHN R. GIBSON, Senior Circuit Judge _____________________
James Murray appeal their convictions of one count of conspiracy
to distribute marijuana, three counts of possessing marijuana
with intent to distribute, and one count of attempt to possess
with intent to distribute, all relating to transporting truck
loads of marijuana from Texas to Boston in August and November
1989 and February 1991. Jaime Catano was convicted of two
possession counts, the attempt count and a count of continuing
criminal enterprise. Leonel Catano was convicted of one of the
possession counts, as well as the conspiracy and the attempt.
All challenge their convictions on numerous grounds, and Michael
Murray appeals his sentence. We affirm the judgments, but we
remand Michael Murray's sentence for further findings.1
Beginning in 1987 the Murrays and Catanos headed up an
organization that transported loads of marijuana in tractor-
trailers from Texas to Boston or the New York area. The
government's case consisted principally of the testimony of two
truck drivers, Halcott Lawrence and Morton Todd; of Richard
Baker, who allowed the storage of marijuana on his property; of a
government informant, Frank Nigro; and of DEA surveillance
agents.
Leonel Catano first recruited Lawrence in 1987 to drive
a truck load of 1,000 pounds of marijuana from Houston, Texas to
____________________
1 The published version of this Opinion includes only the
background statement of facts and discussion of those issues that
may be of general interest. The unpublished portion of the
Opinion addresses other issues that do not appear to have
precedential importance. See First Cir. R. 36.2. ___
-3-
New York. After that, Lawrence drove other, similar loads from
Beeville, Texas to Boston. Lawrence would first pick up a cover
cargo, usually of onions or plastic pellets, then drive to a farm
near Beeville, Texas, where workers would hide bales of
cellophane-wrapped marijuana under the cover cargo. Each time
when 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. Lawrence drove up separately. When
Todd and Lawrence got to Boston with the marijuana, they met
Jaime Catano and the two Murrays. Jaime Catano paid Todd his
wages of $12,000, less expenses Todd had already received.
Todd drove another load to Boston in November 1989. He
received the marijuana in Texas from the Murrays and Jaime
Catano. When he arrived in Boston, the Murrays unloaded the
truck and paid him.
Frank Nigro, an informant, solicited Michael Murray,
who agreed to supply him 1,000-2,000 pounds of marijuana. The
government introduced a tape of a conversation that took place on
November 1, 1991, between Nigro and Michael Murray. Murray
discussed procuring marijuana from "Mexicans." Murray said he
had been "down there" and "seen merchandise," and that he would
go down and personally make the acquisition.
-4-
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 a steel tank.
James and Michael Murray were there, and they unloaded 2,000
pounds of marijuana into a shed on Baker's property. Over the
next two weeks they parcelled out the marijuana 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 the last delivery to Baker's farm, the
government was closing in. The truck driver, Roberto L pez, was
actually working undercover for the government. Before L pez and
Catano left on the trip to Boston, the DEA was aware of their
itinerary. The DEA planted monitoring devices in the hotel where
Leonel planned to stay in Kingston, Massachusetts, and arranged
to book them into a bugged room. The agents video taped a
conversation between L pez, Leonel Catano and the Murrays on
November 2, 1991, in which they coordinated an imminent trip to
Texas. Michael Murray was to "get the money ready;" Leonel
Catano and L pez were to "go to Dallas, drop the box then just
come, ah, bobtail2 . . . you know, with the money;" and James
Murray was "to go and . . . pay the other transportation people
in Dallas."
____________________
2 To "bobtail" means to drive a tractor without a trailer
behind. In this context, the "box" would be the trailer.
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After this conversation, Michael Murray left in a car
and Leonel Catano and L pez left in the truck. DEA agents
followed Catano and L pez to Luling, Texas, where they dropped
off the tank and trailer. They then "bobtailed"3 south to
McAllen, Texas on the Mexican border, where they met James Murray
on November 5, 1991.
On November 6, 1991, government agents (acting on a
mistaken lead that the marijuana had already been delivered)
arrested both Murrays and both Catanos in McAllen. They searched
Leonel Catano's truck and the steel tank left behind in Luling.
The agents found no marijuana, but they did find $1,149,650
hidden in a compartment in the tractor cab. They also located
James Murray's truck at the Dallas-Fort Worth airport and
searched it, finding about $100,000 hidden in it.
This brief outline of the evidence suffices for
purposes of considering most of the arguments raised on this
appeal. As other facts are material to the various arguments, we
will supply more details.
I. MICHAEL MURRAY'S SIMMONS4 ARGUMENT I. MICHAEL MURRAY'S SIMMONS4 ARGUMENT __________________________________
Before trial, Michael Murray brought an omnibus motion
for relief, which included claims based on an alleged plea
____________________
3 See footnote 1. ___
4 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. ___
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bargain with the government for immunity from prosecution and
suppression of evidence derived from his cooperation with the
government. The plea agreement was not memorialized in any way.
Michael Murray contended that the government agreed to advocate
the lower end of a zero to five-year sentence if he would change
his plea, assist the government in its investigation of a
fentanyl manufacturing laboratory, help the government acquire
six million dollars in offshore accounts, and be available to
testify in this case. The government claimed it had extended two
separate offers to Michael Murray: one for complete cooperation
and one for partial cooperation. Complete cooperation required
Michael Murray to plead guilty, assist the government in any and
all investigations which the DEA suggested, be completely
debriefed, surrender the six million dollars, and testify as
requested. Complete cooperation would result in a government
recommendation for five or fewer years incarceration.
Alternatively, the government would recommend seventeen years
incarceration if Michael Murray pleaded guilty and failed to
fully cooperate in any way.
The district court held an evidentiary pre-trial
hearing to determine what the agreement was and if Michael Murray
was entitled to specific performance due to his fulfillment of
the agreement as determined. Michael Murray argues that the
district court erred in refusing to grant him immunity under
Simmons v. United States, 390 U.S. 377 (1968), at this pre-trial _______ _____________
hearing, forcing him "to elect between his Fifth Amendment due
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process right to be heard on the question of his plea agreement
with the government and his Fifth Amendment right not to be
compelled to incriminate himself."
At the hearing, the court permitted Michael Murray's
counsel to call one of the prosecutors and a DEA case agent.
Both testified about the offer and the areas in which they
believed Michael Murray's cooperation to be less than complete.
Michael Murray's counsel requested Simmons-type immunity for _______
Murray if he testified regarding the plea offer and his
performance. The district court refused to grant this immunity,
but suggested that Michael Murray testify in two parts: first,
on the terms of the government's offer; and then, after the court
ruled on the offer's terms, on his performance under that offer.
The court made clear that Michael Murray could refuse to testify
on his performance of the agreement even if he chose to testify
on its terms. Michael Murray declined to testify. The court
then granted Michael Murray's request that his affidavit
regarding the plea offer be made part of the record of the
hearing.
The court found that the government had made the plea
offers as it alleged and that, although Michael Murray had
substantially performed, he had not completely performed.
Specifically, the court noted that Michael Murray had not fully
cooperated because, among other things: 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
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testify against that defendant; and he refused adequate access to
his offshore accounts. The court determined that Michael Murray
could accept the government's plea offer by pleading guilty
before the jury was impanelled. If Michael 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, if Mr. Murray's willing to be
completely debriefed to testify in any and all matters and to
completely cooperate, the government is willing to stand by its
offer . . . . That's been our position throughout." Michael
Murray did not plead guilty, did not accept the plea offer, and
went to trial on all counts.
Entitlement to immunity is a legal question, which we
review de novo. See United States v. Hardy, 37 F.3d 753, 756 ___ _____________ _____
(1st Cir. 1994) (holding that legal questions are reviewed de
novo).
We affirm the district court's denial of Simmons-type _______
immunity on these facts because Michael Murray did not have to
surrender one constitutional right in order 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 Michael
Murray had testified regarding his understanding of the terms of
the plea agreement, the district judge stated that he would have
limited cross-examination to that topic. We agree with the
district judge that "what was the deal is a lot more bland [than
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is the performance issue] and has nothing to do either with this
case or, one would imagine, any other investigation." We fail to
see how Michael Murray's testimony regarding what the government
offered and what he understood would incriminate him in any way
in any proceeding. He chose, however, not to testify.
After Michael Murray's counsel announced his intent not
to testify, the district judge made findings as to the terms of
the agreement. The judge specifically stated, and the
prosecution agreed, that Michael Murray could still accept the
plea offer prior to trial. He did not. Thus, the judge never
reached the issue of Michael Murray's performance, which was
relevant only to determine 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 under either version of
the plea agreement. See United States v. Baldacchino, 762 F.2d ___ _____________ ___________
170, 179 (1st Cir. 1985). Thus, the government is released from
any obligations under the agreement "regardless of whatever it
may have promised earlier." United States v. Tilley, 964 F.2d _____________ ______
66, 70-71 (1st Cir. 1992).
Simmons is inapplicable on these facts. _______
II. NIGRO'S TESTIMONY II. NIGRO'S TESTIMONY _________________
Frank Nigro testified regarding several conversations
he had with Michael Murray in October 1991, one of which the
government recorded and played to the jury. Michael Murray
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argues error in the admission of the substance of both the direct
examination and of the redirect examination.
A. Nigro's Direct Testimony A. Nigro's Direct Testimony
Michael Murray's counsel objected that Nigro's
testimony was "gratuitous talk" about marijuana, unrelated to the
crimes charged or to "any particular incident in the past."
Before Nigro testified, the district judge stated that "[t]he
statements by Michael Murray . . . are admissions so they're
admissible as against Mr. Murray." Fed. R. Evid. 801(d)(2)(A).
On direct examination, the government confined its
questions to the period from September 1991 to November 1991,
when Nigro was cooperating with the DEA on this 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 of marijuana. Near the close of Nigro's direct
examination, the government played a tape of one of the Nigro-
Murray meetings. In that conversation, Michael Murray generally
described his experience with importation of marijuana from
Colombia and Mexico, from getting the marijuana across the river
to weighing marijuana to piecing together loads of marijuana from
different suppliers. The district court did not abuse its
discretion by admitting either Nigro's testimony on direct
examination or the tape-recorded conversation between Michael
Murray and Nigro. Both were properly admissible against Michael
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Murray as admissions.5 Michael Murray's part of the
conversations constituted non-hearsay admissions of a party.
Fed. R. Evid. 801(d)(2)(A); United States v. McDowell, 918 F.2d _____________ ________
1004, 1007 (1st Cir. 1990). Nigro's part of the conversations
served as "'reciprocal and integrated utterance(s),'" McDowell, ________
at 918 F.2d at 1007 (quoting United States v. Metcalf, 430 F.2d _____________ _______
1197, 1199 (8th Cir. 1970)), "reasonably required to place
[Murray's] admissions into context" and "make them intelligible
to the jury." Id. (internal quotation marks and citation ___
omitted). Because Nigro's statements were 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. Nigro's Testimony on Redirect Examination B. Nigro's Testimony on Redirect Examination
On cross-examination, Michael Murray's counsel
attempted to discredit Nigro's testimony by insinuating that
Nigro barely knew Murray.6 On redirect examination, the
____________________
5 Michael Murray's argument that the statements were not
admissible as statements of a co-conspirator is misplaced. The
co-conspirator exception applies to hearsay statements. The
statements here are non-hearsay under Rule 801(c) and
801(d)(2)(A).
6 MICHAEL MURRAY'S COUNSEL: And this man
that you 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 marijuana without
you paying for it, and you don't know even
where he lives?
NIGRO: Yes.
The following day, Michael Murray's counsel again attempted to
minimize the relationship between Nigro and Murray:
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government asked Nigro how he first met Michael Murray. Michael
Murray's counsel objected. At a sidebar conference, the
government argued that, on cross-examination, Michael Murray's
counsel opened the door to the earlier relationship between Nigro
and Murray. The district court ruled that "[a]s to scope, I
think this is all opened up because of the suggestion that this
is absolutely bizarre conduct" and because, without this
background, the meeting between Nigro and Michael Murray "seems
to be such an isolated and strange event." When Michael Murray's
counsel pressed for a ruling under Federal Rule of Evidence
404(b), the district court stated that "[the evidence] doesn't
have to be admitted as 404(b) but that is an alternative ground
for the admission. You have opened this up, it's admitted to him
to show that this was not a bizarre picking someone out of a
crowd and trying to entice them into drug trafficking." The
district court then ruled that the government's line 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 Nigro
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: Mr. Nigro, is it
your testimony that from these brief
encounters with Mr. 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 having discussed
a price? Is that your testimony?
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took full control of the operation, and Nigro continued to work
for them in a more limited capacity. Three more 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: And I will tell you that
Mr. Michael Murray is not here charged
with any of the events which this witness
testifies took place back in the late
seventies, perhaps the early eighties.
That has nothing to do with this case
except, if you believe his testimony, it
tends to place the conversation about
which he testified, the tape that was
played, if you believe that, in context.
That's the only reason you heard it. Mr.
Michael Murray is not charged with
anything back then, you're not to
consider that, except that to the extent
that you, yourself, determine in the
manner that I've just described.
We review the district court's rulings on the
admissibility of evidence only for abuse of discretion. United ______
States v. McCarthy, 961 F.2d 972, 977 (1st Cir. 1992). ______ ________
The district court did not abuse its discretion in
permitting the government on redirect examination to explore the
past business dealings of 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). A _____________ ________
district court may allow testimony on redirect which clarifies an
____________________
7 The district court admitted this testimony only against
Michael Murray and gave a limiting instruction as to the other
defendants. In this appeal, the other appellants claim no
prejudice by the admission of Nigro's testimony on redirect.
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issue which the defense opened up on cross-examination even when
this evidence is otherwise inadmissible. United States v. Geer, _____________ ____
923 F.2d 892, 896-97 n.4 (1st Cir. 1991) (citing Braidlow, 806 ________
F.2d at 783). Otherwise, litigants could exploit the rules of
evidence to create misleading impressions, secure in the
knowledge that the other side was barred from disabusing the
jury. On cross-examination, Michael Murray's counsel opened the
door to the past relationship between Murray and Nigro by making
it seem that Murray did not know Nigro well enough to conduct
drug business with him. The district court did not abuse its
discretion by allowing redirect testimony to clarify that issue,
and exercised abundant caution in instructing the jury on the
limited consideration to be given such testimony.
III. BAKER'S TESTIMONY III. BAKER'S TESTIMONY _________________
There are two arguments concerning the testimony of
Richard Baker, the witness who permitted the Murrays to store
marijuana at his farm near Boston. Besides participating in the
marijuana operation at issue in this trial, Baker also allowed
his property to be used by an organization involved in
manufacturing fentanyl, a dangerous synthetic drug, reported to
have caused numerous deaths. This was the operation that Michael
Murray claimed to have uncovered pursuant to his cooperation
agreement with the government.
First, Michael Murray claims that Baker's testimony
should be inadmissible because it was derived from Murray's
immunized statements, citing Kastigar v. United States, 406 U.S. ________ _____________
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441 (1972). He argues that the government would not have had
access to Baker had not Murray introduced him while cooperating
in exposing the fentanyl operation. The government then
"flipped" Baker and used Baker against Murray, instead of vice
versa.
Simply put, this is not a Kastigar issue, in which the ________
government must prove it did not derive evidence from immunized
statements. The district court in this case specifically found:
"There was no grant of immunity here, implicit or explicit.
Indeed, having reviewed my notes, it's clear to me, and I so
find, that the only offer was an offer against direct use of the
testimony and not any derivative use." The district court's
findings as to the terms the government offered Michael Murray
are reviewable only for clear error. See United States v. ___ ______________
McLaughlin, 957 F.2d 12, 16-17 (1st Cir. 1992). This finding is __________
supported by the prosecutor's testimony that he told Murray "the
government was free to make derivative or indirect use of
anything he said . . . against him." The district court was free
to accept this testimony, especially in light of the fact that
Murray offered no contrary evidence that he had obtained any
agreement of derivative use immunity. These findings were not
clearly erroneous.
Second, the Catanos argue that the district court erred
in refusing to recall Baker as part of the government's case,
after the mid-trial discovery of certain notes which the Catanos
say would have helped them impeach Baker. After Baker had been
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cross-examined,8 he failed to appear on time for court the next
day, apparently because of a snowstorm. The government waived
its right to redirect, but also revealed that the government had
located for the first time notes DEA Agent O'Hara had taken of a
meeting with Baker. The prosecutor explained that the government
had not been able to locate O'Hara's notes earlier because they
were in O'Hara's personal files and O'Hara was away from the
office dealing with a health crisis in his family. The
prosecutor summarized the notes, which revealed that Baker
admitted knowing involvement in the fentanyl operation. Though
the government had produced documents earlier in which others
implicated Baker in the fentanyl operation, the defendants had
not cross-examined Baker about whether his testimony in the
present case was affected by his hopes of leniency in the
fentanyl case. Counsel for Leonel Catano explained his earlier
decision not to cross-examine Baker about the fentanyl case as
fear of opening a "Pandora's box" without any written documents
to indicate what Baker had said before about the fentanyl
operation. (The fear of a "Pandora's box" was certainly not
chimerical, since the same notes which state Baker confessed to
knowing participation in the fentanyl business also refer to the
involvement in the fentanyl business of "two Hispanic males
____________________
8 Counsel for Leonel Catano had noted that he would have cross-
examined Baker regarding fentanyl if he had documentation showing
what Baker had or had not admitted about the fentanyl operation.
On the other hand, Jaime Catano's counsel stated at trial that
his client had ordered "not to get into the subject of fentanyl"
with Baker.
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[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 recall Baker for cross-examination about the
fentanyl case. The district court declined to recall Baker as
part of the government's case, but stated that the defendants
could call Baker as their witness and that the court would give
them "latitude in examining him." The defendants refused to call
Baker in their cases.
The Catanos now argue that there was a Brady-Giglio9 _____ ______
violation in that the government failed to produce impeachment
information in time for the defendants to use it in cross-
examining Baker. "When the [Brady] issue is one of delayed _____
disclosure rather than of nondisclosure, . . . the test is
whether defendant's counsel was prevented by the delay from using
the disclosed material effectively in preparing and presenting
the defendant's case." United States v. Ingraldi, 793 F.2d 408, _____________ ________
411-12 (1st Cir. 1986). We review the district court's decision
on how to handle delayed disclosure of Brady material for abuse _____
of discretion. See United States v. Sep lveda, 15 F.3d 1161, ___ ______________ _________
1178-79 (1st. Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994). ____________
In this case, the prosecution offered a reasonable
explanation of its failure to find the notes earlier. Most
importantly, the Catanos have not shown that the delay prevented
____________________
9 Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United _____ ________ ______ ______
States, 405 U.S. 150 (1972). ______
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them from using the materials. The defendants cross-examined
Baker at length on the theme that he was testifying in order to
get a lenient sentence for his participation in the marijuana
ring. Further impeachment about his hopes to receive leniency in
an additional case would have been cumulative, although
admittedly the fentanyl case was more serious because of the
deaths involved. Moreover, the Catanos were perfectly free to
call Baker in their case to explore the fentanyl issue, and they
simply chose not to. In view of the possibility that O'Hara's
notes would implicate them in the fentanyl operation, their
decision not to open the door to this testimony seems to have
been the better part of valor, rather than the result of the
government's delayed disclosure. The district court did not
abuse its discretion on this issue.
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IV. JURY INSTRUCTIONS ON STANDARD OF PROOF IV. JURY INSTRUCTIONS ON STANDARD OF PROOF ______________________________________
The defendants make various arguments all tending to
the same conclusion: that the jurors were misled about what
standard of proof to apply.
A. Objection to Use of the Phrase "Common Sense" A. 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 the standard of proof below the
reasonable doubt standard. James Murray's counsel moved for a
mistrial on this ground. Though the district court denied the
mistrial motion, it agreed to "make clear in [its] charge that
the standard is beyond a reasonable doubt, and that's not
equivalent of common sense." The court in fact addressed the
distinction between common sense and proof beyond a reasonable
doubt in its charge.10 Murray did not object that the court's
____________________
10 The court stated:
Now, focusing on the evidence now,
how do you analyze it? What do you do
with it? You're expected to use your
common sense. You don't check your common
sense at the door to the jury room. Just
the reverse. I charge you that you use
your common sense. You 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 the natural
tendencies and inclinations of human
beings.
Now, mention has been made of common
sense, and make no doubt about it, you
use your common sense while you're there
in the jury room. I'm interpolating
here, going beyond what I've written out,
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treatment of the issue was inadequate in any way, but he now
contends that the court failed "to respond to the improper
arguments." Since there was no contemporaneous objection, we
review only for plain error affecting substantial rights, and
resulting in a miscarriage of justice. United States v. DeMasi, _____________ ______
40 F.3d 1306, 1317-19 (1st 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 beyond-a-
reasonable-doubt standard, as a quantum of proof. The court also
told the jury specifically that arguments of counsel were not
determinative statements of the law: "It is perfectly
appropriate now for counsel to have mentioned the law in their
closings. That's helpful. But take the law from me." We see no
reasonable probability that the jury could have been misled on
this record, and we most certainly see nothing that approaches
plain error resulting in a miscarriage of justice.
____________________
because it's important to explain the
difference. While you use your common
sense, don't think that the standard of
proof here is, well, common sense. The
standard of proof is proof beyond a
reasonable doubt. You use your common
sense to figure out what you believe.
And then you ask yourself as to each
separate charge and each separate
individual has the government proved that
charge beyond a reasonable doubt.
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There was no error in either respect.
B. Objection to Instructing Jurors Not to Surrender B. 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 process as
follows:
Now about deliberations. Deliberate
about the case together. Don't hesitate
to reassess or reexamine your views in
light of the views of your fellow jurors
who have heard and seen exactly the same
evidence that you've heard and seen and
are under the same oath as you are to do
justice.
If you have a strong view about any
aspect of this case, no one suggests that
you surrender it. A unanimous verdict
means the verdict of each juror
independently agreeing. 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 to
take a straw vote at the outset of your
deliberations lest you feel that under
your oath you're somehow committed then
to that particular view. That's not so.
Jury deliberations are, as I say, just
that, deliberations. But you deliberate
together to see whether you are affected
by the views of your fellow jurors.
You're permitted to be, but don't
surrender your own views if you have some
strongly-held view about any aspect of
the case. We see through deliberations
whether twelve jurors can come to a
unanimous verdict either of not guilty or
of guilty. There's no pressure on you,
but do understand that you are
deliberating together.
Leonel Catano contends that by instructing jurors not
to surrender "strongly-held view[s]," the court lowered the
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standard of proof below the reasonable-doubt standard. He relies
on Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), which the ____ _________
Supreme Court overruled in Estelle v. McGuire, 502 U.S. 62, 73 _______ _______
n.4 (1991). He also relies on Victor v. Nebraska, 114 S. Ct. ______ ________
1239 (1994), which teaches that our inquiry must not be whether
an instruction "'could have' been applied in unconstitutional
manner, but whether there is a reasonable likelihood that the
jury did so apply it." 114 S. Ct. at 1243 (emphasis in ___
original). We must consider the phrase Leonel Catano objects to
("strongly-held view[s]") in the context of the rest of the
charge. 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 conception of the standard of proof indirectly. The gist
of the sentence Leonel complains of is to inform the jurors that
they need not surrender their opinions. The remainder of the
deliberation instruction reminded jurors that "there's no
pressure on you." When addressing the subject of burden of
proof, the court specifically and repeatedly charged the jury
that the government must prove its case "beyond a reasonable
doubt." We see no likelihood that the jury would have thought
the instructions on standard of proof to have been superseded by
some implication in the deliberation instruction.
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Leonel Catano also argues that the instruction was
analogous to an Allen11 instruction, with its potential for _____
improperly coercing jurors to reach agreement, citing United ______
States v. Angiulo, 485 F.2d 37, 40 (1st Cir. 1973). The ______ _______
instruction Catano complains of was not coercive, as it simply
informed the jurors of their right to maintain their opinions and
did not pressure them to change. We conclude that the particular
instruction not to surrender "strongly-held views" was not
reasonably likely to cause the jurors to apply the instructions
as a whole "in a way that violated the Constitution." Victor, ______
114 S. Ct. at 1251.
V. MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT V. MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT ________________________________________________
Michael Murray argues that the district court erred by
enhancing his base offense level four levels under section
3B1.1(a) due to his aggravating role in the offense. 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, Michael Murray's counsel essentially conceded
the upward adjustment for manager or supervisor, but not for
organizer or leader. The difference is significant. The former
calls for a sentence of 235 to 293 months, whereas the latter
calls for a range of 292 to 365 months. Michael Murray was
sentenced near the top of the range.
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18 U.S.C. 3553(c) (1988) requires that "[t]he court,
at the time of sentencing, shall state in open court the reasons
for its imposition of the particular sentence." At sentencing
here, the court stated only that "[t]he upward adjustment for
Michael Murray 4 levels is appropriate. The Court finds by a
fair preponderance of the evidence that he was the principal
figure, the organizer, and a 4-level adjustment is appropriate."
The court did not, in 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. Compare United _______ ______
States v. Schultz, 970 F.2d 960, 963-64 (1st Cir. 1992) ______ _______
(affirming two-level enhancement under USSG 3B1.1(c) where the
district court stated that the enhancement was "agreed upon by
this court," and that the "largely uncontested facts set forth in
the PSR" supported the defendant's exercise of control), cert. _____
denied, 113 S. Ct. 1020 (1993), with United States v. McDowell, ______ ____ _____________ ________
918 F.2d 1004, 1011-12 (1st Cir. 1990) (remanding a four-level
enhancement where neither the PSR nor the sentencing transcript
indicated the basis for enhancement).
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 element in determining the
guideline sentencing range. 970 F.2d at 963 n.7. Furthermore,
"[t]he PSR was the central focus of the issues presented at
sentencing." Id. The court in Schultz stressed that the PSR ___ _______
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gave substantial support for the district court's findings and
for a reasoned appellate review. Id. at 963 n.7, 964. ___
In the case before us, the district judge adopted the
PSR by checking the box on the judgment form before the
statement: "The court adopts the factual findings and guideline
application in the presentence report." While in many simple
cases this would be sufficient to impart to the defendant and an
appellate court sufficient reasons for imposing a particular
sentence, Michael Murray's PSR does not clearly demonstrate why
he was considered to be an "organizer or leader" as distinguished
from a "manager or supervisor." The PSR discusses the offense
conduct over some twenty-two pages, containing some fourteen
pages of taped conversations read to the jury. 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 that James Murray or the Catanos played such a role.
The PSR does not come to grips with the issue by explaining
specifically, in a case with considerable scope and complexity,
why Michael Murray was concluded to be an "organizer or leader"
rather than a "manager or supervisor." Without even a minimal
analysis of the facts or articulation of its reasoning, the PSR
simply states: "Michael Murray is regarded as the principle [sic]
figure; he was the organizer and paymaster. A role adjustment
under 3B1.1(a) is warranted, and is being applied." The PSR
makes no reference to specific evidence supporting that
recommendation.
-26-
The judge's adoption of the factual findings and
guideline application by checking the box on the judgment form on
the facts of this case does not comply with section 3553(c),
which requires a statement of reasons for imposing a particular
sentence. The lengthy 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 be an organizer or leader (which we believe
that it did not) the judge's reference to the PSR might be
adequate. Further, if witnesses had testified that Murray
organized every facet of the drug operation and 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 court's explanation of why it selected the
"organizer or leader" label, rather than that of "manager or
supervisor."
We underscore that in a case where the PSR findings
themselves adequately set forth a meaningful rationale for the
sentence, a district judge does not err in adopting such
findings. In a case such as that before us, however, with a
lengthy chain of transactions and dealings between the several
individuals involved, and with a PSR which is overly inclusive
and which does not even minimally focus on the specific
considerations necessary to differentiate between the two
categories, it is necessary that the district judge make
-27-
sufficient findings to articulate the rationale for the
sentencing decision.
Unlike McDowell, the case before us concerns not a ________
total lack of findings on the question of the adjustment but,
rather, their adequacy. However, we are left in the same
position as in McDowell, "[w]ithout substantial guesswork, we ________
cannot tell the basis on which the judge determined that the
criminal activity was sufficiently extensive to permit the four
level upward enhancement." 918 F.2d at 1012. Neither the PSR
nor the sentencing transcript discusses Murray's involvement or
identifies why he was held to be an "organizer or leader" 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 this. Absent explicit
findings, it would be overly impetuous
for us, on so exiguous a predicate, to
jump to the conclusion that [the
enhancement requirements were met]. A
defendant in the dock, awaiting
imposition of sentence, is entitled to
reasoned findings, on a preponderance
standard, not to an appellate court's
assumptions drawn free-form from an
inscrutable record.
Id. at 1012 n.8. This is a troublesome, borderline case. We ___
conclude, however, that the requirements of section 3553(c) have
not been met because the district judge did not state in open
court, with sufficient specificity, the reasons for deciding this
particular issue, which substantially impacted Michael Murray's
sentence. We are satisfied that justice is best served by remand
-28-
for further articulation of the reasons for imposing the
adjustment in accordance with 18 U.S.C. 3553(c).
VI. REMAINING CLAIMS OF ERROR VI. REMAINING CLAIMS OF ERROR _________________________
The appellants raise a number of other issues. We
reject the claims of error in: (1) denying James Murray's
suppression motion; (2) denying Jaime Catano's motion for
severance; (3) denying Jaime Catano's motion to participate in
Michael Murray's omnibus motion hearing; (4) managing the use of
peremptory challenges; (5) refusing to define reasonable doubt;
(6) convicting Jaime Catano of continuing criminal enterprise;
and (7) refusing to adjust Michael Murray's sentence for
acceptance of responsibility or to depart downward. 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.
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