United States v. Catano , 65 F.3d 219 ( 1994 )

September 18, 1995 [NOT FOR PUBLICATION]
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.
* Of the Eighth Circuit, sitting by designation.
JOHN R. GIBSON, Senior Circuit Judge. This unpublished
JOHN R. GIBSON, Senior Circuit Judge.
portion of our opinion disposes of those issues which do not have
sufficient precedential value to warrant publication. Therefore,
we incorporate by reference the statement of the case and facts
from the published portion of our opinion of the same date. We
here discuss and affirm the rulings of the district court 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.
I. JAMES MURRAY'S SUPPRESSION MOTION
I. JAMES MURRAY'S SUPPRESSION MOTION
James Murray argues that the district court erred in
denying his motion to suppress evidence police seized in
warrantless searches of James Murray's pickup truck and a Buick
James Murray had rented. When the agents arrested James Murray
on November 6, 1991, they seized keys to the rented Buick and to
the pickup truck. The Buick was parked at the hotel where they
had arrested James Murray. The pickup was in a parking lot of
the Dallas-Ft. Worth airport. The agents had both vehicles
searched. In the Buick, they found a rental agreement in James
Murray's name, $2,350 in cash, a Smith Corona typewriter and
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twelve telephone books from the Southeastern United States.1 In
the pickup, they found $100,000 cash behind the seat. After an
evidentiary hearing, the district court denied James Murray's
motion to suppress the evidence seized from the Buick and the
pickup.
James Murray argues that the government had to
establish both probable cause and exigent circumstances to
justify the warrantless search of these vehicles, but in this he
is mistaken. Under the automobile exception to the search
warrant requirement, if a motor vehicle is in transit or parked
in a public place, police may search it without a warrant,
relying solely on probable cause. United States v. McCoy, 977
F.2d 706, 710 (1st Cir. 1992); United States v. Panitz, 907 F.2d
1267, 1271-72 (1st Cir. 1990).
James Murray argues that there was not even probable
cause, because the agents' suspicions were based on the word of
Roberto L pez, whom the agents knew to be unreliable.
The agents had "probable cause" for the searches if
they had facts to support a "well-founded conclusion 'that an
offense has been committed and . . . sound reason to believe that
a particular search will turn up evidence of it.'" Panitz, 907
F.2d at 1271 (internal quotation marks and citation omitted). We
review a district court's finding of probable cause on a
1 The typewriter and telephone books are relevant in light of
Michael Murray's comments in a video taped conversation with
other conspirators that he would make bills of lading with a
typewriter.
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suppression motion for clear error. United States v. Zapata, 18
F.3d 971, 975 (1st Cir. 1994).
Contrary to James Murray's contention, the government's
probable cause does not depend on the word of L pez, but on taped
conversations among the conspirators and observations of the
conspirators' actions after the conversations. From the audio
tape supplied by Nigro, the government knew Michael Murray was
expecting to obtain marijuana from "Mexicans," that the
conspirators were going to Texas for that purpose, and that they
would have money to finance the purchase and transportation
costs. Shortly before Leonel Catano and L pez left in the
tractor-trailer for Texas, the DEA overheard their conversation
with the Murrays, in which they coordinated their respective
duties for the upcoming trip.
By the time they searched James Murray's vehicles, the
DEA agents had seen the conspirators take a number of steps in
accordance with the plans laid out in this video taped
conversation. In the tape, the group agreed to go to the
"crane," and they later went to a crane yard, where they put a
steel tank on their trailer. (There was evidence that the group
had used that tank before to transport marijuana.) In the tape
Michael Murray said that he would get money and Leonel should go
to a truck stop; later that day, aerial surveillance agents saw a
parked sedan (such as Michael Murray was driving) next to
Leonel's truck in the truck area of a highway rest stop. The car
and truck left the rest stop at the same time. In the video tape
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Michael Murray said that James Murray would "go and he's going to
have money to pay the other transportation people up in Dallas;"
three days later, James Murray showed up in McAllen, Texas in a
car rented at the Dallas-Fort Worth airport. In the taped
conversation Michael Murray had instructed L pez and Leonel
Catano to "go to Dallas, drop the box then just come, ah,
bobtail." Leonel Catano and L pez did in fact drop the trailer
off in Luling and "bobtail" to McAllen.
From the taped conversation and subsequent actions of
the parties to that conversation, the government had probable
cause to believe that James Murray was involved in a scheme to
buy marijuana in south Texas and transport it north, and that he
would be carrying a significant amount of money to pay for the
transportation costs. His rental car and his truck were logical
places to look for the money. The district court did not err in
finding probable cause, or in denying James Murray's motion to
suppress.
II. JAIME CATANO'S MOTION FOR SEVERANCE
II. JAIME CATANO'S MOTION FOR SEVERANCE
Jaime Catano argues that the district court erred in
denying his motion to sever. Jaime Catano's argument for
severance is lumped together with his argument for participation
in Michael Murray's omnibus hearing and reads, in its entirety:
[I]t was error for the District Court to
deny Jaime Catano's Motion to Sever.
Michael Murray had cooperated extensively
with the government. There was no way
Jaime Catano's counsel could know that,
in a joint trial, the source of the
government's evidence against him was co-
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defendant Michael Murray. See Bruton v.
U.S., 391 U.S. 123 (1968).
Denial of a motion for severance is "committed to the
sound discretion of the trial court, and we review only for a
manifest abuse of discretion resulting in a miscarriage of
justice." United States v. Welch, 15 F.3d 1202, 1210 (1st Cir.
1993), cert. denied, 114 S. Ct. 1661 (1994). To obtain
severance, a defendant must show that "'substantial prejudice'
would result from a joint trial." Id. (citation omitted).
Prejudice in this context requires "more than just a better
chance of acquittal at a separate trial." United States v.
Mart nez, 479 F.2d 824, 828 (1st Cir. 1973). Jaime Catano has
shown no substantial prejudice. Further, his reliance on Bruton
is misplaced. Bruton prevents the admission at a joint trial of
one co-defendant's extrajudicial statements implicating another
absent the opportunity for cross-examination, 391 U.S. at 135-36,
a situation not presented here. Jaime Catano's three-sentence
argument leaves the issue undeveloped and, therefore, waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.
denied, 494 U.S. 1082 (1990).
III. JAIME CATANO'S MOTION TO PARTICIPATE
III. JAIME CATANO'S MOTION TO PARTICIPATE
Jaime Catano sought to participate in Michael Murray's
omnibus hearing described in Part I of our published opinion.
Jaime Catano contended that Michael Murray's bargain with the
government would benefit Jaime Catano as well. He argues that
his participation would have allowed him to cross-examine
witnesses as to the benefit which he would receive from his own
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and from Michael Murray's cooperation with the government. He
further argues that he could have "threshed out" discussions
between himself and the DEA and "gleaned" any information the
government learned about him from Michael Murray. At the motion
hearing, Jaime Catano's counsel orally moved the court to
intervene and examine witnesses. The district judge ruled, "I'm
not going to let you examine, but on the other hand, you file a
motion supported by an affidavit and I'll deal with it." The
judge also stated that Jaime Catano had no standing to intervene.
Later, Jaime Catano's counsel again orally moved the court to
participate in the hearing. Again the judge stated, "I told you
to make a motion. I told you to support your motion. You get a
motion. I'll rule on it. . . . But two days have gone by, I have
no motion, the matter is between Mr. Murray and the government."
After the hearing concluded and the trial began, Jaime Catano
served a "Motion for Relief" on the government with a two-page
unsigned affidavit attached which purported to be from Jaime
Catano. The motion asked that the charges against Jaime Catano
be dismissed or, in the alternative, "that the agreement with the
government between Catano, Michael Murray and the other
defendants be enforced." Jaime Catano's "affidavit" alleged that
a DEA special agent contacted him and urged him to cooperate
"which would result in a sentence for me of less than five years
since Michael Murray would get no more than five years for his
sentence." The affidavit also alleged that "when Michael
[Murray] told me that the government wasn't going to give him the
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zero to five year deal after he set up the fentanyl lab, I told
[the special agent] that he was going to have to give Michael and
the rest of us our deal if he wanted me to cooperate." The
affidavit conspicuously fails to allege that Jaime Catano
actually cooperated or detrimentally relied in any way. The
government disputes that this motion and affidavit were ever
filed in the district court. On appeal, Jaime Catano does not
argue that the district court wrongfully denied the motion, only
that the district court wrongfully denied him participation in
Michael Murray's hearing.
This argument fails for two reasons: (1) as discussed
above, Jaime Catano did not timely move the court in writing for
participation in Michael Murray's hearing as the court requested;
and (2) Jaime Catano had no standing to intervene as he had shown
neither an agreement intended to benefit him directly or as a
third-party beneficiary,2 nor any cooperation or detrimental
reliance on his part. See United States v. Lewis, 40 F.3d 1325,
1332 (1st Cir. 1994) (holding that a criminal defendant is not
entitled to an evidentiary hearing unless he "allege[s] facts
that, if proven, would entitle him to relief"). In short, "[t]o
mandate an evidentiary hearing, the challenger's attack must be
more than conclusory and must be supported by more than a mere
desire to cross-examine." Franks v. Delaware, 438 U.S. 154, 171
2 In fact, Michael Murray's affidavit and the prosecutor's
testimony both indicate that any agreement entered into between
Michael Murray andthe government did not extend to Jaime Catano.
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(1978) (challenge to the validity of an affidavit supporting a
search warrant). Jaime Catano's attack is neither.
IV. LEONEL CATANO'S OBJECTION TO THE PROCEDURE
IV. LEONEL CATANO'S OBJECTION TO THE PROCEDURE
FOR PEREMPTORY CHALLENGES
FOR PEREMPTORY CHALLENGES
Leonel Catano argues that the district court erred in
its management of peremptory challenges by reconstituting the
venire after Catano had already exercised his peremptory
challenges, without permitting Catano a chance to strike any of
the new veniremen.
The court used a "jury box" system of jury selection.
See generally 8A James Wm. Moore, Moore's Federal Practice
24.05[1] (2d ed. Feb. 1995 rev.). First, the court asked the
entire venire questions to determine whether there were any
reasons that particular jurors could not be impartial. Several
jurors were excused at this point, so that the venire dwindled to
twenty-seven people. The court announced it would impanel
fourteen people--enough for twelve jurors and two alternates--
then permit each side to make peremptory challenges. The court
would refill the box with new veniremen to replace the challenged
veniremen until both sides had used their challenges or were
satisfied with the panel. The government would have seven
peremptory challenges and the defendants eleven. Fed. R. Crim.
P. 24(b) and (c). The last two jurors to remain unchallenged
would be the alternates. The government exercised four strikes
on the first panel, then the defendants exercised seven. The
court filled the eleven seats left vacant by the strikes with new
veniremen for round two. The defense challenged four of these
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eleven, and the government challenged two. Thus, after two
rounds a total of eight jurors had been selected, and the
defendants had used up all their challenges.
At this point there were not enough remaining veniremen
to refill the jury box. Therefore, the court called the
remaining two veniremen into the box, and the government chose
not to challenge them. Of necessity, the court called for new
veniremen to be brought in from the jury pool. Since the
defendants were out of peremptory challenges and the government
declined to exercise its remaining challenge, all four of these
new veniremen were impaneled. However, the defendants objected
to one of these jurors, arguing that they had no chance to
challenge him. The court replied that the defendants had simply
used up their allotted number of strikes, and that the court
would not allow them extra challenges.
After the jury had been selected, there was a delay
before trial while the court conducted motion hearings. It
happened that during this hiatus the court had to excuse two of
the jurors. It decided to impanel four new alternates, making
the two previous alternates deliberating jurors. The court gave
each side two peremptory challenges to use on this supplementary
jury selection.
Leonel Catano argues that the court's system was
unfair, apparently because he had no opportunity to strike any of
the veniremen in the third round of the regular jury selection
and these included new veniremen not in the original venire. His
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argument is unfounded. The district court has substantial
discretion to regulate the use of peremptory challenges within
the framework of Federal Rule of Criminal Procedure 24(b). See
United States v. Cox, 752 F.2d 741, 748 (1st Cir. 1985). After
the initial voir dire and before the court filled the jury box
for the first round, the venire had dwindled to twenty-seven
people. The court announced at the outset that the government
and defendants together would have eighteen peremptory
challenges. Twelve jurors and two alternates were needed.
Simple arithmetic made it apparent at the outset that the court
might have to call more veniremen to get enough for the jury.
The defendants used up their peremptories on the original venire,
without knowing who might walk in the door next. Having created
their own predicament, they have no cause to complain.
Though his argument is unclear, Leonel Catano also
appears to object to the court's procedure when events after the
initial jury selection made it necessary to select more alternate
jurors. The court announced it would give the defendants two
additional challenges because of this new development, but that
the challenges could only be used on newly impanelled jurors, not
those already seated. Leonel Catano argues that the court should
have permitted the use of the new challenges to strike the old
jurors, two of whom were initially designated alternates but now
would be deliberating jurors. The court did not anticipate that
it would be necessary to supplement the jury when the panel was
initially chosen. When unexpected events made it necessary to
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impanel new alternates, there was no reason the court should have
to open up the existing panel to new challenges. This is not a
case like United States v. Sams, 470 F.2d 751, 755 (5th Cir.
1972), in which the defendant was surprised by an unannounced
rule that prevented him from striking the first group of jurors
in later rounds. Here, the defendants understood the system
initially employed. If the court had not impanelled additional
alternates (which was undoubtedly in its discretion), the
remaining twelve jurors would have deliberated and Leonel Catano
would have no argument. Catano's complaint arises out of the
fact that the court impanelled more alternates out of caution and
Catano wants to benefit from this chance occurrence by using the
new challenges on the old jurors. Catano's argument is
foreclosed by Fed. R. Crim. P. 24(c), which states that the
"additional peremptory challenges [given when the court impanels
alternates] may be used against an alternate juror only." We
will not hamstring the district courts in dealing with
unanticipated events during trial. The district court did not
abuse its discretion in the jury selection process.
V. LACK OF INSTRUCTION DEFINING "REASONABLE DOUBT"
V. LACK OF INSTRUCTION DEFINING "REASONABLE DOUBT"
The appellants argue that the district court erred in
refusing to instruct the jury on the definition of "reasonable
doubt" in his instructions to the jury. This court has
specifically held that the district court has discretion whether
to define "reasonable doubt". United States v. Cassiere, 4 F.3d
1006, 1024-25 (1st Cir. 1993); United States v. Olmstead, 832
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F.2d 642, 644-46 (1st Cir. 1987), cert. denied, 486 U.S. 1009(1988). Moreover, we find support for this rule in the Supreme
Court's recent decision in Victor v. Nebraska, 114 S. Ct. 1239,
1248 (1994). See United States v. Neal, 36 F.3d 1190, 1202-03
(1st Cir. 1994). If the court instructs that the burden of proof
is "beyond a reasonable doubt," and if the instruction is
prominent, not "buried as an aside," there is no error.
Olmstead, 832 F.2d at 646. The district court instructed on the
requirement of proof beyond a reasonable doubt many, many times,
and with appropriate gravity and emphasis. There is no error
here.
VI. JAIME CATANO'S CONVICTION FOR CONTINUING CRIMINAL ENTERPRISE
VI. JAIME CATANO'S CONVICTION FOR CONTINUING CRIMINAL ENTERPRISE
Jaime Catano attacks his conviction for continuing
criminal enterprise on the grounds that the court did not
properly instruct the jury on the elements of CCE and that there
was insufficient evidence to convict him.
A. Jury Instruction
A. Jury Instruction
Jaime Catano contends that the district court failed to
properly state the elements of the continuing criminal enterprise
count against him in that it failed to state that the continuing
series of crimes committed by the defendant must be "related."3
3 The court's CCE instruction stated in relevant part:
In order for Mr. Jaime Catano to be found
guilty of a continuing criminal
enterprise, the government must prove
five things beyond a reasonable doubt.
First, that Mr. Jaime Catano
committed the offenses of conspiracy,
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Jaime Catano concedes that the standard of review is plain error,
since he failed to object at trial.
The instruction comported with the statutory CCE
requirement as it has been defined in this circuit. See United
States v. Chagra, 653 F.2d 26, 27-28 (1st Cir. 1981), cert.
denied, 455 U.S. 907 (1982). Jaime Catano's citation of Garrett
v. United States, 471 U.S. 773 (1985), does not convince us that
the Supreme Court has found an additional requirement in the
statute. Other circuits have used the "related" language without
discussion. See, e.g., United States v. Phillips, 664 F.2d 971,
1013 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United
States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986). However, the
lack of controlling authority and the fact that the predicate
crimes here were shown by overwhelming evidence to be related
anyway, makes it impossible for us to find plain error resulting
in a miscarriage of justice.
B. Sufficiency of Evidence
B. Sufficiency of Evidence
Jaime Catano also contends that the government
presented insufficient evidence to convict him on the CCE count.
To convict Jaime Catano for engaging in a continuing criminal
possessing marijuana with intent to
distribute it, and attempted possession
of marijuana with intent to distribute
it, all as charged, for the counts that
charge him, in Counts 1, 2, 3 and 5.
Second, that these offenses were
part of three or more offenses committed
by Mr. Jaime Catano over a definite
period of time in violation of the
federal narcotics laws. . . .
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enterprise, the government must prove beyond a reasonable doubt
that he: (1) committed a felony drug offense, (2) as part of a
"continuing series of violations," (3) "in concert with five or
more other persons" whom Jaime Catano organized, supervised, or
otherwise managed, (4) and from which he obtained "substantial
income or resources." 21 U.S.C. 848(c) (1988); United States
v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994). Jaime Catano contends
only that insufficient evidence existed to satisfy the
"substantial income" requirement.4
On a sufficiency of the evidence claim, we view the
evidence in the light most favorable to the verdict. United
States v. Torres-Maldonado, 14 F.3d 95, 100 (1st Cir.), cert.
denied, 115 S. Ct. 193 (1994). The substantial income
requirement is intended "to exclude trivial amounts derived from
occasional drug sales," United States v. Roman, 870 F.2d 65, 75
(2d Cir.), cert. denied, 490 U.S. 1109 (1989) (citation and
internal quotation marks omitted), quoted in Hahn, 17 F.3d at
507, and may be proven directly (by evidence of revenue and
resources) or circumstantially (by evidence of Jaime Catano's
role in the conspiracy and the volume of drugs the conspiracy
handled). Hahn, 17 F.3d at 507. The evidence "need not exclude
every reasonable hypothesis of innocence; that is, the factfinder
may decide among reasonable interpretations of the evidence."
4 Jaime Catano appeals both the denial of his motion for
judgment of acquittal and the sufficiency of the evidence
supporting his conviction. These challenges "raise a single
issue," United States v. Batista-Polanco, 927 F.2d 14, 17 (1st
Cir. 1991); we address them as one.
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United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)
(citations omitted); Hahn, 17 F.3d at 506.
Here, the conspiracy involved tons of marijuana, lasted
several years, and generated millions of dollars.5 The scale of
the proven conspiracy along with Jaime Catano's uncontested role
in it "provides ample basis for a reasonable inference that
[Jaime Catano] realized far more than trivial amounts of income"
from his involvement. Hahn, 17 F.3d at 507.
VII. MICHAEL MURRAY'S SENTENCE
VII. MICHAEL MURRAY'S SENTENCE
Michael Murray argues that the district court erred in
sentencing him because: (1) the court did not order an offense
level decrease for his acceptance of responsibility under USSG
3E1.1 (Nov. 1993); and (2) the court did not order specific
performance of the government's "promise" in the plea offer to
depart downward for his alleged cooperation.
A. Acceptance of Responsibility
A. Acceptance of Responsibility
The sentencing court has great discretion in deciding
whether to grant an adjustment for acceptance of responsibility,
United States v. Ruiz, 47 F.3d 452, 455 (1st Cir. 1995), because
"[t]he sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility." USSG 3E1.1,
5 Witnesses at trial detailed the transportation and
distribution of six loads of marijuana from Texas to Boston over
a three year period. Richard Baker described stashing and later
retrieving a large gym bag stuffed with ten and twenty dollar
bills. He then left Murray and Jaime Catano alone for
approximately half an hour, after which Michael Murray and Jaime
Catano drove away with the bag and its contents. Other witnesses
testified that the DEA seized $1,149,650 from the tractor-trailer
used in the conspiracy.
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comment. (n.5). We review that evaluation for clear error.
Ruiz, 47 F.3d at 455. See USSG 3E1.1, comment. (n.5)
(sentencing judge entitled to "great deference on review").
Guideline section 3E1.1 serves two purposes: to
recognize sincere remorse and to reward a defendant for saving
the government the trouble and expense of proceeding to trial.
Ruiz, 47 F.3d at 455; USSG 3E1.1, comment. (n.2). The
guideline commentary notes that "[i]n rare situations," a
defendant can proceed to trial and receive a reduction under
section 3E1.1. USSG 3E1.1, comment. (n.2). For example, a
defendant may receive a reduction after going to trial "to assert
and preserve issues that do not relate to factual guilt (e.g. to
make a constitutional challenge to a statute or a challenge to
the applicability of a statute to his conduct)." Ruiz, 47 F.3d
at 455. Here, however, Michael Murray did not plead guilty, but
rather tried his case "on the basis of reasonable doubt," Michael
Murray's Br. at 42, thus contesting his factual guilt. We will
generally sustain a district court's refusal to grant a reduction
for acceptance of responsibility when the defendant does not
plead guilty. Ruiz, 47 F.3d at 456. We do so here.
B. Substantial Assistance
B. Substantial Assistance
Michael Murray next argues that the district court
erred in denying his request for a downward departure due to his
substantial assistance to the government. USSG 5K1.1, p.s.
(Nov. 1993). He contends that either the government should be
compelled to file a 5K1.1 motion because of his actual
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assistance, or that the district court should have deemed such a
motion filed despite government inaction. Both arguments fail.
Section 5K1.1 conditions departure upon a government
motion. This condition "gives the Government a power, not a
duty, to file a motion when defendant has substantially
assisted." Wade v. United States, 504 U.S. 181, 185 (1992). See
United States v. Raineri, 42 F.3d 36, 44 (1st Cir. 1994) (holding
that because a 5K1.1 motion is discretionary, "the government may
choose to insist on quite a lot of assistance if it wants to do
so"), cert. denied, 115 S. Ct. 2286 (1995). Absent a
"substantial threshold showing" of unconstitutional governmental
motive for refusal to file a 5K1.1 motion, "a claim that a
defendant merely provided substantial assistance will not entitle
a defendant to a remedy." Wade, 504 U.S. at 186. Michael Murray
has alleged no unconstitutional motive and is not entitled to a
remedy for the government's refusal to file a 5K1.1 motion.
Finally, Michael Murray argues that his assistance to
the government was to a degree "not adequately taken into
consideration by the Sentencing Commission." USSG 5K2.0, p.s.
(Nov. 1993). We have held that "it is theoretically possible,
albeit unlikely" that substantial assistance would be an
extraordinary mitigating circumstance within the ambit of section
5K2.0. United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991).
However, this is not "the rare case where governmental
intractability in the face of overwhelming evidence of enormously
fruitful cooperation might fairly be said to have deprived a
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defendant of his due." United States v. La Guardia, 902 F.2d
1010, 1018 (1st Cir. 1990) (refusing to depart downward under
section 5K1.1 although defendants cooperated where government did
not file motion). In sentencing Michael Murray, the district
court recognized its authority to depart below the guideline
range, but declined to do so. That decision is not appealable.
United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994), cert.
denied, 115 S. Ct. 1806 (1995).
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