United States v. Catalucci

• Court: Court of Appeals for the First Circuit
• Decided: September 27, 1994
• Docket: 93-2129
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
           
                                 ____________________

        No. 93-2129

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 JOSEPH H. CATALUCCI,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                 Breyer,* Chief Judge,
                                          ___________

                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Richard A.  Gargiulo  with whom  Richard J.  Inglis and  Gargiulo,
            ____________________             __________________      ________
        Rudnick & Gargiulo were on brief for appellant.
        __________________
            John  P.  Pucci,  Assistant  United  States  Attorney,  with  whom
            _______________
        Donald K. Stern, United States  Attorney, was on brief for  the United
        _______________
        States.

                                 ____________________

                                  September 27, 1994
                                 ____________________

____________________

        *Chief  Judge Stephen Breyer heard  oral argument in  this matter, but
        did not  participate in  the drafting or  the issuance of  the panel's
        opinion.   The remaining  two panelists  therefore issue  this opinion
        pursuant to 28 U.S.C.   46(d).

Per  Curiam.   In  November 1991,  Joseph Catalucci  was
                 ___________

            indicted  with  other  defendants  for  various drug  related

            offenses,  including  conspiracy.    21 U.S.C.     846.    In

            substance, the  government  charged  Catalucci  and  his  co-

            defendants with operating a  drug distribution network  that,

            between 1969  and 1991, distributed more  than 100,000 pounds

            of  marijuana and  substantial amounts  of hashish.   Shortly

            before trial, scheduled  for September  1992, Catalucci  gave

            the government  a proffer suggesting  that he could  help the

            government in other drug cases.

                 On September  4,  1992,  Catalucci  and  the  government

            entered  into a  plea  agreement that  required Catalucci  to

            provide  the government  complete  and  truthful  information

            concerning other  criminal activity  and to testify  before a

            grand jury  or at trial.  The  government in turn promised to

            move for  a  downward  departure, pursuant  to  18  U.S.C.   

            3553(e)  and   U.S.S.G.     5K1.1,   if  Catalucci   provided

            "substantial  assistance  .  .  . in  the  investigation  and

            prosecution of another person."  The  agreement said that the

            determination as  to substantial assistance "rests  solely in

            the  discretion of  the  United States  Attorney  and is  not

            subject to appeal or review."

                 After being debriefed by  the government over the course

            of  several months,  in  March 1993  Catalucci  wrote to  the

            government   arguing  for  a  substantial  departure  motion.

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Prominently, Catalucci claimed credit for  bringing about the

            guilty  plea of two of his co-defendants, and he claimed that

            he had provided critical intelligence  as to a large off-load

            of  hashish  organized by  another  individual, one  Frederic

            Berthoff,  who was  in  fact subsequently  indicted.   United
                                                                   ______

            States  v.  Berthoff,  Cr.  No.  93-30008-Y,  D.  Mass.   The
            ______      ________

            prosecutor  replied that  he would  not recommend  a downward

            departure   for   substantial   assistance;  the   prosecutor

            provided, and later elaborated, reasons which we will discuss

            briefly below.

                 In August  1993, Catalucci  filed a motion  to "enforce"

            the  government's  asserted  promise   to  file  a   downward

            departure motion  and requested  an evidentiary hearing.   In

            September  1993,  the  district  court  received  documentary

            evidence from Catalucci  and a  proffer of what  he hoped  to

            elicit in live testimony.  But the district court declined to

            allow live witnesses and ultimately  ruled that in this  case

            it lacked  power to review  the government's refusal  to move

            for  a  downward departure.    Catalucci  was then  sentenced

            within the  guideline  range and  without  the benefit  of  a

            downward departure.

                 This case  is one of  a large  number in this  and other

            circuits in  which defendants have sought  judicial review of

            the  government's refusal  to move  for a  downward departure

            based on substantial assistance; often, but not always, these

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occur  in  the  context  of  specific  plea  agreements  that

            envisage  a possible  departure  motion and  also purport  to

            waive the defendant's right to judicial review on this issue.

            Interesting and sometimes  difficult issues have  been raised

            in these cases as to whether  and when under the statute  and

            guidelines the  court may review the  government's refusal to

            move   for  a   downward  departure   based  on   substantial

            assistance; whether and when a defendant may waive in advance

            his right to litigate such issues to the extent that they are

            otherwise open to review;  and whether and when  the district

            court  ought   to  afford   hearings  or  take   evidence  in

            considering a substantial assistance claim.

                 The  Supreme  Court  has  ruled  that  the  government's

            decision  not to  file a  substantial assistance  motion lies

            primarily within its discretion but might be open to judicial

            review in certain situations.   Wade v. United States  112 S.
                                            ____    _____________

            Ct. 1840  (1992).   The  Court  mentioned as  candidates  for

            review  a  government   decision  based  on  unconstitutional

            motives,  such  as the  defendant's race  or religion,  and a

            "refusal  to move  .  .  .  not  rationally  related  to  any

            legitimate Government end."   Id. at 1845-47.  In  this case,
                                          ___

            Catalucci claims that  the government acted  in bad faith  or

            without rational basis.

                 There is  admittedly some difference  among the circuits

            as to how  to apply Wade's standards and the  extent to which
                                ____

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the terms  of a plea  agreement may foster (by  a promise) or

            restrict  (by  a waiver)  judicial  review.   Compare  United
                                                          _______  ______

            States  v. Forney, 9 F.3d  1492 (11th Cir.  1993), and United
            ______     ______                                  ___ ______

            States v. Romsey, 975  F.2d 556 (8th Cir. 1992),  with United
            ______    ______                                  ____ ______

            States v.  Knights, 968 F.2d 1483 (2d Cir. 1992).  But we see
            ______     _______

            no occasion in this case to spell  out standards or engage in

            extended discussion.  Even assuming that Catalucci has waived

            nothing by the plea agreement in this case, we cannot see how

            under  any plausible  standard of  review the  district court

            could  have found that the  prosecutor acted in  bad faith or

            without rational basis.

                 In  the district  court, the  government  explained that

            Catalucci's  version of  events  contradicted  that of  other

            government  witnesses  and  itself  varied  widely  from  one

            debriefing session  to the next; that  Catalucci had revealed

            during polygraph sessions information that he  had previously

            withheld;  and  that  Catalucci  had  disregarded  government

            instructions   (designed  to  preserve  his  integrity  as  a

            possible  witness) by  discussing  his testimony  with a  co-

            defendant  who was also a potential government witness in the

            Berthoff case.  Catalucci has not told us anything that casts
            ________

            doubt on the government's conclusion that he is now worthless

            to the government as a trial witness.  

                 Catalucci  argues  on  appeal  that he  was  promised  a

            downward   departure  motion   if  he   provided  substantial

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assistance  either  in the  prosecution  or  investigation of
                        ______                       __

            another case.    He  urges  that  the  latter  condition  was

            satisfied  when he  procured  for the  government the  guilty

            pleas or cooperation of  two co-defendants, Zoel Richards and

            Stephen Marple,  and provided  information about the  alleged

            hashish shipment  of Berthoff.   The government  responded in

            the  district  court  that  Catalucci  had  actually  exerted

            pressure  on Richards and  Marple not to  cooperate before he

            entered  into  his  plea   agreement;  as  to  Berthoff,  the

            government  said that Catalucci's information was "incomplete

            .  . . and only  cumulative to information  provided by other

            witnesses."

                 On appeal,  Catalucci says very little  about the guilty

            pleas  or  cooperation  provided   by  Richards  and  Marple.

            Perhaps in theory a  defendant, who had improperly obstructed

            cooperation by  other co-defendants prior to  his plea, could

            thereafter  provide  substantial assistance  by affirmatively

            assisting the government in a lawful and successful effort to

            obtain  the co-defendant's  cooperation.   But  Catalucci has

            failed  to provide  us  any  basis  for  his  claim  that  he

            substantially assisted  the government  in regard to  the co-

            defendants,  Richards and  Marple.  We  regard this  issue as

            essentially abandoned.  United States v. Zannino, 895 F.2d 1,
                                    _____________    _______

            17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).
                           ____________

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Catalucci does argue with some force  that he helped the

            government's   investigation   of   Berthoff  by   furnishing

            information about Berthoff and perhaps others associated with

            the  alleged  hashish  shipment.     As  already  noted,  the

            government  told the  district  court  that  the  information

            Catalucci gave  was incomplete and had  already been provided

            by other government witnesses.  Apparently the government did

            not furnish much detail  to the district judge.  In its brief

            in this court, the  government explains that it was  not then

            free  to disclose the names  of its other  informants, but it

            provides  some detail  now and  promises  that this  would be

            corroborated if a remand were necessary.

                 We do  not, of course, rely on  factual information that

            was not before the district court.   But we find that without

            regard  to these  newly  asserted facts,  the district  court

            itself  would  have had  no  basis  here--even putting  aside

            questions  of waiver  and the  scope of  judicial review--for

            disregarding the  government's own explanation.   This is so,

            at least, in the  absence of a proffer or other submission by

            Catalucci that  raised serious  doubts about the  validity of

            the government's  assertion.  On appeal,  Catalucci points to

            nothing that he told the district court that would raise such

            doubts.

                 Catalucci  asserts on  appeal  that the  district  court

            erred  in not  allowing him  to adduce  live testimony.   The

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district court allowed Catalucci  to submit documents that he

            said supported his position  and to make a proffer,  which he

            did.   There is no automatic right to an evidentiary hearing,

            and further  proceedings here  would not have  been justified

            absent  some  threshold showing  that  they  would likely  be

            useful.   United States v.  McAndrews, 12 F.3d  273, 280 (1st
                      _____________     _________

            Cir. 1993); United States v. McGill, 11 F.3d 223, 225-26 (1st
                        _____________    ______

            Cir. 1993).  In this case, the record gave the district judge

            no   basis  to   suppose  that   the  government   had  acted

            irrationally or in bad faith and no reason to think that live

            testimony  or  any other  further  inquiry  would alter  this

            conclusion.

                 It  is part of the business of judges to make reasonable

            forecasts as to whether further inquiries or proceedings will

            be  useful.   The  Supreme Court  in  Wade cautioned  against
                                                  ____

            fishing expeditions in this area, remarking that "generalized

            allegations of  improper  motive" would  not do  and that  "a

            claim that a defendant merely provided substantial assistance

            will not entitle a defendant to a remedy or even to discovery

            or an evidentiary hearing."  112 S.Ct. at 1844-45.  There may

            be  cases that  are close  to the line  and call  for further

            inquiry, but this case is not one of them.

                 Affirmed.
                 ________

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