
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  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.                                         -5-                    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.                            ___                                         -6-          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                                         -7-          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                                         -8-          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                                         -9-          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                                         -10-          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                                         -11-          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:                                         -12-          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?                                         -13-          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.                                         -14-          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.                                       ________     _____________                                         -15-          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                                         -16-          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.                                           -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  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).          ______                                         -18-          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.                                         -19-                     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,                                         -20-          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.                                         -21-                    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                                         -22-          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.                                         -23-                    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.                                         -24-                    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                         ___                _______                                         -25-          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.                                         -29-
