
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1313                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DARRELL F. PIERRO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Lagueux,* District Judge.                                          ______________                              _________________________               Elliot M. Weinstein, for appellant.               ___________________               Michael  K. Loucks,  Assistant United States  Attorney, with               __________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          the United States.                              _________________________                                    July 27, 1994                              _________________________          __________          *Of the District of Rhode Island, sitting by designation.                    SELYA, Circuit Judge.   Defendant-appellant Darrell  F.                    SELYA, Circuit Judge.                           _____________          Pierro labors to  convince us  that the district  court erred  in          refusing to grant him a separate trial, in  refusing to declare a          mistrial, and,  following his  conviction, in refusing  to reduce          his sentence beneath the  suggested guideline range.  We  are not          persuaded by appellant's exhortations and, therefore, affirm.          I.  BACKGROUND          I.  BACKGROUND                    At  the times  material  hereto,  appellant earned  his          livelihood  as a  vice-president of  the Moore  Group (MoGro),  a          California  company.   Yielding to temptation,  he also  joined a          criminal  cartel that, during the years 1989 and 1990, engaged in          the   theft  and   subsequent   resale  of   computer  components          manufactured  by  and for  Digital  Equipment Corporation  (DEC).          This  scheme  functioned  on  three  levels.   The  initial  step          involved the thefts   a step  in which appellant at first did not          participate.  The  second step  involved the sale  of the  stolen          equipment;  with  appellant's  connivance,  his  employer, MoGro,          purchased much of the  contraband.1  The third step  involved the          purchasers' disposal of the bootleg merchandise.                    For its part,  MoGro, under appellant's  aegis, handled          this third  phase in  two ways.   It returned some  components to          DEC,  after  altering   their  serial  numbers,  as  part  of  an          established  exchange  program,  thus  converting  stolen,  often                                        ____________________               1The thieves  stole computer components from DEC's warehouse          in  Massachusetts  both during  the week  and  on weekends.   The          components  purchased by MoGro comprised, for  the most part, the          bounty from  the weekend  heists.  The  remaining contraband  was          sold mainly to a codefendant, Fred Kleinerman.                                          2          unusable  components into  new, state-of-the-art  equipment.   It          resold the rest of  the components on credit terms to a Wisconsin          firm, and then pledged  the invoices as security for  bank loans.          MoGro  used the loan proceeds, inter alia, to pay the thieves for                                         _____ ____          the stolen merchandise.                    From and  after late 1989, appellant  assumed an active          role in the looting of DEC's warehouse.  On several occasions, he          and  fellow MoGro  employees (including  John McComas)  flew from          California  to   Massachusetts  and  assisted  in   the  unlawful          asportation  of  computer  components.    These  purloined  parts          subsequently were shipped to MoGro's California  headquarters and          disposed of by one of the two methods we have described.                    In  early 1990, appellant and several confederates were          spotted  inside   DEC's  warehouse,  fled,  and  were  eventually          apprehended.   Subsequently, a federal grand jury returned a 158-          count indictment against 16  persons.  It charged  appellant with          conspiracy to  participate in  a racketeering enterprise,  see 18                                                                     ___          U.S.C.   1962(d), participating in a racketeering enterprise, see                                                                        ___          id.   1962(c),  and money laundering, see id.    1956(a)(1).  The          ___                                   ___ ___          predicate acts upon  which the RICO charges  rested included both          money   laundering  and   interstate  transportation   of  stolen          property, see 18 U.S.C.   2314.                    ___                    In response to a clutch of severance motions, including          one  filed to  appellant's behoof,  the district court  split the          defendants  into two groups for  purposes of trial.   The court's          order called for appellant and seven other alleged coconspirators                                          3          (including  McComas,  Kleinerman,   and  Ruslan  Moore,   MoGro's          president) to be tried  together, but apart from the  other eight          defendants.   On  September  8, 1992,  trial  commenced for  most          members  of  appellant's group.2    During the  trial,  the court          denied appellant's renewed severance motion and his  motion for a          mistrial.   The jury found  appellant guilty on all  counts.  The          court sentenced him to serve  121 months in prison.   This appeal          followed.          II.  THE ALLEGED TRIAL ERRORS          II.  THE ALLEGED TRIAL ERRORS                    Appellant  contends  that the  district court  erred in          denying  his  renewed motion  for  severance  and his  motion  to          declare a mistrial.  We examine each of these contentions.                              A.  The Severance Motion.                              A.  The Severance Motion.                                  ____________________                    We need not linger long over the question of severance.          "As a rule,  persons who  are indicted together  should be  tried          together."  United States v. O'Bryant,  998 F.2d 21, 25 (1st Cir.                      _____________    ________          1993).  We have said that to overcome this presumption a properly          joined defendant    and,  clearly, joinder  was proper  here, see                                                                        ___          Fed. R. Crim. P. 8(b)   must muster "a strong  showing of evident          prejudice."  O'Bryant, 998 F.2d at 25.  When the term is  used in                       ________          this  context, "prejudice means more than just a better chance of          acquittal at a  separate trial."   United States  v. Boylan,  898                                             _____________     ______          F.2d  230, 246 (1st  Cir.) (citation omitted),  cert. denied, 498                                                          _____ ______          U.S.  849 (1990).   Indeed,  the Supreme  Court has  been blunter                                        ____________________               2One  of the  eight defendants  originally included  in this          cadre pled guilty prior to trial.                                          4          still,  stating  that when  multiple  defendants are  named  in a          single indictment,  separate trials should not  be ordered unless          "there  is a serious  risk that a joint  trial would compromise a          specific trial right of one of the defendants or prevent the jury          from  making  a  reliable  judgment about  guilt  or  innocence."          Zafiro v. United States, 113 S. Ct. 933, 938 (1993).          ______    _____________                    On  appeal, Pierro  does  not  challenge  the  district          court's pretrial order segmenting  the defendants into two groups          for  purposes of trial.  However, he complains bitterly about the          district  court's  refusal  to  grant his  mid-trial  motion  for          severance   a  device by  which he  sought to  put some  distance          between himself  and  Kleinerman.    The motion  rested  on  twin          rationales:  first, Kleinerman's testimony about a litany of "bad          acts"   which  had   nothing  to   do  with   appellant;  second,          Kleinerman's   courtroom   antics,   which,  appellant   alleges,          reflected adversely on  all the  defendants.   We bifurcate  this          complaint, considering these grounds separately.                    1.    Spillover.    The  first  aspect  of  appellant's                    1.    Spillover.                          _________          argument amounts to a  claim of spillover prejudice.   To prevail          on  such a claim, a  defendant must prove  prejudice so pervasive          that  a miscarriage  of  justice looms.    See United  States  v.                                                     ___ ______________          Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991); Boylan, 898 F.2d at          ________                                      ______          246.   We  have  carefully reviewed  the  record and  discern  no          prejudice to  appellant above and beyond the quantum of prejudice          that typifies virtually any multi-defendant trial   and that sort          of  prejudice clearly does not  justify a severance.   See United                                                                 ___ ______                                          5          States v. Walker, 706 F.2d 28, 30 (1st Cir. 1983).          ______    ______                    To be sure, Kleinerman testified about a bogus burglary          he staged at his home and about telling  another witness that she          should  have dissembled  when  appearing before  the grand  jury.          This testimony,  like  other bits  and pieces  of evidence  about          which  appellant complains,  while unsavory,  was not in  any way          antagonistic  to  appellant's  defense.   And  nothing implicated          appellant  in the  peccadilloes;  to the  contrary, the  evidence          suggested he was  on the other  side of the  continent both  when          Kleinerman faked  the break-in  and when Kleinerman  attempted to          suborn  perjury.    Since  it is  settled  that  properly  joined          defendants  need not be severed merely because a joint trial will          require that the jury  receive testimony   even a large amount of          testimony    irrelevant to one defendant, see Boylan, 898 F.2d at                                                    ___ ______          246, we are not  at liberty to second-guess the  district court's          denial of appellant's motion, see id.                                        ___ ___                    Although   perhaps  supererogatory  in   light  of  the          foregoing,  we also  take  note of  the  trial court's  exemplary          handling of the  situation.  The  court carefully controlled  the          presentation  of the  proof, making  the jury  keenly aware  that          certain evidence was limited  to particular defendants, and that,          in  all  events, the  evidence  had to  be  considered separately          against each defendant.  In the first instance, a reviewing court          must   presume   that   the   jury  heeded   these   prophylactic          instructions.  See United States v. Olano, 113  S. Ct. 1770, 1781                         ___ _____________    _____          (1993);  United  States v.  Paiva, 892  F.2d  148, 160  (1st Cir.                   ______________     _____                                          6          1989).   Here,  there is  no  basis to  suppose  that the  jurors          disregarded  the  trial judge's  admonitions  and  departed on  a          frolic of their own.                    2.   Kleinerman's  Behavior.   Appellant  also  assigns                    2.   Kleinerman's  Behavior.                         ______________________          error to the district court's denial of a severance based on what          he calls Kleinerman's  "cheerleading" during the  trial testimony          of various witnesses.   The conduct that appellant  attributes to          Kleinerman    mostly gestures and grimaces    obviously occurred;          indeed, the district  judge found Kleinerman in  contempt for his          courtroom antics.                    If, during  the  course of  a multi-defendant  criminal          trial,  a  defendant  misbehaves  in  the  jury's  presence,  the          misbehavior  usually will  not compel  a separate  trial  for his          codefendants.  See, e.g.,  United States v. Rocha, 916  F.2d 219,                         ___  ____   _____________    _____          230  (5th Cir.), cert. denied, 500 U.S. 934 (1991); United States                           _____ ______                       _____________          v. Tashjian, 660 F.2d  829, 837-38 (1st Cir.), cert.  denied, 454             ________                                    _____  ______          U.S.  1102 (1981).  Unless a movant can demonstrate the existence          of  some  special  prejudice  of  a  kind  or  to  a  degree  not          susceptible to  remediation by prompt  curative instructions, the          district court is  free to eschew  a severance and let  the trial          proceed.                    Applying   this  standard,   we  do   not  think   that          Kleinerman's pantomime,  regrettable though it was,  required the          nisi  prius  court  to grant  a  severance.   In  our  view, this          ____  _____          situation  parallels    but  is much  less  noxious than    other          situations in which courts have concluded that well-chosen, well-                                          7          timed  curative instructions  will satisfactorily  ameliorate the          adverse effects  of a  defendant's inappropriate behavior  on his          codefendants.3   See, e.g., Rocha, 916 F.2d at 230; Tashjian, 660                           ___  ____  _____                   ________          F.2d at  838; United States  v. Smith, 578  F.2d 1227, 1236  (8th                        _____________     _____          Cir. 1978); United States v. Marshall, 458 F.2d 446, 452 (2d Cir.                      _____________    ________          1972);  cf. United States v.  Mazza, 792 F.2d  1210, 1224-25 (1st                  ___ _____________     _____          Cir. 1986)  (finding no unfair prejudice  to codefendants arising          out of a  defendant's disruptive behavior even though  a curative          instruction was  neither requested nor given),  cert. denied, 479                                                          _____ ______          U.S. 1086  (1987).   So  it is  here:   there  was no  cognizable          prejudice present.4                    3.     Recapitulation.    Trial   courts  are  afforded                    3.     Recapitulation.                           ______________          considerable  leeway  in determining  severance  questions.   See                                                                        ___          O'Bryant, 998 F.2d at 25; Boylan, 898 F.2d at 246.  Consequently,          ________                  ______          a judge's resolution of  such questions "will be overturned  only          if that wide  discretion is  plainly abused."   United States  v.                                                          _____________          Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert.  denied, 112 S.          _______                                     _____  ______          Ct. 986 (1992).  We see no vestige of any abuse in this instance.                                        ____________________               3Kleinerman's  misbehavior  did not  plummet  to the  depths          reached in  Rocha, 916 F.2d at  229 (a case in  which a defendant                      _____          mouthed  a death threat and  then ran a  finger menacingly across          his throat  during a  witness's testimony), or  in Tashjian,  660                                                             ________          F.2d at 837 (a case in which  a defendant gestured, mouthed words          to  the  effect that  a  government  witness would  receive  five          bullets in the head, and shouted that all the defendants were "in          the Mafia").               4There  is, moreover,  an  added fillip  in  this case  that          further  erodes appellant's  position:   his assumption  that the          jury  must  have  been  aware  of  Kleinerman's  antics is  sheer          speculation.  Kleinerman's gestures were nonverbal, and the judge          did not comment on them in the jury's presence.                                          8                            B.  The Motion for a Mistrial.                            B.  The Motion for a Mistrial.                                _________________________                    After  18 days  of trial,  the government  negotiated a          plea  agreement  with McComas  and,  after  McComas pled  guilty,          called him as a prosecution witness.  Appellant immediately moved          in limine to  bar McComas  from testifying.   The district  court          __ ______          denied that motion.  Appellant subsequently moved for a mistrial,          arguing  that  McComas's  abrupt  change  of  plea,  followed  by          potentially   incriminating   testimony,   would    be   unfairly          prejudicial.    The district court refused to grant the requested          relief.  Appellant assigns error.                    Motions to declare mistrials are directed  primarily to          the district court's discretion,  see United States v. Sepulveda,                                            ___ _____________    _________          15 F.3d 1161, 1185 (1st Cir. 1993), cert. denied, ___  S. Ct. ___                                              _____ ______          (1994); United States v. De Jongh, 937 F.2d 1, 3 (1st Cir. 1991);                  _____________    ________          and, accordingly,  an appellate  tribunal ought not  to interfere          with  the  disposition of  such a  motion unless  the complaining          party  can  demonstrate  a  manifest abuse  of  that  discretion.          Bearing in mind the trial judge's superior point of vantage, this          precept  possesses particular  force when, as  now, a  motion for          mistrial is based on a claim that some spontaneous development at          trial may have influenced the jury in an improper manner.                    Of  course, this  does not  mean that  appellate courts          should reflexively rubber-stamp the  trier's refusal to declare a          mistrial.  But because  mistrials are strong medicine, disruptive          not  only to the  parties but also to  the judiciary's efforts to          manage  crowded dockets,  it is  only rarely    and  in extremely                                          9          compelling circumstances   that an appellate panel, informed by a          cold record, will venture to  reverse a trial judge's on-the-spot          decision that the interests of justice do not require aborting an          ongoing  trial.   See Real v.  Hogan, 828  F.2d 58,  62 (1st Cir.                            ___ ____     _____          1987); see also Sepulveda, 15 F.3d  at 1184.  Hence, battles over                 ___ ____ _________          the need for a  mistrial most often  will be won  or lost in  the          district court.                    As a  general matter,  a mistrial is  not automatically          required  when a codefendant changes his plea in mid-trial.  See,                                                                       ___          e.g., United  States v.  Del Carmen Ramirez,  823 F.2d 1,  3 (1st          ____  ______________     __________________          Cir. 1987); United States v. Earley, 482 F.2d 53, 58 (10th Cir.),                      _____________    ______          cert.  denied, 414 U.S. 1111 (1973).  That principle obtains even          _____  ______          when  the newly  pleaded defendant  takes the  witness  stand and          testifies against the remaining defendants.  See United States v.                                                       ___ _____________          Gambino,  926 F.2d 1355, 1364  (3d Cir.), cert.  denied, 501 U.S.          _______                                   _____  ______          1206 & 112 S. Ct. 415 (1991); see also United  States v. Kilrain,                                        ___ ____ ______________    _______          566  F.2d  979, 982-83  (5th Cir.),  cert.  denied, 439  U.S. 819                                               _____  ______          (1978).   In such a  situation, the court  ordinarily can proceed          with  the   trial  after  appropriately   instructing  the   jury          concerning the change of plea  and the newly proffered testimony.          See Gambino,  926 F.2d  at 1364.   It is  only when  some special          ___ _______          circumstance  creates unfair prejudice, not realistically curable          by  appropriate  instructions,  that  the court  must  declare  a          mistrial.5  See id.; see also Kilrain, 566 F.2d at 983.                      ___ ___  ___ ____ _______                                        ____________________               5We  recognize that  when a  codefendant switches  sides and          becomes  a government witness, his testimony will likely help the          government and harm  the remaining defendants.   Indeed, this  is                                          10                    Appellant asserts that this  case evades the usual rule          because  special circumstances exist.  He points to the fact that          the three  "MoGro defendants"    appellant, McComas, and  Moore            had  been pursuing a common defense, and that McComas's change of          plea  and his ensuing testimony  knocked the pins  out from under          this defense.6   He  adds, moreover,  that  the deleterious  side          effects  of Kleinerman's  misbehavior, see  supra  Part II(A)(2),                                                 ___  _____          furnished a further basis for a mistrial.                    We do not believe that this jeremiad derives sufficient          support from the  record.   The trial judge  found no  cognizable          prejudice,  and close  perscrutation of  the transcript  fails to          shake  this finding.  At  any rate, given  the highly deferential          standard  of  review, we  are  not prepared  to  second-guess the          finding based on appellant's self-interested speculation.7                                        ____________________          often a strong incentive to the government in the plea-bargaining          process.    But this  sort of  prejudice  does not  necessitate a          mistrial.   It is only unfair prejudice against which courts must                                 ______          guard.  See,  e.g., United States v. Rodriguez-Estrada,  877 F.2d                  ___   ____  _____________    _________________          153, 156 (1st  Cir. 1989);  United States v.  Ingraham, 832  F.2d                                      _____________     ________          229, 233 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988).                                    _____ ______               6Although  three different  lawyers  represented  the  MoGro          defendants,  appellant asseverates  that the  lawyers coordinated          their  opening   statements   and  their   cross-examination   of          prosecution witnesses, and that they adopted a "unified theme" in          regard to challenging the  government's proof and confronting its          witnesses.  After  McComas changed his plea, appellant  alone was          caught  in the  toils; the  third MoGro  defendant,  Moore, found          sanctuary when the district court granted his motion for judgment          of acquittal, Fed. R. Crim. P. 29(a).               7There is  another reason why we  are particularly reluctant          to  override the  trier's judgment  call in  this case.   If  any          unfair prejudice sprouted   and  we stress that we have found  no          sign of  any   we believe  it would have been cured  by the trial          judge's painstaking  instructions.  It strikes  us as significant          in this regard  that appellant has criticized neither the content                                          11          III.  THE ALLEGED SENTENCING ERROR          III.  THE ALLEGED SENTENCING ERROR                    To  place appellant's  final assignment  of error  into          proper  perspective, we divide this portion  of our analysis into          three  sections.   First, we  rehearse the  sentencing calculus.8          Second,  we  discuss  the  question  of  appellate  jurisdiction.          Third, we consider the substance of the claimed error.                                  A.  The Sentence.                                  A.  The Sentence.                                      ____________                    The district court classified the counts of convictions          as comprising  two groups,  see U.S.S.G.  2E1.1,  comment. (n.1),                                      ___          one  for interstate  transportation  of stolen  property, see  18                                                                    ___          U.S.C.   2314,  and one  for money  laundering, see  18 U.S.C.                                                             ___          1956(a)(1).9     The  judge  determined   that,  under   U.S.S.G.           2B1.2(a),  the first group had a base  offense level (BOL) of 4.          The court  then  added 15  levels for  bringing about  a loss  in          excess  of $2,500,000  (but less  than $5,000,000),  see U.S.S.G.                                                               ___           2B1.1(b)(1)(P); 4 levels for  engaging regularly in the business          of   buying   and   selling   stolen   property,   see   U.S.S.G.                                                             ___                                        ____________________          nor timeliness of these instructions.               8The district court sentenced appellant in February of 1993,          using  the November  1992 edition  of the  sentencing guidelines.          See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.          ___ _____________    __________          1990)  (explaining that the guidelines  in effect at  the time of          sentencing control  unless ex post facto  considerations prohibit          their use).  Hence, all references herein are to that edition.               9Since  "racketeering comes  in many  shapes and  sizes, and          covers a wide range  of activities," United States v.  Winter, 22                                               _____________     ______          F.3d 15,  19 (1st Cir. 1994), a sentencing court must look to the          predicate crimes to establish the guideline sentencing range, see                                                                        ___          U.S.S.G.   2E1.1(a)(2).  In this case, the predicate offenses are          interstate   transportation   of   stolen   property   and  money          laundering.                                          12           2B1.2(b)(4)(A); and 3 levels for performing a managerial role in          the offense, see U.S.S.G.   3B1.1(b).  These calculations yielded                       ___          an adjusted offense level of 26.                    The judge  performed a similar set  of computations for          the second group of  convictions.  He determined that  this group          revolved  around money  laundering and, therefore,  used U.S.S.G.           2S1.1(a)(1)  to fix  the BOL at  23.10   The judge  then added 7          levels  because  the  value   of  the  laundered  funds  exceeded          $3,500,000, see  U.S.S.G.  2S1.1(b)(2)(H), bringing  the adjusted                      ___          offense level to 30.                    Since the second group produced a  substantially higher          adjusted offense level than the first group, the  district court,          following the praxis specified  by the Sentencing Commission, see                                                                        ___          U.S.S.G.  2E1.1(a), set the first  series of computations to  one          side  and, instead, added 2 levels to the second group's adjusted          offense level, pursuant to section 3D1.4, thus bringing the final          offense  level to 32.  This produced a guideline sentencing range          (GSR) of 121-151  months for  a first-time offender.   The  court          imposed an incarcerative sentence at the bottom of the range.                    On  appeal, Pierro concedes that these calculations are          supportable,  but  claims  that  the  lower  court  erred in  not          venturing   a  downward   departure   premised   on   "mitigating          circumstances."  See 18 U.S.C.   3553(b)  (providing, inter alia,                           ___                                  _____ ____          for  departures  if  the court  ascertains  that  there  exists a                                        ____________________               10For  purposes of  computing  the sentencing  range, it  is          unnecessary   to  distinguish   between  the   substantive  money          laundering offenses and money laundering as a RICO predicate.                                          13          "mitigating  circumstance  of  a  kind,  or  to  a  degree,   not          adequately taken into consideration  by the Sentencing Commission          in formulating  the guidelines that  should result in  a sentence          different  from that  described [in  the GSR]");  U.S.S.G.  5K2.0          (implementing statute).  The government demurs.                             B.  Appellate Jurisdiction.                             B.  Appellate Jurisdiction.                                 ______________________                    As a matter of first principles,  an appellate court is          duty bound to confirm the existence of its own jurisdiction.  See                                                                        ___          Juidice v. Vail, 430 U.S. 327, 331 (1977); Mansfield, Coldwater &          _______    ____                            ______________________          Lake Mich. Ry.  Co. v. Swan, 111 U.S. 379, 382 (1884); In re Dein          ___________________    ____                            __________          Host, Inc., 835 F.2d 402, 404 (1st Cir. 1987).  We do so here.          __________                    It is by now axiomatic that a criminal defendant cannot          ground an  appeal on a sentencing  court's discretionary decision          not to depart below  the guideline sentencing range.   See, e.g.,                                                                 ___  ____          United  States v. Tardiff, 969  F.2d 1283, 1290  (1st Cir. 1992);          ______________    _______          United  States v.  Amparo, 961  F.2d 288,  292 (1st  Cir.), cert.          ______________     ______                                   _____          denied, 113 S. Ct. 224 (1992); United States v.  Hilton, 946 F.2d          ______                         _____________     ______          955, 957 (1st Cir. 1991);  United States v. Romolo, 937  F.2d 20,                                     _____________    ______          22  (1st Cir.  1991).   This  rule,  however, admits  of  certain          exceptions.    One such  exception  applies  when the  sentencing          court's declination to depart results from a mistake of law.  See                                                                        ___          Amparo, 961 F.2d at 292; Hilton, 946  F.2d at 957.  Consequently,          ______                   ______          "appellate jurisdiction may attach if it appears that the failure          to depart stemmed from the sentencing court's mistaken impression          that  it lacked the legal authority to deviate from the guideline          range  or, relatedly,  from  the court's  misapprehension of  the                                          14          rules governing  departures."  United States v.  Gifford, 17 F.3d                                         _____________     _______          462, 473 (1st Cir. 1994).                    Counsel  often confuse the exception and  the rule.  If          the judge sets differential factfinding and  evaluative judgments          to one side, and says, in effect, "this circumstance of which you          speak,  even   if  it  exists,  does  not  constitute  a  legally                  _____________________          sufficient  basis for  departure," then  the correctness  of that          quintessentially  legal determination  may be  tested on  appeal.                            _____          But  if the judge says, in effect, either that "this circumstance          of which you speak has not been shown to exist in this case," or,          alternatively, that  "while this circumstance of  which you speak          might exist and might constitute a legally cognizable basis for a          departure  in  a theoretical  sense,  it  does  not  render  this          particular case sufficiently unusual to warrant departing," then,          in either such event, no appeal lies.                    We  think  that this  case  fits  within the  exception          rather  than the rule, and,  hence, that we  have jurisdiction to          consider  the  assigned  error.    At  the  disposition  hearing,          appellant   identified  three  possible  grounds  for  departure,          namely, (1) that  his case was,  in essence, a  sheep in  wolves'          clothing    a garden-variety  theft-of-property case, treated  by          the  guidelines as a money  laundering case, and, therefore, well          outside the heartland of the money laundering guideline; (2) that          his  GSR  was  skewed by  "double  counting";  and  (3) that,  if          sentenced  within  the  GSR,   his  punishment  would  be  vastly          disproportionate to  his codefendants' sentences.   The  district                                          15          court rejected all three bases for departure.  Read  objectively,          the district court seems  to have said, in  effect, that even  if          appellant  could  prove  the  subsidiary  facts  upon  which  his          arguments  rested   that his  conviction grew out  of a scheme to          steal property rather than a scheme to launder money, that double          counting influenced  the composition  of the  GSR,  and that  his          coconspirators received sentences milder than the GSR in his case          prophesied   none  of the cited circumstances would  constitute a          legally cognizable reason for imposing  a sentence below the GSR.          If  the district court erred in this determination, the error was          a purely legal one.  Thus, appellate jurisdiction attaches.                                   C.  The Merits.                                   C.  The Merits.                                       __________                    We   address  separately  appellant's  claim  that  his          conduct  fell  outside  the  heartland of  the  money  laundering          statute,  thereby  justifying  a  downward departure.    We  then          proceed to examine appellant's remaining sentence-related claims.                    1.     The  Essence  of  the  Offense.    In  analyzing                    1.     The  Essence  of  the  Offense.                           ______________________________          appellant's "heartland" claim,  we first step back  to review the          anatomy of  "mitigating circumstance" departures.   The method of          the sentencing guidelines demands that, in the ordinary case, the          judge apply the guidelines, make such interim adjustments  as the          facts  suggest, compute  a sentencing  range, and  then  impose a          sentence within that range.  See 18 U.S.C.   3553(a)(b); see also                                       ___                         ___ ____          United  States  v. Rivera,  994 F.2d  942,  946 (1st  Cir. 1993);          ______________     ______          United States v. Diaz-Villafane,  874 F.2d 43, 47-48  (1st Cir.),          _____________    ______________          cert.  denied, 493 U.S. 862  (1989).  Because  departures are the          _____  ______                                          16          exception, rather than the rule, see Diaz-Villafane, 874 F.2d  at                                           ___ ______________          52, "it is only in  the extraordinary case   the case  that falls          outside  the heartland for the  offense of conviction    that the          district  court may  abandon the  guideline sentencing  range and          impose  a  sentence  different  from the  sentence  indicated  by          mechanical  application of  the  guidelines."   United States  v.                                                          _____________          Jackson, ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-1826, slip op.          _______          at 4]; see also Rivera, 994 F.2d at 947-48.                 ___ ____ ______                    When  a   sentencing  court  considers   a  "mitigating          circumstance" departure,  the relevant circumstance must  be of a          kind cognizable  under the  guidelines, see  Rivera, 994  F.2d at                                                  ___  ______          949, and must  render the  case "special" or  "unusual," see  id.                                                                   ___  ___          The   determination  of  whether  a  particular  circumstance  is          sufficiently "special" or "unusual" to warrant departing presents          a question of law, the determination of which is reviewed de novo                                                                    __ ____          on  appeal.  See Jackson, ___ F.3d at  ___ [slip op. at 6]; Diaz-                       ___ _______                                    _____          Villafane, 874 F.2d at  49.  In this  case, we do not  think that          _________          the  relationship  between  the statutes  underlying  appellant's          several  convictions constitutes  a mitigating  circumstance upon          which a departure can be predicated.                    We accept  appellant's two subsidiary premises.  First,          his  involvement  in money  laundering arose  out  of his  use of          proceeds  from the sale of  stolen property as  security for bank          loans.   See 18 U.S.C.   1956(a)(1)(A) (criminalizing the conduct                   ___          of  a  financial transaction  with  knowledge  that the  property          involved in the transaction  represents the proceeds of specified                                          17          forms of  illegal activity).   Second, the  Sentencing Commission          has chosen  to punish money laundering  with particular severity,          and  the introduction of the money  laundering guideline into the          sentencing calculus  therefore resulted in a  markedly higher GSR          and a longer prison term for appellant, see supra Part III(A).                                                  ___ _____                    Be that as it may, we cannot accept the conclusion that          appellant draws from  these two premises.   The money  laundering          statute  does not exempt from its reach those persons who launder          money   merely  in   the  furtherance   of  underlying   criminal          activities.   Nor does the  statute, in terms,  suggest that such          persons'  actions  perforce  fall  outside  the statute's  proper          scope.   On the contrary,  the crime colloquially  known as money          laundering  is committed  whenever  a person,  "knowing that  the          property  involved in  a  financial  transaction  represents  the          proceeds  of   some  form  of  unlawful   activity"  nevertheless          "conducts  or attempts to conduct  . . .  a financial transaction          which in fact involves [such] proceeds."  18 U.S.C.   1956(a)(1).                    In our  view, Congress  meant this statute  to address,          among other things, conduct undertaken subsequent to, although in          connection  with,  an   underlying  crime,  rather   than  merely          affording an alternative means  of punishing the underlying crime          itself.  See  United States v. Johnson,  971 F.2d 562, 569  (10th                   ___  _____________    _______          Cir. 1992).   Thus, our reading of the  same statute recently led          us to  observe, in countering  an argument strikingly  similar to          that stitched  together by Pierro, that  Congress "intended money          laundering  to be a  separate crime distinct  from the underlying                                          18          offense that generated the money."  United States v. LeBlanc, ___                                              _____________    _______          F.3d ___,  ___ (1st  Cir. 1994)  [No. 93-1847,  slip op. at  14].          Other  cases have reached essentially the  same conclusion.  See,                                                                       ___          e.g., Johnson, 971  F.2d at 569  (stating that Congress  designed          ____  _______          the  money laundering statute to  fill a lacuna  "with respect to          the  post-crime hiding  of  ill-gotten gains");  see also  United                                                           ___ ____  ______          States v. Edgmon, 952  F.2d 1206, 1214 (10th Cir.  1991) (holding          ______    ______          that principles  of double  jeopardy do not  bar prosecution  and          punishment for both money laundering  and conversion based on the          same overall conduct), cert. denied, 112 S. Ct. 3037 (1992).                                 _____ ______                    There  is little question  that the appellant's conduct          fits  snugly  within  this  framework.    Appellant  argues  that          "although  the   facts  which   formed  the  predicate   for  the          convictions were  within the strict linguistic  parameters of the          sentencing  guidelines  for  money  laundering,  the  defendant's          actual  conduct   did  not  fall  within   [what  the  Sentencing          Commission intended to punish as] money laundering . . . ."  This          is  virtually a replica of  the argument we  rejected in LeBlanc,                                                                   _______          ___  F.3d at  ___  [slip  op.  at  12].11    Because  appellant's                                        ____________________               11In LeBlanc, following convictions for, inter alia, illegal                    _______                             _____ ____          gambling activities  and money  laundering, the court  computed a          GSR for  each defendant.   There, as  here, the range  was pushed          upward  by the  presence of  money laundering.   To  correct this          perceived  bias,  the district  court  departed  downward on  the          theory  that  the  defendants'   crime,  at  bottom,  constituted          bookmaking,  and   should  be   sentenced  as  such;   the  money          laundering,  the  court thought,  was  merely  incidental to  the          illegal  gambling, and,  therefore, the  offenses  of conviction,          although technically including money laundering, fell outside the          heartland for that crime.  See LeBlanc, ___ F.3d at ___ [slip op.                                     ___ _______          at 8].   We remanded  for resentencing, ruling  that the  court's          characterization of the defendants' conduct ignored the fact that                                          19          offense  conduct,  though arising  out  of  his participation  in          interstate transportation  of stolen property, comes  well within          the heartland of the money laundering statute and  guideline, the          court  below correctly  concluded, as  a matter  of law,  that it          could  not base a downward  departure on this  circumstance.  See                                                                        ___          LeBlanc, ___ F.3d at ___ [slip op. at 16]; see also United States          _______                                    ___ ____ _____________          v. Limberopoulos, ___ F.3d ___, ___ (1st Cir. 1994) [No. 92-1955,             _____________          slip op.  at 12-13]  (rejecting analogous argument;  holding that          district court's  view that  defendant's conduct fell  within the          heartland  of a regulatory statute but outside the heartland of a          drug trafficking  statute  reflected a  misunderstanding  of  the          basic objectives of the two statutes, their interplay,  and their          interposition vis-a-vis the sentencing guidelines).                    2.  Remaining Bases  for Departure.  Appellant suggests                    2.  Remaining Bases  for Departure.                        ______________________________          two additional  ways in which the trial court appropriately could          have departed downward.  Neither suggestion has any merit.12                                          a.                                          a.                                          __                    First,  appellant contends  that  a downward  departure          could  have been  predicated on the  fact that  "double counting"                                        ____________________          they were  also guilty of  money laundering,  which Congress  had          made a distinct offense.  See id. at ___ [slip op. at 16-17].                                    ___ ___               12Appellant gives these points only cursory treatment in his          appellate  brief.  We  could, therefore,  simply dismiss  them on          that ground.  See Ryan v. Royal Ins.  Co., 916 F.2d 731, 734 (1st                        ___ ____    _______________          Cir.  1990) (ruling  "that  issues adverted  to  on appeal  in  a          perfunctory    manner,    unaccompanied    by   some    developed          argumentation, are deemed to have been abandoned"); United States                                                              _____________          v. Zannino,  895 F.2d 1, 17 (1st  cir.) (same), cert. denied, 494             _______                                      _____ ______          U.S.  1082 (1990).   But  because the  contentions were  aired in          detail below, we elect to address them briefly.                                          20          boosted  his GSR  to heights not  contemplated by  the Sentencing          Commission.   In  this regard,  appellant asserts  that the  same          money was factored into the sentencing court's computations twice             once in calculating the offense level for money laundering and          once   in   calculating   the   offense   level   for  interstate          transportation  of  stolen  property.    We  cannot  accept  this          assertion.                    It  is not at all  clear that any  double counting took          place.   As  discussed above,  where an  underlying crime  occurs          antecedent  to  money  laundering,  the offenses  are  considered          separate   and   distinct   for   sentencing   purposes.     This          distinctiveness requires that a  separate computation be made for          each group of offenses.   See United States  v. Lombardi, 5  F.3d                                    ___ _____________     ________          568, 571 (1st Cir. 1993) (holding that an anomaly would result if          a sentencing court were  compelled to treat mail fraud  and money          laundering in the same sentencing category).   Appellant dealt in          stolen property having a  value in excess of $2,500,000  and also          laundered over $3,500,000 in profits  garnered from the resale of          stolen property.  Hence,  the punishment for engaging in  each of          these criminal activities must  be calculated independently.  See                                                                        ___          id.          ___                    By  the same token, each  crime has its  own measure of          loss; the value of  the property stolen  from DEC and the  dollar          amount  of  ill-gotten  sale proceeds  used  by  MoGro  to secure          financial support  may  turn out  to be  the same,  but they  are          arrived at differently.  The mere existence of some indeterminate                                          21          degree  of  overlap between  these  figures  does not  constitute          double counting.  See, e.g., United States v. Lilly,  13 F.3d 15,                            ___  ____  _____________    _____          18  (1st Cir. 1994) (holding  that overlapping uses  of same data          anent monetary loss  did not  constitute double  counting in  the          particular circumstances of the case).                    To  say  more would  be  to  trespass on  the  reader's          indulgence.  Even  if the  situation here could  be described  in          some useful way as comprising  double counting, the phenomenon is          not  sufficiently "special"  or "unusual"  to warrant  a downward          departure.  After  all, in the sentencing context double counting          is not  rare   and the  practice is often perfectly  proper.  See                                                                        ___          id. at 19.          ___                                          b.                                          b.                                          __                    The  final circumstance  on which  appellant relies  in          support  of  a downward  departure  is  disproportionality    the          comparative  severity  of his  sentence  as  contrasted with  the          sentences to be  served by other coconspirators.13   The district          court  believed that it lacked authority to depart on this basis.          We  concur.  See,  e.g., United States  v. Wogan, 938  F.2d 1446,                       ___   ____  _____________     _____          1448 (1st  Cir.),  (holding that  "a perceived  need to  equalize          sentencing  [among   codefendants]  .  .  .  will  not  permit  a          departure"), cert. denied, 112  S. Ct. 441 (1991);  United States                       _____ ______                           _____________          v. Carr, 932  F.2d 67,  73 (1st Cir.)  (explaining that  judicial             ____          dissatisfaction   with   comparative   outcomes  cannot   justify                                        ____________________               13As  we have  previously indicated,  this lack  of symmetry          stems primarily  from appellant's involvement in money laundering             a circumstance that  boosted his GSR well  above what it would          have been under the  guideline covering interstate transportation          of stolen property.  None of the other defendants carried similar          baggage into the sentencing arena.                                          22          departure), cert. denied, 112 S. Ct. 112 (1991).                      _____ ______                    3.   Need  for Remand.   The  district court  sentenced                    3.   Need  for Remand.                         ________________          appellant  in February  1993.   Approximately five  months later,          this court decided Rivera,  994 F.2d 942, a case  that elaborated                             ______          the circuit's  departure jurisprudence.  Appellant  invites us to          remand so that the  district court may reexamine the  sentence in          light of Rivera.  We decline the invitation.                   ______                    Building  a  body  of   precedent  is  an  evolutionary          process.  If the  mere fact that a new opinion  sheds light on an          area of the law automatically required appellate courts to remand          for reconsideration all cases pending on direct appeal that dealt          with  the  same area  of  the  law,  the system  would  become  a          shambles.   Remand  is required  only when  there is  a realistic          possibility that the new  precedent, properly applied, will alter          or otherwise  materially affect the  result reached in  the trial          court.14   See, e.g.,  Gifford, 17  F.3d at  475.   Applying this                     ___  ____   _______          benchmark, there is no need to remand this case for resentencing.                    When a newly minted precedent clarifies a corner of the          law while a case involving the  same (or a closely related) point          is pending  on direct  appeal, the  threshold question  is almost          always whether the trial court's analysis would have  differed in          some   material  respect  if  it  had  had  the  benefit  of  the          clarification.   Here, that  question demands a  negative answer:                                        ____________________               14For purposes  of this discussion,  we assume that  the new          precedent  constitutes a  clarification, entitled  to retroactive          effect  vis-a-vis cases still pending on  direct appeal.  Broader          retroactivity  concerns  are  beyond  the proper  scope  of  this          opinion.                                          23          Judge Woodlock fully anticipated our opinion in Rivera, carefully                                                          ______          sifted the record to  determine whether any unusual circumstances          existed that might warrant a downward departure, and, discovering          none,  correctly abjured the desired  departure.  Hence, a remand          would serve no useful  purpose as the analytic approach  would be          essentially  unchanged  and would,  therefore,  produce the  same          conclusions.  See, e.g., United States v. Smith, 14 F.3d 662, 666                        ___  ____  _____________    _____          (1st Cir. 1994) (affirming district court's pre-Rivera refusal to                                                          ______          depart under Rivera standard); see  also United States v. Sclamo,                       ______            ___  ____ _____________    ______          997 F.2d 970, 974 (1st Cir. 1993) (affirming pre-Rivera  downward                                                           ______          departure and declining to remand for reconsideration in light of          Rivera).          ______                    We  hasten to add that  even when a  district court has          not fully  anticipated an  emergent clarification, a  remand will          not necessarily follow.  For example, when the court's subsidiary          findings of fact are reasonably explicit, unaffected by its legal          error, and subject to reuse, a remand would be an empty exercise.          See  Societe des Produits Nestle v. Casa Helvetia, Inc., 982 F.2d          ___  ___________________________    ___________________          633, 642  (1st Cir. 1992).   In such a situation, so  long as the          court of  appeals can  arrange the  untainted findings  along the          proper legal matrix,  it need not remand.   See United  States v.                                                      ___ ______________          Mora,  821  F.2d 860,  869 (1st  Cir.  1987); see  also Figueroa-          ____                                          ___  ____ _________          Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir. 1988).          _________    ______                    This principle offers an alternative  basis for denying          appellant's request for a  remand.  Even if, without  the benefit          of Rivera, the district  court's grasp of departure jurisprudence             ______                                          24          proved faulty   and  we do not believe that to have been the case            a remand would not be exigible.  For all the skillful lawyering          that has been mustered on appellant's behalf, he has been utterly          unable to isolate any "special" or "unusual" feature of this case          which, under Rivera, could support a downward departure.                       ______          IV.  CONCLUSION          IV.  CONCLUSION                    We  need  go  no  further.   For  aught  that  appears,          appellant was  fairly tried, justly convicted,  and appropriately          sentenced.  He has  been unable to advance any  persuasive reason          either   for  revising   the  outcome   or  for   prolonging  the          proceedings.  The judgment below must, therefore, be          Affirmed.          Affirmed.          ________                                          25
