
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                            ____________________        No. 93-2129                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JOSEPH H. CATALUCCI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Richard A.  Gargiulo  with whom  Richard J.  Inglis and  Gargiulo,            ____________________             __________________      ________        Rudnick & Gargiulo were on brief for appellant.        __________________            John  P.  Pucci,  Assistant  United  States  Attorney,  with  whom            _______________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                  September 27, 1994                                 ____________________                                    ____________________        *Chief  Judge Stephen Breyer heard  oral argument in  this matter, but        did not  participate in  the drafting or  the issuance of  the panel's        opinion.   The remaining  two panelists  therefore issue  this opinion        pursuant to 28 U.S.C.   46(d).                 Per  Curiam.   In  November 1991,  Joseph Catalucci  was                 ___________            indicted  with  other  defendants  for  various drug  related            offenses,  including  conspiracy.    21 U.S.C.     846.    In            substance, the  government  charged  Catalucci  and  his  co-            defendants with operating a  drug distribution network  that,            between 1969  and 1991, distributed more  than 100,000 pounds            of  marijuana and  substantial amounts  of hashish.   Shortly            before trial, scheduled  for September  1992, Catalucci  gave            the government  a proffer suggesting  that he could  help the            government in other drug cases.                 On September  4,  1992,  Catalucci  and  the  government            entered  into a  plea  agreement that  required Catalucci  to            provide  the government  complete  and  truthful  information            concerning other  criminal activity  and to testify  before a            grand jury  or at trial.  The  government in turn promised to            move for  a  downward  departure, pursuant  to  18  U.S.C.               3553(e)  and   U.S.S.G.     5K1.1,   if  Catalucci   provided            "substantial  assistance  .  .  . in  the  investigation  and            prosecution of another person."  The  agreement said that the            determination as  to substantial assistance "rests  solely in            the  discretion of  the  United States  Attorney  and is  not            subject to appeal or review."                 After being debriefed by  the government over the course            of  several months,  in  March 1993  Catalucci  wrote to  the            government   arguing  for  a  substantial  departure  motion.                                         -2-                                         -2-            Prominently, Catalucci claimed credit for  bringing about the            guilty  plea of two of his co-defendants, and he claimed that            he had provided critical intelligence  as to a large off-load            of  hashish  organized by  another  individual, one  Frederic            Berthoff,  who was  in  fact subsequently  indicted.   United                                                                   ______            States  v.  Berthoff,  Cr.  No.  93-30008-Y,  D.  Mass.   The            ______      ________            prosecutor  replied that  he would  not recommend  a downward            departure   for   substantial   assistance;  the   prosecutor            provided, and later elaborated, reasons which we will discuss            briefly below.                 In August  1993, Catalucci  filed a motion  to "enforce"            the  government's  asserted  promise   to  file  a   downward            departure motion  and requested  an evidentiary hearing.   In            September  1993,  the  district  court  received  documentary            evidence from Catalucci  and a  proffer of what  he hoped  to            elicit in live testimony.  But the district court declined to            allow live witnesses and ultimately  ruled that in this  case            it lacked  power to review  the government's refusal  to move            for  a  downward departure.    Catalucci  was then  sentenced            within the  guideline  range and  without  the benefit  of  a            downward departure.                 This case  is one of  a large  number in this  and other            circuits in  which defendants have sought  judicial review of            the  government's refusal  to move  for a  downward departure            based on substantial assistance; often, but not always, these                                         -3-                                         -3-            occur  in  the  context  of  specific  plea  agreements  that            envisage  a possible  departure  motion and  also purport  to            waive the defendant's right to judicial review on this issue.            Interesting and sometimes  difficult issues have  been raised            in these cases as to whether  and when under the statute  and            guidelines the  court may review the  government's refusal to            move   for  a   downward  departure   based  on   substantial            assistance; whether and when a defendant may waive in advance            his right to litigate such issues to the extent that they are            otherwise open to review;  and whether and when  the district            court  ought   to  afford   hearings  or  take   evidence  in            considering a substantial assistance claim.                 The  Supreme  Court  has  ruled  that  the  government's            decision  not to  file a  substantial assistance  motion lies            primarily within its discretion but might be open to judicial            review in certain situations.   Wade v. United States  112 S.                                            ____    _____________            Ct. 1840  (1992).   The  Court  mentioned as  candidates  for            review  a  government   decision  based  on  unconstitutional            motives,  such  as the  defendant's race  or religion,  and a            "refusal  to move  .  .  .  not  rationally  related  to  any            legitimate Government end."   Id. at 1845-47.  In  this case,                                          ___            Catalucci claims that  the government acted  in bad faith  or            without rational basis.                 There is  admittedly some difference  among the circuits            as to how  to apply Wade's standards and the  extent to which                                ____                                         -4-                                         -4-            the terms  of a plea  agreement may foster (by  a promise) or            restrict  (by  a waiver)  judicial  review.   Compare  United                                                          _______  ______            States  v. Forney, 9 F.3d  1492 (11th Cir.  1993), and United            ______     ______                                  ___ ______            States v. Romsey, 975  F.2d 556 (8th Cir. 1992),  with United            ______    ______                                  ____ ______            States v.  Knights, 968 F.2d 1483 (2d Cir. 1992).  But we see            ______     _______            no occasion in this case to spell  out standards or engage in            extended discussion.  Even assuming that Catalucci has waived            nothing by the plea agreement in this case, we cannot see how            under  any plausible  standard of  review the  district court            could  have found that the  prosecutor acted in  bad faith or            without rational basis.                 In  the district  court, the  government  explained that            Catalucci's  version of  events  contradicted  that of  other            government  witnesses  and  itself  varied  widely  from  one            debriefing session  to the next; that  Catalucci had revealed            during polygraph sessions information that he  had previously            withheld;  and  that  Catalucci  had  disregarded  government            instructions   (designed  to  preserve  his  integrity  as  a            possible  witness) by  discussing  his testimony  with a  co-            defendant  who was also a potential government witness in the            Berthoff case.  Catalucci has not told us anything that casts            ________            doubt on the government's conclusion that he is now worthless            to the government as a trial witness.                   Catalucci  argues  on  appeal  that he  was  promised  a            downward   departure  motion   if  he   provided  substantial                                         -5-                                         -5-            assistance  either  in the  prosecution  or  investigation of                        ______                       __            another case.    He  urges  that  the  latter  condition  was            satisfied  when he  procured  for the  government the  guilty            pleas or cooperation of  two co-defendants, Zoel Richards and            Stephen Marple,  and provided  information about the  alleged            hashish shipment  of Berthoff.   The government  responded in            the  district  court  that  Catalucci  had  actually  exerted            pressure  on Richards and  Marple not to  cooperate before he            entered  into  his  plea   agreement;  as  to  Berthoff,  the            government  said that Catalucci's information was "incomplete            .  . . and only  cumulative to information  provided by other            witnesses."                 On appeal,  Catalucci says very little  about the guilty            pleas  or  cooperation  provided   by  Richards  and  Marple.            Perhaps in theory a  defendant, who had improperly obstructed            cooperation by  other co-defendants prior to  his plea, could            thereafter  provide  substantial assistance  by affirmatively            assisting the government in a lawful and successful effort to            obtain  the co-defendant's  cooperation.   But  Catalucci has            failed  to provide  us  any  basis  for  his  claim  that  he            substantially assisted  the government  in regard to  the co-            defendants,  Richards and  Marple.  We  regard this  issue as            essentially abandoned.  United States v. Zannino, 895 F.2d 1,                                    _____________    _______            17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).                           ____________                                         -6-                                         -6-                 Catalucci does argue with some force  that he helped the            government's   investigation   of   Berthoff  by   furnishing            information about Berthoff and perhaps others associated with            the  alleged  hashish  shipment.     As  already  noted,  the            government  told the  district  court  that  the  information            Catalucci gave  was incomplete and had  already been provided            by other government witnesses.  Apparently the government did            not furnish much detail  to the district judge.  In its brief            in this court, the  government explains that it was  not then            free  to disclose the names  of its other  informants, but it            provides  some detail  now and  promises  that this  would be            corroborated if a remand were necessary.                 We do  not, of course, rely on  factual information that            was not before the district court.   But we find that without            regard  to these  newly  asserted facts,  the district  court            itself  would  have had  no  basis  here--even putting  aside            questions  of waiver  and the  scope of  judicial review--for            disregarding the  government's own explanation.   This is so,            at least, in the  absence of a proffer or other submission by            Catalucci that  raised serious  doubts about the  validity of            the government's  assertion.  On appeal,  Catalucci points to            nothing that he told the district court that would raise such            doubts.                 Catalucci  asserts on  appeal  that the  district  court            erred  in not  allowing him  to adduce  live testimony.   The                                         -7-                                         -7-            district court allowed Catalucci  to submit documents that he            said supported his position  and to make a proffer,  which he            did.   There is no automatic right to an evidentiary hearing,            and further  proceedings here  would not have  been justified            absent  some  threshold showing  that  they  would likely  be            useful.   United States v.  McAndrews, 12 F.3d  273, 280 (1st                      _____________     _________            Cir. 1993); United States v. McGill, 11 F.3d 223, 225-26 (1st                        _____________    ______            Cir. 1993).  In this case, the record gave the district judge            no   basis  to   suppose  that   the  government   had  acted            irrationally or in bad faith and no reason to think that live            testimony  or  any other  further  inquiry  would alter  this            conclusion.                 It  is part of the business of judges to make reasonable            forecasts as to whether further inquiries or proceedings will            be  useful.   The  Supreme Court  in  Wade cautioned  against                                                  ____            fishing expeditions in this area, remarking that "generalized            allegations of  improper  motive" would  not do  and that  "a            claim that a defendant merely provided substantial assistance            will not entitle a defendant to a remedy or even to discovery            or an evidentiary hearing."  112 S.Ct. at 1844-45.  There may            be  cases that  are close  to the line  and call  for further            inquiry, but this case is not one of them.                 Affirmed.                 ________                                         -8-                                         -8-
