

September 18, 1995    [NOT FOR PUBLICATION]
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 94-1502

                          UNITED STATES,
                            Appellee,

                                v.

                          JAIME CATANO,
                      Defendant - Appellant.

                                           

No. 94-1503

                          UNITED STATES,
                            Appellee,

                                v.

                         MICHAEL MURRAY,
                      Defendant - Appellant.

                                           

No. 94-1504

                          UNITED STATES,
                            Appellee,

                                v.

                          LEONEL CATANO,
                      Defendant - Appellant.

                                           

No. 94-1505

                          UNITED STATES,
                            Appellee,

                                v.

                          JAMES MURRAY,
                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]                                                                

                                           

                              Before

                      Stahl, Circuit Judge,                                                    

                 Campbell, Senior Circuit Judge,                                                         

            and John R. Gibson,* Senior Circuit Judge.                                                               

                                           

     William A. Brown, by Appointment of the Court, for appellant                               
Jaime Catano.
     Daniel J. O'Connell III for appellant Michael Murray.                                      
     Robert  L.  Sheketoff, with  whom Sheketoff  &amp; Homan  was on                                                                   
brief for appellant Leonel Catano.
     Steven  J. Brooks, with whom James P. Duggan, by Appointment                                                           
of the Court, was on brief for appellant James Murray.
     George W. Vien, Assistant United States, with whom Donald K.                                                                           
Stern, United States Attorney,  and Geoffrey E. Hobert, Assistant                                                                
United States Attorney, were on brief for appellee.

                                           

                                           

                                                  

*  Of the Eighth Circuit, sitting by designation.

          JOHN R. GIBSON, Senior Circuit Judge.  This unpublished                    JOHN R. GIBSON, Senior Circuit Judge.                                                        

portion of our opinion disposes of those issues which do not have

sufficient precedential value to warrant publication.  Therefore,

we incorporate by reference  the statement of the case  and facts

from the published portion of  our opinion of the same date.   We

here discuss and  affirm the  rulings of the  district court  in:

(1) denying James Murray's  suppression motion; (2) denying Jaime

Catano's motion for severance;  (3) denying Jaime Catano's motion

to participate  in Michael  Murray's omnibus motion  hearing; (4)

managing the use of peremptory challenges; (5) refusing to define

reasonable  doubt;  (6)  convicting  Jaime  Catano of  continuing

criminal enterprise; and (7)  refusing to adjust Michael Murray's

sentence for acceptance of responsibility or to depart downward.

              I.  JAMES MURRAY'S SUPPRESSION MOTION                        I.  JAMES MURRAY'S SUPPRESSION MOTION                                                             

          James Murray  argues that  the district court  erred in

denying  his  motion  to   suppress  evidence  police  seized  in

warrantless searches of  James Murray's pickup truck and  a Buick

James Murray had rented.   When the agents arrested  James Murray

on November 6, 1991, they seized keys to the rented  Buick and to

the pickup truck.  The  Buick was parked at the hotel  where they

had arrested  James Murray.  The  pickup was in a  parking lot of

the  Dallas-Ft.  Worth airport.    The agents  had  both vehicles

searched.  In  the Buick, they found a  rental agreement in James

Murray's name,  $2,350 in  cash, a  Smith  Corona typewriter  and

                               -3-

twelve telephone books from the Southeastern United States.1   In

the  pickup, they found $100,000 cash behind  the seat.  After an

evidentiary  hearing,  the district  court denied  James Murray's

motion to suppress  the evidence  seized from the  Buick and  the

pickup.

          James  Murray  argues   that  the  government   had  to

establish  both  probable  cause  and  exigent  circumstances  to

justify  the warrantless search of these vehicles, but in this he

is  mistaken.   Under  the  automobile  exception to  the  search

warrant requirement, if a  motor vehicle is in transit  or parked

in  a public  place,  police may  search  it without  a  warrant,

relying  solely on probable cause.   United States  v. McCoy, 977                                                                      

F.2d 706, 710 (1st  Cir. 1992); United States v. Panitz, 907 F.2d                                                                 

1267, 1271-72 (1st Cir. 1990).

          James Murray  argues that  there was not  even probable

cause, because the agents'  suspicions were based on the  word of

Roberto L pez, whom the agents knew to be unreliable.

          The  agents had  "probable cause"  for the  searches if

they  had facts  to support a  "well-founded conclusion  'that an

offense has been committed and . . . sound reason to believe that

a particular search will turn up  evidence of it.'"  Panitz,  907                                                                     

F.2d at 1271 (internal quotation marks and citation omitted).  We

review  a  district  court's  finding  of  probable  cause  on  a

                                                  

1   The typewriter  and telephone books are  relevant in light of
Michael  Murray's comments  in  a video  taped conversation  with
other  conspirators that  he would  make bills  of lading  with a
typewriter. 

                               -4-

suppression  motion for clear error.  United States v. Zapata, 18                                                                       

F.3d 971, 975 (1st Cir. 1994).

          Contrary to James Murray's contention, the government's

probable cause does not depend on the word of L pez, but on taped

conversations  among the  conspirators  and observations  of  the

conspirators' actions  after the  conversations.  From  the audio

tape supplied by  Nigro, the government  knew Michael Murray  was

expecting  to   obtain  marijuana   from  "Mexicans,"   that  the

conspirators  were going to Texas for that purpose, and that they

would  have  money to  finance  the  purchase and  transportation

costs.   Shortly  before  Leonel Catano  and  L pez left  in  the

tractor-trailer for  Texas, the DEA  overheard their conversation

with  the Murrays,  in  which they  coordinated their  respective

duties for the upcoming trip.

          By the time they  searched James Murray's vehicles, the

DEA agents  had seen the conspirators  take a number of  steps in

accordance  with  the   plans  laid  out  in  this   video  taped

conversation.   In  the  tape,  the group  agreed  to go  to  the

"crane," and  they later went to  a crane yard, where  they put a

steel tank on their trailer.  (There was evidence that  the group

had used that tank before to  transport marijuana.)  In the  tape

Michael Murray said that he would get  money and Leonel should go

to a truck stop; later that day, aerial surveillance agents saw a

parked  sedan (such  as  Michael  Murray  was  driving)  next  to

Leonel's truck in the truck area of a highway rest stop.  The car

and truck left the rest stop at the same time.  In the video tape

                               -5-

Michael Murray said that James Murray would "go and he's going to

have  money to pay the other transportation people up in Dallas;"

three days later, James Murray  showed up in McAllen, Texas in  a

car  rented at  the  Dallas-Fort Worth  airport.   In  the  taped

conversation  Michael  Murray  had  instructed  L pez  and Leonel

Catano  to "go  to  Dallas, drop  the  box  then just  come,  ah,

bobtail."  Leonel Catano and  L pez did in fact drop  the trailer

off in Luling and "bobtail" to McAllen.

          From the  taped conversation and subsequent  actions of

the  parties to  that conversation,  the government  had probable

cause to believe  that James Murray was  involved in a scheme  to

buy marijuana in south Texas and transport it north, and that  he

would be carrying a  significant amount of money  to pay for  the

transportation  costs.  His rental car and his truck were logical

places  to look for the money.  The district court did not err in

finding probable cause,  or in denying  James Murray's motion  to

suppress.

             II.  JAIME CATANO'S MOTION FOR SEVERANCE                       II.  JAIME CATANO'S MOTION FOR SEVERANCE                                                               

          Jaime Catano  argues that  the district court  erred in

denying  his  motion  to  sever.   Jaime  Catano's  argument  for

severance is lumped together  with his argument for participation

in Michael Murray's omnibus hearing and reads, in its entirety:

            [I]t was error for  the District Court to
            deny  Jaime  Catano's  Motion  to  Sever.
            Michael Murray had cooperated extensively
            with the  government.   There was no  way
            Jaime Catano's counsel  could know  that,
            in  a  joint  trial, the  source  of  the
            government's evidence against him was co-

                               -6-

            defendant  Michael Murray.  See Bruton v.                                                               
            U.S., 391 U.S. 123 (1968).                          

          Denial of a motion  for severance is "committed  to the

sound discretion of  the trial court,  and we review  only for  a

manifest  abuse  of  discretion  resulting in  a  miscarriage  of

justice."  United States  v. Welch, 15 F.3d 1202, 1210  (1st Cir.                                            

1993),  cert.  denied,  114  S.  Ct.  1661  (1994).    To  obtain                               

severance,  a defendant must  show that  "'substantial prejudice'

would result  from  a  joint trial."    Id.  (citation  omitted).                                                     

Prejudice in  this  context requires  "more  than just  a  better

chance  of  acquittal at  a separate  trial."   United  States v.                                                                        

Mart nez, 479  F.2d 824, 828  (1st Cir. 1973).   Jaime Catano has                  

shown  no substantial prejudice.  Further, his reliance on Bruton                                                                           

is misplaced.  Bruton prevents the  admission at a joint trial of                               

one co-defendant's extrajudicial  statements implicating  another

absent the opportunity for cross-examination, 391 U.S. at 135-36,

a situation  not presented  here.  Jaime  Catano's three-sentence

argument  leaves the  issue undeveloped  and,  therefore, waived.

See United States v.  Zannino, 895 F.2d 1,  17 (1st Cir.),  cert.                                                                           

denied, 494 U.S. 1082 (1990).                

            III.  JAIME CATANO'S MOTION TO PARTICIPATE                      III.  JAIME CATANO'S MOTION TO PARTICIPATE                                                                

          Jaime Catano sought to participate in  Michael Murray's

omnibus hearing  described in  Part I  of our  published opinion.

Jaime  Catano contended  that Michael  Murray's bargain  with the

government  would benefit Jaime Catano  as well.   He argues that

his  participation  would  have   allowed  him  to  cross-examine

witnesses as to the benefit which  he would receive from his  own

                               -7-

and from Michael  Murray's cooperation with  the government.   He

further  argues that  he  could have  "threshed out"  discussions

between himself  and the DEA  and "gleaned"  any information  the

government  learned about him from Michael Murray.  At the motion

hearing,  Jaime  Catano's  counsel  orally  moved  the  court  to

intervene and  examine witnesses.  The district judge ruled, "I'm

not going  to let you examine, but on the  other hand, you file a

motion supported  by an affidavit  and I'll  deal with it."   The

judge also stated that Jaime Catano had no standing to intervene.

Later,  Jaime Catano's  counsel again orally  moved the  court to

participate in the hearing.  Again the  judge stated, "I told you

to make a motion.  I told you to support your motion.  You  get a

motion.  I'll rule on it. . . . But two days have gone by, I have

no  motion, the matter is between Mr. Murray and the government."

After  the hearing  concluded and  the trial began,  Jaime Catano

served  a "Motion for Relief"  on the government  with a two-page

unsigned  affidavit attached  which  purported to  be from  Jaime

Catano.  The motion  asked that the charges against  Jaime Catano

be dismissed or, in the alternative, "that the agreement with the

government   between  Catano,   Michael  Murray  and   the  other

defendants be enforced."  Jaime Catano's "affidavit" alleged that

a  DEA special  agent contacted  him and  urged him  to cooperate

"which would  result in a sentence for me of less than five years

since Michael Murray would  get no more than  five years for  his

sentence."    The  affidavit  also  alleged  that  "when  Michael

[Murray] told me that the government wasn't going to give him the

                               -8-

zero  to five year deal after he  set up the fentanyl lab, I told

[the special agent] that he was going to have to give Michael and

the  rest of  us our deal  if he  wanted me  to cooperate."   The

affidavit  conspicuously  fails  to  allege  that   Jaime  Catano

actually cooperated  or  detrimentally relied  in any  way.   The

government  disputes that  this  motion and  affidavit were  ever

filed in  the district court.   On appeal, Jaime  Catano does not

argue  that the district court wrongfully denied the motion, only

that the  district court  wrongfully denied him  participation in

Michael Murray's hearing.

          This argument fails for two  reasons:  (1) as discussed

above, Jaime Catano did not timely move the court in writing  for

participation in Michael Murray's hearing as the court requested;

and (2) Jaime Catano had no standing to intervene as he had shown

neither an agreement  intended to  benefit him directly  or as  a

third-party  beneficiary,2 nor  any  cooperation  or  detrimental

reliance on  his part.  See United States v. Lewis, 40 F.3d 1325,                                                            

1332  (1st Cir. 1994) (holding  that a criminal  defendant is not

entitled  to an  evidentiary hearing  unless he  "allege[s] facts

that, if proven, would entitle him to relief").  In  short, "[t]o

mandate an  evidentiary hearing, the challenger's  attack must be

more than conclusory  and must be supported  by more than a  mere

desire  to cross-examine."  Franks v. Delaware, 438 U.S. 154, 171                                                        

                                                  

2   In  fact,  Michael Murray's  affidavit  and the  prosecutor's
testimony both  indicate that any agreement  entered into between
Michael Murray andthe government did not extend to Jaime Catano. 

                               -9-

(1978) (challenge to  the validity of  an affidavit supporting  a

search warrant).  Jaime Catano's attack is neither.

         IV.  LEONEL CATANO'S OBJECTION TO THE PROCEDURE                   IV.  LEONEL CATANO'S OBJECTION TO THE PROCEDURE                                                                  
                    FOR PEREMPTORY CHALLENGES                              FOR PEREMPTORY CHALLENGES                                                       

          Leonel Catano  argues that the district  court erred in

its  management of  peremptory challenges  by reconstituting  the

venire  after  Catano   had  already  exercised  his   peremptory

challenges,  without permitting Catano a chance  to strike any of

the new veniremen.

          The court used a "jury  box" system of jury  selection.

See  generally  8A  James  Wm. Moore,  Moore's  Federal  Practice                        

  24.05[1]  (2d ed. Feb. 1995 rev.).   First, the court asked the

entire  venire  questions to  determine  whether  there were  any

reasons that particular  jurors could not be  impartial.  Several

jurors were excused at this point, so that the venire dwindled to

twenty-seven  people.    The  court announced  it  would  impanel

fourteen  people--enough for  twelve jurors and  two alternates--

then permit each side  to make peremptory challenges.   The court

would refill the box with new veniremen to replace the challenged

veniremen until  both sides  had used  their  challenges or  were

satisfied  with  the  panel.   The  government  would have  seven

peremptory challenges and  the defendants eleven.  Fed.  R. Crim.

P. 24(b)  and (c).   The last two  jurors to  remain unchallenged

would be  the alternates.  The government  exercised four strikes

on the first  panel, then  the defendants exercised  seven.   The

court filled the eleven seats left vacant by the strikes with new

veniremen  for round two.   The defense challenged  four of these

                               -10-

eleven,  and  the government  challenged  two.   Thus,  after two

rounds  a  total  of eight  jurors  had  been  selected, and  the

defendants had used up all their challenges.

          At this point there were not enough remaining veniremen

to  refill the  jury  box.    Therefore,  the  court  called  the

remaining two  veniremen into the  box, and the  government chose

not to  challenge them.  Of  necessity, the court  called for new

veniremen  to be  brought  in  from the  jury  pool.   Since  the

defendants were  out of peremptory challenges  and the government

declined to  exercise its remaining challenge, all  four of these

new veniremen  were impaneled.  However,  the defendants objected

to one  of  these jurors,  arguing  that they  had  no chance  to

challenge  him.  The court replied that the defendants had simply

used  up their  allotted number  of strikes,  and that  the court

would not allow them extra challenges.

          After the jury  had been  selected, there  was a  delay

before trial  while  the court  conducted  motion hearings.    It

happened that during this hiatus  the court had to excuse  two of

the  jurors.  It decided  to impanel four  new alternates, making

the two previous alternates deliberating  jurors.  The court gave

each side two peremptory challenges to use on  this supplementary

jury selection.

          Leonel  Catano  argues  that  the  court's  system  was

unfair, apparently because he had no opportunity to strike any of

the  veniremen in the third  round of the  regular jury selection

and these included new veniremen not in the original venire.  His

                               -11-

argument  is  unfounded.    The district  court  has  substantial

discretion to  regulate the  use of peremptory  challenges within

the framework of Federal  Rule of Criminal Procedure 24(b).   See                                                                           

United  States v. Cox, 752 F.2d 741,  748 (1st Cir. 1985).  After                               

the initial  voir dire and before  the court filled the  jury box

for the  first round,  the venire  had  dwindled to  twenty-seven

people.   The court announced  at the outset  that the government

and   defendants   together   would   have   eighteen  peremptory

challenges.    Twelve  jurors  and two  alternates  were  needed.

Simple arithmetic made it  apparent at the outset that  the court

might have to  call more veniremen  to get  enough for the  jury.

The defendants used up their peremptories on the original venire,

without knowing who might  walk in the door next.  Having created

their own predicament, they have no cause to complain.

          Though  his argument  is  unclear,  Leonel Catano  also

appears  to object to the court's procedure when events after the

initial jury selection made it necessary to select more alternate

jurors.  The  court announced  it would give  the defendants  two

additional challenges  because of this new  development, but that

the challenges could only be used on newly impanelled jurors, not

those already seated.  Leonel Catano argues that the court should

have permitted the  use of the new  challenges to strike the  old

jurors, two of whom were initially designated  alternates but now

would  be deliberating jurors.  The court did not anticipate that

it would be necessary to  supplement the jury when the panel  was

initially  chosen.  When  unexpected events made  it necessary to

                               -12-

impanel new alternates, there was no reason the court should have

to open up the  existing panel to new challenges.  This  is not a

case  like United States  v. Sams,  470 F.2d  751, 755  (5th Cir.                                           

1972), in  which the  defendant was  surprised by an  unannounced

rule that prevented him  from striking the first group  of jurors

in later  rounds.   Here, the  defendants  understood the  system

initially employed.  If  the court had not  impanelled additional

alternates  (which  was  undoubtedly   in  its  discretion),  the

remaining twelve jurors would  have deliberated and Leonel Catano

would have no  argument.   Catano's complaint arises  out of  the

fact that the court impanelled more alternates out of caution and

Catano  wants to benefit from this chance occurrence by using the

new  challenges  on   the  old  jurors.    Catano's  argument  is

foreclosed  by  Fed. R.  Crim. P.  24(c),  which states  that the

"additional peremptory challenges [given  when the court impanels

alternates] may be  used against  an alternate juror  only."   We

will  not   hamstring  the   district  courts  in   dealing  with

unanticipated events  during trial.   The district court  did not

abuse its discretion in the jury selection process. 

       V.  LACK OF INSTRUCTION DEFINING "REASONABLE DOUBT"                 V.  LACK OF INSTRUCTION DEFINING "REASONABLE DOUBT"                                                                    

          The appellants  argue that the district  court erred in

refusing to instruct  the jury on  the definition of  "reasonable

doubt"  in  his  instructions  to  the  jury.    This  court  has

specifically held that the  district court has discretion whether

to  define "reasonable doubt".  United States v. Cassiere, 4 F.3d                                                                   

1006, 1024-25  (1st Cir.  1993); United States  v. Olmstead,  832                                                                     

                               -13-

F.2d 642, 644-46  (1st Cir.  1987), cert. denied,  486 U.S.  1009                                                          

(1988).   Moreover, we find support for  this rule in the Supreme

Court's recent decision in  Victor v. Nebraska, 114 S.  Ct. 1239,                                                        

1248  (1994).  See United  States v. Neal,  36 F.3d 1190, 1202-03                                                   

(1st Cir. 1994).  If the court instructs that the burden of proof

is  "beyond a  reasonable  doubt,"  and  if  the  instruction  is

prominent,  not  "buried  as  an  aside,"   there  is  no  error.

Olmstead, 832 F.2d at 646.   The district court instructed on the                  

requirement of proof beyond a  reasonable doubt many, many times,

and with appropriate  gravity and  emphasis.  There  is no  error

here.

VI.  JAIME CATANO'S CONVICTION FOR CONTINUING CRIMINAL ENTERPRISE          VI.  JAIME CATANO'S CONVICTION FOR CONTINUING CRIMINAL ENTERPRISE                                                                           

          Jaime  Catano attacks  his  conviction  for  continuing

criminal  enterprise  on  the  grounds  that  the court  did  not

properly  instruct the jury on the elements of CCE and that there

was insufficient evidence to convict him.

          A.  Jury Instruction                    A.  Jury Instruction

          Jaime Catano contends that the district court failed to

properly state the elements of the continuing criminal enterprise

count against him in that it failed to state that  the continuing

series  of crimes committed by the  defendant must be "related."3
                                                  

3  The court's CCE instruction stated in relevant part:  

            In order for Mr. Jaime Catano to be found
            guilty    of   a    continuing   criminal
            enterprise,  the  government  must  prove
            five things beyond a reasonable doubt.

                 First,   that   Mr.   Jaime   Catano
            committed  the  offenses  of  conspiracy,

                               -14-

Jaime Catano concedes that the standard of review is plain error,

since he failed to object at trial.

          The  instruction  comported   with  the  statutory  CCE

requirement as it has  been defined in this circuit.   See United                                                                           

States  v.  Chagra, 653  F.2d 26,  27-28  (1st Cir.  1981), cert.                                                                           

denied,  455 U.S. 907 (1982).  Jaime Catano's citation of Garrett                                                                           

v. United  States, 471 U.S. 773 (1985), does not convince us that                           

the  Supreme Court  has found  an  additional requirement  in the

statute.  Other circuits have used the "related" language without

discussion.   See, e.g., United States v. Phillips, 664 F.2d 971,                                                            

1013  (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United                                                                           

States v. Jones, 801 F.2d 304, 307 (8th Cir. 1986).  However, the                         

lack of  controlling authority  and the  fact that the  predicate

crimes  here were shown  by overwhelming  evidence to  be related

anyway,  makes it impossible for us to find plain error resulting

in a miscarriage of justice.

          B.  Sufficiency of Evidence                    B.  Sufficiency of Evidence

          Jaime   Catano  also   contends  that   the  government

presented insufficient evidence to convict him on the CCE  count.

To convict  Jaime Catano  for engaging  in a  continuing criminal
                                                  

            possessing   marijuana  with   intent  to
            distribute  it, and  attempted possession
            of  marijuana  with intent  to distribute
            it, all  as charged, for the  counts that
            charge him, in Counts 1, 2, 3 and 5.

                 Second,  that  these  offenses  were
            part  of three or more offenses committed
            by  Mr.  Jaime  Catano  over  a  definite
            period  of  time  in  violation   of  the
            federal narcotics laws. . . .

                               -15-

enterprise, the  government must prove beyond  a reasonable doubt

that he:  (1) committed a felony  drug offense, (2) as  part of a

"continuing  series of violations," (3) "in  concert with five or

more other  persons" whom Jaime Catano  organized, supervised, or

otherwise managed,  (4) and  from which he  obtained "substantial

income or resources."   21 U.S.C.   848(c) (1988);  United States                                                                           

v. Hahn, 17 F.3d 502, 506 (1st Cir. 1994).  Jaime Catano contends                 

only   that  insufficient   evidence  existed   to  satisfy   the

"substantial income" requirement.4  

          On  a sufficiency  of the evidence  claim, we  view the

evidence  in the  light most  favorable to  the verdict.   United                                                                           

States v.  Torres-Maldonado, 14 F.3d  95, 100  (1st Cir.),  cert.                                                                           

denied,   115  S.  Ct.  193   (1994).    The  substantial  income                

requirement is intended "to  exclude trivial amounts derived from

occasional drug sales," United  States v. Roman, 870 F.2d  65, 75                                                         

(2d  Cir.),  cert. denied,  490  U.S. 1109  (1989)  (citation and                                   

internal quotation  marks omitted),  quoted in Hahn,  17 F.3d  at                                                             

507,  and  may be  proven directly  (by  evidence of  revenue and

resources)  or circumstantially  (by  evidence of  Jaime Catano's

role in the  conspiracy and  the volume of  drugs the  conspiracy

handled).  Hahn, 17 F.3d at  507.  The evidence "need not exclude                         

every reasonable hypothesis of innocence; that is, the factfinder

may  decide among  reasonable interpretations  of the  evidence."
                                                  

4   Jaime  Catano  appeals  both the  denial  of  his motion  for
judgment  of  acquittal  and  the  sufficiency  of  the  evidence
supporting  his conviction.    These challenges  "raise a  single
issue,"  United States v.  Batista-Polanco, 927 F.2d  14, 17 (1st                                                    
Cir. 1991); we address them as one.  

                               -16-

United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)                                          

(citations omitted); Hahn, 17 F.3d at 506.                                   

          Here, the conspiracy involved tons of marijuana, lasted

several  years, and generated millions of dollars.5  The scale of

the proven conspiracy along  with Jaime Catano's uncontested role

in  it "provides  ample  basis for  a  reasonable inference  that

[Jaime Catano] realized far more than  trivial amounts of income"

from his involvement.  Hahn, 17 F.3d at 507.                                     

                 VII.  MICHAEL MURRAY'S SENTENCE                           VII.  MICHAEL MURRAY'S SENTENCE                                                          

          Michael Murray argues that  the district court erred in

sentencing him because:   (1) the court did not order  an offense

level decrease  for his  acceptance of responsibility  under USSG

  3E1.1 (Nov. 1993);  and (2)  the court did  not order  specific

performance  of the government's  "promise" in the  plea offer to

depart downward for his alleged cooperation.

          A.  Acceptance of Responsibility                    A.  Acceptance of Responsibility

          The sentencing court  has great discretion in  deciding

whether to grant an  adjustment for acceptance of responsibility,

United States v. Ruiz, 47 F.3d  452, 455 (1st Cir. 1995), because                               

"[t]he sentencing judge  is in  a unique position  to evaluate  a

defendant's  acceptance   of  responsibility."    USSG     3E1.1,
                                                  

5     Witnesses   at  trial   detailed  the   transportation  and
distribution  of six loads of marijuana from Texas to Boston over
a  three year period.  Richard Baker described stashing and later
retrieving a large  gym bag  stuffed with ten  and twenty  dollar
bills.     He  then  left  Murray  and  Jaime  Catano  alone  for
approximately half an hour, after which  Michael Murray and Jaime
Catano drove away with the bag and its contents.  Other witnesses
testified that the DEA seized $1,149,650 from the tractor-trailer
used in the conspiracy.  

                               -17-

comment.  (n.5).   We  review  that evaluation  for  clear error.

Ruiz,  47  F.3d  at 455.    See  USSG     3E1.1,  comment.  (n.5)                                         

(sentencing judge entitled to "great deference on review").

          Guideline  section  3E1.1  serves  two  purposes:    to

recognize  sincere remorse and  to reward a  defendant for saving                                        

the government  the trouble and  expense of proceeding  to trial.

Ruiz,  47  F.3d  at  455; USSG     3E1.1,  comment.  (n.2).   The              

guideline  commentary  notes  that   "[i]n  rare  situations,"  a

defendant  can proceed  to trial  and receive  a reduction  under                                               

section 3E1.1.   USSG    3E1.1, comment.  (n.2).  For  example, a

defendant may receive a reduction after going to trial "to assert

and preserve issues that do not relate to factual guilt (e.g.  to                                                                       

make  a constitutional challenge to  a statute or  a challenge to

the applicability of a statute  to his conduct)."  Ruiz, 47  F.3d                                                                 

at  455.  Here, however, Michael Murray did not plead guilty, but

rather tried his case "on the basis of reasonable doubt," Michael

Murray's  Br. at 42, thus contesting  his factual guilt.  We will

generally sustain a district court's refusal to grant a reduction

for  acceptance of  responsibility  when the  defendant does  not

plead guilty.  Ruiz, 47 F.3d at 456.  We do so here.                             

          B.  Substantial Assistance                    B.  Substantial Assistance

          Michael  Murray next  argues  that  the district  court

erred in denying his request for a downward departure due to  his

substantial assistance  to the government.   USSG     5K1.1, p.s.

(Nov.  1993).  He contends  that either the  government should be

compelled  to  file   a  5K1.1  motion  because  of   his  actual

                               -18-

assistance,  or that the district court should have deemed such a

motion filed despite government inaction.  Both arguments fail.

          Section  5K1.1 conditions  departure upon  a government

motion.   This  condition "gives  the Government  a power,  not a

duty,  to   file  a  motion  when   defendant  has  substantially

assisted."  Wade v. United States, 504 U.S. 181, 185 (1992).  See                                                                           

United States v. Raineri, 42 F.3d 36, 44 (1st Cir. 1994) (holding                                  

that because a 5K1.1 motion is discretionary, "the government may

choose to insist on  quite a lot of assistance if  it wants to do

so"),  cert.  denied,  115   S.  Ct.  2286  (1995).     Absent  a                              

"substantial threshold showing" of  unconstitutional governmental

motive for  refusal  to file  a  5K1.1 motion,  "a  claim that  a

defendant merely provided substantial assistance will not entitle

a defendant to a remedy."  Wade, 504 U.S. at 186.  Michael Murray                                         

has alleged no unconstitutional  motive and is not entitled  to a

remedy for the government's refusal to file a 5K1.1 motion.

          Finally, Michael Murray  argues that his assistance  to

the  government  was  to  a degree  "not  adequately  taken  into

consideration by the Sentencing Commission."  USSG   5K2.0,  p.s.

(Nov.  1993).  We have  held that "it  is theoretically possible,

albeit  unlikely"  that  substantial   assistance  would  be   an

extraordinary mitigating circumstance within the ambit of section

5K2.0.  United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991).                                         

However,  this   is  not   "the  rare  case   where  governmental

intractability in the face of overwhelming evidence of enormously

fruitful  cooperation might  fairly be  said  to have  deprived a

                               -19-

defendant  of his due."   United States  v. La Guardia,  902 F.2d                                                                

1010, 1018  (1st Cir.  1990) (refusing  to depart  downward under

section 5K1.1 although defendants cooperated where government did

not file  motion).   In sentencing  Michael Murray, the  district

court  recognized its  authority  to depart  below the  guideline

range,  but declined to do so.   That decision is not appealable.

United  States v.  Field, 39 F.3d  15, 21 (1st  Cir. 1994), cert.                                                                           

denied, 115 S. Ct. 1806 (1995).                

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