
USCA1 Opinion

	




          September 18, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  & 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).          ______                                         -20-
