United States v. Pierro

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1313

UNITED STATES OF AMERICA,

Appellee,

v.

DARRELL F. PIERRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lagueux,* District Judge.

Elliot M. Weinstein, for appellant.

Michael K. Loucks, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

the United States.

July 27, 1994

*Of the District of Rhode Island, sitting by designation.

SELYA, Circuit Judge. Defendant-appellant Darrell F.
SELYA, Circuit Judge.

Pierro labors to convince us that the district court erred in

refusing to grant him a separate trial, in refusing to declare a

mistrial, and, following his conviction, in refusing to reduce

his sentence beneath the suggested guideline range. We are not

persuaded by appellant's exhortations and, therefore, affirm.

I. BACKGROUND

At the times material hereto, appellant earned his

livelihood as a vice-president of the Moore Group (MoGro), a

California company. Yielding to temptation, he also joined a

criminal cartel that, during the years 1989 and 1990, engaged in

the theft and subsequent resale of computer components

manufactured by and for Digital Equipment Corporation (DEC).

This scheme functioned on three levels. The initial step

involved the thefts a step in which appellant at first did not

participate. The second step involved the sale of the stolen

equipment; with appellant's connivance, his employer, MoGro,

purchased much of the contraband.1 The third step involved the

purchasers' disposal of the bootleg merchandise.

For its part, MoGro, under appellant's aegis, handled

this third phase in two ways. It returned some components to

DEC, after altering their serial numbers, as part of an

established exchange program, thus converting stolen, often

1The thieves stole computer components from DEC's warehouse
in Massachusetts both during the week and on weekends. The
components purchased by MoGro comprised, for the most part, the
bounty from the weekend heists. The remaining contraband was
sold mainly to a codefendant, Fred Kleinerman.

2

unusable components into new, state-of-the-art equipment. It

resold the rest of the components on credit terms to a Wisconsin

firm, and then pledged the invoices as security for bank loans.

MoGro used the loan proceeds, inter alia, to pay the thieves for

the stolen merchandise.

From and after late 1989, appellant assumed an active

role in the looting of DEC's warehouse. On several occasions, he

and fellow MoGro employees (including John McComas) flew from

California to Massachusetts and assisted in the unlawful

asportation of computer components. These purloined parts

subsequently were shipped to MoGro's California headquarters and

disposed of by one of the two methods we have described.

In early 1990, appellant and several confederates were

spotted inside DEC's warehouse, fled, and were eventually

apprehended. Subsequently, a federal grand jury returned a 158-

count indictment against 16 persons. It charged appellant with

conspiracy to participate in a racketeering enterprise, see 18

U.S.C. 1962(d), participating in a racketeering enterprise, see

id. 1962(c), and money laundering, see id. 1956(a)(1). The

predicate acts upon which the RICO charges rested included both

money laundering and interstate transportation of stolen

property, see 18 U.S.C. 2314.

In response to a clutch of severance motions, including

one filed to appellant's behoof, the district court split the

defendants into two groups for purposes of trial. The court's

order called for appellant and seven other alleged coconspirators

3

(including McComas, Kleinerman, and Ruslan Moore, MoGro's

president) to be tried together, but apart from the other eight

defendants. On September 8, 1992, trial commenced for most

members of appellant's group.2 During the trial, the court

denied appellant's renewed severance motion and his motion for a

mistrial. The jury found appellant guilty on all counts. The

court sentenced him to serve 121 months in prison. This appeal

followed.

II. THE ALLEGED TRIAL ERRORS

Appellant contends that the district court erred in

denying his renewed motion for severance and his motion to

declare a mistrial. We examine each of these contentions.

A. The Severance Motion.

We need not linger long over the question of severance.

"As a rule, persons who are indicted together should be tried

together." United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir.

1993). We have said that to overcome this presumption a properly

joined defendant and, clearly, joinder was proper here, see

Fed. R. Crim. P. 8(b) must muster "a strong showing of evident

prejudice." O'Bryant, 998 F.2d at 25. When the term is used in

this context, "prejudice means more than just a better chance of

acquittal at a separate trial." United States v. Boylan, 898

F.2d 230, 246 (1st Cir.) (citation omitted), cert. denied, 498

U.S. 849 (1990). Indeed, the Supreme Court has been blunter

2One of the eight defendants originally included in this
cadre pled guilty prior to trial.

4

still, stating that when multiple defendants are named in a

single indictment, separate trials should not be ordered unless

"there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants or prevent the jury

from making a reliable judgment about guilt or innocence."

Zafiro v. United States, 113 S. Ct. 933, 938 (1993).

On appeal, Pierro does not challenge the district

court's pretrial order segmenting the defendants into two groups

for purposes of trial. However, he complains bitterly about the

district court's refusal to grant his mid-trial motion for

severance a device by which he sought to put some distance

between himself and Kleinerman. The motion rested on twin

rationales: first, Kleinerman's testimony about a litany of "bad

acts" which had nothing to do with appellant; second,

Kleinerman's courtroom antics, which, appellant alleges,

reflected adversely on all the defendants. We bifurcate this

complaint, considering these grounds separately.

1. Spillover. The first aspect of appellant's
1. Spillover.

argument amounts to a claim of spillover prejudice. To prevail

on such a claim, a defendant must prove prejudice so pervasive

that a miscarriage of justice looms. See United States v.

Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991); Boylan, 898 F.2d at

246. We have carefully reviewed the record and discern no

prejudice to appellant above and beyond the quantum of prejudice

that typifies virtually any multi-defendant trial and that sort

of prejudice clearly does not justify a severance. See United

5

States v. Walker, 706 F.2d 28, 30 (1st Cir. 1983).

To be sure, Kleinerman testified about a bogus burglary

he staged at his home and about telling another witness that she

should have dissembled when appearing before the grand jury.

This testimony, like other bits and pieces of evidence about

which appellant complains, while unsavory, was not in any way

antagonistic to appellant's defense. And nothing implicated

appellant in the peccadilloes; to the contrary, the evidence

suggested he was on the other side of the continent both when

Kleinerman faked the break-in and when Kleinerman attempted to

suborn perjury. Since it is settled that properly joined

defendants need not be severed merely because a joint trial will

require that the jury receive testimony even a large amount of

testimony irrelevant to one defendant, see Boylan, 898 F.2d at

246, we are not at liberty to second-guess the district court's

denial of appellant's motion, see id.

Although perhaps supererogatory in light of the

foregoing, we also take note of the trial court's exemplary

handling of the situation. The court carefully controlled the

presentation of the proof, making the jury keenly aware that

certain evidence was limited to particular defendants, and that,

in all events, the evidence had to be considered separately

against each defendant. In the first instance, a reviewing court

must presume that the jury heeded these prophylactic

instructions. See United States v. Olano, 113 S. Ct. 1770, 1781

(1993); United States v. Paiva, 892 F.2d 148, 160 (1st Cir.

6

1989). Here, there is no basis to suppose that the jurors

disregarded the trial judge's admonitions and departed on a

frolic of their own.

2. Kleinerman's Behavior. Appellant also assigns
2. Kleinerman's Behavior.

error to the district court's denial of a severance based on what

he calls Kleinerman's "cheerleading" during the trial testimony

of various witnesses. The conduct that appellant attributes to

Kleinerman mostly gestures and grimaces obviously occurred;

indeed, the district judge found Kleinerman in contempt for his

courtroom antics.

If, during the course of a multi-defendant criminal

trial, a defendant misbehaves in the jury's presence, the

misbehavior usually will not compel a separate trial for his

codefendants. See, e.g., United States v. Rocha, 916 F.2d 219,

230 (5th Cir.), cert. denied, 500 U.S. 934 (1991); United States

v. Tashjian, 660 F.2d 829, 837-38 (1st Cir.), cert. denied, 454

U.S. 1102 (1981). Unless a movant can demonstrate the existence

of some special prejudice of a kind or to a degree not

susceptible to remediation by prompt curative instructions, the

district court is free to eschew a severance and let the trial

proceed.

Applying this standard, we do not think that

Kleinerman's pantomime, regrettable though it was, required the

nisi prius court to grant a severance. In our view, this

situation parallels but is much less noxious than other

situations in which courts have concluded that well-chosen, well-

7

timed curative instructions will satisfactorily ameliorate the

adverse effects of a defendant's inappropriate behavior on his

codefendants.3 See, e.g., Rocha, 916 F.2d at 230; Tashjian, 660

F.2d at 838; United States v. Smith, 578 F.2d 1227, 1236 (8th

Cir. 1978); United States v. Marshall, 458 F.2d 446, 452 (2d Cir.

1972); cf. United States v. Mazza, 792 F.2d 1210, 1224-25 (1st

Cir. 1986) (finding no unfair prejudice to codefendants arising

out of a defendant's disruptive behavior even though a curative

instruction was neither requested nor given), cert. denied, 479

U.S. 1086 (1987). So it is here: there was no cognizable

prejudice present.4

3. Recapitulation. Trial courts are afforded
3. Recapitulation.

considerable leeway in determining severance questions. See

O'Bryant, 998 F.2d at 25; Boylan, 898 F.2d at 246. Consequently,

a judge's resolution of such questions "will be overturned only

if that wide discretion is plainly abused." United States v.

Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112 S.

Ct. 986 (1992). We see no vestige of any abuse in this instance.

3Kleinerman's misbehavior did not plummet to the depths
reached in Rocha, 916 F.2d at 229 (a case in which a defendant

mouthed a death threat and then ran a finger menacingly across
his throat during a witness's testimony), or in Tashjian, 660

F.2d at 837 (a case in which a defendant gestured, mouthed words
to the effect that a government witness would receive five
bullets in the head, and shouted that all the defendants were "in
the Mafia").

4There is, moreover, an added fillip in this case that
further erodes appellant's position: his assumption that the
jury must have been aware of Kleinerman's antics is sheer
speculation. Kleinerman's gestures were nonverbal, and the judge
did not comment on them in the jury's presence.

8

B. The Motion for a Mistrial.

After 18 days of trial, the government negotiated a

plea agreement with McComas and, after McComas pled guilty,

called him as a prosecution witness. Appellant immediately moved

in limine to bar McComas from testifying. The district court

denied that motion. Appellant subsequently moved for a mistrial,

arguing that McComas's abrupt change of plea, followed by

potentially incriminating testimony, would be unfairly

prejudicial. The district court refused to grant the requested

relief. Appellant assigns error.

Motions to declare mistrials are directed primarily to

the district court's discretion, see United States v. Sepulveda,

15 F.3d 1161, 1185 (1st Cir. 1993), cert. denied, S. Ct.

(1994); United States v. De Jongh, 937 F.2d 1, 3 (1st Cir. 1991);

and, accordingly, an appellate tribunal ought not to interfere

with the disposition of such a motion unless the complaining

party can demonstrate a manifest abuse of that discretion.

Bearing in mind the trial judge's superior point of vantage, this

precept possesses particular force when, as now, a motion for

mistrial is based on a claim that some spontaneous development at

trial may have influenced the jury in an improper manner.

Of course, this does not mean that appellate courts

should reflexively rubber-stamp the trier's refusal to declare a

mistrial. But because mistrials are strong medicine, disruptive

not only to the parties but also to the judiciary's efforts to

manage crowded dockets, it is only rarely and in extremely

9

compelling circumstances that an appellate panel, informed by a

cold record, will venture to reverse a trial judge's on-the-spot

decision that the interests of justice do not require aborting an

ongoing trial. See Real v. Hogan, 828 F.2d 58, 62 (1st Cir.

1987); see also Sepulveda, 15 F.3d at 1184. Hence, battles over

the need for a mistrial most often will be won or lost in the

district court.

As a general matter, a mistrial is not automatically

required when a codefendant changes his plea in mid-trial. See,

e.g., United States v. Del Carmen Ramirez, 823 F.2d 1, 3 (1st

Cir. 1987); United States v. Earley, 482 F.2d 53, 58 (10th Cir.),

cert. denied, 414 U.S. 1111 (1973). That principle obtains even

when the newly pleaded defendant takes the witness stand and

testifies against the remaining defendants. See United States v.

Gambino, 926 F.2d 1355, 1364 (3d Cir.), cert. denied, 501 U.S.

1206 & 112 S. Ct. 415 (1991); see also United States v. Kilrain,

566 F.2d 979, 982-83 (5th Cir.), cert. denied, 439 U.S. 819

(1978). In such a situation, the court ordinarily can proceed

with the trial after appropriately instructing the jury

concerning the change of plea and the newly proffered testimony.

See Gambino, 926 F.2d at 1364. It is only when some special

circumstance creates unfair prejudice, not realistically curable

by appropriate instructions, that the court must declare a

mistrial.5 See id.; see also Kilrain, 566 F.2d at 983.

5We recognize that when a codefendant switches sides and
becomes a government witness, his testimony will likely help the
government and harm the remaining defendants. Indeed, this is

10

Appellant asserts that this case evades the usual rule

because special circumstances exist. He points to the fact that

the three "MoGro defendants" appellant, McComas, and Moore

had been pursuing a common defense, and that McComas's change of

plea and his ensuing testimony knocked the pins out from under

this defense.6 He adds, moreover, that the deleterious side

effects of Kleinerman's misbehavior, see supra Part II(A)(2),

furnished a further basis for a mistrial.

We do not believe that this jeremiad derives sufficient

support from the record. The trial judge found no cognizable

prejudice, and close perscrutation of the transcript fails to

shake this finding. At any rate, given the highly deferential

standard of review, we are not prepared to second-guess the

finding based on appellant's self-interested speculation.7

often a strong incentive to the government in the plea-bargaining
process. But this sort of prejudice does not necessitate a
mistrial. It is only unfair prejudice against which courts must

guard. See, e.g., United States v. Rodriguez-Estrada, 877 F.2d

153, 156 (1st Cir. 1989); United States v. Ingraham, 832 F.2d

229, 233 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988).

6Although three different lawyers represented the MoGro
defendants, appellant asseverates that the lawyers coordinated
their opening statements and their cross-examination of
prosecution witnesses, and that they adopted a "unified theme" in
regard to challenging the government's proof and confronting its
witnesses. After McComas changed his plea, appellant alone was
caught in the toils; the third MoGro defendant, Moore, found
sanctuary when the district court granted his motion for judgment
of acquittal, Fed. R. Crim. P. 29(a).

7There is another reason why we are particularly reluctant
to override the trier's judgment call in this case. If any
unfair prejudice sprouted and we stress that we have found no
sign of any we believe it would have been cured by the trial
judge's painstaking instructions. It strikes us as significant
in this regard that appellant has criticized neither the content

11

III. THE ALLEGED SENTENCING ERROR

To place appellant's final assignment of error into

proper perspective, we divide this portion of our analysis into

three sections. First, we rehearse the sentencing calculus.8

Second, we discuss the question of appellate jurisdiction.

Third, we consider the substance of the claimed error.

A. The Sentence.

The district court classified the counts of convictions

as comprising two groups, see U.S.S.G. 2E1.1, comment. (n.1),

one for interstate transportation of stolen property, see 18

U.S.C. 2314, and one for money laundering, see 18 U.S.C.

1956(a)(1).9 The judge determined that, under U.S.S.G.

2B1.2(a), the first group had a base offense level (BOL) of 4.

The court then added 15 levels for bringing about a loss in

excess of $2,500,000 (but less than $5,000,000), see U.S.S.G.

2B1.1(b)(1)(P); 4 levels for engaging regularly in the business

of buying and selling stolen property, see U.S.S.G.

nor timeliness of these instructions.

8The district court sentenced appellant in February of 1993,
using the November 1992 edition of the sentencing guidelines.
See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.

1990) (explaining that the guidelines in effect at the time of
sentencing control unless ex post facto considerations prohibit
their use). Hence, all references herein are to that edition.

9Since "racketeering comes in many shapes and sizes, and
covers a wide range of activities," United States v. Winter, 22

F.3d 15, 19 (1st Cir. 1994), a sentencing court must look to the
predicate crimes to establish the guideline sentencing range, see

U.S.S.G. 2E1.1(a)(2). In this case, the predicate offenses are
interstate transportation of stolen property and money
laundering.

12

2B1.2(b)(4)(A); and 3 levels for performing a managerial role in

the offense, see U.S.S.G. 3B1.1(b). These calculations yielded

an adjusted offense level of 26.

The judge performed a similar set of computations for

the second group of convictions. He determined that this group

revolved around money laundering and, therefore, used U.S.S.G.

2S1.1(a)(1) to fix the BOL at 23.10 The judge then added 7

levels because the value of the laundered funds exceeded

$3,500,000, see U.S.S.G. 2S1.1(b)(2)(H), bringing the adjusted

offense level to 30.

Since the second group produced a substantially higher

adjusted offense level than the first group, the district court,

following the praxis specified by the Sentencing Commission, see

U.S.S.G. 2E1.1(a), set the first series of computations to one

side and, instead, added 2 levels to the second group's adjusted

offense level, pursuant to section 3D1.4, thus bringing the final

offense level to 32. This produced a guideline sentencing range

(GSR) of 121-151 months for a first-time offender. The court

imposed an incarcerative sentence at the bottom of the range.

On appeal, Pierro concedes that these calculations are

supportable, but claims that the lower court erred in not

venturing a downward departure premised on "mitigating

circumstances." See 18 U.S.C. 3553(b) (providing, inter alia,

for departures if the court ascertains that there exists a

10For purposes of computing the sentencing range, it is
unnecessary to distinguish between the substantive money
laundering offenses and money laundering as a RICO predicate.

13

"mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission

in formulating the guidelines that should result in a sentence

different from that described [in the GSR]"); U.S.S.G. 5K2.0

(implementing statute). The government demurs.

B. Appellate Jurisdiction.

As a matter of first principles, an appellate court is

duty bound to confirm the existence of its own jurisdiction. See

Juidice v. Vail, 430 U.S. 327, 331 (1977); Mansfield, Coldwater &

Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884); In re Dein

Host, Inc., 835 F.2d 402, 404 (1st Cir. 1987). We do so here.

It is by now axiomatic that a criminal defendant cannot

ground an appeal on a sentencing court's discretionary decision

not to depart below the guideline sentencing range. See, e.g.,

United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992);

United States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert.

denied, 113 S. Ct. 224 (1992); United States v. Hilton, 946 F.2d

955, 957 (1st Cir. 1991); United States v. Romolo, 937 F.2d 20,

22 (1st Cir. 1991). This rule, however, admits of certain

exceptions. One such exception applies when the sentencing

court's declination to depart results from a mistake of law. See

Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957. Consequently,

"appellate jurisdiction may attach if it appears that the failure

to depart stemmed from the sentencing court's mistaken impression

that it lacked the legal authority to deviate from the guideline

range or, relatedly, from the court's misapprehension of the

14

rules governing departures." United States v. Gifford, 17 F.3d

462, 473 (1st Cir. 1994).

Counsel often confuse the exception and the rule. If

the judge sets differential factfinding and evaluative judgments

to one side, and says, in effect, "this circumstance of which you

speak, even if it exists, does not constitute a legally

sufficient basis for departure," then the correctness of that

quintessentially legal determination may be tested on appeal.

But if the judge says, in effect, either that "this circumstance

of which you speak has not been shown to exist in this case," or,

alternatively, that "while this circumstance of which you speak

might exist and might constitute a legally cognizable basis for a

departure in a theoretical sense, it does not render this

particular case sufficiently unusual to warrant departing," then,

in either such event, no appeal lies.

We think that this case fits within the exception

rather than the rule, and, hence, that we have jurisdiction to

consider the assigned error. At the disposition hearing,

appellant identified three possible grounds for departure,

namely, (1) that his case was, in essence, a sheep in wolves'

clothing a garden-variety theft-of-property case, treated by

the guidelines as a money laundering case, and, therefore, well

outside the heartland of the money laundering guideline; (2) that

his GSR was skewed by "double counting"; and (3) that, if

sentenced within the GSR, his punishment would be vastly

disproportionate to his codefendants' sentences. The district

15

court rejected all three bases for departure. Read objectively,

the district court seems to have said, in effect, that even if

appellant could prove the subsidiary facts upon which his

arguments rested that his conviction grew out of a scheme to

steal property rather than a scheme to launder money, that double

counting influenced the composition of the GSR, and that his

coconspirators received sentences milder than the GSR in his case

prophesied none of the cited circumstances would constitute a

legally cognizable reason for imposing a sentence below the GSR.

If the district court erred in this determination, the error was

a purely legal one. Thus, appellate jurisdiction attaches.

C. The Merits.

We address separately appellant's claim that his

conduct fell outside the heartland of the money laundering

statute, thereby justifying a downward departure. We then

proceed to examine appellant's remaining sentence-related claims.

1. The Essence of the Offense. In analyzing
1. The Essence of the Offense.

appellant's "heartland" claim, we first step back to review the

anatomy of "mitigating circumstance" departures. The method of

the sentencing guidelines demands that, in the ordinary case, the

judge apply the guidelines, make such interim adjustments as the

facts suggest, compute a sentencing range, and then impose a

sentence within that range. See 18 U.S.C. 3553(a)(b); see also

United States v. Rivera, 994 F.2d 942, 946 (1st Cir. 1993);

United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.),

cert. denied, 493 U.S. 862 (1989). Because departures are the

16

exception, rather than the rule, see Diaz-Villafane, 874 F.2d at

52, "it is only in the extraordinary case the case that falls

outside the heartland for the offense of conviction that the

district court may abandon the guideline sentencing range and

impose a sentence different from the sentence indicated by

mechanical application of the guidelines." United States v.

Jackson, F.3d , (1st Cir. 1994) [No. 93-1826, slip op.

at 4]; see also Rivera, 994 F.2d at 947-48.

When a sentencing court considers a "mitigating

circumstance" departure, the relevant circumstance must be of a

kind cognizable under the guidelines, see Rivera, 994 F.2d at

949, and must render the case "special" or "unusual," see id.

The determination of whether a particular circumstance is

sufficiently "special" or "unusual" to warrant departing presents

a question of law, the determination of which is reviewed de novo

on appeal. See Jackson, F.3d at [slip op. at 6]; Diaz-

Villafane, 874 F.2d at 49. In this case, we do not think that

the relationship between the statutes underlying appellant's

several convictions constitutes a mitigating circumstance upon

which a departure can be predicated.

We accept appellant's two subsidiary premises. First,

his involvement in money laundering arose out of his use of

proceeds from the sale of stolen property as security for bank

loans. See 18 U.S.C. 1956(a)(1)(A) (criminalizing the conduct

of a financial transaction with knowledge that the property

involved in the transaction represents the proceeds of specified

17

forms of illegal activity). Second, the Sentencing Commission

has chosen to punish money laundering with particular severity,

and the introduction of the money laundering guideline into the

sentencing calculus therefore resulted in a markedly higher GSR

and a longer prison term for appellant, see supra Part III(A).

Be that as it may, we cannot accept the conclusion that

appellant draws from these two premises. The money laundering

statute does not exempt from its reach those persons who launder

money merely in the furtherance of underlying criminal

activities. Nor does the statute, in terms, suggest that such

persons' actions perforce fall outside the statute's proper

scope. On the contrary, the crime colloquially known as money

laundering is committed whenever a person, "knowing that the

property involved in a financial transaction represents the

proceeds of some form of unlawful activity" nevertheless

"conducts or attempts to conduct . . . a financial transaction

which in fact involves [such] proceeds." 18 U.S.C. 1956(a)(1).

In our view, Congress meant this statute to address,

among other things, conduct undertaken subsequent to, although in

connection with, an underlying crime, rather than merely

affording an alternative means of punishing the underlying crime

itself. See United States v. Johnson, 971 F.2d 562, 569 (10th

Cir. 1992). Thus, our reading of the same statute recently led

us to observe, in countering an argument strikingly similar to

that stitched together by Pierro, that Congress "intended money

laundering to be a separate crime distinct from the underlying

18

offense that generated the money." United States v. LeBlanc,

F.3d , (1st Cir. 1994) [No. 93-1847, slip op. at 14].

Other cases have reached essentially the same conclusion. See,

e.g., Johnson, 971 F.2d at 569 (stating that Congress designed

the money laundering statute to fill a lacuna "with respect to

the post-crime hiding of ill-gotten gains"); see also United

States v. Edgmon, 952 F.2d 1206, 1214 (10th Cir. 1991) (holding

that principles of double jeopardy do not bar prosecution and

punishment for both money laundering and conversion based on the

same overall conduct), cert. denied, 112 S. Ct. 3037 (1992).

There is little question that the appellant's conduct

fits snugly within this framework. Appellant argues that

"although the facts which formed the predicate for the

convictions were within the strict linguistic parameters of the

sentencing guidelines for money laundering, the defendant's

actual conduct did not fall within [what the Sentencing

Commission intended to punish as] money laundering . . . ." This

is virtually a replica of the argument we rejected in LeBlanc,

F.3d at [slip op. at 12].11 Because appellant's

11In LeBlanc, following convictions for, inter alia, illegal

gambling activities and money laundering, the court computed a
GSR for each defendant. There, as here, the range was pushed
upward by the presence of money laundering. To correct this
perceived bias, the district court departed downward on the
theory that the defendants' crime, at bottom, constituted
bookmaking, and should be sentenced as such; the money
laundering, the court thought, was merely incidental to the
illegal gambling, and, therefore, the offenses of conviction,
although technically including money laundering, fell outside the
heartland for that crime. See LeBlanc, F.3d at [slip op.

at 8]. We remanded for resentencing, ruling that the court's
characterization of the defendants' conduct ignored the fact that

19

offense conduct, though arising out of his participation in

interstate transportation of stolen property, comes well within

the heartland of the money laundering statute and guideline, the

court below correctly concluded, as a matter of law, that it

could not base a downward departure on this circumstance. See

LeBlanc, F.3d at [slip op. at 16]; see also United States

v. Limberopoulos, F.3d , (1st Cir. 1994) [No. 92-1955,

slip op. at 12-13] (rejecting analogous argument; holding that

district court's view that defendant's conduct fell within the

heartland of a regulatory statute but outside the heartland of a

drug trafficking statute reflected a misunderstanding of the

basic objectives of the two statutes, their interplay, and their

interposition vis-a-vis the sentencing guidelines).

2. Remaining Bases for Departure. Appellant suggests
2. Remaining Bases for Departure.

two additional ways in which the trial court appropriately could

have departed downward. Neither suggestion has any merit.12

a.

First, appellant contends that a downward departure

could have been predicated on the fact that "double counting"

they were also guilty of money laundering, which Congress had
made a distinct offense. See id. at [slip op. at 16-17].

12Appellant gives these points only cursory treatment in his
appellate brief. We could, therefore, simply dismiss them on
that ground. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st

Cir. 1990) (ruling "that issues adverted to on appeal in a
perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned"); United States

v. Zannino, 895 F.2d 1, 17 (1st cir.) (same), cert. denied, 494

U.S. 1082 (1990). But because the contentions were aired in
detail below, we elect to address them briefly.

20

boosted his GSR to heights not contemplated by the Sentencing

Commission. In this regard, appellant asserts that the same

money was factored into the sentencing court's computations twice

once in calculating the offense level for money laundering and

once in calculating the offense level for interstate

transportation of stolen property. We cannot accept this

assertion.

It is not at all clear that any double counting took

place. As discussed above, where an underlying crime occurs

antecedent to money laundering, the offenses are considered

separate and distinct for sentencing purposes. This

distinctiveness requires that a separate computation be made for

each group of offenses. See United States v. Lombardi, 5 F.3d

568, 571 (1st Cir. 1993) (holding that an anomaly would result if

a sentencing court were compelled to treat mail fraud and money

laundering in the same sentencing category). Appellant dealt in

stolen property having a value in excess of $2,500,000 and also

laundered over $3,500,000 in profits garnered from the resale of

stolen property. Hence, the punishment for engaging in each of

these criminal activities must be calculated independently. See

id.

By the same token, each crime has its own measure of

loss; the value of the property stolen from DEC and the dollar

amount of ill-gotten sale proceeds used by MoGro to secure

financial support may turn out to be the same, but they are

arrived at differently. The mere existence of some indeterminate

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degree of overlap between these figures does not constitute

double counting. See, e.g., United States v. Lilly, 13 F.3d 15,

18 (1st Cir. 1994) (holding that overlapping uses of same data

anent monetary loss did not constitute double counting in the

particular circumstances of the case).

To say more would be to trespass on the reader's

indulgence. Even if the situation here could be described in

some useful way as comprising double counting, the phenomenon is

not sufficiently "special" or "unusual" to warrant a downward

departure. After all, in the sentencing context double counting

is not rare and the practice is often perfectly proper. See

id. at 19.

b.

The final circumstance on which appellant relies in

support of a downward departure is disproportionality the

comparative severity of his sentence as contrasted with the

sentences to be served by other coconspirators.13 The district

court believed that it lacked authority to depart on this basis.

We concur. See, e.g., United States v. Wogan, 938 F.2d 1446,

1448 (1st Cir.), (holding that "a perceived need to equalize

sentencing [among codefendants] . . . will not permit a

departure"), cert. denied, 112 S. Ct. 441 (1991); United States

v. Carr, 932 F.2d 67, 73 (1st Cir.) (explaining that judicial

dissatisfaction with comparative outcomes cannot justify

13As we have previously indicated, this lack of symmetry
stems primarily from appellant's involvement in money laundering
a circumstance that boosted his GSR well above what it would
have been under the guideline covering interstate transportation
of stolen property. None of the other defendants carried similar
baggage into the sentencing arena.

22

departure), cert. denied, 112 S. Ct. 112 (1991).

3. Need for Remand. The district court sentenced
3. Need for Remand.

appellant in February 1993. Approximately five months later,

this court decided Rivera, 994 F.2d 942, a case that elaborated

the circuit's departure jurisprudence. Appellant invites us to

remand so that the district court may reexamine the sentence in

light of Rivera. We decline the invitation.

Building a body of precedent is an evolutionary

process. If the mere fact that a new opinion sheds light on an

area of the law automatically required appellate courts to remand

for reconsideration all cases pending on direct appeal that dealt

with the same area of the law, the system would become a

shambles. Remand is required only when there is a realistic

possibility that the new precedent, properly applied, will alter

or otherwise materially affect the result reached in the trial

court.14 See, e.g., Gifford, 17 F.3d at 475. Applying this

benchmark, there is no need to remand this case for resentencing.

When a newly minted precedent clarifies a corner of the

law while a case involving the same (or a closely related) point

is pending on direct appeal, the threshold question is almost

always whether the trial court's analysis would have differed in

some material respect if it had had the benefit of the

clarification. Here, that question demands a negative answer:

14For purposes of this discussion, we assume that the new
precedent constitutes a clarification, entitled to retroactive
effect vis-a-vis cases still pending on direct appeal. Broader
retroactivity concerns are beyond the proper scope of this
opinion.

23

Judge Woodlock fully anticipated our opinion in Rivera, carefully

sifted the record to determine whether any unusual circumstances

existed that might warrant a downward departure, and, discovering

none, correctly abjured the desired departure. Hence, a remand

would serve no useful purpose as the analytic approach would be

essentially unchanged and would, therefore, produce the same

conclusions. See, e.g., United States v. Smith, 14 F.3d 662, 666

(1st Cir. 1994) (affirming district court's pre-Rivera refusal to

depart under Rivera standard); see also United States v. Sclamo,

997 F.2d 970, 974 (1st Cir. 1993) (affirming pre-Rivera downward

departure and declining to remand for reconsideration in light of

Rivera).

We hasten to add that even when a district court has

not fully anticipated an emergent clarification, a remand will

not necessarily follow. For example, when the court's subsidiary

findings of fact are reasonably explicit, unaffected by its legal

error, and subject to reuse, a remand would be an empty exercise.

See Societe des Produits Nestle v. Casa Helvetia, Inc., 982 F.2d

633, 642 (1st Cir. 1992). In such a situation, so long as the

court of appeals can arrange the untainted findings along the

proper legal matrix, it need not remand. See United States v.

Mora, 821 F.2d 860, 869 (1st Cir. 1987); see also Figueroa-

Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir. 1988).

This principle offers an alternative basis for denying

appellant's request for a remand. Even if, without the benefit

of Rivera, the district court's grasp of departure jurisprudence

24

proved faulty and we do not believe that to have been the case

a remand would not be exigible. For all the skillful lawyering

that has been mustered on appellant's behalf, he has been utterly

unable to isolate any "special" or "unusual" feature of this case

which, under Rivera, could support a downward departure.

IV. CONCLUSION

We need go no further. For aught that appears,

appellant was fairly tried, justly convicted, and appropriately

sentenced. He has been unable to advance any persuasive reason

either for revising the outcome or for prolonging the

proceedings. The judgment below must, therefore, be

Affirmed.

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