United States v. Catano

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.

September 18. 1995

* Of the Eighth Circuit, sitting by designation.

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JOHN R. GIBSON, Senior Circuit Judge. Michael and
JOHN R. GIBSON, Senior Circuit Judge

James Murray appeal their convictions of one count of conspiracy

to distribute marijuana, three counts of possessing marijuana

with intent to distribute, and one count of attempt to possess

with intent to distribute, all relating to transporting truck

loads of marijuana from Texas to Boston in August and November

1989 and February 1991. Jaime Catano was convicted of two

possession counts, the attempt count and a count of continuing

criminal enterprise. Leonel Catano was convicted of one of the

possession counts, as well as the conspiracy and the attempt.

All challenge their convictions on numerous grounds, and Michael

Murray appeals his sentence. We affirm the judgments, but we

remand Michael Murray's sentence for further findings.1

Beginning in 1987 the Murrays and Catanos headed up an

organization that transported loads of marijuana in tractor-

trailers from Texas to Boston or the New York area. The

government's case consisted principally of the testimony of two

truck drivers, Halcott Lawrence and Morton Todd; of Richard

Baker, who allowed the storage of marijuana on his property; of a

government informant, Frank Nigro; and of DEA surveillance

agents.

Leonel Catano first recruited Lawrence in 1987 to drive

a truck load of 1,000 pounds of marijuana from Houston, Texas to

1 The published version of this Opinion includes only the
background statement of facts and discussion of those issues that
may be of general interest. The unpublished portion of the
Opinion addresses other issues that do not appear to have
precedential importance. See First Cir. R. 36.2.

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New York. After that, Lawrence drove other, similar loads from

Beeville, Texas to Boston. Lawrence would first pick up a cover

cargo, usually of onions or plastic pellets, then drive to a farm

near Beeville, Texas, where workers would hide bales of

cellophane-wrapped marijuana under the cover cargo. Each time

when Lawrence would arrive in Boston, he would call James Murray

to announce his arrival, then drive to a rendezvous point where

one or both of the Murrays and "a bunch of . . . guys" would be

there to unload the truck. James Murray usually paid Lawrence.

In August 1989, Lawrence recruited Morton Todd to drive

a load from Texas to Boston. Lawrence drove up separately. When

Todd and Lawrence got to Boston with the marijuana, they met

Jaime Catano and the two Murrays. Jaime Catano paid Todd his

wages of $12,000, less expenses Todd had already received.

Todd drove another load to Boston in November 1989. He

received the marijuana in Texas from the Murrays and Jaime

Catano. When he arrived in Boston, the Murrays unloaded the

truck and paid him.

Frank Nigro, an informant, solicited Michael Murray,

who agreed to supply him 1,000-2,000 pounds of marijuana. The

government introduced a tape of a conversation that took place on

November 1, 1991, between Nigro and Michael Murray. Murray

discussed procuring marijuana from "Mexicans." Murray said he

had been "down there" and "seen merchandise," and that he would

go down and personally make the acquisition.

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Richard Baker twice permitted the Murrays to store

loads of marijuana on his farm near Boston in the winter of 1989-

90. In the winter of 1991, Leonel Catano and Roberto L pez showed

up at Baker's farm in a tractor-trailer hauling a steel tank.

James and Michael Murray were there, and they unloaded 2,000

pounds of marijuana into a shed on Baker's property. Over the

next two weeks they parcelled out the marijuana into several

cars. Baker said he saw Michael Murray and Jaime Catano with a

sports bag full of cash after they had disposed of the marijuana.

At the time of the last delivery to Baker's farm, the

government was closing in. The truck driver, Roberto L pez, was

actually working undercover for the government. Before L pez and

Catano left on the trip to Boston, the DEA was aware of their

itinerary. The DEA planted monitoring devices in the hotel where

Leonel planned to stay in Kingston, Massachusetts, and arranged

to book them into a bugged room. The agents video taped a

conversation between L pez, Leonel Catano and the Murrays on

November 2, 1991, in which they coordinated an imminent trip to

Texas. Michael Murray was to "get the money ready;" Leonel

Catano and L pez were to "go to Dallas, drop the box then just

come, ah, bobtail2 . . . you know, with the money;" and James

Murray was "to go and . . . pay the other transportation people

in Dallas."

2 To "bobtail" means to drive a tractor without a trailer
behind. In this context, the "box" would be the trailer.

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After this conversation, Michael Murray left in a car

and Leonel Catano and L pez left in the truck. DEA agents

followed Catano and L pez to Luling, Texas, where they dropped

off the tank and trailer. They then "bobtailed"3 south to

McAllen, Texas on the Mexican border, where they met James Murray

on November 5, 1991.

On November 6, 1991, government agents (acting on a

mistaken lead that the marijuana had already been delivered)

arrested both Murrays and both Catanos in McAllen. They searched

Leonel Catano's truck and the steel tank left behind in Luling.

The agents found no marijuana, but they did find $1,149,650

hidden in a compartment in the tractor cab. They also located

James Murray's truck at the Dallas-Fort Worth airport and

searched it, finding about $100,000 hidden in it.

This brief outline of the evidence suffices for

purposes of considering most of the arguments raised on this

appeal. As other facts are material to the various arguments, we

will supply more details.

I. MICHAEL MURRAY'S SIMMONS4
ARGUMENT
I. MICHAEL MURRAY'S SIMMONS4 ARGUMENT

Before trial, Michael Murray brought an omnibus motion

for relief, which included claims based on an alleged plea

3 See footnote 1.

4 In Simmons v. United States, 390 U.S. 377 (1968), the Supreme

Court held that a defendant's testimony in support of a motion to
suppress evidence is inadmissible against him at a later trial to
prove his guilt because the Court found it "intolerable that one
constitutional right should have to be surrendered in order to
assert another." Id. at 394.

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bargain with the government for immunity from prosecution and

suppression of evidence derived from his cooperation with the

government. The plea agreement was not memorialized in any way.

Michael Murray contended that the government agreed to advocate

the lower end of a zero to five-year sentence if he would change

his plea, assist the government in its investigation of a

fentanyl manufacturing laboratory, help the government acquire

six million dollars in offshore accounts, and be available to

testify in this case. The government claimed it had extended two

separate offers to Michael Murray: one for complete cooperation

and one for partial cooperation. Complete cooperation required

Michael Murray to plead guilty, assist the government in any and

all investigations which the DEA suggested, be completely

debriefed, surrender the six million dollars, and testify as

requested. Complete cooperation would result in a government

recommendation for five or fewer years incarceration.

Alternatively, the government would recommend seventeen years

incarceration if Michael Murray pleaded guilty and failed to

fully cooperate in any way.

The district court held an evidentiary pre-trial

hearing to determine what the agreement was and if Michael Murray

was entitled to specific performance due to his fulfillment of

the agreement as determined. Michael Murray argues that the

district court erred in refusing to grant him immunity under

Simmons v. United States, 390 U.S. 377 (1968), at this pre-trial

hearing, forcing him "to elect between his Fifth Amendment due

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process right to be heard on the question of his plea agreement

with the government and his Fifth Amendment right not to be

compelled to incriminate himself."

At the hearing, the court permitted Michael Murray's

counsel to call one of the prosecutors and a DEA case agent.

Both testified about the offer and the areas in which they

believed Michael Murray's cooperation to be less than complete.

Michael Murray's counsel requested Simmons-type immunity for

Murray if he testified regarding the plea offer and his

performance. The district court refused to grant this immunity,

but suggested that Michael Murray testify in two parts: first,

on the terms of the government's offer; and then, after the court

ruled on the offer's terms, on his performance under that offer.

The court made clear that Michael Murray could refuse to testify

on his performance of the agreement even if he chose to testify

on its terms. Michael Murray declined to testify. The court

then granted Michael Murray's request that his affidavit

regarding the plea offer be made part of the record of the

hearing.

The court found that the government had made the plea

offers as it alleged and that, although Michael Murray had

substantially performed, he had not completely performed.

Specifically, the court noted that Michael Murray had not fully

cooperated because, among other things: he did not plead guilty;

he did not allow the government to debrief him in preparation for

testifying against a defendant in the fentanyl case; he did not

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testify against that defendant; and he refused adequate access to

his offshore accounts. The court determined that Michael Murray

could accept the government's plea offer by pleading guilty

before the jury was impanelled. If Michael Murray did plead,

then the question would arise of whether he cooperated completely

or partially. At one point during the hearing, the prosecutor

also stated, "Your Honor, if Mr. Murray's willing to be

completely debriefed to testify in any and all matters and to

completely cooperate, the government is willing to stand by its

offer . . . . That's been our position throughout." Michael

Murray did not plead guilty, did not accept the plea offer, and

went to trial on all counts.

Entitlement to immunity is a legal question, which we

review de novo. See United States v. Hardy, 37 F.3d 753, 756

(1st Cir. 1994) (holding that legal questions are reviewed de

novo).

We affirm the district court's denial of Simmons-type

immunity on these facts because Michael Murray did not have to

surrender one constitutional right in order to assert another.

See Simmons, 390 U.S. at 394. The procedure followed by the

district court did not implicate Michael Murray's Fifth Amendment

right prohibiting compelled self-incrimination. If Michael

Murray had testified regarding his understanding of the terms of

the plea agreement, the district judge stated that he would have

limited cross-examination to that topic. We agree with the

district judge that "what was the deal is a lot more bland [than

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is the performance issue] and has nothing to do either with this

case or, one would imagine, any other investigation." We fail to

see how Michael Murray's testimony regarding what the government

offered and what he understood would incriminate him in any way

in any proceeding. He chose, however, not to testify.

After Michael Murray's counsel announced his intent not

to testify, the district judge made findings as to the terms of

the agreement. The judge specifically stated, and the

prosecution agreed, that Michael Murray could still accept the

plea offer prior to trial. He did not. Thus, the judge never

reached the issue of Michael Murray's performance, which was

relevant only to determine whether Michael Murray had completely

performed and accepted the more generous governmental offer or

had only partially performed and accepted the lesser offer.

Because he did not plead guilty prior to trial, Michael

Murray failed to cooperate as promised under either version of

the plea agreement. See United States v. Baldacchino, 762 F.2d

170, 179 (1st Cir. 1985). Thus, the government is released from

any obligations under the agreement "regardless of whatever it

may have promised earlier." United States v. Tilley, 964 F.2d

66, 70-71 (1st Cir. 1992).

Simmons is inapplicable on these facts.

II. NIGRO'S TESTIMONY
II. NIGRO'S TESTIMONY

Frank Nigro testified regarding several conversations

he had with Michael Murray in October 1991, one of which the

government recorded and played to the jury. Michael Murray

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argues error in the admission of the substance of both the direct

examination and of the redirect examination.

A. Nigro's Direct Testimony
A. Nigro's Direct Testimony

Michael Murray's counsel objected that Nigro's

testimony was "gratuitous talk" about marijuana, unrelated to the

crimes charged or to "any particular incident in the past."

Before Nigro testified, the district judge stated that "[t]he

statements by Michael Murray . . . are admissions so they're

admissible as against Mr. Murray." Fed. R. Evid. 801(d)(2)(A).

On direct examination, the government confined its

questions to the period from September 1991 to November 1991,

when Nigro was cooperating with the DEA on this case. Nigro

testified that he met with Michael Murray and asked if Murray had

any marijuana for sale. Nigro stated that after several such

meetings, Michael Murray agreed to "front" Nigro between 1000 and

2000 pounds of marijuana. Near the close of Nigro's direct

examination, the government played a tape of one of the Nigro-

Murray meetings. In that conversation, Michael Murray generally

described his experience with importation of marijuana from

Colombia and Mexico, from getting the marijuana across the river

to weighing marijuana to piecing together loads of marijuana from

different suppliers. The district court did not abuse its

discretion by admitting either Nigro's testimony on direct

examination or the tape-recorded conversation between Michael

Murray and Nigro. Both were properly admissible against Michael

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Murray as admissions.5 Michael Murray's part of the

conversations constituted non-hearsay admissions of a party.

Fed. R. Evid. 801(d)(2)(A); United States v. McDowell, 918 F.2d

1004, 1007 (1st Cir. 1990). Nigro's part of the conversations

served as "'reciprocal and integrated utterance(s),'" McDowell,

at 918 F.2d at 1007 (quoting United States v. Metcalf, 430 F.2d

1197, 1199 (8th Cir. 1970)), "reasonably required to place

[Murray's] admissions into context" and "make them intelligible

to the jury." Id. (internal quotation marks and citation

omitted). Because Nigro's statements were offered only for

context and not for the truth of the matter asserted, those

statements are not hearsay under Federal Rule of Evidence 801(c).

B. Nigro's Testimony on Redirect Examination
B. Nigro's Testimony on Redirect Examination

On cross-examination, Michael Murray's counsel

attempted to discredit Nigro's testimony by insinuating that

Nigro barely knew Murray.6 On redirect examination, the

5 Michael Murray's argument that the statements were not
admissible as statements of a co-conspirator is misplaced. The
co-conspirator exception applies to hearsay statements. The
statements here are non-hearsay under Rule 801(c) and
801(d)(2)(A).

6 MICHAEL MURRAY'S COUNSEL: And this man
that you had seen on several occasions for
ten minutes at a time over seven to ten,
maybe twelve times, is going to front you a
half a ton or a ton of marijuana without
you paying for it, and you don't know even
where he lives?

NIGRO: Yes.

The following day, Michael Murray's counsel again attempted to
minimize the relationship between Nigro and Murray:

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government asked Nigro how he first met Michael Murray. Michael

Murray's counsel objected. At a sidebar conference, the

government argued that, on cross-examination, Michael Murray's

counsel opened the door to the earlier relationship between Nigro

and Murray. The district court ruled that "[a]s to scope, I

think this is all opened up because of the suggestion that this

is absolutely bizarre conduct" and because, without this

background, the meeting between Nigro and Michael Murray "seems

to be such an isolated and strange event." When Michael Murray's

counsel pressed for a ruling under Federal Rule of Evidence

404(b), the district court stated that "[the evidence] doesn't

have to be admitted as 404(b) but that is an alternative ground

for the admission. You have opened this up, it's admitted to him

to show that this was not a bizarre picking someone out of a

crowd and trying to entice them into drug trafficking." The

district court then ruled that the government's line of

questioning was permissible, but admitted the resulting testimony

only against Michael Murray. Nigro then testified that he was

introduced to Michael Murray when Murray began working for Nigro

in the marijuana business in 1977 or 1978. According to Nigro,

in the following year, Michael Murray and Nigro's three partners

MICHAEL MURRAY'S COUNSEL: Mr. Nigro, is it
your testimony that from these brief
encounters with Mr. Murray that he's going
to front you, meaning give you for nothing,
some quantity of marijuana, uncertain,
between a thousand pounds and 4,000 pounds,
for nothing, without ever having discussed
a price? Is that your testimony?

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took full control of the operation, and Nigro continued to work

for them in a more limited capacity. Three more marijuana

shipments occurred under this arrangement.

At the conclusion of Nigro's testimony, the district

court gave the jury the following limiting instruction:

THE COURT: And I will tell you that
Mr. Michael Murray is not here charged
with any of the events which this witness
testifies took place back in the late
seventies, perhaps the early eighties.
That has nothing to do with this case
except, if you believe his testimony, it
tends to place the conversation about
which he testified, the tape that was
played, if you believe that, in context.
That's the only reason you heard it. Mr.
Michael Murray is not charged with
anything back then, you're not to
consider that, except that to the extent
that you, yourself, determine in the
manner that I've just described.
We review the district court's rulings on the

admissibility of evidence only for abuse of discretion. United

States v. McCarthy, 961 F.2d 972, 977 (1st Cir. 1992).

The district court did not abuse its discretion in

permitting the government on redirect examination to explore the

past business dealings of Nigro and Michael Murray.7 The scope

of redirect examination is discretionary with the trial court and

should be reversed only upon a showing of abuse of discretion.

United States v. Braidlow, 806 F.2d 781, 782 (8th Cir. 1986). A

district court may allow testimony on redirect which clarifies an

7 The district court admitted this testimony only against
Michael Murray and gave a limiting instruction as to the other
defendants. In this appeal, the other appellants claim no
prejudice by the admission of Nigro's testimony on redirect.

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issue which the defense opened up on cross-examination even when

this evidence is otherwise inadmissible. United States v. Geer,

923 F.2d 892, 896-97 n.4 (1st Cir. 1991) (citing Braidlow, 806

F.2d at 783). Otherwise, litigants could exploit the rules of

evidence to create misleading impressions, secure in the

knowledge that the other side was barred from disabusing the

jury. On cross-examination, Michael Murray's counsel opened the

door to the past relationship between Murray and Nigro by making

it seem that Murray did not know Nigro well enough to conduct

drug business with him. The district court did not abuse its

discretion by allowing redirect testimony to clarify that issue,

and exercised abundant caution in instructing the jury on the

limited consideration to be given such testimony.

III. BAKER'S TESTIMONY
III. BAKER'S TESTIMONY

There are two arguments concerning the testimony of

Richard Baker, the witness who permitted the Murrays to store

marijuana at his farm near Boston. Besides participating in the

marijuana operation at issue in this trial, Baker also allowed

his property to be used by an organization involved in

manufacturing fentanyl, a dangerous synthetic drug, reported to

have caused numerous deaths. This was the operation that Michael

Murray claimed to have uncovered pursuant to his cooperation

agreement with the government.

First, Michael Murray claims that Baker's testimony

should be inadmissible because it was derived from Murray's

immunized statements, citing Kastigar v. United States, 406 U.S.

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441 (1972). He argues that the government would not have had

access to Baker had not Murray introduced him while cooperating

in exposing the fentanyl operation. The government then

"flipped" Baker and used Baker against Murray, instead of vice

versa.

Simply put, this is not a Kastigar issue, in which the

government must prove it did not derive evidence from immunized

statements. The district court in this case specifically found:

"There was no grant of immunity here, implicit or explicit.

Indeed, having reviewed my notes, it's clear to me, and I so

find, that the only offer was an offer against direct use of the

testimony and not any derivative use." The district court's

findings as to the terms the government offered Michael Murray

are reviewable only for clear error. See United States v.

McLaughlin, 957 F.2d 12, 16-17 (1st Cir. 1992). This finding is

supported by the prosecutor's testimony that he told Murray "the

government was free to make derivative or indirect use of

anything he said . . . against him." The district court was free

to accept this testimony, especially in light of the fact that

Murray offered no contrary evidence that he had obtained any

agreement of derivative use immunity. These findings were not

clearly erroneous.

Second, the Catanos argue that the district court erred

in refusing to recall Baker as part of the government's case,

after the mid-trial discovery of certain notes which the Catanos

say would have helped them impeach Baker. After Baker had been

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cross-examined,8 he failed to appear on time for court the next

day, apparently because of a snowstorm. The government waived

its right to redirect, but also revealed that the government had

located for the first time notes DEA Agent O'Hara had taken of a

meeting with Baker. The prosecutor explained that the government

had not been able to locate O'Hara's notes earlier because they

were in O'Hara's personal files and O'Hara was away from the

office dealing with a health crisis in his family. The

prosecutor summarized the notes, which revealed that Baker

admitted knowing involvement in the fentanyl operation. Though

the government had produced documents earlier in which others

implicated Baker in the fentanyl operation, the defendants had

not cross-examined Baker about whether his testimony in the

present case was affected by his hopes of leniency in the

fentanyl case. Counsel for Leonel Catano explained his earlier

decision not to cross-examine Baker about the fentanyl case as

fear of opening a "Pandora's box" without any written documents

to indicate what Baker had said before about the fentanyl

operation. (The fear of a "Pandora's box" was certainly not

chimerical, since the same notes which state Baker confessed to

knowing participation in the fentanyl business also refer to the

involvement in the fentanyl business of "two Hispanic males

8 Counsel for Leonel Catano had noted that he would have cross-
examined Baker regarding fentanyl if he had documentation showing
what Baker had or had not admitted about the fentanyl operation.
On the other hand, Jaime Catano's counsel stated at trial that
his client had ordered "not to get into the subject of fentanyl"
with Baker.

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[Baker] . . . thought were brothers, one of whom he testified to

be Jaime Catano.") After the disclosure of O'Hara's notes, which

counsel could use to impeach Baker on the stand, Leonel Catano's

counsel asked to recall Baker for cross-examination about the

fentanyl case. The district court declined to recall Baker as

part of the government's case, but stated that the defendants

could call Baker as their witness and that the court would give

them "latitude in examining him." The defendants refused to call

Baker in their cases.

The Catanos now argue that there was a Brady-Giglio9

violation in that the government failed to produce impeachment

information in time for the defendants to use it in cross-

examining Baker. "When the [Brady] issue is one of delayed

disclosure rather than of nondisclosure, . . . the test is

whether defendant's counsel was prevented by the delay from using

the disclosed material effectively in preparing and presenting

the defendant's case." United States v. Ingraldi, 793 F.2d 408,

411-12 (1st Cir. 1986). We review the district court's decision

on how to handle delayed disclosure of Brady material for abuse

of discretion. See United States v. Sep lveda, 15 F.3d 1161,

1178-79 (1st. Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).

In this case, the prosecution offered a reasonable

explanation of its failure to find the notes earlier. Most

importantly, the Catanos have not shown that the delay prevented

9 Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972).

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them from using the materials. The defendants cross-examined

Baker at length on the theme that he was testifying in order to

get a lenient sentence for his participation in the marijuana

ring. Further impeachment about his hopes to receive leniency in

an additional case would have been cumulative, although

admittedly the fentanyl case was more serious because of the

deaths involved. Moreover, the Catanos were perfectly free to

call Baker in their case to explore the fentanyl issue, and they

simply chose not to. In view of the possibility that O'Hara's

notes would implicate them in the fentanyl operation, their

decision not to open the door to this testimony seems to have

been the better part of valor, rather than the result of the

government's delayed disclosure. The district court did not

abuse its discretion on this issue.

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IV. JURY INSTRUCTIONS ON STANDARD OF PROOF
IV. JURY INSTRUCTIONS ON STANDARD OF PROOF

The defendants make various arguments all tending to

the same conclusion: that the jurors were misled about what

standard of proof to apply.

A. Objection to Use of the Phrase "Common Sense"
A. Objection to Use of the Phrase "Common Sense"

James Murray argues that the prosecutors repeatedly

urged the jurors to use "common sense" in evaluating the case and

that this effectively lowered the standard of proof below the

reasonable doubt standard. James Murray's counsel moved for a

mistrial on this ground. Though the district court denied the

mistrial motion, it agreed to "make clear in [its] charge that

the standard is beyond a reasonable doubt, and that's not

equivalent of common sense." The court in fact addressed the

distinction between common sense and proof beyond a reasonable

doubt in its charge.10 Murray did not object that the court's

10 The court stated:

Now, focusing on the evidence now,
how do you analyze it? What do you do
with it? You're expected to use your
common sense. You don't check your common
sense at the door to the jury room. Just
the reverse. I charge you that you use
your common sense. You consider the
evidence in the case for the purposes for
which it has been admitted, you give it a
reasonable and fair construction in light
of your common knowledge of the natural
tendencies and inclinations of human
beings.

Now, mention has been made of common
sense, and make no doubt about it, you
use your common sense while you're there
in the jury room. I'm interpolating
here, going beyond what I've written out,

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treatment of the issue was inadequate in any way, but he now

contends that the court failed "to respond to the improper

arguments." Since there was no contemporaneous objection, we

review only for plain error affecting substantial rights, and

resulting in a miscarriage of justice. United States v. DeMasi,

40 F.3d 1306, 1317-19 (1st Cir. 1994), cert. denied, 115 S. Ct.

947 (1995).

There is nothing improper about instructing the jury to

use its common sense in deliberations. See DeMasi, 40 F.3d at

1317-18; United States v. Ocampo-Guarin, 968 F.2d 1406, 1412 (1st

Cir. 1992). The district court's instructions drew a distinction

between common sense, as methodology, and the beyond-a-

reasonable-doubt standard, as a quantum of proof. The court also

told the jury specifically that arguments of counsel were not

determinative statements of the law: "It is perfectly

appropriate now for counsel to have mentioned the law in their

closings. That's helpful. But take the law from me." We see no

reasonable probability that the jury could have been misled on

this record, and we most certainly see nothing that approaches

plain error resulting in a miscarriage of justice.

because it's important to explain the
difference. While you use your common
sense, don't think that the standard of
proof here is, well, common sense. The
standard of proof is proof beyond a
reasonable doubt. You use your common
sense to figure out what you believe.
And then you ask yourself as to each
separate charge and each separate
individual has the government proved that
charge beyond a reasonable doubt.

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There was no error in either respect.

B. Objection to Instructing Jurors Not to Surrender
B. Objection to Instructing Jurors Not to Surrender
"Strongly-held Views"
"Strongly-held Views"

Leonel Catano argues that the court misled the jurors

when it instructed them about the deliberation process as

follows:

Now about deliberations. Deliberate
about the case together. Don't hesitate
to reassess or reexamine your views in
light of the views of your fellow jurors
who have heard and seen exactly the same
evidence that you've heard and seen and
are under the same oath as you are to do
justice.

If you have a strong view about any
aspect of this case, no one suggests that
you surrender it. A unanimous verdict
means the verdict of each juror
independently agreeing. You're permitted
to deliberate together to see whether the
views of other jurors do affect your view
of the case.

So it's probably not a good idea to
take a straw vote at the outset of your
deliberations lest you feel that under
your oath you're somehow committed then
to that particular view. That's not so.
Jury deliberations are, as I say, just
that, deliberations. But you deliberate
together to see whether you are affected
by the views of your fellow jurors.
You're permitted to be, but don't
surrender your own views if you have some
strongly-held view about any aspect of
the case. We see through deliberations
whether twelve jurors can come to a
unanimous verdict either of not guilty or
of guilty. There's no pressure on you,
but do understand that you are
deliberating together.

Leonel Catano contends that by instructing jurors not

to surrender "strongly-held view[s]," the court lowered the

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standard of proof below the reasonable-doubt standard. He relies

on Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), which the

Supreme Court overruled in Estelle v. McGuire, 502 U.S. 62, 73

n.4 (1991). He also relies on Victor v. Nebraska, 114 S. Ct.

1239 (1994), which teaches that our inquiry must not be whether

an instruction "'could have' been applied in unconstitutional

manner, but whether there is a reasonable likelihood that the

jury did so apply it." 114 S. Ct. at 1243 (emphasis in

original). We must consider the phrase Leonel Catano objects to

("strongly-held view[s]") in the context of the rest of the

charge. See id. at 1247.

The court's instruction about deliberations does not

directly relate to the quantum of proof and could only affect the

jury's conception of the standard of proof indirectly. The gist

of the sentence Leonel complains of is to inform the jurors that

they need not surrender their opinions. The remainder of the

deliberation instruction reminded jurors that "there's no

pressure on you." When addressing the subject of burden of

proof, the court specifically and repeatedly charged the jury

that the government must prove its case "beyond a reasonable

doubt." We see no likelihood that the jury would have thought

the instructions on standard of proof to have been superseded by

some implication in the deliberation instruction.

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Leonel Catano also argues that the instruction was

analogous to an Allen11 instruction, with its potential for

improperly coercing jurors to reach agreement, citing United

States v. Angiulo, 485 F.2d 37, 40 (1st Cir. 1973). The

instruction Catano complains of was not coercive, as it simply

informed the jurors of their right to maintain their opinions and

did not pressure them to change. We conclude that the particular

instruction not to surrender "strongly-held views" was not

reasonably likely to cause the jurors to apply the instructions

as a whole "in a way that violated the Constitution." Victor,

114 S. Ct. at 1251.

V. MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT
V. MICHAEL MURRAY'S ROLE-IN-THE-OFFENSE ENHANCEMENT

Michael Murray argues that the district court erred by

enhancing his base offense level four levels under section

3B1.1(a) due to his aggravating role in the offense. USSG

3B1.1(a) (Nov. 1993). He argues that the district court's

findings at the time of sentencing do not indicate either that he

was an "organizer or leader," as opposed to a "manager or

supervisor," or that the "criminal activity involved five or more

participants or was otherwise extensive," as required for a four-

level enhancement under section 3B1.1(a).12

11 Allen v. United States, 164 U.S. 492 (1896).

12 At sentencing, Michael Murray's counsel essentially conceded
the upward adjustment for manager or supervisor, but not for
organizer or leader. The difference is significant. The former
calls for a sentence of 235 to 293 months, whereas the latter
calls for a range of 292 to 365 months. Michael Murray was
sentenced near the top of the range.

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18 U.S.C. 3553(c) (1988) requires that "[t]he court,

at the time of sentencing, shall state in open court the reasons

for its imposition of the particular sentence." At sentencing

here, the court stated only that "[t]he upward adjustment for

Michael Murray 4 levels is appropriate. The Court finds by a

fair preponderance of the evidence that he was the principal

figure, the organizer, and a 4-level adjustment is appropriate."

The court did not, in open court, make specific findings

regarding Murray's involvement either by detailing on the record

the facts developed during trial supporting its conclusion, or by

adoption of findings in the presentence report. Compare United

States v. Schultz, 970 F.2d 960, 963-64 (1st Cir. 1992)

(affirming two-level enhancement under USSG 3B1.1(c) where the

district court stated that the enhancement was "agreed upon by

this court," and that the "largely uncontested facts set forth in

the PSR" supported the defendant's exercise of control), cert.

denied, 113 S. Ct. 1020 (1993), with United States v. McDowell,

918 F.2d 1004, 1011-12 (1st Cir. 1990) (remanding a four-level

enhancement where neither the PSR nor the sentencing transcript

indicated the basis for enhancement).

In Schultz, we held that the district court managed

minimal compliance with Section 3553(c) where the court impliedly

adopted the PSR and denoted each element in determining the

guideline sentencing range. 970 F.2d at 963 n.7. Furthermore,

"[t]he PSR was the central focus of the issues presented at

sentencing." Id. The court in Schultz stressed that the PSR

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gave substantial support for the district court's findings and

for a reasoned appellate review. Id. at 963 n.7, 964.

In the case before us, the district judge adopted the

PSR by checking the box on the judgment form before the

statement: "The court adopts the factual findings and guideline

application in the presentence report." While in many simple

cases this would be sufficient to impart to the defendant and an

appellate court sufficient reasons for imposing a particular

sentence, Michael Murray's PSR does not clearly demonstrate why

he was considered to be an "organizer or leader" as distinguished

from a "manager or supervisor." The PSR discusses the offense

conduct over some twenty-two pages, containing some fourteen

pages of taped conversations read to the jury. While some

statements in the discussion might support a finding that Michael

Murray played a leadership role, much in the report would support

a finding that James Murray or the Catanos played such a role.

The PSR does not come to grips with the issue by explaining

specifically, in a case with considerable scope and complexity,

why Michael Murray was concluded to be an "organizer or leader"

rather than a "manager or supervisor." Without even a minimal

analysis of the facts or articulation of its reasoning, the PSR

simply states: "Michael Murray is regarded as the principle [sic]

figure; he was the organizer and paymaster. A role adjustment

under 3B1.1(a) is warranted, and is being applied." The PSR

makes no reference to specific evidence supporting that

recommendation.

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The judge's adoption of the factual findings and

guideline application by checking the box on the judgment form on

the facts of this case does not comply with section 3553(c),

which requires a statement of reasons for imposing a particular

sentence. The lengthy recitation of evidence in the PSR simply

does not focus on the distinction required by the guidelines. If

the PSR had set out a clearly stated, unequivocal explanation for

holding Murray to be an organizer or leader (which we believe

that it did not) the judge's reference to the PSR might be

adequate. Further, if witnesses had testified that Murray

organized every facet of the drug operation and was the

unequivocal leader, the bare finding that he was the organizer or

leader might, standing alone, be sufficient. Under the

circumstances before us, however, section 3553(c) can only be met

by the district court's explanation of why it selected the

"organizer or leader" label, rather than that of "manager or

supervisor."

We underscore that in a case where the PSR findings

themselves adequately set forth a meaningful rationale for the

sentence, a district judge does not err in adopting such

findings. In a case such as that before us, however, with a

lengthy chain of transactions and dealings between the several

individuals involved, and with a PSR which is overly inclusive

and which does not even minimally focus on the specific

considerations necessary to differentiate between the two

categories, it is necessary that the district judge make

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sufficient findings to articulate the rationale for the

sentencing decision.

Unlike McDowell, the case before us concerns not a

total lack of findings on the question of the adjustment but,

rather, their adequacy. However, we are left in the same

position as in McDowell, "[w]ithout substantial guesswork, we

cannot tell the basis on which the judge determined that the

criminal activity was sufficiently extensive to permit the four

level upward enhancement." 918 F.2d at 1012. Neither the PSR

nor the sentencing transcript discusses Murray's involvement or

identifies why he was held to be an "organizer or leader" as

opposed to a "manager or supervisor."

In short, although the case record may very well

support the four-level enhancement:

there is nothing in the sentencing record
about any of this. Absent explicit
findings, it would be overly impetuous
for us, on so exiguous a predicate, to
jump to the conclusion that [the
enhancement requirements were met]. A
defendant in the dock, awaiting
imposition of sentence, is entitled to
reasoned findings, on a preponderance
standard, not to an appellate court's
assumptions drawn free-form from an
inscrutable record.

Id. at 1012 n.8. This is a troublesome, borderline case. We

conclude, however, that the requirements of section 3553(c) have

not been met because the district judge did not state in open

court, with sufficient specificity, the reasons for deciding this

particular issue, which substantially impacted Michael Murray's

sentence. We are satisfied that justice is best served by remand

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for further articulation of the reasons for imposing the

adjustment in accordance with 18 U.S.C. 3553(c).

VI. REMAINING CLAIMS OF ERROR
VI. REMAINING CLAIMS OF ERROR

The appellants raise a number of other issues. We

reject the claims of error 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. We discuss

these issues in the attached unpublished portion of this opinion,

as their disposition is not of sufficient precedential value to

merit publication.

We affirm the convictions, but vacate and remand

Michael Murray's sentence for further findings in accordance with

this opinion.

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