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