U.S. v. Catano

• Decision Date: 01 March 1995
• Docket Number: 94-1503,Nos. 94-1502,94-1504 and 94-1505,s. 94-1502
• Parties: 43 Fed. R. Evid. Serv. 88 UNITED STATES, Appellee, v. Jaime CATANO, Defendant-Appellant. UNITED STATES, Appellee, v. Michael MURRAY, Defendant-Appellant. UNITED STATES, Appellee, v. Leonel CATANO, Defendant-Appellant. UNITED STATES, Appellee, v. James MURRAY, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 219

65 F.3d 219

43 Fed. R. Evid. Serv. 88

UNITED STATES, Appellee, v. Jaime CATANO, Defendant-Appellant.

UNITED STATES, Appellee, v. Michael MURRAY, Defendant-Appellant.

UNITED STATES, Appellee, v. Leonel CATANO, Defendant-Appellant.

UNITED STATES, Appellee, v. James MURRAY, Defendant-Appellant.

Nos. 94-1502, 94-1503, 94-1504 and 94-1505.

United States Court of Appeals, First Circuit.

Heard March 1, 1995.

Decided September 18, 1995.

William A. Brown, by Appointment of the Court, Boston, MA, for appellant Jaime Catano.

Daniel J. O'Connell, III, Boston, MA, for appellant Michael Murray.

Robert L. Sheketoff, with whom Sheketoff & Homan, Boston, MA, was on brief for appellant Leonel Catano.

Steven J. Brooks, with whom James P. Duggan, by Appointment of the Court, Boston, MA, was on brief for appellant James Murray.

George W. Vien, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Geoffrey E. Hobart, Assistant United States Attorney, Boston, MA, were on brief for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and JOHN R. GIBSON, ^* Senior Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Michael and 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 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.

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 Lopez 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 Lopez, was actually working undercover for the government. Before Lopez 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 Lopez, 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 Lopez were to "go to Dallas, drop the box then just come, ah, bobtail ² ... you know, with the money;" and James Murray was "to go and ... pay the other transportation people in Dallas."

After this conversation, Michael Murray left in a car and Leonel Catano and Lopez left in the truck. DEA agents followed Catano and Lopez 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 SIMMONS ⁴ ARGUMENT

Before trial, Michael Murray brought an omnibus motion for relief, which included claims based on an alleged plea 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, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), at this pre-trial hearing, forcing him "to elect between his Fifth Amendment due 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 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, ...