USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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
____________________
__________________
Rudnick & Gargiulo were on brief for appellant.

Gargiu
______

__________________
John P. Pucci, Assistant United States Attorney,
_______________
Donald K. Stern, United States Attorney, was on brief for
_______________
States.

with

the Uni

____________________
September 27, 1994
____________________

____________________

*Chief Judge Stephen Breyer heard oral argument in this matter,

did not participate in the drafting or the issuance of the pane
opinion.
The remaining two panelists therefore issue this opin
pursuant to 28 U.S.C.
46(d).

Per Curiam.
___________
indicted
offenses,

with

In

other

including

substance, the

November 1991,
defendants

defendants with operating a

between 1969
of

charged

various drug

21 U.S.C.
Catalucci

substantial amounts

before trial, scheduled

846.
and

for September

a proffer suggesting

was

related

his

drug distribution network

and 1991, distributed more

marijuana and

the government

for

conspiracy.

government

Joseph Catalucci

In
cothat,

than 100,000 pounds

of hashish.

Shortly

1992, Catalucci
that he could

gave

help the

government in other drug cases.

On September

4,

1992,

entered

into a

plea

provide

the government

concerning other
grand jury

agreement that
complete

3553(e)

and

"substantial

downward

The

assistance

if

18

the

before a

U.S.C.

Catalucci

the

The

to

provided

investigation

and

agreement said that the

to substantial assistance "rests

discretion of

to

information

and to testify

. in

prosecution of another person."

the

government

government in turn promised to

5K1.1,
.

the

truthful

departure, pursuant

U.S.S.G.

determination as

and

required Catalucci

and

criminal activity

or at trial.

move for

Catalucci

United States

Attorney

solely in
and is

not

subject to appeal or review."

After being debriefed by
of

several months,

government

arguing

in
for

the government over the course

March 1993
a

Catalucci

substantial

wrote to

departure

the

motion.

-2-2-

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

of

hashish

Berthoff,
States
______

v.

organized by
who was

in

Berthoff,
________

another

as to a large off-load

individual, one

fact subsequently
Cr.

prosecutor

replied that

departure

for

No.

indicted.

93-30008-Y,

he would

substantial

Frederic

D.

Mass.

not recommend

assistance;

United
______
The

a downward

the

prosecutor

provided, and later elaborated, reasons which we will discuss

briefly below.
In August
the

1993, Catalucci

government's

asserted

filed a motion

promise

to

file

to "enforce"
a

downward

departure motion

and requested

an evidentiary hearing.

September

the

court

1993,

district

evidence from Catalucci

and a

elicit in live testimony.

proffer of what

for

power to review

downward departure.

within the

guideline

documentary
he hoped

to

But the district court declined to

allow live witnesses and ultimately

it lacked

received

In

ruled that in this

the government's refusal

Catalucci

range and

without

was then

case

to move
sentenced

the benefit

of

downward departure.
This case
circuits in
the

is one of

a large

number in this

which defendants have sought

government's refusal

to move

for a

and other

judicial review of
downward departure

based on substantial assistance; often, but not always, these

-3-3-

occur

in

envisage

the

context

a possible

of

specific

departure

plea

motion and

agreements

that

also purport

to

waive the defendant's right to judicial review on this issue.

Interesting and sometimes

difficult issues have

in these cases as to whether

been raised

and when under the statute

and

guidelines the

court may review the

government's refusal to

move

downward

based

for

departure

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;
court

ought

to

afford

and whether and when

hearings

or

take

the district
evidence

in

considering a substantial assistance claim.

The
decision

Supreme

Court

not to

file a

has

ruled

that

the

substantial assistance

government's
motion lies

primarily within its discretion but might be open to judicial

review in certain situations.

Wade v. United States

____
_____________

Ct. 1840

mentioned as

review
motives,

(1992).
a

The

government
such

as the

Court
decision

based

defendant's race

on

112 S.

candidates

for

unconstitutional

or religion,

and a

"refusal

to move

not

legitimate Government end."

Catalucci claims that

rationally

related

Id. at 1845-47.
___

In

the government acted

to

any

this case,

in bad faith

or

without rational basis.

There is
as to how

admittedly some difference

among the circuits

to apply Wade's standards and the

____

extent to which

-4-4-

the terms
restrict
States
______

of a plea
(by

agreement may foster (by

a waiver)

v. Forney, 9 F.3d
______

States v. Romsey, 975

______
______
States v.
______

judicial

review.

1492 (11th Cir.

a promise) or
Compare
_______

1993), and United

___ ______

F.2d 556 (8th Cir. 1992),

Knights, 968 F.2d 1483 (2d Cir. 1992).

_______

no occasion in this case to spell

extended discussion.

United
______

with United
____ ______
But we see

out standards or engage in

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

Catalucci's

court, the

version of

government

witnesses

debriefing session

events
and

government
contradicted

itself

varied

to the next; that

and

instructions
possible
defendant

that

Catalucci

(designed

witness) by

to

had

other

from

one

Catalucci had revealed

had previously

disregarded

preserve

discussing

that of

widely

during polygraph sessions information that he

withheld;

explained that

his

government

integrity

his testimony

as

with a

a
co-

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
downward

argues

departure

on
motion

appeal
if

that he
he

was

provided

promised

substantial

-5-5-

assistance

either

in the

prosecution

or

investigation of

______
another case.
satisfied

__

He

when he

urges
procured

pleas or cooperation of
Stephen Marple,

district

pressure

into

government
.

that

on Richards and

entered

his

latter

condition

government the

was

guilty

two co-defendants, Zoel Richards and

information about the

of Berthoff.

court

the

for the

and provided

hashish shipment
the

that

plea

The government

Catalucci

had

Marple not to
agreement;

alleged

responded in

actually

exerted

cooperate before he

as

to

Berthoff,

the

said that Catalucci's information was "incomplete

. . and only

cumulative to information

provided by other

Catalucci says very little

about the guilty

witnesses."
On appeal,
pleas

or

cooperation

Perhaps in theory a
cooperation by
thereafter

provided

by

Richards

Marple.

defendant, who had improperly obstructed

other co-defendants prior to

provide

and

substantial assistance

his plea, could

by affirmatively

assisting the government in a lawful and successful effort to

obtain

the co-defendant's

failed

to provide

us

substantially assisted
defendants,

any

basis

for

the government

Richards and

essentially abandoned.

cooperation.

Marple.

We

But
his

Catalucci has
claim

that

he

in regard to

the co-

regard this

issue as

United States v. Zannino, 895 F.2d 1,

_____________
_______

17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).

____________

-6-6-

Catalucci does argue with some force

government's

investigation

of

that he helped the

Berthoff

by

furnishing

information about Berthoff and perhaps others associated with

the

alleged

government

hashish
told the

Catalucci gave

shipment.
district

not furnish much detail

in this court, the

that

the

noted,

information

Apparently the government did

In its brief

government explains that it was

some detail

of its other

now and

the

already been provided

to the district judge.

to disclose the names

provides

court

already

was incomplete and had

by other government witnesses.

free

As

promises

not then

informants, but it
that this

would be

corroborated if a remand were necessary.

We do

not, of course, rely on

was not before the district court.

regard

to these

itself

would

questions

newly

have had

of waiver

factual information that

But we find that without

asserted facts,
no

and the

basis

the district

court

here--even putting

aside

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

the government's

assertion.

doubts about the

On appeal,

validity of

Catalucci points to

nothing that he told the district court that would raise such
doubts.
Catalucci

asserts on

in not

allowing him

erred

appeal

that the

to adduce

district

court

live testimony.

The

-7-7-

district court allowed Catalucci

said supported his position
did.

to submit documents that he

and to make a proffer,

which he

There is no automatic right to an evidentiary hearing,

and further
absent

proceedings here

some

useful.

threshold showing

United States v.
_____________

would not have

that

they

been justified
would likely

McAndrews, 12 F.3d
_________

be

273, 280 (1st

Cir. 1993); United States v. McGill, 11 F.3d 223, 225-26 (1st

_____________
______
Cir. 1993).
no

basis

In this case, the record gave the district judge

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."
be

cases that

are close

112 S.Ct. at 1844-45.

to the line

and call

inquiry, but this case is not one of them.

Affirmed.
________

-8-8-

There may
for further