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
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
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.
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.
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
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.
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.
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.
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.
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
21
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.
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
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.
Affirmed.
________
25