UNITED STATES of America, Plaintiff-Appellee, v. Robert MURPHY, Defendant-Appellant

65 F.3d 758 42 Fed. R. Evid. Serv. 1398 , 95 Cal. Daily Op. Serv. 7077, 95 Daily Journal D.A.R. 12 ,085 UNITED STATES of America, Plaintiff-Appellee, v. Robert MURPHY, Defendant-Appellant. No. 94-10233. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1995. Decided Sept. 7, 1995. Michael J. Holston, Drinker, Biddle & Reath, Philadelphia, PA, for defendant-appellant. Robert A. Bork, Assistant United States Attorney, Reno, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: BRUNETTI, THOMPSON and HAWKINS, Circuit Judges. Opinion by Judge BRUNETTI; Concurrence by Judge HAWKINS. BRUNETTI, Circuit Judge: 1 Robert Murphy appeals his conviction and sentence for violations of the Clean Air Act, 42 U.S.C. Secs. 7412-7413 , and the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Sec. 9603 , and for making false statements to government agents, in violation of 18 U.S.C. Sec. 1001 . He claims that the district court improperly admitted the testimony of his former wife at trial. He also claims that the district court erroneously concluded that it lacked authority to depart…

Opinion by Judge BRUNETTI; Concurrence by Judge HAWKINS.

Robert Murphy appeals his conviction and sentence for violations of the Clean Air Act, 42 U.S.C. §§ 7412-7413 , and the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9603 , and for making false statements to government agents, in violation of 18 U.S.C. § 1001 . He claims that the district court improperly admitted the testimony of his former wife at trial. He also claims that the district court erroneously concluded that it lacked authority to depart downward from the Sentencing Guidelines pursuant to U.S.S.G. § 5K1.1. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

FACTS AND PROCEEDINGS BELOW

In 1992, federal authorities began investigating the illegal disposal of asbestos at an apartment complex owned by Murphy in Reno, Nevada. Thomas Devins, who worked for Murphy at the complex, provided the authorities with a sworn statement admitting that he and Murphy had illegally disposed of asbestos. Soon after providing the statement, Devins fled to Florida. In January, 1993, when the investigation of the crime had been completed, Devins contacted Murphy and offered to get him “off…

Circuit Judge, concurring:

I concur in the result reached here because apparently no power on earth can compel a prosecutor to move for a downward departure, even where a suspect approaches the government before being indicted, promises to cooperate, engages in potentially dangerous undercover activities which result in the capture of another, and is later found by the court to have fully performed on his promises of cooperation.

While it is technically correct that the government did not specifically promise to move for a downward departure, its argument that it lived up to its promise to bring Murphy’s cooperation to the attention of the sentencing court — by telling the probation office what he had done — rings slightly hollow. Under the Sentencing Guidelines, only a government motion could have brought this defendant’s extraordinary cooperation to the court’s attention in a meaningful way.

In his discussions with the government, Murphy did not demand a commitment for a departure motion because, as both sides now agree, it would have been futile. When he tried to achieve the same result after the government had his cooperation in hand, they demanded that he stipulate to…