May 8, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2096
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXANDER MONTANEZ,
a/k/a ARMANDO BARETA, CARLOS LOPEZ,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court, issued on April 24, 1996, is amended
as follows.
On cover page, replace attorney listing for appellant with the
following:
"Evan Slavitt with whom Kelley A. Jordan-Price and Hinckley,
Allen & Snyder were on brief by appointment for appellant."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2096
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXANDER MONTANEZ,
a/k/a ARMANDO BARETA, CARLOS LOPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Evan Slavitt with whom Kelley A. Jordan-Price and Hinckley, Allen
& Snyder were on brief by appointment for appellant.
Geoffrey E. Hobart, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
April 24, 1996
BOUDIN, Circuit Judge. The sole issue on this appeal is
whether the district court erred in denying Alexander
Montanez the benefit in sentencing of the recently enacted
"safety valve" provision which relates to mandatory minimum
sentences. 18 U.S.C. 3553(f); see U.S.S.G. 5C1.2. We
readily conclude that there was no error in this case. But
in light of the far-reaching interpretation of the statute
urged by the government, something more than a per curiam
affirmance is required.
Montanez and three others were arrested in May 1994,
after Montanez had aided in five drug sales to undercover
agents. Montanez' role was limited to delivering the drugs
and collecting the purchase money. He was charged with
conspiring to distribute drugs, 21 U.S.C. 846, and with
five substantive counts of possession with intent to
distribute, each relating to a different drug sale, 21 U.S.C.
841. On January 26, 1995, Montanez pleaded guilty to all
counts.
On June 2, 1995, the district court held a sentencing
hearing. Montanez protested that the government's latest
computation of drug quantity, if accepted, triggered a
mandatory five-year minimum sentence under the statute, 21
U.S.C. 841(b)(1)(B)(i). Montanez said that he had not been
warned of this possibility at the time that he pleaded
guilty. The district court continued the sentencing hearing
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to June 19, 1995, offering Montanez the opportunity to
withdraw his plea. Instead of withdrawing his plea,
Montanez filed a supplemental memorandum on June 9, 1995,
asking the court to apply the new safety valve provision of
18 U.S.C. 3553(f). That provision requires the district
court to disregard the statutory mandatory minimum if the
court finds at sentencing that five conditions have been met.
Four, concededly met in this case, concern the defendant's
prior history and the nature of the crime. The fifth finding
is that:
[N]ot later than the time of the sentencing
hearing, the defendant has truthfully provided to
the Government all information and evidence the
defendant has concerning the offense or offenses
that were part of the same course of conduct or of
a common scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the Government is
already aware of the information shall not preclude
a determination by the court that the defendant has
complied with this requirement.
On the same date, June 9, 1995, Montanez' counsel sent
the assistant United States attorney an eight-page letter
setting forth what purported to be Montanez' "information"
concerning the crimes charged in the case. The letter
contained a good deal of detail about the crimes, but the
detail came as no surprise to the prosecutor. With minor
word changes, and not many of these, defense counsel's letter
was drawn almost verbatim from an affidavit filed by one of
the federal agents early in the case.
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The government filed a response, arguing inter alia that
the letter was plainly insufficient and pointing to various
pieces of information that Montanez had not disclosed such as
how he obtained the heroin involved in several of the five
transactions, where it was stored, and who was the supplier.
This information was not contained in the government
affidavit or in Montanez' letter to the prosecutor. Montanez
made no reply to this filing.
At the sentencing hearing on June 19, 1995, the district
court ruled that it did not find that Montanez had truthfully
provided to the government all information and evidence that
he possessed. The court said that it thought that Congress
had intended the safety valve for defendants who tried to
cooperate by being debriefed by the government. But, said
the court, it would "cheerfully" have given Montanez the
benefit of the safety valve if Montanez had just come into
court "and said everything he knew and persuaded me that was
everything he knew . . . . But he hasn't."
In due course, the district court imposed the mandatory
minimum sentence and Montanez now appeals. He argues that no
debriefing requirement exists and, in addition, that defense
counsel's June 9 letter complied with the statutory
requirement. The government argues that a debriefing is
required but, in the alternative, says that the district
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court properly found that Montanez had not made the required
disclosure in any form.
It is easy to understand why the government wants the
statute construed to impose a requirement that a defendant
offer himself to the prosecutor for a debriefing. If a
defendant does have useful information, it can best be
extracted and preserved in that setting. And a debriefing
also puts the government in the best position to decide
whether it thinks that the defendant is telling everything he
knows and, if it believes otherwise, to argue to the court
that the safety valve provision should not be applied.
But the issue before us is whether the statute requires
the defendant to offer himself for debriefing as an automatic
pre-condition in every case, and it is hard to locate such a
requirement in the statute. All that Congress said is that
the defendant be found by the time of the sentencing to have
"truthfully provided to the Government" all the information
and evidence that he has. Nothing in the statute, nor in any
legislative history drawn to our attention, specifies the
form or place or manner of the disclosure.
The government's best argument turns on the relationship
of the safety valve statute to the preexisting provisions for
a substantial assistance departure. From the outset, a
departure below the statutory minimum sentence has been
allowed where the prosecutor moves the court for such a
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departure on the ground that the defendant has furnished
substantial assistance to the government. 18 U.S.C.
3553(e); U.S.S.G. 5K1.1. The decision to move, with few
qualifications, is committed to the prosecutor's discretion.
Carey v. United States, 50 F.3d 1097, 1101 (1st Cir. 1995).
As the Seventh Circuit compactly explained in a recent
decision, Congress discovered that substantial assistance may
commonly be available from highly culpable drug-ring
organizers but often not from less culpable street dealers or
"mules" who merely transport drugs. United States v.
Arrington, 73 F.3d 144, 147-48 (7th Cir. 1996). To cope with
this situation, section 3553(f) was enacted in 1994. It
rewards low level offenders who meet the other conditions
specified (e.g., non-violence, little criminal history) and
who truthfully provide all of the information and evidence
they have, even if it does not prove useful. Id. at 147.
Montanez seeks to contrast the preexisting substantial
assistance statute with the new safety valve statute, arguing
that the former is concerned with cooperation, but the latter
only with culpability. While there are mechanical
differences between the statutes, see United States v.
Acosta-Olivas, 71 F.3d 373, 379 (10th Cir. 1995), both values
were probably of concern to Congress in drafting section
3553(f). In enacting the safety valve provision, we think
Congress was aiming its leniency at low level defendants who
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did their best to cooperate to the extent of making full
disclosure.1 Such disclosure may prove to be of use even if
it does not amount to "substantial assistance."
Section 3553(f) could easily have required a debriefing;
certainly that would have provided a brighter line than
merely to require that the defendant "truthfully provide [his
information and evidence]" in some unspecified form. But the
fact remains that Congress wrote the statute as it did.
Courts can and do apply restrictive glosses on statutory
language, but everything depends on the breadth of the
linguistic leap and strength of the arguments for making it.
Here, we think that Congress' own formulation is adequate to
achieve its ends.
Courts have thus far found it fairly easy to cull
serious efforts at full disclosure from mere pretense. This
court in Wrenn, 66 F.3d at 3, readily dismissed a defendant's
claim that the necessary disclosure was achieved when the
government covertly taped him in the course of the criminal
venture; and another circuit only recently rejected a claim
that a defendant had made the necessary disclosure through a
routine interview with his probation officer. United States
1United States v. Wrenn, 66 F. 3d 1, 3 (1st Cir. 1995);
United States v. Ivester, 1996 WL 63999, at *3 (4th Cir. Feb.
15, 1996); Acosta-Olivas, 71 F.3d at 379; United States v.
Rodriguez, 69 F.3d 136, 143 (7th Cir. 1995).
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v. Rodriguez, 60 F.3d 193, 196 (5th Cir.), cert. denied, 116
S. Ct. 542 (1995).
As a practical matter, a defendant who declines to offer
himself for a debriefing takes a very dangerous course. It
is up to the defendant to persuade the district court that he
has "truthfully provided" the required information and
evidence to the government. United States v. Flanagan, 1996
WL 143333, at *2-3 (5th Cir. Mar. 29, 1996). And a defendant
who contents himself with a letter runs an obvious and
profound risk: The government is perfectly free to point out
the suspicious omissions at sentencing, and the district
court is entitled to make a common sense judgment, just as
the district judge did in this case.
Of course, nothing prevents a district court from
deciding that it is unpersuaded of full disclosure, cf.
Rodriguez, 60 F.3d at 195, but might be if the defendant
submitted himself to a debriefing. Yet such a determination
would rest in the hands of the judge, not the prosecutor.
The possibility remains, however rare, that a defendant could
make a disclosure without a debriefing (e.g., by letter to
the prosecutor) so truthful and so complete that no
prosecutor could fairly suggest any gap or omission.
To suggest this course as a possibility is not to
encourage it. A defendant whose only concern is to secure
the benefit of the safety valve provision should be anxious
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for a debriefing. It offers an occasion to persuade the
government that the defendant has made full disclosure and
thus to win its "recommendation" for avoiding the mandatory
minimum. U.S.S.G. 5C1.2 comment (n.8). If the government
still opposes the departure, the defendant can say to the
judgethatthe governmenthad achance toask everythingit wanted.
Defendants often have reasons, such as loyalty to a
confederate or fear of retribution, for not wanting to make
full disclosure. But full disclosure is the price that
Congress has attached to relief under the statute, and the
burden remains on the defendant to prove his entitlement.
Flanagan, 1996 WL 143333 at *3. Defendants will discover
soon enough that there is little mileage in gambits designed
to qualify the defendant for relief while avoiding full
disclosure.
This case is a good illustration of a bad gambit. In
theory full disclosure might exist where a defendant's letter
recited back to the government, in virtually the government's
own words, the information already possessed by the
government and nothing more. But in practice this is hardly
likely, especially where several different drug transactions
and multiple players are involved. Here--merely to mention
the most conspicuous omission--Montanez' letter does not
disclose as to several of the transactions who provided him
with the drugs he delivered.
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It is enough that Montanez did not disclose information
that he might reasonably be expected to possess, nor
persuasively explain its absence. See Wrenn, 66 F.3d at 3.
The failure to disclose is so patent in this case that no
reason exists for extended discussion. Indeed, even on
appeal Montanez offers no plausible reason why he could not
have provided such information as the identity of each
seller. The district court did not "clearly err" in finding
that the fifth requirement was unsatisfied. Rodriguez, 69
F.3d at 144.
Montanez now argues that he ought to have been given an
evidentiary hearing on the question whether he had made full
disclosure. But he did not request such a hearing in he
district court and that largely disposes of his claim.
United States v. Gertner, 65 F.3d 963, 969 (1st Cir. 1995).
Even on appeal Montanez does not suggest what testimony he
could have offered to show that he had made full disclosure.
On the present facts, a conclusory statement by Montanez on
his own behalf would never have been credited.
Montanez might have made a different but related claim
on appeal, namely, that the district judge should have given
him a second chance to make full disclosure after finding
that his June 9 letter was inadequate. But this claim would
also be foreclosed by the failure to ask the district court
for such an opportunity. We add, by way of warning, that
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defendants who make partial disclosure as an opening bid are
engaging in a risky gamble. Here there was no serious effort
at any disclosure.
Affirmed.
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