United States v. Montanez

USCA1 Opinion









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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