United States v. Morales

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2045

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ANA IVETTE MORALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Cyr, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Boudin, Circuit Judge.

Carey R. Dunne, orally; John P. Cooney, Jr., by appointment of

the Court, with whom Karen V. Walker was on brief for appellant.

Jorge E. Vega-Pacheco, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, was on Motion Requesting

Summary Affirmance for appellee.

April 18, 1995

ALDRICH, Senior Circuit Judge. In October 1990

defendant Ana Ivette Morales was arrested in Puerto Rico,

with others, importing drugs. She was sentenced on a guilty

plea, and engaged to some extent in cooperating with the

government. In 1994 one of her associates was indicted and

her substantial cooperation, pursuant to a supplemental plea

agreement, resulted in his conviction. The court rejected,

however, the government's motion for the reduction of her

sentence therefor under Fed. R. Crim. P. 35(b), holding that

it was without jurisdiction1 to grant the requested relief

because this cooperation took place more than a year after

sentencing and was based upon information she possessed from

the beginning. Under the rule such cooperation cannot be

considered unless the information was "not known" to the

defendant until one year or more after imposition of the

sentence.2 The district court

1. United States v. Addonizio, 442 U.S. 178, 189 (1979).

2. (b) REDUCTION OF SENTENCE FOR CHANGED
CIRCUMSTANCES. The court, on motion of
the Government made within one year after
the imposition of the sentence, may
reduce a sentence to reflect a
defendant's subsequent, substantial
assistance in the investigation or
prosecution of another person who has
committed an offense, in accordance with
the guidelines and policy statements
issued by the Sentencing Commission
pursuant to section 994 of title 28,
United States Code. The court may
consider a government motion to reduce a
sentence made one year or more after

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read "not known" literally; we read it more broadly.

Rule 35(b) has gone through a series of

liberalizations. The time limit was originally but 60 days,

then 120 days, then one year; and, at first not only the

government's motion, but even the court's order had to be

entered within the time limit. See Fed. R. Crim. P. 35, 18

U.S.C.A., and amendments thereto, 1966, 1987, 1991. Until

now, the concept was limited to cooperation before, or soon

after, the sentencing. At issue is the exception to the one

year time bar introduced in 1991.

Manifestly, the purpose for denying value to

retained knowledge is to induce immediate full disclosure.

If, however, a defendant had not disclosed information simply

because she was not asked, or was otherwise unaware of its

value, there is no reason she should be restricted; nothing

would be served by rejecting later use when a value became

apparent. Rather, to deny a benefit to late disclosure in

such circumstances would be contrary to the rule's purpose.

The Advisory Committee notes to the 1991 amendment speak of

information "useful to the government." This appears to be a

novel question, but we hold that until becoming aware of its

imposition of the sentence where the
defendant's substantial assistance
involves information or evidence not
known by the defendant until one year or
more after imposition of sentence.

Fed. R. Crim. P. 35(b), 18 U.S.C.A. (1991).

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value, or being specifically asked, a defendant cannot be

said to "know" useful information.

On this reading of the rule the court, upon proper

findings, could have jurisdiction to grant relief. We,

accordingly, reverse the denial of the motion and remand for

further proceedings consistent herewith.

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