United States v. Gonzalez-Montoya

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

November 24, 1998

TO: ALL RECIPIENTS OF THE OPINION
RE: 98-1022, United States v. Gonzalez-Montoya
Filed on November 23, 1998

The court’s slip opinion filed on November 23, 1998, contains a clerical error
on the cover page. Please replace your copy of page one of the opinion with the
attached corrected page.
Sincerely,
Patrick Fisher, Clerk of Court

By: Keith Nelson
Deputy Clerk

encl.
 F I L E D
United States Court of Appeals
Tenth Circuit

NOV 23 1998
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 98-1022

VICTOR HUGO GONZALEZ-
MONTOYA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-CR-208-N)

Stephen M. Wheeler, Stephen M. Wheeler, P.C., Evergreen, Colorado, for
Defendant-Appellant.

John M. Hutchins, Assistant United States Attorney (Henry L. Solano, United
States Attorney, and James R. Boma, Assistant United States Attorney, with him
on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before TACHA, BRORBY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Victor Hugo Gonzalez-Montoya appeals from his

sentence for conspiracy to distribute and distribution of methamphetamine in

violation of 21 U.S.C. §§841(a)(1) and 846. He contends that (1) insufficient
evidence supported the admission of hearsay statements by an alleged co-

conspirator; (2) the district court improperly denied his motion for mistrial after it

was discovered that the government had withheld material impeachment evidence

in violation of the disclosure requirements of Giglio v. United States, 405 U.S.

150 (1972); (3) the government’s misstatement of the deliberate ignorance jury

instruction during its closing argument and the court’s decision not to give a

curative instruction constituted reversible error; and (4) the district court should

have granted him a sentence reduction under the “safety valve” provision of the

sentencing guidelines, 18 U.S.C. § 3553(f). Our jurisdiction arises under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(c), and we affirm.

Background

Mr. Gonzalez-Montoya and codefendant Roberto Bonillo-Esqueda were

indicted for participation in a conspiracy to distribute more than 100 grams of

methamphetamine on or about May 29, 1997. Mr. Bonillo-Esqueda negotiated a

plea agreement, in which he agreed to testify against Mr. Gonzalez-Montoya. The

grand jury then returned a three-count superseding indictment against Mr.

Gonzalez-Montoya. In the superseding indictment, Mr. Gonzalez-Montoya was

first charged conspiracy to possess, with intent to distribute, methamphetamine

(count one); and two substantive counts of possession, with intent to distribute,

methamphetamine (counts two and three). The jury convicted him counts one and

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three and acquitted him of count two. This appeal followed.

Mr. Gonzalez-Montoya’s appeal arises from four distinct incidents during

trial and sentencing. The first incident involves the court’s admission of hearsay

testimony by Mr. Bonillo-Esqueda. At trial, Mr. Bonillo-Esqueda named Mr.

Gonzalez-Montoya as the source of methamphetamine for a transaction between

Mr. Bonillo-Esqueda and “Jose,” a government informant, on May 27, 1997. Mr.

Bonillo-Esqueda testified to conversations with both Jose and the Defendant and

stated that he gave the “buy money” from the May 27 sale to Mr. Gonzalez-

Montoya. He further testified that he called Mr. Gonzalez-Montoya after Jose

requested more methamphetamine and that Mr. Gonzalez-Montoya agreed to

provide four pounds at $8,000 per pound.

Defense counsel objected that the testimony about Mr. Gonzalez-Montoya’s

statements was inadmissible hearsay. However, the trial judge overruled the

objection and stated that he would make “make some findings at an appropriate

point.” See 2 R. at 57. Mr. Bonillo-Esqueda continued to testify to conversations

with Mr. Gonzalez-Montoya regarding the price of the methamphetamine. He

also provided details of a rendezvous between himself, Jose, and Mr. Gonzalez-

Montoya at a Denver restaurant on May 29, 1997. According to Mr. Bonillo-

Esqueda, Mr. Gonzalez-Montoya showed Jose a bag of methamphetamine at the

restaurant, and, after two police officers entered the restaurant, Mr. Gonzalez-

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Montoya went into an adjoining alley with the bag. There, he gave the bag to

Jose and was arrested by an FBI agent.

After hearing this and other evidence, the court found that a conspiracy

existed between Mr. Gonzalez-Montoya and Mr. Bonillo-Esqueda and that the

statements were made in furtherance of the conspiracy. See 2 R. at 115-116.

However, the record reveals that the judge was confused about whether the

testimony to which defense counsel objected was offered by Mr. Bonillo-Esqueda

or by the DEA agent, Thomas Bartusiak. See id. at 114-15. Moreover, the court

was not directed to particular statement’s in Mr. Bonillo-Esqueda’s testimony

challenged as inadmissible hearsay. See id. at 115-16.

The second ground for appeal involves the government’s failure to disclose

impeachment evidence to defense counsel in a timely manner. During cross-

examination, Mr. Bonillo-Esqueda testified that he had not sold drugs to Jose

prior to May 27,1997. This testimony contradicted information that the

government possessed regarding a sale by Mr. Bonillo-Esqueda to Jose on May

22, 1997. On redirect, the prosecutor attempted to impeach Mr. Bonillo-Esqueda

on this issue, but the judge cut him short. When defense counsel objected that the

government had failed to disclose impeachment evidence regarding the May 22

sale, the court instructed the government to fax the relevant documents to defense

counsel. After reviewing the newly-provided material, defense counsel moved for

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a mistrial. The court denied this motion on the grounds that giving the defense

lawyer access to the impeachment material and an opportunity to question Mr.

Bonillo-Esqueda at trial regarding the May 22 transaction put the defense lawyer

in “in the same position [he] would have occupied if [he] had gotten the report on

a timely basis.” 3 R. at 138. Defense counsel elected not to conduct further cross-

examination of Mr. Bonillo-Esqueda. Yet, Mr. Gonzalez-Montoya contends on

appeal that his case was prejudiced by the untimely production of the Giglio

material.

Mr. Gonzalez-Montoya’s third claim arises from the government’s

erroneous explanation of a jury instruction on deliberate ignorance. During his

rebuttal closing argument, the prosecutor told the jury to pay close attention to the

court’s deliberate ignorance instruction. When the prosecutor started to read the

instruction, defense counsel objected. The judge sustained the objection and

stated that the court would read the jury instructions, but the prosecutor

nevertheless proceeded to advise the jury on the meaning of deliberate ignorance

until the court halted him.

As a result of this incident, the court elected not to give the deliberate

ignorance instruction. It also declined to give a curative instruction that the

government requested on the grounds that further discussion of deliberate

ignorance would confuse the jury. Defense counsel did not request a curative

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instruction.

Finally, Mr. Gonzalez-Montoya appeals the denial of his request for a two-

level sentence reduction under the safety valve provision of the sentencing

guidelines, 18 U.S.C.§3553(f). On January 2, 1998, he was sentenced to a term of

108 months in prison, followed by four years of supervised release. The court

declined to reduce his sentence under the safety valve provision because he

continued to maintain that he delivered the bag of methamphetamine from Mr.

Bonillo-Esqueda to Jose without knowledge of its contents. Because the court

considered this assertion to be false, it found that Mr. Gonzalez-Montoya failed to

satisfy the fifth requirement of the safety valve provision: that the defendant

truthfully provide the government with all information concerning the offense.

Discussion

A. Admissibility of Co-conspirator Statements

Mr. Gonzalez-Montoya argues that the district court erred in admitting Mr.

Bonillo-Esqueda’s testimony about statements that Mr. Gonzalez-Montoya made.

According to Mr. Gonzalez-Montoya, the trial judge improperly found that such

testimony contained co-conspirator statements, which are non-hearsay under

Fed.R.Evid. 801(d)(2)(E). Mr. Gonzalez-Montoya contends that the court erred in

not holding a pre-trial James hearing to make the three factual determinations

necessary to admit co-conspirator statements: (1) that a conspiracy existed, (2)

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that both the declarant and the defendant were members of the conspiracy, and (3)

that the statements were made in the course of the conspiracy. See United States

v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995); United States v. James, 590 F.2d

575, 582 (5th Cir. 1979).

The record shows that Mr. Bonillo-Esqueda testified to out-of-court

conversations between himself, Jose, and Mr. Gonzalez-Montoya. See 2 R. at 56-

58. His testimony encompassed out-of-court declarations by Mr. Gonzalez-

Montoya admissible as non-hearsay under two distinct sub-sections of

Fed.R.Evid. 801(d). Although the district court admitted all of these statements

under Fed.R.Evid. 801(d)(2)(E), see 2 R. at 115, Mr. Gonzalez-Montoya’s out-of-

court statements were also party admissions under Fed.R.Evid. 801(d)(2)(A).

See United States v. Mayes, 917 F.2d 457, 463 and n.8 (10th Cir. 1990) (holding

that statements by defendants in tape-recorded conversations with co-conspirators

were party admissions). Mr. Bonillo-Esqueda recounted a conversation in which

the defendant admitted critical elements of the offense with which he was

charged: possession of methamphetamine, intent to sell it to Jose, the price, and

the date and time that he hoped to close the deal. See 2 R. at 56-58. Such

statements fall squarely within the parameters of Fed.R.Evid. 801(d)(2)(A). See

Mayes, 917 F.2d at 463; see also United States v. Cass, 127 F.3d 1218, 1222 &

n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1101 (1998). Hence, we need not

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reach the James issue with regard to them.

However, because the district court admitted remarks attributed to both the

defendant and Mr. Bonillo-Esqueda under the co-conspirator rule, and because of

the apparent confusion about which statements defense counsel alleged to be

inadmissible hearsay, see 2 R. at 114-15, we take this opportunity to reiterate our

strong preference for James proceedings where the government relies on co-

conspirator statements. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242

(10th Cir. 1996); Owens, 70 F.3d at 1123.

Under Tenth Circuit law, the district court may satisfy the prerequisites for

admission of a co-conspirator statement through either of two means: by holding a

James hearing or by provisionally admitting the statement “with the caveat

that . . . the party offering [it] must prove the existence of the predicate

conspiracy through trial testimony or other evidence.” Owens, 70 F.3d at 1123. In

either case, the court may consider the hearsay statement itself, as well as

independent factors, in determining whether the government has established a

conspiracy by a preponderance of the evidence. See Fed. R. Evid. 801(d)(2); see

also United States v. Bourjaily, 483 U.S.171, 181(1987).

Here, the presence of Mr. Gonzalez-Montoya at the restaurant and in the

alley with methamphetamine in his hands, the transfer of marked “buy money”

between himself and Mr. Bonillo-Esqueda, combined with the provisionally-

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admitted hearsay testimony, support the court’s determination that a conspiracy

existed. We reject Mr. Gonzalez-Montoya’s argument that he had no more than a

buyer-seller relationship with Mr. Bonillo-Esqueda. As we noted in United States

v. Flores, 149 F.3d 1272, 1277 (10th Cir.1998), “the purpose of the buyer-seller

rule is to separate consumers, who do not plan to redistribute drugs for profit,

from street-level, mid-level, and other distributors.” Id.; see also United States v.

Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996). Neither Mr. Gonzalez-Montoya, nor

Mr. Bonillo-Esqueda, qualified as a mere consumer.

Because Mr. Bonillo-Esqueda’s testimony contained both non-hearsay party

admissions and statements that the government proved were made in furtherance

of the conspiracy, we hold that it was properly admitted. However, this case

underscores our preference for the use of pre-trial hearings to determine the

existence of the predicate conspiracy.

B. Untimely Disclosure of Giglio Evidence

Mr. Gonzalez-Montoya unsuccessfully sought a mistrial on the grounds that

the government’s violation of the disclosure rules of Giglio v. United States, 405

U.S. 150, 153-54 (1972), deprived him of a fair trial. We review questions

regarding the disclosure of exculpatory or impeachment evidence de novo. See

Smith v. Sec. of New Mexico Dep’t. of Corrections, 50 F.3d 801, 827 (10th Cir.

1995). Impeachment, as well as exculpatory evidence falls within the rule,

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articulated in Brady v. Maryland, 373 U.S. 83, 87 (1963), that suppression of

material information favorable to the accused violates due process. See Giglio,

405 U.S. at 154; Smith, 50 F.3d at 822, 825. In order to establish a Brady or

Giglio violation, “the defendant bears the burden of establishing (1) that the

prosecution suppressed the evidence, (2) that the evidence was favorable to the

accused, and (3) that the evidence was material.” Smith, 50 F.3d at 824.

According to the Supreme Court, the criterion of materiality is met only if there is

a “reasonable probability” that the outcome of the trial would have been different

had the evidence been disclosed to the defense. United States v. Bagley, 473 U.S.

667, 682 (1985); see also Smith, 50 F. 3d at 827.

The documents relating to Mr. Bonillo-Esqueda’s involvement in an earlier

drug transaction constituted impeachment evidence that the prosecution should

have disclosed in a timely manner. See 3 R. at 137. Mr. Bonillo-Esqueda was an

alleged co-conspirator. He was thus a material witness whose credibility, or lack

thereof, played a critical role in the determination of Mr. Gonzalez-Montoya’s

guilt or innocence. See Giglio, 405 U.S. at 15; United States v. Buchanan, 891

F.2d 1436, 1443 (10th Cir. 1989).

In denying a mistrial, the district court incorrectly stated that bad faith is a

prerequisite for a mistrial on Giglio grounds. See 3 R. at 134. Constitutional

error arises from “the character of the evidence, not character of the prosecutor.”

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United States v. Agurs, 427 U.S. 97, 107 (1976); Brady, 373 U.S. at 8. Although

we held in United States v. Dennison, 891 F.2d 255, 260 (10th Cir. 1989), that

dismissal of a case in mid-trial for failure to fully comply with a discovery order

is too extreme a sanction where the prosecutor did not act in bad faith and no

prejudice occurred, our precedent establishes that “the term ‘suppression,’ in the

Brady context, does not require a finding of . . [a] culpable state of mind. . . .”

Smith, 50 F.3d at 824; see also, e.g., United States v. Sullivan, 919 F.2d 1403,

1426 (10th Cir. 1990). Distinctions between late disclosure and non-disclosure,

good faith and bad faith, have no relevance if the government’s conduct

prejudices the outcome of the case.

Here, no prejudice resulted. The trial judge found that untimely disclosure

did not affect the results of the proceeding because defense counsel had an

opportunity to review the new evidence and question Mr. Bonillo-Esqueda about

it. See id. at 138. When assessing the materiality of Giglio information, we must

consider the significance of the suppressed evidence in relation to the entire

record. See Smith, 50 F.3d at 827. We will not automatically order a new trial

“whenever a combing of the prosecutor’s files . . . has disclosed evidence

possibly useful to the defense but not likely to have changed the verdict.” Giglio,

405 U.S. at 154; United States v. Washita Construction Co., 780 F.2d 809, 824

(10th Cir. 1986).

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 On appeal, Mr. Gonzalez-Montoya has failed to demonstrate a reasonable

probability that timely revelation of the impeachment evidence would have altered

the outcome of his case. See Bagley, 473 U.S. at 682. After obtaining and

reviewing the new evidence during trial, defense counsel declined to interview

Mr. Bonillo-Esqueda or to examine him in front of the jury about the prior drug

deal. See 3 R. at 136. The record suggests, and defense counsel conceded at oral

argument, that the decision not to probe the issue further stemmed from concern

about opening the door to evidence of the Defendant’s involvement in the earlier

transaction. See 2 R. at 95-96, 133. Defense counsel stated at oral argument that,

if he had obtained the impeachment evidence earlier, he would have used a

private investigator to show that Mr. Bonillo-Esqueda was the leader and

organizer of the illegal activity. However, the defense lawyer’s reluctance to

question Mr. Bonillo-Esqueda about the May 22 transaction, for fear of

implicating Mr. Gonzalez-Montoya, would not have abated with additional time to

prepare. Thus, the district court properly denied Mr. Gonzalez-Montoya’s motion

for a mistrial.

C. Deliberate Ignorance Instruction

Mr. Gonzalez-Montoya contends that the prosecutor committed misconduct

when he discussed the “deliberate ignorance” standard in his rebuttal closing

argument and that the court abused its discretion in failing to give a curative jury

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instruction.

Defense counsel objected when the prosecutor began to read the deliberate

ignorance instruction, but he did not challenge the prosecutor’s subsequent

misstatement of the law. Because defense counsel did not specifically object to

the prosecutor’s remarks about the reasonable person standard, we review them

for plain error. See United States v. Olano, 507 U.S. 725, 731 (1993); United

States v. Oberle, 136 F.3d 1414, 1421 (10th Cir. 1998), cert. denied, 1998 WL

396485 (1998). A court of appeals has the authority, but is not required, to order

correction of plain errors that were not brought to the attention of the district

court, if they affect substantial rights. See Olano, 507 U.S. at 735. We employ a

two-step process in evaluating claims of prosecutorial misconduct: First, we

determine whether the prosecutor’s behavior was improper; if so, we decide

whether it mandates reversal. See id. In evaluating such incidents for plain error,

we will reverse “only if, after reviewing the entire record, we conclude that the

error is obvious and one that would undermine the fairness of the trial and result

in a miscarriage of justice.” Id.

Here, the prosecutor’s definition of deliberate ignorance as failure to learn

what a reasonable person would know represented an incorrect statement of the

law. Deliberate ignorance is found where the defendant had subjective, rather

than objective knowledge of his criminal behavior. See United States v. Lee, 54

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F.3d 1534, 1538 (10th Cir. 1995). However, the fact that the prosecutor misstated

the standard does not mean that Mr. Gonzalez-Montoya was deprived of a fair

trial. See Oberle, 136 F.3d at 1421. We generally do not reverse a conviction “if

the conduct [that the defendant challenges] was merely ‘singular and isolated.’”

United States v. Ivy, 83 F.3d 1266,1288 (10th Cir. 1996) (quoting United States v.

Pena, 930 F.2d 1486, 1491 (10th Cir. 1991). Here, the inappropriate remarks

constituted one incident that the trial court cut short sua sponte by censuring the

prosecutor before the jury.

Mr. Gonzalez-Montoya also contends that the district court’s failure to give

a deliberate ignorance instruction “left the jury without anything to guide them but

the prosecutor’s misstatement of the law.” See Aplt. Br. at 17. Even if defense

counsel had made a timely objection at trial, curative actions by the district court

constitute only one factor in our determination of whether prejudice resulted. See

United States v. Lonedog, 929 F.2d 568, 572 (10th Cir. 1991). Although the trial

judge decided not to revisit the deliberate ignorance issue, he reminded the jury

that, where the court and the lawyers disagreed, the jury was to be governed by the

court’s version of the instruction and the law. See 3 R. at 293; see also Ivy, 83

F.3d at 1288 (prosecutorial misconduct not usually prejudicial where the court tells

the jury what weight to give the closing argument). Viewing the prosecutor’s

misconduct in light of the entire record, we conclude that the inappropriate

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remarks did not “influence the jury to convict on grounds other than the evidence

presented” and that the fairness of Mr. Gonzalez-Montoya’s trial was not

undermined. United States v. Ramirez, 63 F.3d 937, 944 (10th Cir. 1995) (quoting

United States v. Lowder, 5 F.3d 467, 473 (10th Cir. 1993)).

Nor did the court abuse its discretion in deciding not to give the deliberate

ignorance instruction. We review refusal to give a particular jury instruction for

abuse of discretion. See United States v. Pacheco, 154 F.3d 1236, 1238 (10th Cir.

1998); United States v. McIntosh, 124 F.3d 1330, 1337 (10th Cir. 1997). While

“[a] defendant is entitled to an instruction on his theory of the case if the

instruction is a correct statement of the law and if he has offered sufficient

evidence for the jury to find in his favor,” McIntosh, 124 F.3d at 1337, Mr.

Gonzalez-Montoya did not request a deliberate ignorance instruction. In fact,

before closing arguments, defense counsel argued that such an instruction should

not be given. See 3 R. at 229. In omitting the deliberate ignorance instruction, the

trial court essentially complied with defense counsel’s wishes and punished the

government for its inappropriate remarks.

Mr. Gonzalez-Montoya also maintains that, in a broader sense, the jury was

improperly instructed on the controlling principles of law. We consider jury

instructions de novo to determine whether, as a whole, they correctly stated the

governing law and provided the jury with a sufficient understanding of the

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relevant standards and issues. See Pacheco, 154 F.3d at 1238. Viewed in their

entirety, the instructions informed the jury in the instant case that the government

must prove knowledge and intent.

We decline to order a new trial because of either the prosecutor’s

misstatement of the deliberate ignorance standard or the court’s refusal to give a

curative instruction.

D. Safety Valve Provision

Finally, Mr. Gonzalez-Montoya contends that he was improperly denied a

two-level downward adjustment under the safety valve provision of the sentencing

guidelines, 18 U.S.C. § 3553(f). We review the district court’s determination of a

particular defendant’s eligibility for relief under § 3553(f) for clear error. See

United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997); United States

v. Acosta-Olivas, 71 F.3d 375, 377 n.3 (10th Cir. 1995). To the extent that district

court interpreted the “scope and meaning” of 3553(f)(5), we review its legal

interpretation de novo. See Acosta-Olivas, 71 F.3d at 377 n.3.

To override a mandatory minimum sentence, a defendant must prove that he

meets all five requirements of the safety valve provision: (1) that he does not have

more than one criminal history point under the sentencing guidelines; (2) that he

did not use violence or credible threats of violence or possess a firearm or other

dangerous weapon in connection with the offense; (3) that the offense did not

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result in death or serious bodily injury; (4) that the defendant was not a leader or

organizer of the offense and that he was not engaged in a continuing criminal

enterprise; and (5) that, not later than the time of sentencing, he “truthfully

provided to the Government all information and evidence concerning the offense

or offenses that were part of the same course of conduct or a common scheme or

plan.” 18 U.S.C. § 3553(f). The burden of proving all five requirements by a

preponderance of the evidence lies with the defendant. See United States v.

Verners, 103 F.3d 108, 110 (10th Cir. 1996); see also United States v. Ortiz, 136

F.3d 882, 883 (2d Cir. 1997), cert. denied, 118 S. Ct. 1104 (1998).

The district court’s ruling that Mr. Gonzalez-Montoya did not qualify for a

downward adjustment under § 3553(f) hinged on his failure to satisfy the fifth

requirement. Mr. Gonzalez-Montoya continued to maintain at sentencing that he

was too drunk on May 29 to knowingly participate in a drug deal or to be aware of

the contents of the bag. See 4 R. at 7. His written statement that he had consumed

10 to 12 beers in several hours conflicted with his subsequent trial testimony that

he drank as many as 25 beers; both of these claims belied the lucidity he displayed

at the time of arrest. Moreover, he denied knowing Mr. Bonillo-Esqueda’s name

or conversing with him prior to May 29, 1997. On this basis, the trial judge found

that Mr. Gonzalez-Montoya had not conveyed to the government “all information

or evidence” about the May 29 offense, as required by § 3553(f)(5). See 3 R. at 18.

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 Mr. Gonzalez-Montoya argues that the “tell all” requirement of 3553(f)(5)

does not mandate a confession of guilt on the part of the defendant. While we

agree that the safety valve provision and acceptance of responsibility under

U.S.S.G. 3E1.1(a) are not coterminous, we conclude that 3553(f)(5) goes beyond

merely barring the defendant from denying the offense of conviction. See United

States v. Sabir, 117 F.3d 750, 753 (3d Cir. 1997). Under § 3353(f)(5), a

defendant must affirmatively volunteer all he knows, including facts beyond the

basic elements of the crime. See United States v. Myers, 106 F.3d 936, 941 (10th

Cir. 1997, cert. denied, _ U.S. _, 117 S. Ct. 2446 (1997) (stating that “section 5 is

very broad”); Sabir, 117 F.3d at 752. Because both the trial court and the jury

found that Mr. Gonzalez-Montoya untruthfully minimized his role in the May 29

drug transaction, we cannot say that the trial court’s findings were clearly

erroneous. See Sabir, 117 F.3d at 753 (holding that defendant’s false efforts to

minimize his role disqualified him from a safety valve adjustment).

Conviction by a jury does not foreclose relief under the safety valve

provision. See United States v. Sherpa, 110 F.3d 656, 660 (9th Cir. 1996)

(holding that defendant who claimed ignorance of the contents of a suitcase

satisfied §3553(f)(5), even though the jury found that he knowingly possessed

heroin). However, a trial judge, like a jury, is free to find a defendant’s

contentions untruthful. Given such a finding, we hold that Mr. Gonzalez-Montoya

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did not meet his burden of establishing all five requirements for a downward

adjustment under safety valve provision.

AFFIRMED.

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