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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