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 amen

as follows.

On cover

page, replace

attorney listing for

appellant with

following:

"Evan Slavitt with

_____________

whom

Kelley A. Jordan-Price
_______________________

and

Allen & Snyder were on brief by appointment for appellant."

______________

Hinckl
______

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, Al

______________________
____________

& Snyder were on brief by appointment for appellant.

________

Geoffrey E. Hobart, Assistant United

___________________
Donald K. Stern,
_______________

States Attorney, with

United States Attorney, was on

States.

____________________

April 24, 1996

____________________

brief for the Uni

BOUDIN, Circuit Judge.

_____________

whether

the

district

Montanez the

benefit in

"safety valve" provision

sentences.

18

U.S.C.

court

of the

erred

in

denying

Alexander

sentencing of the

recently enacted

which relates to

mandatory minimum

3553(f); see
___

readily conclude that there

in light

The sole issue on this appeal is

U.S.S.G.

5C1.2.

was no error in this case.

far-reaching interpretation of

We

But

the statute

urged

by the government,

something more

than a

per curiam
__________

affirmance is required.

Montanez

after Montanez

agents.

and

and three

had aided

Montanez'

collecting

conspiring to

five

others were

in five drug

role was limited to

the purchase

money.

distribute drugs,

substantive

counts

of

arrested in

May 1994,

sales to

undercover

delivering the drugs

He

21 U.S.C.

possession

was

charged with

846,

with

and 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,

hearing.

1995, the district

Montanez

protested that

court held a

sentencing

the government's

latest

computation

of

drug

quantity,

mandatory five-year minimum

U.S.C.

warned of

guilty.

841(b)(1)(B)(i).

this

accepted,

sentence under

triggered

the statute,

21

Montanez said that he had not been

possibility

The district

if

at

the time

that

he

pleaded

court continued the sentencing hearing

-2-2-

to

June

19,

1995,

offering Montanez

withdraw his plea.

Montanez

Instead

filed a

court

his

on June

to

plea,

9, 1995,

apply the new safety valve

provision of

That provision requires

the district

3553(f).

to disregard

opportunity

withdrawing

supplemental memorandum

asking the court to

18 U.S.C.

of

the

the statutory

mandatory minimum

if the

court finds at sentencing that five conditions have been met.

Four, concededly

met in

this case, concern

prior history and the nature of the crime.

the defendant's

The fifth finding

is that:

[N]ot

later

than

the

hearing, the defendant

the

Government all

defendant
that

time

of

the

sentencing

has truthfully provided

information

has concerning

and evidence

the offense

to
the

or offenses

were part of the same course of conduct or of

a common

scheme or

plan, but

the

fact that

the

defendant

has

information

no

relevant

to provide

or

useful

or that the

other

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

the assistant

United States

setting forth

what purported

concerning

the

contained a good

detail came as

attorney

to be Montanez'

crimes charged

deal of

no surprise

an eight-page

in

the

case.

detail about the

sent

letter

"information"

The

letter

crimes, but

to the prosecutor.

With

the

minor

word changes, and not many of these, defense counsel's letter

was drawn almost verbatim

from an affidavit filed by

the federal agents early in the case.

-3-3-

one of

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

transactions, where it was stored,

This

information

was

not

of the five

and who was the supplier.

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

he possessed.

had

intended the

cooperate by

the

court, it

benefit

court

The

all information and evidence that

court said that it thought

safety valve for

being debriefed by

would

defendants who

the government.

"cheerfully" have

of the safety valve

that Congress

tried to

But, said

given Montanez

if Montanez had

the

just come into

"and said everything he knew and persuaded me that was

everything he knew . . . .

In due course, the

But he hasn't."

district court imposed the mandatory

minimum sentence and Montanez now appeals.

He argues that no

debriefing requirement exists and,

counsel's

June

requirement.

required

The

but, in

letter

complied

government

the

in addition, that defense

with

argues that

alternative, says

-4-4-

the

statutory

a debriefing

that the

is

district

court properly found that Montanez had

not made the required

disclosure in any form.

It is

easy to understand

statute construed

offer

himself

defendant

does

to impose

to the

have

extracted and preserved

also puts

the

why the government

a requirement that

prosecutor for

useful

government in

the

a defendant

debriefing.

information, it

in that setting.

wants the

can

And a

best position

If a

best

be

debriefing

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

requirement in the statute.

the defendant be

All that Congress said

is that

found by the time of the sentencing to have

"truthfully provided

to the Government"

and evidence that he has.

legislative

is hard to locate such a

history drawn

all the information

Nothing in the statute, nor in any

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

substantial

departure

allowed

below

where

assistance departure.

the

statutory

the prosecutor

From

minimum

moves

the outset,

sentence

the court

for

has been

such a

-5-5-

departure

on the

substantial

3553(e);

ground

assistance

U.S.S.G.

qualifications,

that the

to

5K1.1.

the

defendant has

government.

The decision to

18

furnished

U.S.C.

move, with few

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
______________

Arrington, 73 F.3d 144, 147-48 (7th Cir. 1996).

_________

this

situation, section

rewards

specified

low level

3553(f) was

offenders who

meet the

(e.g., non-violence, little

____

who truthfully

provide all

enacted in

1994.

It

other conditions

of the information

seeks to contrast

To cope with

criminal history) and

they have, even if it does not prove useful.

Montanez

v.

and evidence

Id. at 147.
___

the preexisting substantial

assistance statute with the new safety valve statute, arguing

that the former is concerned with cooperation, but the latter

only

with

differences

culpability.

between

the

While

statutes,

there

see
___

are

mechanical

United States
______________

v.

Acosta-Olivas, 71 F.3d 373, 379 (10th Cir. 1995), both values

_____________

were

probably of

3553(f).

concern

In enacting the

Congress was aiming

to Congress

in drafting

safety valve provision,

section

we think

its leniency at low level defendants who

-6-6-

did

their best

disclosure.1

to cooperate
_________

to the

extent of

making full

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

brighter line

than

merely to require that the defendant "truthfully provide [his

information and evidence]" in some unspecified form.

fact remains

Courts

that

can and

language,

but

Congress wrote

do apply

everything

the

restrictive

depends

statute as

glosses

on the

But the

it

did.

on statutory

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

serious efforts at full disclosure from mere pretense.

cull

This

court in Wrenn, 66 F.3d at 3, readily dismissed a defendant's

_____

claim

that the

necessary disclosure

government covertly taped him

venture; and

that

was achieved

when the

in the course of the

criminal

another circuit only recently

rejected a claim

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).

_________

-7-7-

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

evidence to the

provided"

the

government.

required

information

and

United States v. Flanagan, 1996

_____________
________

WL 143333, at *2-3 (5th Cir. Mar. 29, 1996).

And a defendant

who

an

contents

himself

profound risk:

the

suspicious

court

with a

letter

runs

obvious and

The government is perfectly free to point out

omissions at

is entitled to make

sentencing,

a common sense

and the

district

judgment, just as

the district judge did in this case.

Of

deciding

course,

that

nothing

it is

prevents

unpersuaded

of

district

court

full disclosure,

from

cf.
___

Rodriguez,
_________

60 F.3d

at 195,

but might

submitted himself to a debriefing.

would rest in

the hands

Yet

of the judge,

be if

the defendant

such a determination

not the

prosecutor.

The possibility remains, however rare, that a defendant could

make

the

a disclosure without

prosecutor)

so

a debriefing (e.g.,
____

truthful

and

so

by letter to

complete

that

no

not

to

prosecutor could fairly suggest any gap or omission.

To

encourage

the

suggest

it.

this course

A defendant

benefit of the safety

as

possibility is

whose only concern

is to secure

valve provision should be anxious

-8-8-

for

a debriefing.

government that

thus to

minimum.

It

offers an

the defendant

occasion to

has made full

win its "recommendation" for

U.S.S.G.

still opposes

disclosure and

avoiding the mandatory

5C1.2 comment (n.8).

the departure,

persuade the

If the government

the defendant

can say

to the

judgethatthe governmenthad achance toask everythingit wanted.

Defendants

often have

reasons,

confederate or fear of retribution,

such as

loyalty to

for not wanting to

make

full

disclosure.

But

Congress has attached

burden

remains on

Flanagan, 1996
________

full disclosure

to relief under

the defendant

WL 143333

at *3.

is

the price

the statute, and

to prove

qualify

the defendant

for

Defendants

relief

the

his entitlement.

will discover

soon enough that there is little mileage in gambits

to

that

designed

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,

government

the

information

and nothing more.

likely, especially where

already

possessed

by

the

But in practice this is hardly

several different drug transactions

and multiple

the

most

disclose

players are involved.

conspicuous

Here--merely to mention

omission--Montanez'

as to several of the

letter

does not

transactions who provided him

with the drugs he delivered.

-9-9-

It is enough that

Montanez did not disclose information

that

he

might

reasonably

be

expected

persuasively explain its absence.

disclose is so

reason

exists

for extended

appeal

Montanez offers no plausible reason

provided

such

possess,

See Wrenn, 66 F.3d

___ _____

The failure to

have

to

patent in this

discussion.

information

as the

nor

at 3.

case that

no

Indeed, even

on

why he could not

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

disclosure.

district

But he

court

and

did not

that

whether he had made full

request such a

largely disposes

hearing in

of

his

he

claim.

United States v. Gertner,

_____________
_______

Even on appeal

could

65 F.3d 963, 969 (1st

Montanez does not

Cir. 1995).

suggest what testimony

he

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

on appeal, namely, that the

him

a second

district judge should have given

chance to make

full disclosure

that his June 9 letter was inadequate.

also be foreclosed by

for such

but related claim

But

this claim would

the failure to ask the

an opportunity.

We add,

-10-10-

after finding

by way of

district court

warning, that

defendants who make partial disclosure as

engaging in a risky gamble.

at any disclosure.

Affirmed.
________

an opening bid are

Here there was no serious effort

-11-11-