
USCA1 Opinion

	




                            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                                         -2-            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).                                         -3-            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.                                         -4-
