
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 amended        as follows.            On cover  page, replace  attorney listing for  appellant with  the        following:            "Evan  Slavitt with  whom  Kelley A.  Jordan-Price  and  Hinckley,             _____________             _______________________       _________        Allen & Snyder were on brief by appointment for appellant."        ______________                            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, Allen            ____________            ______________________     _______________        & Snyder were on brief by appointment for appellant.        ________            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern,  United States Attorney, was on  brief for the United        _______________        States.                                 ____________________                                    April 24, 1996                                 ____________________                 BOUDIN, Circuit Judge.  The sole issue on this appeal is                         _____________            whether  the  district  court  erred  in   denying  Alexander            Montanez the  benefit in  sentencing of the  recently enacted            "safety valve" provision  which relates to  mandatory minimum            sentences.  18  U.S.C.   3553(f); see  U.S.S.G.   5C1.2.   We                                              ___            readily conclude that there  was no error in this case.   But            in light  of the  far-reaching interpretation of  the statute            urged  by the government,  something more  than a  per curiam                                                               __________            affirmance is required.                 Montanez  and three  others were  arrested in  May 1994,            after Montanez  had aided  in five drug  sales to  undercover            agents.  Montanez'  role was limited to  delivering the drugs            and  collecting  the purchase  money.   He  was  charged with            conspiring to  distribute drugs,  21 U.S.C.    846,  and with            five  substantive  counts   of  possession  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,  1995, the district  court held a  sentencing            hearing.   Montanez  protested that  the government's  latest            computation  of  drug  quantity,  if  accepted,  triggered  a            mandatory five-year minimum  sentence under  the statute,  21            U.S.C.   841(b)(1)(B)(i).  Montanez said that he had not been            warned of  this  possibility  at  the time  that  he  pleaded            guilty.  The district  court continued the sentencing hearing                                         -2-                                         -2-            to  June  19,  1995,  offering Montanez  the  opportunity  to            withdraw his plea.       Instead  of  withdrawing  his  plea,            Montanez  filed a  supplemental memorandum  on June  9, 1995,            asking the court to  apply the new safety valve  provision of            18 U.S.C.    3553(f).   That provision requires  the district            court  to disregard  the statutory  mandatory minimum  if the            court finds at sentencing that five conditions have been met.            Four, concededly  met in  this case, concern  the defendant's            prior history and the nature of the crime.  The fifth finding            is that:                 [N]ot   later  than  the  time  of  the  sentencing                 hearing, the defendant  has truthfully provided  to                 the  Government all  information  and evidence  the                 defendant  has concerning  the offense  or offenses                 that  were part of the same course of conduct or of                 a common  scheme or  plan, but  the  fact that  the                 defendant  has   no   relevant  or   useful   other                 information  to provide  or that the  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  sent            the assistant  United States  attorney  an eight-page  letter            setting forth  what purported  to be Montanez'  "information"            concerning  the  crimes charged  in  the  case.   The  letter            contained a good  deal of  detail about the  crimes, but  the            detail came as  no surprise  to the prosecutor.   With  minor            word changes, and not many of these, defense counsel's letter            was drawn almost verbatim  from an affidavit filed by  one of            the federal agents early in the case.                                         -3-                                         -3-                 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  of the five            transactions, where it was stored,  and who was the supplier.            This  information   was  not  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  all information and evidence that            he possessed.  The  court said that it thought  that Congress            had  intended the  safety valve for  defendants who  tried to            cooperate by  being debriefed by  the government.   But, said            the  court, it  would  "cheerfully" have  given Montanez  the            benefit  of the safety valve  if Montanez had  just come into            court  "and said everything he knew and persuaded me that was            everything he knew . . . .  But he hasn't."                 In due course, the  district court imposed the mandatory            minimum sentence and Montanez now appeals.  He argues that no            debriefing requirement exists and,  in addition, that defense            counsel's  June  9   letter  complied   with  the   statutory            requirement.   The  government  argues that  a debriefing  is            required  but, in  the  alternative, says  that the  district                                         -4-                                         -4-            court properly found that Montanez had  not made the required            disclosure in any form.                 It is  easy to understand  why the government  wants the            statute construed  to impose  a requirement that  a defendant            offer  himself  to the  prosecutor for  a  debriefing.   If a            defendant  does  have  useful  information, it  can  best  be            extracted and preserved  in that setting.   And a  debriefing            also puts  the  government in  the  best position  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  is hard to locate such a            requirement in the statute.   All that Congress said  is that            the defendant be  found by the time of the sentencing to have            "truthfully provided  to the Government"  all the information            and evidence that he has.  Nothing in the statute, nor in any            legislative  history drawn  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            a  substantial  assistance departure.    From  the outset,  a            departure  below  the  statutory  minimum  sentence  has been            allowed  where  the prosecutor  moves  the court  for  such a                                         -5-                                         -5-            departure  on the  ground  that the  defendant has  furnished            substantial  assistance  to  the  government.   18  U.S.C.               3553(e);  U.S.S.G.   5K1.1.   The decision to  move, with few            qualifications,  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  v.                                                       ______________            Arrington, 73 F.3d 144, 147-48 (7th Cir. 1996).  To cope with            _________            this  situation, section  3553(f) was  enacted in  1994.   It            rewards  low level  offenders who  meet the  other conditions            specified  (e.g., non-violence, little  criminal history) and                        ____            who truthfully  provide all  of the information  and evidence            they have, even if it does not prove useful.  Id. at 147.                                                          ___                 Montanez  seeks to contrast  the preexisting substantial            assistance statute with the new safety valve statute, arguing            that the former is concerned with cooperation, but the latter            only   with  culpability.     While   there  are   mechanical            differences  between  the  statutes,  see  United  States  v.                                                  ___  ______________            Acosta-Olivas, 71 F.3d 373, 379 (10th Cir. 1995), both values            _____________            were  probably of  concern  to Congress  in drafting  section            3553(f).   In enacting the  safety valve provision,  we think            Congress was aiming  its leniency at low level defendants who                                         -6-                                         -6-            did  their best  to cooperate  to the  extent of  making full                                _________            disclosure.1   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  a  brighter line  than            merely to require that the defendant "truthfully provide [his            information and evidence]" in some unspecified form.  But the            fact remains  that  Congress wrote  the  statute as  it  did.            Courts  can and  do apply  restrictive  glosses  on statutory            language,  but  everything  depends  on the  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  cull            serious efforts at full disclosure from mere pretense.   This            court in Wrenn, 66 F.3d at 3, readily dismissed a defendant's                     _____            claim  that the  necessary disclosure  was achieved  when the            government covertly taped him  in the course of the  criminal            venture; and  another circuit only recently  rejected a claim            that  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  provided"   the  required  information  and            evidence to the  government.  United States v. Flanagan, 1996                                          _____________    ________            WL 143333, at *2-3 (5th Cir. Mar. 29, 1996).  And a defendant            who  contents  himself  with a  letter  runs  an  obvious and            profound risk:  The government is perfectly free to point out            the  suspicious  omissions at  sentencing,  and the  district            court  is entitled to make  a common sense  judgment, just as            the district judge did in this case.                 Of  course,  nothing  prevents  a  district  court  from            deciding  that  it is  unpersuaded  of  full disclosure,  cf.                                                                      ___            Rodriguez,  60 F.3d  at 195,  but might  be if  the defendant            _________            submitted himself to a debriefing.  Yet  such a determination            would rest in  the hands  of the judge,  not the  prosecutor.            The possibility remains, however rare, that a defendant could            make  a disclosure without  a debriefing (e.g.,  by letter to                                                      ____            the  prosecutor)   so  truthful  and  so   complete  that  no            prosecutor could fairly suggest any gap or omission.                 To  suggest  this course  as  a  possibility is  not  to            encourage  it.  A defendant  whose only concern  is to secure            the  benefit of the safety  valve provision should be anxious                                         -8-                                         -8-            for  a debriefing.   It  offers an  occasion to  persuade the            government that  the defendant  has made full  disclosure and            thus to  win its "recommendation" for  avoiding the mandatory            minimum.   U.S.S.G.   5C1.2 comment (n.8).  If the government            still opposes  the departure,  the defendant  can say  to the            judgethatthe governmenthad achance toask everythingit wanted.                 Defendants  often have  reasons,  such as  loyalty to  a            confederate or fear of retribution,  for not wanting to  make            full  disclosure.   But  full disclosure  is  the price  that            Congress has attached  to relief under  the statute, and  the            burden  remains on  the defendant  to prove  his entitlement.            Flanagan, 1996  WL 143333  at *3.   Defendants  will discover            ________            soon enough that there is little mileage in gambits  designed            to  qualify  the defendant  for  relief  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,   the  information   already  possessed  by   the            government  and nothing more.  But in practice this is hardly            likely, especially where  several different drug transactions            and multiple  players are involved.   Here--merely to mention            the  most  conspicuous  omission--Montanez'  letter  does not            disclose  as to several of the  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  to  possess,  nor            persuasively explain its absence.   See Wrenn, 66 F.3d  at 3.                                                ___ _____            The failure to  disclose is so  patent in this  case that  no            reason  exists  for extended  discussion.    Indeed, even  on            appeal  Montanez offers no plausible reason  why he could not            have  provided  such  information  as the  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  whether he had made full            disclosure.   But he  did not  request such a  hearing in  he            district  court  and  that  largely disposes  of  his  claim.            United States v. Gertner,  65 F.3d 963, 969 (1st  Cir. 1995).            _____________    _______            Even on appeal  Montanez does not  suggest what testimony  he            could  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  but related claim            on appeal, namely, that the  district judge should have given            him  a second  chance to make  full disclosure  after finding            that his June 9 letter was inadequate.  But  this claim would            also be foreclosed by  the failure to ask the  district court            for such  an opportunity.   We add,  by way of  warning, that                                         -10-                                         -10-            defendants who make partial disclosure as  an opening bid are            engaging in a risky gamble.  Here there was no serious effort            at any disclosure.                 Affirmed.                 ________                                         -11-                                         -11-
