
USCA1 Opinion

	




       No. 96-2215                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                  REBECCA B. WHITE,                                Defendant, Appellant.                                                                        APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                                                                           Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                             and Boudin, Circuit Judge.                                                                David Beneman, with whom Levenson, Vickerson & Beneman was on       brief for appellant.            Margaret D. McGaughey, Assistant United States Attorney, with       whom Jay P. McCloskey, United States Attorney, and Jonathan A. Toof,       Assistant United States Attorney, were on brief for appellee.                                                                                        July 28, 1997                                                                        CYR, Senior                                   Circuit                                           Judge. Defendant Rebecca White          challenges a district court ruling which declined to sentence her          below the statutory minimum prescribed by the Sentencing Reform Act          of 1984, 21 U.S.C. S 841(b)(1)(A)(vii), pursuant to the so-called          "safety valve" provisions,  see 18 U.S.C. S 3553(f); U.S.S.G. S          5C1.2, on the ground that White had not truthfully provided the          government with all the information and evidence she had concerning          her offense. See 18 U.S.C. S 3553(f)(5); U.S.S.G. S 5C1.2(5).                                                                        As          there was no error, we affirm.                                          I                                     BACKGROUND                    Along with eight codefendants and various other individu-          als, White was involved in a large-scale, long-term marijuana          distribution ring from 1986 to 1994. Led by Stuart Smith and          White's then-boyfriend (and current husband), Gary Dethlefs, the          conspiracy was responsible for importing tens of thousands of          kilograms of marijuana from Arizona, Texas and Mexico for distribu-          tion in Maine and Massachusetts. The business hub of the conspira-          cy was a farm in Mansfield, Massachusetts, owned by White and her          three siblings, at which White and Dethlefs resided. There,          marijuana shipments were received for storage, packaging and          distribution, drug transactions were negotiated, and large cash          sums representing drug proceeds were kept. White, and others under                                             Since the relevant statutory and sentencing guideline provi-          sions contain identical language, we cite only to the sentencing          guideline.                                           2          her direction, counted and packaged the cash for delivery to the          marijuana suppliers. White purchased hundreds of thousands of          dollars in money orders and cashier's checks, with which to cover          operating expenses. A calendar recovered at the farm contained          numerous cryptic notations by White, recording marijuana-related          financial transactions in which the criminal enterprise engaged.                     Ultimately, White was indicted for,                                                        inter                                                              alia, conspir-          ing to possess, with intent to distribute, more than one thousand          kilograms of marijuana. See 21 U.S.C. SS 841(a)(1), 841(b)(1)(A),          846. After pleading guilty, she submitted to three so-called          "safety valve" interviews by government agents, during which she          proffered information regarding the marijuana conspiracy, including          her role in it. At sentencing, the parties disagreed about whether          the "safety valve" proffer made by White had been fully forthcoming          and truthful.                    The government represented to the court that White had          displayed reluctance to make full disclosure. For example, it          emphasized that she had failed to disclose all her information          about a particular marijuana supplier until the agents challenged          her omissions with various notations from her calendar,                                                                  supra, and          that she had not been fully forthcoming about an individual who had          supplied her with cocaine for her own use. The government          maintained that White had portrayed herself in the role of a          minimal, passive participant without much direct knowledge of the                                             Based on these facts, the presentence report ("PSR") de-          scribed White as the money launderer/manager of the conspiracy.                                          3          criminal conduct in which the enterprise was engaged.                                                               The govern-          ment insisted, on the other hand, that White had played an integral          role in the conspiracy, serving as the financial manager and          "brains" of the drug operation.                     At sentencing, Agent O'Donoghue, who had investigated the          marijuana conspiracy and participated in two "safety valve"          interviews, testified that though the information White provided          was consistent, in most respects, with intelligence gathered by the          government from other sources, she had not been forthcoming about          either the marijuana supplier or her personal cocaine supplier and          she had tried to minimize her own role in the conspiracy. The          presiding judge likewise expressed unease that White appeared to          have portrayed herself in a lesser role, stating that he was very          familiar with the case, in part due to his involvement in related          proceedings against certain coconspirators, and that it seemed          White had played a more central role than she admitted to during          her "safety valve" interviews.                    White responded that any vagueness in her disclosures          during the "safety valve" interviews had resulted from her alcohol                                             Notes recorded during the first "safety valve" interview          reflect as follows:                     White contended that her role in the conspira-                    cy (for which she was convicted) was that of a                    minor participant. According to White, she                    suspected that there was a lot more criminal                    activity than she actually knew about. White                    reportedly did not want to know of suspected                    drug trafficking activities that were occur-                    ring around her, so she insulated herself by                    remaining uninformed.                                          4          and drug abuse, and that she had minimized her role because that          was the way she actually perceived it as a consequence of her          clinical depression syndrome. White supported her theory with a          report and testimony from a psychologist.                     The district court established the guideline sentencing          range (GSR) at 108 to 135 months and noted that the statutory          minimum sentence for the offense was 120 months, see 21 U.S.C. S          841(b)(1)(A)(vii). The district court noted, however, that but for          the statutory minimum, it would have departed below the GSR, to 72          months' incarceration. Finally, although the court could have          imposed a sentence below the statutory minimum had White met the          "safety valve" requirements under U.S.S.G. S 5C1.2, it decided          instead to sentence her to 120 months' incarceration on the ground          that she still had not                                 truthfully provided the government with all          information and evidence she possessed concerning her offense, in          accordance with the requirements of U.S.S.G. S 5C1.2(5) that                        not 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 infor-                    mation shall not preclude a determination by                    the court that the defendant has complied with                    this requirement.           U.S.S.G. S 5C1.2(5) (emphasis added). Specifically, the district          court found that White's "safety valve" interviews untruthfully          minimized her role in the conspiracy and disclaimed direct          knowledge about the conspiracy. The district court further found                                          5          the report and testimony provided by the psychologist insuffi-          ciently credible or reliable either to explain away or excuse          White's untruthfulness. White asserts several claims of error, to          which we now turn.                                          II                                     DISCUSSION                    First, White claims that once she had satisfied her          preliminary burden by demonstrating compliance with U.S.S.G. S          5C1.2 through her "safety valve" proffer, the government was          required to rebut her initial showing.     See  United                                                                   States v.          Miranda-Santiago, 96 F.3d 517, 529 & n.25 (1st Cir. 1996). White          argues that she credibly demonstrated that she had provided the          government with all information she reasonably could have been          expected to possess, that the government's attempted rebuttal          failed, see supra note 4, and that she therefore was entitled to          relief under the "safety valve" provision. She likewise assigns          error in a so-called " sua sponte" factual determination by the          district court that her proffer had been untruthful, in that it          portrayed her in a minor conspiratorial role, since no such                                             The district court supportably determined that the two items          highlighted by the government as examples of incomplete disclosure          by White    regarding the marijuana supplier and her personal          cocaine supplier                              were irrelevant to the "safety valve" determi-          nation. It determined that White                                           eventually did disclose all known          information about the marijuana supplier before sentencing,   see          U.S.S.G. S 5C1.2(5) ("not later than the time of the sentencing          hearing, the defendant has truthfully provided . . ."), and that          her personal cocaine supplier was not connected with the offense          conduct, see id. ("all information and evidence . . . concerning          the offense or offenses that were part of the same course of          conduct or of a common scheme or plan . . . .").                                          6          contention was ever raised by the government. Finally, White          contends that the findings of fact made by the district court were          based upon its recollection of the trial and sentencing of her          coconspirators, but that no record evidence in these proceedings          supports its findings. We disagree.                    Contrary to White's contention, the record clearly          demonstrates that the government consistently maintained that her          "safety valve" proffer had been untruthful in portraying herself as          a minor participant in the marijuana enterprise.   Although the          government did emphasize her lack of disclosure regarding the          marijuana and cocaine suppliers, it cited those instances to          demonstrate its more generalized concerns with the disclosure.                    Furthermore, White's suggestion that the district court                                             Although White likewise represents that it was error to hold          that a defendant cannot benefit from the "safety valve" provision          unless she provides the information in a form useful to the govern-          ment, the district court made no such ruling.                On appeal, interpretations of the "safety valve" provisions,          under the statute, 18 U.S.C. S 3553(f), and the guideline, U.S.S.G.          S 5C1.2, are reviewed de novo. On the other hand, we review for          clear error the factual findings relating to whether a defendant          has qualified for the "safety valve" provisions.    See  Miranda-          Santiago, 96 F.3d at 527.                For example, at one point the government argued that White          should not receive the benefit of the "safety valve" provision, due          to "her lack of [candor,] . . . . [S]he was less than honest with          us and; secondly, . . . she was the brains behind the outfit in our          estimation, as far as being able to handle the finances and make          arrangements for payment. She is more than a minor participant."          The government later provided clear support for its position, by          asking Agent O'Donoghue to describe White's role in the conspiracy.          O'Donoghue responded that it was his "impression she tried to          minimize or give us the impression of minimizing her particular          role in the conspiracy."                                           7          somehow acted "sua sponte" in making its findings regarding her          role in the conspiracy cannot withstand scrutiny. For one thing,          the appropriateness of White's portrayal of her role in the          conspiracy was in dispute throughout the sentencing hearing.          Consequently, her claim that the district court committed legal          error by assuming the government's mantle in attempting to rebut          her contention is groundless.                    More importantly, the district court could not rule on          White's request for relief under the "safety valve" provisions          without first making its own    independent determination as to          whether she had satisfied U.S.S.G. S 5C1.2, including its require-          ment that all information she possessed about the offense conduct          had been truthfully disclosed, id. S 5C1.2(5).   See id. S 5C1.2          ("the court shall impose a sentence in accordance with the          applicable guidelines . . . if the court finds that the defendant          meets the criteria. . .") (emphasis added); Miranda-Santiago, 96          F.3d at 530 n.27 ("a plea agreement    even a binding one    does          not replace the independent determination of the district court as          to whether this [safety valve] provision applies.");                                                               United States          v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) ("It is up to the          defendant to persuade the district court that he has 'truthfully          provided' the required information and evidence to the government.          . . . such a determination would rest in the hands of the judge,          not the prosecutor.");                                 United States                                              v.                                                  Thompson, 81 F.3d 877, 880          (9th Cir. 1996) ("it is the court, and not the Government, that          determines whether a defendant qualifies for relief under S                                          8          5C1.2"). Therefore, were the sentencing court required to          predicate its "safety valve" determination only on theories raised          by the government, as White insists, its responsibility for          arriving at an independent determination regarding a criminal          defendant's eligibility for relief would be unduly restricted.                    White's further argument that the government was required          to produce rebuttal evidence is premised entirely on our statement          in Miranda-Santiago, that once a defendant credibly demonstrates          that she has provided all information she reasonably could have          been expected to possess, "[t]he government cannot assure success          simply by saying 'We don't believe the defendant,' and doing          nothing more."  Miranda-Santiago, 96 F.3d at 529. Rather, "the          government must at least come forward with some sound reason to          suggest otherwise." Id. at 529 n.25. White argues that since the          government cannot simply say: "we don't believe," then neither can          the district court. Miranda-Santiago is inapposite to the present          dispute, however.                    There was no evidence that the defendant in Miranda-          Santiago had been untruthful in her "safety valve" proffer, even          though the government there incorrectly contended that her "failure          [to be truthful] '[could] be gleaned from the Presentence Report.'"          Id. at 526. The district court apparently adopted the government's          characterization of the PSR, in toto, as it simply concluded that          "5C1.2 does not apply, because [the defendant] has not cooperated          fully as required by guideline Section 5C1.2(5)."                                                            Id. Contrary to          the government's suggestion, however, the PSR had afforded direct                                          9          support for the defendant's claim that she had played a minor,          passive role in the conspiracy.  Id. at 529.                    Thus, Miranda-Santiago in no sense suggests that the          sentencing court cannot arrive at an independent determination          regarding a criminal defendant's truthfulness, based on the          evidence before it. Rather, we there held merely that it was clear          error to conclude that the defendant had been untruthful, based          solely on a PSR which directly contradicted the district court's          determination.  See id. at 529-530 ("[the] district court's bare          conclusion that [the defendant] did not 'cooperate fully,' absent          either specific factual findings or easily recognizable support in          the record, cannot be enough to thwart her effort to avoid          imposition of a mandatory minimum sentence.").                    On the other hand, the district court below made detailed          findings regarding White's untruthfulness:                    What troubles me is that early on in this                    interview she attempted to minimize her role                    in this conduct, the total offense conduct of                    this conspiracy. And I am, as certain as I am                    sitting here, that she is untruthful in that                    respect; she was untruthful. . . . And it is                    not at all as she portrayed it and attempted                    to portray it. . . . she was a very integral                    part of the supervision and management and                    operation of this conspiracy. And it was                    disingenuous and dishonest of her, in my view,                    . . . to portray to the officers and Mr. Toof                    in the course of this safety valve debriefing,                    that she has a minimal role, that she didn't                    know very much about it, that she didn't                    understand all of the things that happened,                    and to relate the information as if it was                    something that came to her by hearsay and by                    indirect knowledge. . . .                          She had been in this conspiracy for a                    long time. The nature of her conduct, as I                    know it to have been, was on a daily basis,                                         10                    tending to the business affairs of the con-                    spiracy that at any given time involved the                    distribution of very significant quantities of                    marijuana, the storage of it, the warehousing                    of it, the procuring of it, and the managing                    of the distribution at any given time of hun-                    dreds and thousands of dollars over a period                    of time, several times . . .           (Oct. 16, 1996 Trans. at 68-70). Thus, the district court, based          on extensive evidence and after vigorous argumentation by counsel,          made the carefully considered determination that White lacked          credibility. ( See, e.g., Oct. 16, 1996 Trans. at 66: "I have          given a huge amount of thought . . . to this issue . . . and I have          . . . th[is] difficulty with her conduct . . . ."). Its finding          therefore went well beyond the "bare conclusion" relied upon in          Miranda-Santiago, 96 F.3d at 529.                    Finally, ample record evidence supported the district          court finding. For one thing, the PSR fairly characterized White          as having played a major role in the conspiracy, as its money          launderer/manager. See                                  supra note 2. Indeed, most conspiratorial          conduct attributed to her in the PSR was never challenged by White,          who chose instead to debate its                                          characterization that she had been          a supervisor or manager. Similarly, White declined the opportunity          to cross-examine Agent O'Donoghue, who testified that she had          attempted to minimize her role in the conspiracy and that she was          more actively involved than she wanted the government agents to          believe. Accordingly, there was no error.                                         11                                         III                                     CONCLUSION                    For the reasons discussed above, the district court          judgment is affirmed.                                         12
