Opinion
01 Crim. 354 (AKH)
June 12, 2002
MEMORANDUM OPINION (SAFETY VALVE APPLICABLE TO SENTENCE)
Defendant Silfidy Hernandez pleaded guilty as charged to one count of conspiracy to possess with intent to distribute narcotics, specifically, cocaine base (commonly known as "crack"), in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A). The question currently before me is whether the defendant is entitled to "safety valve" treatment under Section 5C1.2(a)(5) of the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines"), which would enable me to sentence him to something other than the mandatory minimum sentence.
The indictment alleged that the conspiracy occurred from October 2000 through November 2000, and alleged two overt acts in furtherance of the conspiracy, one on or about October 27, 2000, and another on or about November 2, 2000. On both occasions, defendant Hernandez, together with his co-defendant Wilfredo Esteves, allegedly sold crack to an undercover officer in the Bronx. Hernandez pleaded guilty as charged on November 19, 2001.
The defendant seeks to avoid the application of the mandatory minimum sentence often years by qualifying under the "safety valve" provided by Section 5C1.2(a)(5) of the Guidelines, 18 U.S.C. § 3553 (f). The safety valve of section 5C1.2(a)(5) is available only if the court finds at sentencing that:
(1) the defendant does not have more than I criminal history point . . .;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager or supervisor of others in the offense . . . and was not engaged in a continuing criminal enterprise; and
(5) 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 . . .
The Government contends that the defendant is not eligible for safety valve treatment because he has not truthfully disclosed to the Government the full scope of his criminal activity. The Government acknowledges that the first four criteria are not in issue.
Hernandez met with the government on August 3, 2001 in an effort to qualify for safety valve consideration. During that proffer session, Hernandez admitted having engaged in narcotics trafficking on three occasions, in October and November 2000 (the dates charged in the indictment) and again in February 2001. Although Hernandez described his role in two of those transactions as primarily that of a translator for his co-defendant, he admitted to knowing he was assisting narcotics transactions, to carrying the narcotics on at least one occasion, and to providing an undercover officer with his name and cell phone number. He also stated that on one occasion, he had taken the customer's money, counted it for Esteves and then handed it to Esteves, who made change.
Not satisfied with Hernandez's first proffer session, the Government gave Hernandez a second opportunity to disclose everything he knew on October 24, 2001. On the advice of counsel, Hernandez made no further statements, claiming to have nothing further to add.
On November 19, 2001, the defendant appeared before Magistrate Judge Pitman for a plea allocution. During the plea, and while answering questions put to him, defendant stated that he had acted as a translator for the three transactions in which he admitted involvement, and that he also carried a package containing crack in one of the three transactions. His plea allocution was substantially consistent with the information provided in the proffer session.
On my suggestion, Hernandez again met with the Government for a third and final proffer session in February 2002. His statement at the session did not reveal any new information.
The Government believes that Hernandez disclosed, in the proffer sessions and during his allocution, not his full involvement, but only that which he thought the Government already knew. The Government contends, based on reports from undercover law enforcement officials present at the time of the transactions in which Hernandez admitted involvement, that Hernandez was not just a translator and was more involved in those transactions than he admitted. For example, the undercover agent reported that Hernandez approached potential customers on the street and then led them to the building where the narcotics transactions would take place. Hernandez disputes this. On another occasion, the Government states that Hernandez weighed the narcotics and then participated in negotiating the price with the agent. The defendant disputes this contention as well, arguing that the agent's written report identified Esteves, not Hernandez, as having "completed the preparation of the cocaine base and weighed it."
Beyond reports from the undercover agents, the Government also relies on statements from non co-defendant co-conspirators. One such co-conspirator, in a post-arrest statement, implicated Hernandez in another narcotics transaction in addition to the three to which Hernandez admitted. Two other non-defendant co-conspirators reported that Hernandez was involved in regular narcotics trafficking in the Bronx. Hernandez denied these charges.
Although the Government recommended that Hernandez not be given safety valve treatment, the statute clearly provides that it is the court who should make the final determination of the defendant's eligibility for such treatment United States v. Gambino. 106 F.3d 1105, 1110 (2d Cir. 1997). Accordingly, I gave both sides opportunity to present evidence at a Fatico hearing held before me on May 7, 2002. See United States v. Fatico. 603 F.2d 1053 (2d Cir. 1979). At the hearing, the Government chose not to call any live witnesses, not even a case agent or undercover agent, opting instead to rely on the Assistant United States Attorney's earlier written submissions and oral representations to the court. Hernandez took the stand, was sworn, and testified in substantial detail as to the information he gave at both the proffer sessions and his plea allocution. He was also cross-examined by the Government, which attempted to impeach his account using information obtained from the undercover agent and co-conspirators, but without affecting Hernandez's account.
The Government did recommend safety-valve treatment be given to Hernandez's co-defendant, Wilfredo Esteves. Esteves entered into a plea agreement with the Government and was sentenced on February 21, 2002 to a term of 70 months custody, three years supervised release and $100 special assessment.
A defendant who seeks to take advantage of a sentencing adjustment under the Guidelines carries the burden of proof. Gambino, 106 F.3d at 1110. It follows that, in the safety valve context, this burden falls on the defendant to prove to the court that he has provided the requisite information. Id. The defendant's burden is to persuade the Court by a preponderance of the evidence. The government has no duty to seek out information from the defendant; it is the defendant who must prove that the disclosure he or she offered is "both true and complete." United States v. Schreiber, 191 F.3d 103, 107 (2d Cir. 1999).
In determining whether the defendant has met his burden of proof the Court can rely on any information that comes to its attention. This includes even evidence that would not be admissible at trial, including "`drug records, admissions or live testimony.'" United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) (citing U.S.S.G. § 6A1.3 (1998) and United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir. 1995), and quoting United States v. Shonubi, 103 F.3d 1085, 1087 (2d Cir. 1997)).
My decision in this case was not easy, complicated as it was by the fact that I was unable to rely totally on any information given to me. The statements by the coconspirators were suspect because of the motive to cast as wide a net as possible, for the more people they could inculpate with their "confession," the more favor they could curry with the government. And the government agents, who did not report facts learned directly by their own investigation, reported only the information imparted to them by the coconspirators.
The inherent, potential unreliability of these statements was compounded by the fact that the government chose not to put on either the agents or the coconspirators at the Fatico hearing. While the Assistant United States Attorney undoubtedly made completely accurate representations of what was told to her, her information was derivative, and it is not her credibility that I am called upon to judge. Derivative information of the type presented by the government, without any independent corroboration by government agents, is of the lowest quality of hearsay and deserves, even as hearsay, less credit than might otherwise be due.
Likewise, I also do not find that I can accept everything defendant said during his examination and cross-examination at the Fatico hearing. The defendant had a motive at the Fatico hearing to be consistent with his prior statements from the several proffer sessions and his plea allocution. Defendant might also have been less than forthcoming about his involvement in other incidents "that were part of the same course of conduct or of a common scheme or plan" with the particular conspiracy charged in the indictment in an attempt to shield other coconspirators that had not yet come to the Government's attention.
Despite a certain disquiet with the credibility of the various pieces of information presented to me, I must nevertheless evaluate the information, make credibility determinations and resolve the issues presented, with all of my conclusions taken from the record before me and without undue speculation. I have done this by using various common-sense presumptions and inferences. As a judge, I regularly instruct juries, among other criteria, that they can accept an account of a series of events without necessarily believing everything said by the witness recounting those events. I also tell juries that when one party is in command of information, there is an expectation that the information will be produced at a hearing; it the information is not presented, an inference may be drawn against that party.
Considering all the materials presented to me by both the Government and the defense, and the testimony of the defendant elicited at the Fatico hearing, and employing the normal, common-sense inferences and presumptions, I conclude that defendant has met his burden of proof in this case. I find that, at least as to the central part of his story, defendant's testimony is credible. I believe that Hernandez satisfied the fifth requirement for safety valve treatment, specifically that he gave a truthful and complete account to the government of his participation and that of others in the crime to which he pled guilty, and of those offenses that "were part of the same course of conduct or of a common scheme or plan." Accordingly, defendant is entitled to a "safety valve" adjustment. Under the Sentencing Guidelines, the adjustment worked out to a term of 70 months custody, three years supervised release and $100 special assessment, and I so sentenced Hernandez.