United States v. White

Opinion

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