United States v. Wendy Reynoso, A/K/A Cathy Altagracia, A/K/A La Rubia

could be filed in “this application CONCLUSION way.” summarize, To hold that: (1) the warrant was not insufficiently IV. particular; Finally, appellants argue that (2) agents INS did not flagrantly disre- given not have a District Court should gard the terms of the warrant because generally Pinkerton See Pinkerton charge. they search conducted bears none of States, 640, v. United 328 U.S. 66 S.Ct. search; general the hallmarks of a 1180, (1946); United States 90 L.Ed. 1489 (3) the evidence was sufficient to support Romero, (2d Cir.1990) v. jury’s finding that a conspiratorial that under a Pinkerton (noting theory Lin; agreement existed between Hu and liability, “conspirator respon can be held sible the substantive crimes committed (4) the Pinkerton charge was not erro- co-conspirators to the extent those neously given. reasonably offenses were foreseeable con sequences furthering of acts the unlawful appellants’ We have considered remain- agreement, par even if he did not himself ing arguments, and conclude that they are crimes”). A ticipate substantive without merit. Pinkerton charge given should not be Accordingly, judgments entered jury required where “the to resort to the the District Court are AFFIRMED. Pinkerton and infer inversion of the exis conspiracy tence of a from series of offenses.” United States criminal

disparate Salameh, (2d Cir.1998)

v.

(internal omitted). Here, quotation marks

however, evidence, in there was sufficient counts,

dependent of the substantive jury beyond

which the could have found Hu Lin reasonable doubt that con America, UNITED STATES spired to file a application fraudulent Appellee, Moreover, behalf. Chau’s this was not jury case in which the found that defen had in a participated dants “series of dis REYNOSO, Wendy Cathy a/k/a Rather,

parate jury criminal offenses.” Altagracia, Rubia, La a/k/a convicted defendants on two substantive Defendant-Appellant. counts, directly each of which was related No. 00-1159. filing asylum applica fraudulent Finally, tions on behalf of Chau. the Dis Appeals, United States Court of jurors they trict Court instructed the Second Circuit. a Pinkerton theory could consider of liabil Argued Aug. ity only determined that the first existed, charged conspiracy and that de Decided Dec. fendants were members of it. See id. use of Pinkerton (upholding charge

149-50 in cautiously

where “the district court jury could be [defendant]

structed guilty

found of the substantive crimes jury had that he was a

after the concluded Harwood,

conspirator”); United States v. (similar). Cir.1993) 91, 100

the Government nevertheless satisfies §in requirement set forth he believed the informa- to the Government was true. appeal arises on from a judgment of the United States District Court for the Southern District of New Chin, ), de- (Denny Judge convicting York Wendy Reynoso, following guilty fendant plea, distributing possessing and grams intent to distribute more than five sentencing princi- crack cocaine statutory minimum of 60 pally imprisonment. agree months’ We with the Reynoso pro- District that because Court vided the false she does not 3553(f). “safety valve” of so-called Accordingly, judgment we affirm the District Court.

I. appeal The facts relevant to this 8, 1998, essentially undisputed. July On (Laura H. K. Frederick Cohn Gasiorow- agents High Intensity officers and ski, NY, brief), York, Force, on the New for De- joint Drug Task task force of the fendanb-Appellant. York City Department New Police (“NYPD”) Drug and the United States Greenwald, Marc L. Assistant United Administration, Enforcement con- were Attorney for the Southern District States ducting investigation an in the area of White, (Mary of New York Jo United Broadway and 151st Street Manhattan. Labov, Attorney, Andrea L. States part investigation, of that a confidential Attorney, Assistant United on the States (“Cl”) approached informant an unidenti- brief), Appellee. Nesmith, arranged Ricky fied male and detective, pur- an undercover NYPD CALABRESI, CABRANES, Before grams chase 62 of crack cocaine. The Cl POOLER, Judges. Circuit livery and Detective Nesmith then took a CABRANES, Judge: JOSÉ A. Circuit Street, taxi 605 West 151st where the unidentified male had indicated to the Cl 3553(f) that, provides Section of Title 18 that the crack cocaine would be delivered. offenses, specified for certain a court “shall” sentence defendant “without re- Soon after the Cl and Detective Nes- Street, gard minimum mith statutory sentence” arrived at 605 West 151st if, alia, truthfully Reynoso approached Following inter “the defendant has the car. Cl, Reynoso to the Government all informa- conversation with the then later, however, A tion and evidence the defendant has con- left. short time cerning carrying bag, offense.” returned a brown and hand- 3553(f)(5). question presented bag, ed the which turned out contain cocaine, appeal, apparently approximately grams as a matter of first of crack impression, is whether a defendant who to the CL told the Cl that there provided objectively grams information to were of crack cocaine any “major psychiatric and Detective bag, and instructed the Cl issue[s].” Never- theless, activity in police reviewing Reynoso’s Nesmith that because of after ac- counts neglect drug the area should return later for the use during her adolescence, remaining grams. arrest- childhood and Dr. Mills later, opined: almost on December ed five months 7, 1998, and in a two-count indict- charged intoxication, [Reynoso’s] history of im- conspiracy distribute

ment paired memory and neglect accounts for with intent possess to distribute more proffer behavior session. cocaine, fifty grams of crack in violation of ready accept While she was responsi- 846; § pos- U.S.C. and distribution and behavior, bility for her criminal she un- session with intent to distribute more than elaborated, consciously the technical cocaine, grams five of crack in violation of “confabulated!,]” term is story a 841(a)(1), 21 U.S.C. given would account for her behavior 841(b)(1)(B). highly incomplete recollection that she Expressed had. differently, Reyno- Ms. 13, 1999, August Reynoso On met with untrue, something so told that was but prosecutors “safety for a so-called valve appreciate did not it was untrue proffer.” meeting, Reynoso At in- because of her organic memory impair- formed the Government that she had been ment, secondary to cocaine intoxication. drugs addicted to at the time she distribut- pattern Such a of confabulation is com- the crack ed cocaine to Detective Nesmith. significant organic mon those with Although acknowledged distributing memory impairment. cocaine, Reynoso the crack nevertheless having July denied served—on 1998 or added). (emphasis other date —as courier or deliver- 6, 1999, Reynoso pleaded On October drugs a Washington Heights drug er guilty to Count Two of the indictment —for Instead, Reynoso dealer. steadfastly distribution and possession with intent to maintained that she had stolen the crack grams distribute more than five of crack nearby cocaine at issue from a billiards Thereafter, cocaine. armed with Dr. parlor and that she then had approached report, Reynoso’s Mills’s counsel made a car drugs. the first she saw to sell the pursuant provi- motion to the valve concedes, Reynoso’s objective counsel “The 3553(f) sion of for relief from the manda- parties facts known to the did not tory minimum sentence of 60 im- months’ Reynoso’s story.... Ms. only logical prisonment. Defense counsel conceded inference the known is that [from facts] Reynoso “[objectively” had not been Reynoso working Ms. drug was for a deal- proffer, truthful at her courier, er as a not that she had stolen the argued that she nevertheless satisfied crack and sold it herself.” Appel- Brief of 3553(f)(5) which, noted, requires — lant at 6. truthfully provided that “the defendant has Reynoso deny

Because continued to hav- to the all information and evi- Government distributor, concerning served as a courier or de- dence the defendant has spite contrary, the known did appreciate facts de- offense”—because “she not Mills, fense counsel retained Dr. Mark the fact that her information was untrue psychiatrist, Reynoso. organic memory impair- forensic to examine ‘of [as result] ” ment, briefly Reynoso secondary After Dr. Mills examined to cocaine intoxication.’ materials, motion, jail opposing and reviewed the case he the Government reported findings Reynoso to defense counsel did not contest that satisfied September requirements 1999. Dr. Mills concluded that other four for relief under illness,” challenge had no or “psychiatric provision1 nor requirements 1. The other four for relief under are as follows: Instead, or the defendant has no relevant Dr. Mills.2 findings of useful other information to that Dr. Mills’s find- argued already the Government is aware of as a matter of law were irrelevant ings a de- satisfy preclude the information shall not could had termination the court that the defen- because the information require- has with this complied dant “objectively untruthful.” ment. argument, the District Following oral 3553(f)(5); accord U.S.S.G. motion for relief Reynoso’s Court denied 5C1.2(5) (incorporating the same re- mandatory minimum sentence

from the quirement). Reynoso, who bears the bur- the bench. The District ruling for proving qualifies den of that she that Dr. arguendo to assume agreed Court see, relief, e.g., v. Or- United States Reyno- valid and that findings Mills’s were (2d tiz, 882, Cir.1997), argues 136 F.3d telling that she was “genuinely so believes 3553(f)(5) § requires only that a de- Nevertheless, the truth.” the District “subjectively informa- believe[ ]” fendant concluded, primarily as a matter Court to the Government is true. provided Reyno- language “policy,” and of plain response, the Government contends requirement satisfy so did not a defendant to 3558(f)(5) provision requires that the provided she had ob- because pro- the information he or she show that jectively information to the Govern- proper vided was true. The District Accordingly, ment. Court question is a construction of the statute mini- Reynoso statutory to the sentenced law, See, subject e.g., to de novo review. imprisonment, mum of 60 months’ followed 365, release, Tang, United States v. supervised and im- years’ four (2d Cir.2000). mandatory special assessment of posed appeal This followed. $100. Reynoso We conclude that and the Gov- are both correct —that partially ernment

II. is, seeking that a defendant on this question appeal sole relief under Reynoso for relief under qualifies whether prove must both that the information he or statute. The parties provided to the Government was ob- agree that this turns on whether subjec- that he jectively true and or she fifth requirement satisfies the tively that such information was believed statute, provides which supported, conclusion is first true. This foremost, sentencing plain language

not later than the time of the 3553(f)(5). See, truthfully e.g., United States v. hearing, the defendant has (2d Cir.1994) Piervinanzi, to the all informa- Government (“[T]he starting point interpreting a tion and evidence the defendant has con- cerning or that were statute is the of the statute it- the offense offenses (internal omitted)); part quotation of the same course of conduct or of self.” marks Enters., plan, a common scheme or but the fact United States v. Ron Pair cf. offense, (1) the not have as determined under the sen- defendant does more history point, 1 criminal as determined un- tencing guidelines engaged and was not sentencing guidelines; der the continuing enterprise.... criminal (2) the defendant did not use violence or 3553(f). possess credible threats of violence or (or dangerous weapon firearm in- or other accepted has Dr. Because Government so) participant duce another to do in con- appeal findings, purposes of this we Mills’ offense; nection with the (3) assume, Court, Reyno- as did the District in death the offense did not result or truthfully subjectively believed that she had so bodily injury any person; serious (4) had. all the information she organizer, the defendant was not an leader, manager, supervisor of others in or Inc., 235, 242, 109 S.Ct. 103 and that he or she U.S. (“The (1989) that such information was true. meaning

L.Ed.2d 290 conclusive, legislation except should be dissenting colleague and our applica- the rare cases which the literal emphasize statutory language is will produce tion of a statute a result “truthfully provided” rather than “truthful demonstrably information,” at odds with the intentions and would have us infer from (internal Congress’s use of an adverb that “the quotation of its drafters.” marks em- omitted)). phasis the statute is on the noted, and brackets mind,” 21; state of Appellant Brief of at that a quali- states post see unpersuaded. but we are only by “truthfully fies for relief pro- 3553(f)(5), In previous concerning § cases vid[ing] have, except quoting when the statute concerning and evidence or has [he she] itself, adjec- almost without fail used the 3553(f)(5) (em- the offense.” 18 U.S.C. tive “truthful” when articulating the stan- added). phasis authority One defines applied.3 dard to be See United States v. “telling disposed “truthful” as both Cir.1999) tell the truth” and “accurate and sincere in (holding requires that a reality.” describing Webster’s Third New provide “to the government Dictionary English International complete and truthful information no later Language Unabridged (1976). 2457 Other sentencing”); the time of United similarly dictionaries define the word to Conde, (2d 616, States v. 620 subjective encompass both belief Cir.1999) 3553(f)(5) (stating that re- conveyed truth of information and the con- quires complete “truthful and disclosure to See, veyance e.g., of true information. Smith, government”); United States v. Heritage Dictionary American the En- (2d Cir.1999) 52, 174 (stating F.3d 55 glish Language (1970) (“1. Consis- safety valve relief contingent is on disclo- truth, tently telling the honest. 2. Corre- “complete sure of and truthful informa- true.”); sponding reality: The Random tion”); Cruz, United States v. Dictionary College (1973) (“1. House (2d Cir.1998) 366, (stating truth, telling esp. habitually .... 3553(f)(5) requires “that a defendant conforming to truth .... 3. corresponding provide regarding truthful information reality_”); with Webster’s New Univer- ‘offense of conviction and all relevant con- Unabridged Dictionary (2d sal ”); Gambino, duct’ United States v. ed.1983) (“1. truth; telling presenting (“[T]he Cir.1997) facts; veracious; honest. 2. corre- ‘safety places of the valve’ sponding fact or reality, with as an artistic provide burden on the defendant to truth- ). representation.” We see no reason to government.”). ful information to the But that Congress believe did not intend for (“Catalano see id. at 1111 failed to meet 3553(f)(5) “truthfully” the word to en- proving his burden of that he had truthful- compass meanings. According- both these ly provided all the information available to ly, we hold that in order to qualify him.”). usage, This consistent considered relief, safety valve a defendant prove must conjunction dictionary with both the def- both that the information he or provid- “truthful” quoted initions the term ordinary, ed to the Government was true and the common-sense above cases, referring willing to these we do not mean are also less than the dissenter to suggest, dissenting colleague to have the as our would plain language opinions dismiss the of these it, previously that this Court has decided judicial rewriting” specu- as "off-hand or to us, even "subconscious- motivated, colleagues late that our were Rather, ly,” post at 151. we mean to demon- conviction, by reasoned but rather a desire placed signifi- strate that this Court has little split grammatical pas’’ of to avoid the “faux "truthfully cance on the distinction between n. 1. infinitives. Post at 151 provided” and "truthful information.” We leg- word, see, to draw from this e.g., point Perrin v. The critical meaning in enact- States, history Congress, is that 100 S.Ct. islative 444 U.S. United (“A MMSRA, (1979) was concerned about fundamen- 62 L.Ed.2d 199 that, drug conspiracy in a who figure low-level statutory construction is tal canon of defined, the Government sought provide will be words unless otherwise but, by virtue of ordinary, con- substantial assistance taking their interpreted in the criminal minor involvement meaning.”), leads ine- common temporary, activity, new or useful information Congress “had no to the conclusion that luctably Thus, Congress intended to to trade.” Id. significance to attach to legal intended no statutory minimum “truthfully provided” provide relief from the words its use of who, to those defendants information.” sentences rather than “truthful activity, their minor roles in criminal conclusion, re Our (and would) the Gov- could quires both To ernment with substantial assistance. objectively truthful the Government be sure, may get safe- be because defendant and that a defendant believe ty valve relief even when the information truthful, is further that such information “useful,” see provided is neither “new” nor legislative history supported (“[T]he fact that the provision. purposes of other defendant has no relevant or useful history Mandatory legislative information to or that the Govern- Sentencing Reform Act of 1994 Minimum already ment is aware of the information (“MMSRA”), Pub.L. No. tit. preclude shall not a determination 1796, 1985-86, VIII, 80001(a), 108 Stat. re- complied the defendant has provision, which contained the legit- cannot quirement.”), the Government principal purposes indicates that one of the imately claim an entitlement under of the statute was to reform the then 3553(f)(5) See, § value. to information of mandatory mini operation “current Schreiber, However, e.g., at 108. 191 F.3d mitigating factors [under which] mums legislative history, aided we read in recognized [sentencing] that are mean that the the statute to in generally and are considered guidelines 3553(f)(5) is entitled under to be drug apply culpa cases do not the least objectively provided with in rare instances.” except ble offenders harmful to the may which well be Govern- H.R.Rep. 103-460, (1994), reprint at 3 No. Indeed, that, in ment. we are confident ed at 1994 WL 107571. As we have ex MMSRA, enacting Congress did not remedy an plained, Congress intended “to who, intend to reward the defendant for system, in which allowed inequity the old reason, objec- tries “to trade” on whatever statutory minimum sentences” relief from Cruz, at tively false information. 156 F.3d to those defendants who rendered “sub Similarly, was con- Congress 375. because stantial assistance” to the Government— culpable primarily cerned with “the least offenders, usually higher-level “whose H.R.Rep. 3, offenders,” No. at we activity in criminal re greater involvement subjective- that a defendant must conclude having sulted in their more information”— truthful ly providing believe he or she is effectively such to the but denied relief safety qualify in order to offenders, culpable least who often “had no valve relief. Cruz, new or useful information to trade.” in Reynoso arguments v. makes two reb- (quoting 156 F.3d at 375 United States (7th concerning anee on the case law Arrington, 73 F.3d 147-48 Cir. 1996)). 3553(f)(5), both are without merit.4 but concerning competence arguments with the law mental In addition to the two discussed below, Reynoso suggests trial. See 18 U.S.C. 4241. Howev- also that the District to stand er, 3553(f)(5) argument until did not make this Court's construction of conflicts First, a defendant family contends that fiancee and mem- bers”). good faith effort to “need make

cooperate” qualify in order to Second, Reynoso relies on our sister cir (cit Appellant Brief of at relief. in cuits’ decisions United States v. Sherpa, Shrestha, ing 86 F.3d (9th United States Cir.1997), 110 F.3d 656 and United (9th Cir.1996)). “that (7th It is true Thompson, States v. Cir. suggested 1996), previously statute misplaced. reliance is aside, ‘cooperate’ Loose requires language a defendant these cases are dis tinguishable on either the or the so in law facts government, ‘good and to do ” (as even Schreiber, (cita implicitly the dissent concedes at faith.’ at least with respect Sherpa). Sherpa con omitted) Cruz, 156 (quoting tions F.3d at cerned only of whether a Gambino, re sentencing “may court reconsider facts However, we have never spectively). sug necessary jury to the verdict in determin gested that whether a defendant satisfies apply whether to pro requirement “truthfully the statutory vision.” 110 F.3d at 662. Nothing providing] ... information and evi opinion suggests panel solely dence” turns the defendant’s considered, Ninth Circuit let alone decid Ortiz, fact, state mind. we held ed, whether may be satisfied willingness pro that a mere even when a defendant has vide complete truthful information to objectively Government with false informa relief; the Government is insufficient for hand, tion. In Thompson, on the other explained, requires as we the statute did, defendant provide the Govern actually such infor ment with truthful information. mation. F.3d at Similarly, See 136 arrest, See 76 F.3d at 170 (“[U]pon we held that under the Thompson setting statement may a defendant forth in transferring her actions packages long valve relief so as he dealing large amounts cash government or she “volunteerfs] acknowledging objective thus con complete truthful information no later (“Prior duct.”); id. at sentencing, sentencing” the time he or —even Thompson provided all in she had lied to repeatedly the Government concerning formation and evidence she had the truth. F.3d telling at 106. offense.”). the Insofar as the Court of threshold, therefore, At the a defendant Appeals for the Seventh Circuit considered provide must the with Government com Thompson’s the on perceptual “limitations plete objectively and truthful information abilities,” at analytical and id. the relief; in order the for qualify appears Court to have in order done so to subjective the defendant’s reasons for fail Thompson assess whether the ing to with comply requirement are Government all the information to simply Tang, immaterial. F.3d at access, which she had not whether she Cf. (rejecting 370-71 the defendant’s argu subjectively believed that the information ment that should be for “he excused refus event, any was truthful. In to the extent give particular to information about that Sherpa Thompson arguably and are ... co-conspirator point based on his fear Reynoso’s for and construc- brief, reply stage.”) let her alone raise the issue of tions first advanced at such a late Goldman, Co., competence stand trial before District Strom v. Sachs & (to 1999) cases). contrary, (citing explic- Court Dr. stated 142-43 Accord Mills Cir. Reynoso’s itly report requi- ingly, argu in his had "the we decline consider event, capacity cooperate law [defense site sel], coun- ment here. In neither nor present logic suggests interpretation that our evaluate circumstances 3553(0(5) plea,” repeatedly, implications § the law to enter has con "[w]e cerning competence we trial. have said that will not consider conten- mental to stand we v. Piervi the statute. See United States 3553(f)(5) propositions tion of — (2d Cir.1994). Al on reason- are unsustainable based believe nanzi opin- claims have ana though interpretations Courts’ able 3553(f)(5) says, cases are ante lyzed conclude that what see ions—we actually respect decline to follow it wrongly decided and does not language. them. Section provision’s 3553(f)(5) who requires that a defendant crite “safety has otherwise met valve” III. “truthfully to the Govern provide[ ] ria sum, may that a we hold defendant all information evidence ment under 18 valve relief not majority interprets defendant has.” 3553(f) proving both without U.S.C. mean a defendant this sentence to provided to the Gov- information he or she he prove must both “that information he objectively and that was true ernment provided to the was or she Government in- believed that such subjec objectively true and that he or she true. formation was Because tively that such information concedes the information she 3553(f)(5) Ante But true.” at 150. false, to the Government was says nothing veracity fact about the to relief under the safe- she is entitled information a gives; requires it defendant provision. judg- ty Accordingly, that the informa defendant is affirmed. ment of District Court tion that she to be true. believes CALABRESI, dissenting: Judge, Circuit majority’s interpretation treats as if it stated that the defendant provision presents This case “truthfully provide[ ] must to the Govern- re- whether U.S.C. —which all the ment has quires prove a defendant to that she truthful majority attempts defendant has.” The “truthfully provided to the problem statutory that the lan- avoid in or- information and evidence has” [she] guage interpretation creates for its “safety to obtain valve” relief from der treating the as an “truthfully” word both statutory an employs minimum sentence — modifying adverb the verb “provide[ ]” objective subjective or a of truth- standard is) (which adjective modifying and as an otherwise, upon fulness. Put called (which the noun “information” it is not to determine whether who be). grammatically cannot information that provides she believes true has requirements be met is, words, It that the other obvious eligible and is (not major- it is written as the relief, though gives even the data she be) re- ity might wish it to contains no majority false. The has deter- quirement that the information that I believe mined she is not. Because comport with the facts of the case as the majority’s reading safety that of Rather, provi- court finds them to be. (a) in its provision valve finds no requires that the “truthful- sion the most language according when read to ly provide[ [she] all the ] information (b) elementary grammar, prior of in rules must, is, good has.” She that make “a (c) that in interpreting language, cases attempt with the author- cooperate faith I re- provision’s legislative history, Gambino, ities.” United States v. 106 spectfully dissent. (2d Cir.1997) (discussing F.3d 1110 proffer pursuant

I. 3553(f)5). placement And the statutory “truthfully” unmistakably with all inter- As matters form word that indicates it is the defendant’s state pretation, begin language with the

151 quality than the the infor- ful mind rather information” those cases completely out of that is at issue. context. mation none of cases the cites proper evidence that Further this is was the courts’ rewriting of the sentence of the statute can reading be found relevant, any way necessary, let alone A defendant provision: remainder results, judicial their and so such rewriting truthfully provide “all the informa- must significance.1 is of no See v. United States has.” the defendant (2d Cir.1999) added). I (emphasis cannot (holding initially that defendant who had how someone has that she see information bed to the then result, not know about. when does “truthful information” “no later than the conceded government, remarkably, sentencing” time of the ehgible Reynoso genuinely what she relief); safety valve v. United States said, necessarily it also conceded that she Cir.1999) Conde, F.3d truthfully provided the she had evidence (using language of “truthful ... disclo- though this remains so had. And even holding sure” but that there was no incon- gave evidence is not true. sistency in the district granting court’s three-step defendant a in his reduction majority’s opinion doubly is thus guidelines offense level on account of his linguistically: wrong Not does the acceptance of responsibibty whole at the structure of grammatical the statute make refusing grant same time him that the relevant the defen- clear issue is relief); Smith, United States v. mind, dant’s state but so too does (2d Cir.1999) (using the lan- language requiring of “truthful guage information” and hold- information she has. One not be a need valve relief was inapplicable philologist person conclude has “willfully where defendant not to chose reason, no that for whatever speak so as investigatory body otherwise, mental or not to is conceded brother”); implicate United have. Cruz, (2d Cir.1998) States F.3d 366 language (using the of “truthful informa- holding tion” but II. Fifth provision does not violate the Moreover, majority’s lengthy neither the Amendment); Gambino, 106 F.3d at of cases that mentioned citation have (using of “truthful informa- information,” “truthful see ante affirming de- tion” but the district court’s provision’s legisla- nor rebanee on the its safety valve nial of rebef where defendant history, support certainly do not tive been “incredibly” claimed that he had not —and plain lan-

justify misreading of the gov- much of involved in the conduct the —its of the statute. guage It is true is, proven). ernment had There had required a defendant to not a shred evidence that the information,” truthful “provide majori- subconsciously now us was even reading It ty’s would be correct. is also deciding the courts the cases minds of have, in pass- some of our true that cases It cited above. follows their modifica- if it so read. no ing, statutory language treated tions majority phrase bearing But the takes the “truth- on our decision here.2 dated, struggle split- grammati- opinion slightly 1. in this avoid desire to avoid this As I to ting pas. infinitives as I discuss defendants cal how faux required by "truthfully pro- are the statute to at it occurs to me that the vide[ ]" 2. which this court has utilized Cases in judicial rewriting defen- least some of the off-hand of of the statute —that the actual may "truthfully provide” in these resulted the clause cases have dant information are, understandable, course, legion. no more than also an Government— 152 capacity complex to understand addition, are also cases in which minished

In there indicating language clearly The have used at 168. court stated we situations.” Id. subjective percep importance the in- Thompson government the “gave that Thus, Gambino, tion of defendants. it and under- formation as she knew as she said, court “A defendant at the F.3d it.” Id. at 170. The Seventh Circuit stood the he has to court that must demonstrate accepted the court’s reliance “on district attempt cooperate good faith to made at the sentenc- expert testimony presented that the statement with authorities” —a hearing concerning limitations on ing subjective that knowl certainly suggests and Thompson’s perceptual analytical abili- faith) to valve. is edge (good key Thompson and that conclu[sion] ties at And F.3d ability.” forthright range within the her that requires the statute emphasized that Id. at in good faith. cooperate the defendant The same true of case. cases important, appellate More distributing possess- was convicted of and issue directly focused on the that distribute crack cocaine intent to rejected majority’s po us have police half-heart- an undercover detective. majority has made a to sition. distinguish effort to these decisions she Throughout proffer, ed But, end, it in the our sister circuits. that consistently maintained she believed them. ante at 150 declines follow See drugs gave that she had stolen the she (“In event, the extent that [United Mills, Dr. the undercover detective. Mark (7th v. 76 F.3d 166 Cir. Thompson, States Reyno- psychiatrist forensic retained 1996) Sherpa, States United counsel, Reynoso’s so’s testified (9th Cir.1997) arguably on ] are F.3d intoxication, memory history impaired Reynoso’s construction point neglect for her behavior accounts ... we conclude that While she was proffer session. wrongly decided and decline cases for her ready accept responsibility them.”).3 follow behavior, unconsciously criminal she cases, is more Thompson Of the two elaborated, technical term is “confa- directly germane. Thompson, both would story bulated” a account case, ques- instant and the incomplete given highly her behavior did the is the What information same: had. Expressed recollection that she have, given “limita- actually something differently, Ms. told analytical perceptual tions [her] untrue, appreciate but did not that was Thompson abilities.” Id. at 171. received organ- it was because of her untrue safety valve when ob- relief memory secondary to co- impairment, ic the court jectively information that pattern caine intoxication. Such believed. As found in those with confabulation is common us, a evaluated psychologist case before memory impairment. significant “a di- expert found defendant. And, truthfully provided all the majority proving that he many had cases him"). ("truthfully available to phrases cites have the two used information”) provide[ inter- ]” and "truthful Conde, See, changeably. e.g., at 621 course, complete can Of (discussing requirement a defen- reasoning "[t]he propriety not to follow the decide dant truthfully agree. disclose circuits with which does not of other has”) evidence the defendant opinions information and (internal sim- I of those circuits mention Smith, omitted); distinguished quotation marks ply to note courts that some have, (repeatedly using reading I seemingly, F.3d at "truthful- favored Gambino, give provision, point out ly provide[ language); and to would ]” split on the (agreeing apparent of a circuit with the district court creation at 1111 of issue. to meet his burden defendant had "failed added). then, Cruz, Like (emphasis Thompson, useful information to trade.” forthright range “was within the It F.3d at 375. would seem to follow that result, Id. at 171. ability.” may of her As a defendants be eligible safety valve government of the they the all relief of regardless whether have use- (Indeed, possessed. the knowledge, information she ful useless knowledge, wrong much.) That government has conceded as or no at all. knowledge, knowledge plain language is the object provision This of the ensure —to requires. proportionality in sentencing “the least culpable offenders” and provide incentives III. to tell all they them know—does not attempts its devi majority justify any militate in favor of particular interpre- ation statute plain meaning from the of the tation the at issue the in- by legislative history the reference to hand, stant the it case. On one is not out 3553(f). argues history pro It that that the might legitimate justification for a vides one hope gain also useful information as a (and failure to have hence to safety result of proffers minor give) be able to information about the of extent, participants. provision To that fense: lSee defendant’s limited role. of true information be might desirable. majority ante at 148. The also reads into hand, On the other obtaining of infor- legislative history enti mation, hence quality its —whether objective be tlement “not to false, helpful is true future prosecu- or ly (empha false information.” Ante at 148 point tions or not—is beside the of the original). sis in statute. In legislative history indicates respect, valve is totally entitlement, neither any such nor other 5K1.1, designed different which is majority’s interpretation. for the substantial obtain assistance for the Rather, case, history, as is is often the is, instead, Government. Such assistance likely, inconclusive. Most all it shows expressly point not the valve. that Congress really did not think about Reynoso argues Thus But, if anything, against the issue. it cuts the statute is meant to benefit [i]f low- majority view. coop- level defendants who have tried to goal The principal behind the erate, have failed offer anything provision undoubtedly remedy value, it makes to exclude little sense irony very that “for the who offenders purview from the statute’s those defen- most sen- proportionally warrant lower dants, who, efforts,” “best despite their by guideline tences—-offenders that defini- correct, true, or cannot offer culpable mandatory tions are the least — faulty memory, information because of operate generally mínimums to block mistake, inability the “un- perceive reflecting mitigating sentence from fac- If a perceptions. truth” their defen- (1994), No. H.R.Rep. tors.” at 3 dant can for the ... reduction reprinted Ordinarily, at 1994 WL 107571. honestly any professing ignorance departures grounded downward that are deny can court how cooperation they the police, because safety valve to the defen- consideration being are based on substantial assistance honestly mistaken in- proffers dant who Government, given to require formation? useful in the face of already possess, argument Government does not This remains valid 3553(e), opinion. legislative U.S.C. U.S.S.G. 5K1.1. And bene- not in history provision was enacted to does way justify majority’s fit new or it or defendants even “had no undercut implausi- the meaning natural of court credited over [defendant’s] from the departure rebuttal”). result, arguments in As a ble statute. subjec- who allowing defendants IV. tively objectively but false infor- safety does mation to valve relief receive majority’s to refusal Underlying suddenly inject credibility determina- not pre a as it is written is read required they where have never been tions that, subjective interpreta a diction under is, moreover, that past. in the The fact tion, be “reward[ed]” defendants will can, willing to lie under defendants informa “‘tradfing] on’ majority’s holding, readily own take advan- tion,” a fear that ante at 148. This reflects by deny- safety credibly tage allowing Reynoso, profess like who those they any knowledge at all. ing to to believe false benefit concede, since, all seem This is so as to a from valve relief will lead (a) a can under in mare’s nest. As the states say thought gotten that she that she had per such a of “Permitting its brief: class frankly drugs particular way a but valve’s benefit sons receive the (b) remember, her lack couldn’t could mire district courts in a search held, a memory, truthfully would be proffer the intent behind Hence, avoiding defense. rather than not information when such information is credibility fights, all the does is to majority in fact truthful the defendant contends perverse deny incentive knowl- create sincerely is held.” perception his or her facts. edge of uncomfortable far, continues, Thus the Government “ fairly easy ‘have it to cull courts found credibility are Nor determinations efforts at full disclosure from mere serious must be in such easi- made cases ” pretense.’ Appellee (quoting Brief for at 18 than case er those to be made in the Montanez, nited States contrary, present us. they To the U 520, (1st Cir.1996)). “Permitting the much the the ma- problems same those by Reynoso result advocated drasti result, would jority fears. principle cally change the courts’ abilities in this majority’s is to interpretation effect frequent between regard, inviting battles cycles create the need for Ptolemaic experts, rendering a court’s fact find distinguish courts epicycles enable exponentially mission difficult.” more specifically cases of lack due Government, majority, un like the is played to the minor role the defendant derstandably worried about defendants offense, lack of from those due to might advantage who take of~areversal offense, memory finally gain safety this case to without relief that, case, due those as in the instant providing Lying, truthful information. self-deluding false information. warns, “may well be harmful to Second, can important, and more one the Government.” Ante at 148. alto- readily majority’s meet the concerns suggest by establishing overwhelmingly

Two these an gether considerations First, misguided. strong presumption fears are district that defendants are truthfully already providing courts are involved in determina the information credibility prof given tions of the of defendants’ have when the information (dis is, so go fers. See 191 F.3d at 107 not trae. One could even say very imag- cussing importance the defendant’s far as to hard determination); ine, credibility to one made Gambi absent concession like the no, case, in this an (describing how the work. argument district court its denial this sort could ever based more representa valve motion on “the detailed a statement would not be Such government’s letter, enough problems tions which to avoid court fears but it limit the district would trict court and the majority of panel availability valve to cases as accept arguendo. Let absolutely me be us, the one in which the extreme as position clear. My in no way suggests is itself government willing to concede the evidence proffered was veracity honest belief in carry sufficient to proof. burden of given. the false information she has Because, however, con- ceded that believed she was tell- Operating strong under a presumption truth, ing the I have respect- no choice but that what is true is fully to dissent. no means in crimi- unusual A truly nal law. defendant who believes which

that that she held to the head of her a gun

victim was banana and not a has a rea,

defense, based on an absence of mens charge

to a of murder or criminal assault.

Nevertheless, it is almost impossible, so,

properly for a defendant to demon- truth

strate the of that because assertion assume, overwhelming degree with an certainty, that everybody the dif- knows DAMACH, INC., Plaintiff-Appellant, gun. ference between banana and a And virtually so such defense is never even (I suppose attempted. that to make it out CITY OF HARTFORD and Abraham would that all a defendant have to show Ford, Zoning Zoning Administrator & life, peel guns she tried to and eat City Enforcement Officer for the bananas.) shoot Hartford, Defendants-Appellees. defense, moreover, is never used despite places the fact that criminal law Docket No. 99-9319.

very heavy burden on the government to doubt, prove, beyond a that the reasonable United States Court of Appeals, in fact actually knew what Second Circuit. brandishing gun she was rather Argued Sept. Instead, a banana. deter- minations, the burden rests on the defen- Decided Dec. produce persuasive dant to evidence truthfully provided she has informa-

tion has. It follows that the circum- she in which a

stances defendant would suc- convincing

ceed in a court that has told truth,

what believed to be the falsity

face of obvious of the informa- proffered, They are even rarer. rare,

so not be need certainly cannot form properly

feared for a disregard

the basis manifest

statutory language.

V. odd, makes this so

What case raises gov- is the problem, absurdity concession,

ernment’s which the dis- both

Case Details

Case Name: United States v. Wendy Reynoso, A/K/A Cathy Altagracia, A/K/A La Rubia

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 27, 2000

Citation: 239 F.3d 143

Docket Number: 1999

Court Abbreviation: 2d Cir.