The opinion of the court was delivered by: SCHEINDLIN
Shira A. Scheindlin, U.S.D.J.
On May 16, 1995, pursuant to a duly executed plea agreement, Pedro Sanchez ("Sanchez") pled guilty to conspiring to possess with intent to distribute cocaine. On February 13, 1996, prior to sentencing, a hearing was held with respect to two disputed issues, of which the parties received notice by this Court's Opinion of February 12, 1996 ("February 12 Opinion"). The purpose of this Opinion is to resolve each of the disputed issues.
I. The Applicability of U.S.S.G. § 5C1.2
U.S.S.G. § 5C1.2 provides what has come to be known as a "safety valve." This provision allows defendants in narcotics cases to escape the required statutory minimum sentences if they meet certain criteria set forth in 18 U.S.C. § 3553(f)(1)-(5). In the case of specified narcotics offenses, "the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) . . . ." U.S.S.G. § 5C1.2 (emphasis added). Here, the Government concedes that Sanchez has met the first four criteria. There is a dispute, however, as to whether Sanchez has met the fifth criterion which requires 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." Id. The parties also disagree as to whether the Government or the defendant bears the burden of proving that the defendant meets the criteria set forth in 18 U.S.C. § 3553(f).
Sanchez argues that the "safety valve" is not to be treated as a downward departure or mitigating factor in which the defendant bears the burden of proof. Rather, defendant argues that the "safety valve" is unique in that it requires that courts impose a Guidelines sentence rather than that required by statute, if certain conditions are met. Sanchez further argues that a defendant has the burden of going forward, namely demonstrating that he has met each of the five criteria. If he has presented evidence that he has met each of the criteria, then the burden shifts to the Government to prove that the defendant has failed to meet one or more of the relevant criteria.
Because this section is relatively new, having been promulgated in September 1994, there is little case law on point and none in this Circuit. Several courts have, in fact, described the safety valve as a downward departure. See United States v. Rodriguez, 69 F.3d 136, 144 (7th Cir. 1995); United States v. Edwards, 65 F.3d 430 (5th Cir. 1995); United States v. Hart, 876 F. Supp. 4 (D.D.C. 1995). None of these opinions, however, discusses the question of burden of proof. Two other courts touched on the burden of proof without directly addressing the issue. See United States v. Blackwell, 897 F. Supp. 586, 589 (D.D.C. 1995) ("Defendant has not carried her burden of showing that she complied with the fifth criterion"); United States v. Buffington, 879 F. Supp. 1220, 1221 (N.D. Ga. 1994) ("the government contends that defendant cannot meet the burden under 18 U.S.C. § 3553(f)(5) (as amended) to overcome the imposition of a mandatory minimum sentence").
I conclude that defendant has the burden of demonstrating that he meets the criteria set forth in 18 U.S.C. § 3553(f). However, once he has carried his burden of going forward, the burden shifts to the Government to prove that he has not met his burden. The ultimate burden of persuasion remains on the defendant. Ultimately, the Court must determine whether the defendant has met the criteria set forth in the statute. See United States v. Aristizabal, 93 Cr. 1091, 1994 U.S. Dist. LEXIS 17441, *1, 1994 WL 689089, at *1 (S.D.N.Y. Dec. 8, 1994). I turn now to the facts presented here.
B. Has Sanchez Met the Requirement of § 3553(f)(5)?
At his plea, Sanchez allocuted to the elements of a conspiracy to possess and distribute narcotics, but stated that his cousin and co-defendant, Mario Chalarca, was not involved in the transaction. Nonetheless, the Government accepted his plea, gave him the benefit of a plea agreement, and concedes that he has demonstrated acceptance of responsibility. Sanchez then spoke to the Probation Department and admitted his participation and role in the offense, continuing to deny that Mario Chalarca was involved in the transaction. Finally, on February 1, 1996, Sanchez met with the Government in a so-called "safety valve interview" in which he again described his participation, identified the source of the money as best he could, but denied Mario Chalarca's involvement. Based on this interview, the Government takes the position that Sanchez has not been truthful and has not met the fifth criterion of 18 U.S.C. § 3553(f).
In order to make a factual determination as to whether Sanchez had met the fifth criterion, this Court held a hearing on February 16, 1996. The Government offered the testimony of one of the arresting agents who testified that Sanchez implicated Chalarca in a statement made immediately after the arrest.
Based on this statement, as well as Sanchez' recorded statements during the course of the conspiracy, the Government concludes that Sanchez has not been truthful. In response, Sanchez testified under oath and denied making the alleged post-arrest statement. He testified that he was in a state of shock, exhausted, confused and unsure of what he said or did not say. Transcript of Hearing, February 16, 1996 ("Tr.") at 55-58. Moreover, the post-arrest questions and answers involved both Spanish and English. Tr. at 116. In explaining the recorded statements made in the course of the conspiracy, Sanchez explained that he was continually "puffing" to impress the seller. Tr. at 53, 108-109. He also disputed the Government's interpretation of his statements regarding Chalarca's participation in the transaction. Tr. at 91, 96.
Based on all of the evidence submitted at that hearing, together with the record of the plea allocution, the Presentence Report ("PSR"), and the description of the safety valve interview, I find that Sanchez has truthfully provided "all information and evidence the defendant has concerning the offense."
I do not believe that Sanchez implicated Chalarca in any unsworn post-arrest statement.
By contrast, I credit Sanchez' testimony that Chalarca had no knowledge of the transaction. He has consistently taken this position before this Court and with the Government. In May 1995, at his plea allocution, Sanchez stated under oath that Chalarca was not involved. He repeated that statement at his "safety valve interview" and at the sentencing hearing. He has done this with full knowledge that he risks ten years in jail if the Court finds that this statement is untrue. This goes a long way toward convincing me that Sanchez is being truthful. It would be easy for Sanchez to say that Chalarca was involved, especially since Sanchez knows that a jury has already found that Chalarca was involved. Sanchez' statements regarding Chalarca have the ring of truth.