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UNITED STATES v. MANZANO-EXCELENTE

July 29, 1996

UNITED STATES OF AMERICA, against MONICA BLANCA MANZANO-EXCELENTE, Defendant.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 Defendant Monica Blanca Manzano-Excelente ("Manzano") was convicted with a co-defendant after jury trial of conspiring to distribute 80 kilograms of cocaine. Manzano is awaiting sentence. Her conviction leaves her vulnerable to a ten-year mandatory minimum sentence. Manzano applies for consideration under the "safety valve" provisions of the Mandatory Minimum Sentencing Reform Act of 1994, ("MMSRA"), 18 U.S.C. § 3553(f). The government opposes that application.

 I

 The one-count indictment charged four individuals with conspiring to distribute cocaine. These were Luis Alberto Gutierrez-Flores, Arturo Sanchez-Hernandez ("Sanchez"), Miguel Ordonez, and Manzano. Sanchez and Ordonez pleaded guilty before trial. They did not enter into cooperation agreements with the government, and did not testify. Gutierrez-Flores and Manzano proceeded to trial. Neither testified on their own behalf. The jury convicted both.

 The government's principal witness was Betty Noguera, a conspirator who was cooperating with the government. Noguera testified that in May 1994, certain individuals met in Miami, Florida, to discuss the transportation of 80 kilograms of cocaine by truck from Texas to New York. Another meeting of conspirators occurred in El Paso, Texas, where the cocaine was loaded in a truck, for transportation to New York. Noguera drove the truck, accompanied by a male friend. She began the trip on May 30, 1994. On June 1, an Illinois State trooper stopped the truck for a speeding violation. Noguera consented to a search of the truck whereupon the cocaine shipment was discovered. Noguera and her friend were arrested. Noguera agreed to cooperate with the Drug Enforcement Administration. The DEA turned the transaction into a controlled delivery. Surveilling agents awaited the arrival of the truck in New York to see who would come forward to accept and process the cocaine shipment.

 On June 3, 1994, Noguera and her friend arrived in New York in the truck, which was carrying ten of the kilograms of cocaine that had been seized by the police and agents in Illinois.

 As will be described in greater detail under Point II, Manzano had accompanied Sanchez by plane from Los Angeles to New York on June 2, 1994. They registered at the Hotel Edison in Manhattan. The events giving rise to the arrest of the four individuals occurred on June 3. Sanchez gave instructions to Noguera to park the truck in front of the hotel. After various telephone calls and face-to-face discussions, some of which were recorded by Noguera, the arrests were made.

 The only evidence the government offered at trial tending to implicate Manzano in the conspiracy came from Michael Smith, a surveilling DEA agent, who testified that as the truck driven by Noguera slowed down at an intersection close to the Hotel Edison, it appeared to him that Manzano, standing on the sidewalk, motioned with her hand in a manner that Smith interpreted as a direction to Noguera where to park the truck. Trial Transcript ("Tr.") at 518. In addition, Noguera testified that during a conversation she had with Manzano in the lobby of the Hotel Edison, Manzano asked Noguera if it were true that there were only "80," id. at 231, which Noguera testified she interpreted as being an inquiry by Manzano about the total amount of cocaine in the shipment.

 That was the extent of the government's proof against Manzano. Her counsel moved for a judgment of acquittal at the conclusion of the government's case under Rule 29, Fed.R.Crim.P. I denied the motion. Manzano did not testify in her own defense. The jury convicted her.

 II

 Prior to the passage of the MMSRA, defendants convicted of certain drug crimes could receive a sentence below the statutory minimum only on the government's motion to depart downward based on a defendant's substantial assistance to the authorities. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Inequities arose because the least culpable members of a drug conspiracy often had no useful information to give to the government, but were subject to the mandatory minimum sentences. To redress that inequity, § 3553(f) allows the sentencing court to disregard the statutory minimum in sentencing first-time nonviolent drug offenders who played a minor role in the offense and have made a good-faith effort to cooperate with the government.

 § 3553(f) allows the trial court to disregard a mandatory minimum sentence "if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation," that five factual conditions have been met. In the case at bar, there is no dispute that Manzano satisfies the first four criteria. The dispute involves the fifth criterion, which requires the court to find 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 information shall not preclude a determination by the court that the defendant has complied with this requirement.

 It is important to note that "Congress added the safety valve provision in part to grant relief to defendants whose knowledge may be of little or no use to the government, and who would thus be ineligible for reduction under the substantial assistance provision of the guidelines, U.S.S.G. § 5K1.1." United States v. Shrestha, 86 F.3d 935, 938, 1996 U.S. App. LEXIS 15133, *8 (9th Cir. 1996). Subsection (5) of the safety valve provision has been termed a "tell all you can tell" requirement, in fulfillment of which "the defendant must provide, prior to sentencing, all information at his disposal which is relevant to the offense, whether or not it is relevant or useful to the government's investigation." Id. (citing cases).

 Under the plain wording of the statute, it is for the sentencing court, and not the government, to determine under subsection (5) whether or not a particular defendant is telling all that he or she can.

 III

 In the case at bar, Manzano says that with respect to the drug transaction charged in the indictment, she has nothing to tell. She says that she accompanied Sanchez, with whom she was at that time romantically involved, from Los Angeles to New York at Sanchez's invitation, for sightseeing (Manzano had never been in New York), shopping, and entertainment. Manzano says that she had no knowledge that Sanchez was involved in a drug transaction. She now reproaches herself for not asking Sanchez questions about his conduct and questionable acquaintances, particularly Noguera, whom Manzano regarded with understandable distaste when she met her on June 3.

 As noted, Manzano did not testify at trial. Within the sentencing context, she testified before the Court on May 23, 1996 and was cross-examined by the government. What follows is derived from that testimony.

 Manzano was born in Vera Cruz, Mexico. She is 27 years old, and accordingly was 25 at the time of the acts alleged in the indictment.

 About three months before her arrest, during the Easter season, Manzano met Sanchez, an older man, in Mexico. Sanchez told Manzano that he was an engineer employed by Pemex, the large Mexican oil company. At the time of their meeting, Manzano was a student of civil engineering at the University of Vera Cruz.

 A time came in late May 1994 when Manzano was invited by Sanchez to join him in Los Angeles. Purchasing her own ticket, Manzano flew from Vera Cruz to Houston and then from Houston to Los Angeles. She spent a day or so in Los Angeles with Sanchez. Sanchez then suggested that she accompany him to New York. Sanchez told Manzano that someone in New York was going to pay him some money, and that he and Manzano could spend a few days in New York before she returned to Mexico.

 The next morning, Manzano and Sanchez got up at about 9:30 or 10:00 a.m. and went out. Sanchez said they would go shopping or to the theater. When on the street, Sanchez told Manzano he had to make a telephone call, which he did from a public telephone. Sanchez told Manzano that he was going to meet with a female who would give him the money he expected. They waited a few minutes but nobody appeared. Manzano became irritated. Sanchez took her to a restaurant so she could have breakfast, and left. Sanchez reappeared in the company of Betty Noguera. They exchanged inconsequential comments. Manzano formed the impression that Noguera was poorly educated and not from a good background. Sanchez suggested to Noguera that Noguera also register at the Hotel Edison. When Sanchez and Manzano arrived at the hotel, Sanchez made another telephone call from a public telephone. Noguera arrived. Manzano left Sanchez and Noguera in the hotel lobby and returned to the room. Sanchez left Manzano in the room, telling her that he would go and register Noguera at the hotel. Manzano waited, became impatient, and went down to the lobby. Sanchez registered Noguera and then exchanged words with two other males. Sanchez, one of the males, and Manzano walked for a few blocks around the hotel, Sanchez in conversation with the other male. They returned to the hotel. Manzano and Sanchez went up to their room, where shortly thereafter they were arrested.

 Manzano denied that she ever had a conversation with Noguera about "kilos," or that she ever put a question to Noguera including the number "80." Manzano also denied giving any directions to Noguera about where to park the truck. The relevance of that testimony will appear in the discussion under Point V.

 Manzano testified that before her arrest on June 3, she did not know that Sanchez was involved in a drug transaction. Before her arrest, she did not know that the truck driven by Noguera contained drugs. She did not ask Noguera about the quantity of drugs she was carrying. She did not knowingly assist in a drug transaction.

 Manzano submitted to a polygraph test with respect to the veracity of her answers to those four questions. Manzano wished to have the polygraph examiner testify at the hearing, but I sustained the government's objection. The government signified its willingness to stipulate that Manzano took a lie detector test and that the polygraph examiner would testify, if allowed to do so, that Manzano passed the test. I accepted that stipulation. The examiner did not testify.

 IV

 The government contends that I should not credit Manzano's account. I will deal with that subject under Point V. But the government's first contention is that even if I believed Manzano's testimony, I cannot make that testimony the basis of granting her relief under § 3553(f), because the sentencing court is bound in law to accept the facts necessarily implicit in the jury's verdict. In support of that proposition, the government cites United States v. Weston, 960 F.2d 212, 218 (1st Cir. ...


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