United States District Court, Southern District of New York
April 23, 2003
UNITED STATES OF AMERICA, AGAINST LUZ MARINA MUNOZ A/K/A "TUSA," DEFENDANT.
The opinion of the court was delivered by: Shirley Wohl Kram, United States District Judge
AMENDED OPINION AND ORDER
Defendant Luz Marina Munoz moves for safety valve relief pursuant to Title 18, United States Code, Section 3553(f), arguing that she has truthfully provided to the Government all the information she has regarding her offense. For the reasons set forth below, Munoz's motion for safety valve relief is granted.
On December 19, 2001, Munoz pled guilty to one count of conspiracy to distribute 500 grams or more of cocaine, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(B), and 846. Munoz argues that she should be eligible for relief from the mandatory five year minimum sentence because she has provided to the Government all of the information she has regarding her crime. During her proffer sessions with the Government and her testimony before the Court, Munoz, a regular customer of a Queens, New York coffee shop, claimed that she was approached by an acquaintance she met at that restaurant, known to her only as "Carlos", who asked her to find a buyer for a kilogram of cocaine. See Tr. at 4. In opposition to her request for relief, the Government contends that Munoz's story regarding her mere acquaintance with the drug supplier Carlos and her relative ease in finding a buyer for such a large quantity of narcotics suggest that she is aware of much more information regarding her crime than she has disclosed, and she has therefore failed to qualify for safety valve relief. See Letter to Hon. Shirley Wohl Kram from AUSA Miriam H. Baer, dated April 4, 2002 at 6 (hereinafter "Gov't Opp'n").
A. APPLICABLE LAW
Title 21, United States Code, Section 841(b)(1)(B) mandates a five year minimum sentence for defendants convicted of distributing 500 grams or more of cocaine. However, under Title 18, United States Code, Section 3553(f), and Section 5C1.2(a)(5) of the United States Sentencing Guidelines, the court may sentence a defendant without regard for the statutory minimum sentence if the court finds at sentencing that:
(1) the defendant does not have more than 1 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 defendant has the burden of proving that she meets all of the criteria of the safety valve provisions. See United States v. Conde, 178 F.3d 616
, 620 (2d Cir. 1999).
A defendant may qualify for safety valve relief "so long as he or she `volunteer[s] to the government complete and truthful information no later than the time of sentencing' — even if he or she had repeatedly lied to the Government before telling the truth." United States v. Reynosa, 239 F.3d 143, 149 (2d Cir. 2000) (quoting United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999)). The Government, however, need not present "independent" evidence to rebut the defendant's safety valve proffer if that proffer, in light of the defendant's credibility and the facts of that case, appears untruthful or incomplete. See United States v. Marquez, 280 F.3d 19, 24 (1st Cir. 2002).
Further, the fact that the defendant lacks "relevant or useful" information, or information "the Government is already aware of," does not disqualify a defendant from safety valve relief. 18 U.S.C. § 3553(f)(5). "If a safety valve proffer provides the government with new, useful information, this is a windfall to the government." United States v. Schreiber, 191 F.3d at 108.
To the extent a defendant qualifies for safety valve relief, she is entitled to a two-level reduction in offense level pursuant to U.S.S.G. § 2D1.1(b)(6).
There is no dispute in this case that Munoz satisfies the first four criteria for safety valve relief. She does not have more than one criminal history point; she did not use violence in the commission of the offense; no death or serious bodily injury to any person resulted from her offense; and she was not a manager, leader, organizer, or supervisor of others.
However, the fifth criterion of 18 U.S.C. § 3553(f) is in dispute. In order to make a factual determination as to whether Munoz disclosed all of the information she has regarding her offense, the Court held a hearing on June 26, 2002 at which Munoz and Detective Patrick McAllister of the New York City Police Department each testified as to the circumstances surrounding her offense and her previous proffer sessions with the Government.
The Government contends that Munoz is not eligible for safety valve relief because she has not truthfully disclosed all that she knows about her offense. Specifically, the Government argues that Munoz was not truthful in her proffer sessions, and the information that she related to the Government regarding her supplier is not plausible. See Gov't Opp'n at 7. Pointing to the sophisticated terminology Munoz used in arranging the narcotics sale, the Government argues that Munoz is far from a novice drug dealer and also questions her assertions that she does not know the last name of her supplier and that a man she knew only on a first-name basis would entrust her with the sale of a kilogram of cocaine. See id. at 6. The Government also points out that during recorded telephone conversations between Munoz and the potential buyer, she refers to suppliers in New Jersey, names she has never provided to the Government.*fn1 See id. at 7.
Munoz testified that she commonly was acquainted with people whom she knew merely on a first name basis. See Tr. at 7. Furthermore, she testified to being a novice in the drug trade and that while she had previously discussed drug deals with Carlos, those deals were for small amounts of cocaine, and that this sale was the first time she had ever agreed to attempt to find a buyer for such a large amount. See Tr. at 4-5, 11-12.
Munoz further explained that the potential buyer was a local real estate agent whom she met several years earlier through a friend, although she could not recall the name of the friend who introduced them. See Tr. at 8, 12-13, 22. During the course of several recorded telephone conversations with the potential buyer, Munoz described the cocaine as "keys" to an apartment that was painted "white," referring to the kilogram of cocaine and its apparent color.*fn2 See Tr. at 22-25. Munoz stated that she had been instructed to use this terminology when discussing the sale over the telephone. See Tr. at 22-25.
Additionally, the testimony of Detective McAllister supports many of the statements Munoz made while under oath. McAllister testified that many persons in the drug trade use only their first names when conducting drug sales, and that such practice was not unusual in the many undercover operations in which he had been involved. See Tr. at 32-34. McAllister also verified that he was present during Munoz's proffer sessions with the Government. See Tr. at 28. At those sessions she told the same story regarding her ignorance of her supplier's last name and her introduction to the potential buyer years prior to this offense. See Tr. at 28-30. Although many of Munoz's statements at those proffer sessions and during the June 26, 2002 hearing were imprecise as to times and dates of meetings and introductions, the Court credits the testimony of Munoz as truthful and finds that she has truthfully disclosed all of the information she has regarding her crime. Munoz's account of a narcotics sale between two persons known only to each other on a first name basis is credible. See United States v. Sanchez, 925 F. Supp. 1004, 1008-09 (S.D.N.Y. 1996) (safety valve relief granted where a defendant truthfully disclosed all that he knew about a drug transaction, but failed to disclose anything more than the first name of his contact, a man he had met in a bar).
Therefore, for the reasons set forth above, the Court finds that the defendant's testimony at the hearing was credible and that she has truthfully disclosed all the information she has regarding her offense. Accordingly, Munoz is entitled to a safety valve adjustment and will be sentenced in accordance with the Guidelines, without regard to the statutory minimum set forth in 21 U.S.C. § 841(b)(1)(B).
The parties are hereby ordered to appear for sentencing of the defendant on Wednesday, October 9, 2002, at 2:00 p.m., Room 906, 40 Centre Street, New York, New York.