the honorable united states court of appeals for the st circuit it's now in session any persons have an all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session right good morning at kearney jacobs if you are now ready please proceed if i may judge just before that i just want to call the case and put us on in particular at five by disclosing all of her information about the offense in this case this was a drug case let be briefly outline the context in which this case and her deep briefing sessions arose and i would note that this information was all information that she did disclose to the prosecution in the steep briefings martinez at the time of the offense which was february he was a twenty three year old woman who drove from providence rhode island to new york city for her former boyfriend forty one year old drug dealer counsel i think counsels  and only excuse me and only that that is the offense conduct we contend that the offense conduct i know that the prosecution has raised this issue that there was a conspiracy count but looking at the indictment in this case this doesn't cover some broader conspiracy with other people that extends incident and that's that's our view of the disclosure now she was asked questions about a broad range of things including information that she had on her cell phone about for example publicly available press releases or or charges against other individuals that she may have gotten from the internet she and she responded to those questions the government  thinks that maybe some of her responses were not credible but those are extraneous matters to the charges against her in our view this was  a one trip conspiracy and there's there's no suggestion that it was more than this if i may i think this points out the government's suspicions so for example there is an assumption that the government argued quite explicitly in court below that no novice would have been invited to participate in not the legal issues in addition to the chronological scope i've minimal remaining have to do with the nature of how the court goes about evaluating the completeness and truthfulness of the proffer and i contend that there are the underlying facts are not substantially in dispute the question is can the court simply adopt this idea that she hasn't adequately explained why she might have a press release or a copy of an indictment on her cell phone is that something that's that's germane to evaluating  and the other information you're referencing that might go to that are directly related to this conspiracy would all be confirmatory the conclusion that she was not being truthful about the hide so that's my what i what i would say is that from the beginning she acknowledged that she knew that the drugs were hidden in the vehicle  agree that stalking about this video of the high that apparently was taking taken months earlier is is confusing and i understand it raised the lower court's skepticism but in terms of the argument that even if she lied about her knowledge of the hide it was an immaterial lie and therefore it can deprive her of the safety of others or some other argument you're making i  would i would say it's not material i would say that i disagreed with and that is there any other argument you have about why her comments about the high would suffice to support he finding that she was lying and therefore can't get the safety  what i would say is that a a single statements of the lower court filings to be inaccurate is not disqualifying and i would i would point those as an example of that where the court says that there are communications that occurred that m deny for example post conspiracy communications or the fact that that a particular coconspirator had introduced him to the leader of the conspiracy or or failing to reveal a particular conversation what the court said is that those findings of fort hood my word even collectively did not weigh heavily and that it was only the addition of other more stark false woods that i think really convinced the court that that there was not a good basis to deny safety valve treatment an explanation for the video of the high that's time of itself as the senate your statement my my my thought is that that in and of itself shouldn't deny safety valve treatment when the essence of it is that she knew it was hidden she knew there was a hiding place and she disclosed that really from the beginning ok thank you thank you question of the scope of the conduct that's implicated by the safety valve in this case even if one defines the conspiracy to possess and with intent to distribute five kilograms of heroin  conservatively it's fairly clear that the defendant did not fully disclose under the safety valve statute she didn't disclose for example that she knew who was supplying the drugs she didn't she that's clear from the text exchanges that occurred that weekend before she went to new york she didn't disclose that she knew all along there were going to be five kilograms she insisted till after it was too late to change or to change her story that there were only how that contraband was going to be secreted in her car were all relevant to the charges in the information all the things she pled guilty to and once you starts asking well what's the full story here then it starts implicating how deep was her knowledge and while we don't know the depth of her knowledge so it's hard to say where to draw the line certainly if she knew that the five kilograms was going to be secreted in a hide then the question is well how long did she know about it was she just simply a mule in one day or was this a conspiracy that she had much more she was much more up to her neck in but certainly for skeptical of her insistence that this was basically a one time deal for her yes she knew about the compartment she knew about the drugs but it seemed to the government to view her involvement with f and the single transaction and you were expecting her as part of the state grieving process to reveal more extensive croquet to please is that correct was that you were expectation and should she fail to meet that expectation cheating would she would not be complying with a requirement to say you know well i think the case law says that she either has to fully reveal what she knows  if in fact she was more knowledgeable than she let on that she would either explain how much she knew about the supplier or she say all i knew was he was he was a guy with the nickname palooka and that was it but she didn't even reveal that much possibility would be that the worry is that they are frustrating your ability to make the case against them on the charge that brah well that's not particularly true here given how much she did concede about her culpability and that would be also true in morrow another possibility is that even when the and then gives you plenty to convict them on so there's no way that the evasiveness is impeding your ability to charge them and convict them of the crime they're charged with unless they're bill your to cooperate or to be straight forward about what they did can still deprive them of the safety though admitted to all the elements of the charge the withhold some details about it nonetheless be deprived of the safety valve given that not every withholding suffices to do it that's what  do we draw that line i would suggest that peripheral details name not six violate the safety valve disclosure requirement but that's not the case here and how you draw the line is whether the defendant fills the requirement of being forthcoming even as we go to the elements of the crime writing case law says that the defendant needs to do this close more than the bare elements of the crime she needs to disclose those interstitial details that make up the course of relevant conduct and so where you had as in their right i would you to distinguish the mottoes treatment of the failure to disclose the fact about how they were introduced to one of the coconspirators why is that different than the failure to disclose this type of information well they that would be i would argue a conspiracy begins at the time when the agreement is formed introduction to the conspirator i think predates that time but certainly once the conspiracy has begun all the acts that are taken in furtherance of its objective are relevant to the charges and that's what happened here she didn't even disclose fully what happened during the course of the actual conspiracy  the courts to find that the harder it is for the congress's intent to be satisfied in the better and defendants are getting away with admitting exactly what they already pled to she already pled guilty at the time of the safety valve disclosure so it's not a question of can we make out a kid case against her we've already done that it's a question of how she complied with to get the benefit being relieved of five year minimum the practical reason to make that requirement of the defendant well i think there's probably two practical reasons one is so the government has some sense that it's fair to give her the benefit of the statute and the other is that in it in certain cases that information can be useful to the government in investigating related natters for example here let's say that she had revealed how the hide was installed and who installed it well that we don't we can't prosecute her for that but that gives our investigators information to maybe thwart future installations we're better in maybe we go out and maybe we go and stake out the walgreen's to see if there are other deals taking place there maybe we try to chase down palooka and see where he's getting his his information i think it's getting the in milking the lower level defendants for information helps the government prevent crime at the higher level which is i think the point or at least one of the points that the safety statute only last question is and that is just that that rational makes sense it's a little hard to see then how come the failure to introduce that go to disclose the introduction of the wouldn't also be a pretty material thing to have not disclosed yet we concluded it wasn't as you would think that would help you with your investing pretty easily to write i think there is a line that's drawn between when the crime can be deemed to begin at once you know failure to introduce somebody to the coconspirator where you still find out who the coconspirators are later in the disclosure so ultimately that information doesn't make a difference here the fact that he never revealed until it was too late who supplied the five kilograms of heroin that does make a difference so you're welcome if the court has no further questions  audio and video device at this time and attorney jacobs if you could  place if i can address this issue of the purpose for disclosure and how one evaluates whether a particular non disclosure orse or that the court can take into account and here i think if we look at the defendant's motivation if we look at his motivation there does not seem to be any motivation to try and changing her story when she thought it was still her advantage to do so i don't know how you can plausibly prove that present an argument as to her motivation in the face of that finding what i would say is that the context of this for her she wondered tremendous pressure she is pregnant at the time she explained court saw her the district court bend over backwards to be sure she had additional opportunities during which she could xplain the details lawyer and a court and those are facts findings by the district court having gone through many hearings several hearings with her and observing her demeanor i think i don't know that the the court may have in the course of many of the comments about her testimony i think that the court did think that some of their explanations didn't make sense but also that there was no logic in in why she would be saying what she was saying so i whether he used the word manipulative or not at one point i don't know that he made a that concludes argument in this case attorney jacobson attorney jerry or you should disconnect from the hearing at this time