that was the recent lapeer case l e p i i e are cited in the opening grief and the garcia rivera case so how is it play and in this case every participant knew that there is a distinction between the first leg from the s u v to the informant's car and the second leg from the informant's car back she did not realize it was drugs in total and she was in that uniform anscar and headed back in that case they could have found her guilty based on that single trip regardless of not on the first trip or converse way they could have believed willful ignorance on the first trip that she must have known  that it was drugs but on the second trip coming back she did not intend to distribute she intended to abandon so there are those are two scenarios and there are criminal liability arise as a result of her testimony at trial as opposed to what she said to the officers when she was initially interviewed she the government did  its theory between the opening statement were referred solely to the first and second legs as one continuum and its opening summation where it added  believe these are not means but two entirely separate x with mental different mental states she goes from x to y under certain circumstances she goes from why do x and others that's no so i guess i'm just trying to figure out and what's the best case law that you could show me that that what we're talking about here her possession on either one of those instances doesn't show the means in wh it what's your best case on that opening brief make clear that the touchstone is are there different defenses for example in the garcia rivera case there were no different defenses it doesn't matter whether a jury found believe one witness that he had i believe the firearms on one occasion or on another witness on the other occasion it was all a can you know i guess i'm just maybe going to help me with that the different offenses notion because i don't think i even understand that let's just take a scenario where the jury says she knew from the time she walked from the is that the minivan or the van the s u v to the s u v to the car that she knew and so she's guilty because she already knew by that point right right ok ok so let's say half the jurors concluded that if and then half the jurors concluded well she didn't know at that point but she certainly knew by the time she got back right and you're saying there's some defense that your client raised as to that part and presumably those six jurors who found her guilty because of that rejected that defense so why don't you give my reason the reason is the return trip jurors who are the ones who rejected the return trip could have accepted the defense argument that there was not possession with intent to distribute because she just wanted to abandon the stuff on the pavement drive off with her kids and leave  going to the on the first trip the jurors could have believed either of two things one that she knew when she opened the trunk and she saw the containers and knowingly carried them to the informant or more likely for purposes of the facts on this issue that she was willfully ignorant and the government made a heavy emphasis on willful ignorance and the court instructed on willful blindness will ignorance know if she was willfully ignorant she should have known that she was hiding or set her head in the sand then when they started discussing it in the informant's car she realized ok i can't hide from the truth anymore just like i can't hide from my husband's infidelity anymore it's right here then she can decide ok i'm possessing it now on the way back but not for the purpose of distribution for the purpose as in the seventh circuit beyond ok's i'm just i just want to get rid of it walk off so those are two distinct mental state defense don't think so because even if she was willfully is it him very ignorant reply i will float not you going there the jury had to find that she was whatever she had with the story with the requisite mental state with the intent to distribute it so that doesn't disappear by the time she's coming back with the willful of the willfully blind knowing that if she takes her head out sand she is in fact participating in a drug deal that is enough for a conviction on that leg where as if she is not whereas once she has to take her head out of the sand then she makes a decision that no i'm not going to go through with that ok can i ask you about the sentencing issue because yes i frankly just don't find the argument on this point persuasive i don't even think even if we were i don't think it i don't think your point is right let alone that it's plainer but on the sentencing issue i guess i am troubled somewhat by what the district court did here and so maybe you can just walk us through why you think the court three the court's finding that the safety valve requirement has not been satisfied because as the government argues the defendant was not truthful with the government and was not truthful at trial to the offer to  bases there i understand that he specifically referred to the purchase which are you know not true for trial which he's not supposed to do correct right but that wasn't his single basis it was also that he was not truthful to the government so what do we do because i'm focusing in on that and what do we do when he did offer a basis that he is allowed to rely on and that's whether she was truthful to the government and as we know  valve i mean there's just a wide range of discretion given not just to the district court or to the government on whether or not someone is eligible or can get it a lot of it's just based on cooperation and the government's view of whether or not she was truthful there were two proffers of the government if we were stripping away the trial the immediately after the arrest when she was mirandized and after trial  pre sentence proffer she was under the court's premise she was truthful to the government in the post arrest that's that's let me stop you right there because i think if you were right about that you might well prevail  but i guess i read that this record as saying she wasn't even truthful in the post or a statement because she was only willing to acknowledge that she knew at the point where i guess they opened the back of the s u v or whatever it was were as i tell me from wrong that the district court had the view that she knew long before they ever got to the parking lot and she never owned up to that ever not in the post or a statement on a trial not post conviction so it am i wrong in reading the record that was a district court he did have a suspicion that she knew all along notwithstanding the jury verdict which is perfectly acceptable but it made its safety valve determination on the much narrower issue of the discrepancy between the post  rest and and the rest why may but just forgive pointed out just as you recited the district court's finding that there were these two bases the first one was that your client wasn't truthful to the government  ever and i thought you just acknowledged that if that were that that this report was entitled to conclude on this record that your client did know even before she got to the back of the s u v and open it so why can't the district court under a clear air standard say i'm finding that you knew much more than you've ever admitted in any of these say because the new on the record the district court did not rely it had its suspicions but it did not rely on its it's a this would be again i d r twenty three the government i have i'm looking for the specific site on the dispute it has to be viewed in the context of the dispute between the parties as to the safety valve it all depended on her single statement why w whether she knew at the time she opened the truck the defense said to the court during the sentencing hearing if you think that i did not a about the significance of that statement and and about her need to consider that when she does her pre sentence proper you would be wrong your honor i don't have the exact page cite but it jumps out at you everyone at the time when i opened the yes not not until i got into the car but at the time i went and pulled it and put it in my purse that what she said at the first yes ok that's with the president or  and then at trial she changes that is that correct yes and says oh no the first time that i knew about this was one after i got this package of tupperware put it in my purse and went to the car and then i knew is that correct yes all right so the government and then the district court really focused on that inconsistency as  truthful which is what she used to be a requirement that she be truthful for her to get the safety about right yeah they're really focused on that so i guess why  isn't that enough to deny the safety valve right because she did under the court's premise that she lied at trial then she must have been truthful in sentencing you still provided the information the safety valve has to apply the recantation is irrelevant because this is not an acceptance of responsibility but the difference there is that the lawyer made that argument to the district court at the time of sentencing and so the burden is on your client to to make their case and she didn't do that here did she i mean she didn't say hey just so i'm just wondering the judge was supposed to figure that out on its own and say ok this is inconsistency between what she said initially and then later at trial but i guess she wasn't so i think she was not telling the truth at trial she was probably telling the truth before what happened here that we're missing that element of it and i just don't know why not and by and by my asking the question i'm not quite sure but i just wonder doesn't that make a difference i would point to e r seventeen the passage i was alluding to earlier have gone to trial here she is so counsel it is oh berkeley raising the discrepancy on this one sentence i talked to students she said and if i if you can be sure i talked to her and explained everything if if she had said at trial consistent consistent with her post arrest proffer we would not be here we would have pleaded guilty so that explicitly raises the question she told one story and then told another version at trial or else the translator was mistaken there's a lot of evidence of that it's got to be one or the other she was truthful at the one or she was truthful at the other the district court says she was committed perjury on that point acquired so she must have been truthful in the post arrest defendant we can't it as long as he provided the information at some point he could we can't and it doesn't matter because it is not a ward for accepting responsibility and being honest it's soley for providing information if you meet the other criteria and once you've provided that information you cannot i'm reading the bell i know i'm way over it and i would i one observer in that courtroom would have been crystal clear that the district court was not relying upon the defendant's statement at trial as a basis for denying safety valve relief however i the judge stressed out a couple of points that the fact that she had in his view perjured herself the trial was so there's there's a couple in a related issues here a number of the citations that the defense raises in terms of the record  citations before the issue of safety valves even being discussed but rather whether an enhancement should apply to the defendant because of her statement at trial whether this should be considered under thirty five fifty three a as a basis for giving her a more severe sentence because she got up before the court and was untruthful that separate entirely from the safety valve issue ok i said well it's not entirely separate scuse me because the safety valve says you're not supposed to consider perjury well apparently either i guess the government was seeking an obstruction based on what how she testified at trial correct yes or no all right so an obstruction is usually because of something like perjury so even though that was discussed before unless there somewhere in that case law i didn't see it that says that oh if you separate out your struction and perjury then it's ok to refer to perjury when you're considering the safety valve is there such a case no your honor but that's not what was happening here so first off i just suggest that the court not look to any record citation before you are sixty i mean because nothing before then deals at all with the seat belt seat belt comes up on sixteen and what the court says is it correctly enunciates what the fifth factor of the seat devolved is the court says well the major issues mentoring minimum the only way that she can escape the manchurian minimum and the government argues i think with substance that one of the elements of the safety valve eligibility is that she was candid with the government and the government maintains that she wasn't and you maintained that she wasn't because you think the first statement she made right after her arrest  the truthful one and she wouldn't own up to that either at trial or in the post conviction proffer no your honor in fact the government in its sentencing position yar our yard six forty three express stated that it disagreed that the post arrest statement was in fact fully truthful it was more truthful in its much as it had made it an earlier degree of knowledge then both the trial testimony and the  basically can grew and post conviction proffer but it wasn't itself totally truthful as is required by the safety valve in fact that's what the district court where when you were the district court rely on that notion because i could find  skimming through the transcript rely on the notion that the post arrest statement was also untruthful you're on the right so for example to be after you are sixteen so show me where after you are sixteen the judge said that the judge doesn't here's the thing i'm saying you know what the judge does say is you know what you said at trial wasn't true that's what i cut you off but show me where after your sixteen the judge says what you argued in your sense  memory well here's the thing your honor at that point the defense is arguing over only that the post arrest they meant was not true that what what was being represented as the post rest it meant that was not true that the truth was what the defendant testified at trial and testified and that the post conviction proffer so you have at that point the both the defense and the prosecution overtly rejecting the post rest proffer as a sufficient basis for the safety valve and so the idea that when this report was posting on a second let's say that the entire scope of the defendant knowledge of what was going on is truthfully reflected in the post arrest statement right take that as a given if that's true the fact that she then says something different at trial do you agree as a legal matter that that's not a basis is that the district court was not operating under the state of facts that i just gave you but rather was had adopted the state of facts that you say you argued in your sunday memorandum that in other words even the post arrest statement itself was false because she knew even more than what she was willing to admit they're right i disagree of that's the government's burden at this point first off what we never claimed i just laid out too it seems to me mutually exclusive scenarios one of which you have admitted you lose on your in the other of which you are claiming you win under and you're saying that you can't show me where in the transcript the latter one is no your honor if the defense had remained silent or if the defense had overtly argued at the sentencing hearing that the post arrest interview was the safety valve proffer and that misty just didn't have to meet with the government again to satisfy the defense's burden under the safety valve prong that would be then the district court obligation to the defendant's last statement has to be the truthful one in order to be eligible for the safety of the defendant's representation during the sentencing the proffer to the court as to what the statement ok so maybe i so basically got it so i thought our case file was clear that if it any point prior to sentencing the defendant came clean disclosed all she knew that it didn't matter that later in the later in time or earlier in time that the defendant had  disclaimed the full scope of that knowledge as long as at some point in the process the defendant can come i disagree with that characterization the case law the case law indicates that the the defendant is not required to once again proffer to basically rehabilitate the initial post arrest statement that was deemed by the district courts to be truthful however that's not what happened here you have the defendant overtly disavowing that statement and now there's an expectation that now i don't that the district court is not only supposed to reject the government's view it's also supposed to reject the defense's view of this and that it's somehow clearly erroneous for the district court not to have done so all along the way and there's going in there is no case on point in fact the defense concedes as much in its opening brief there is no case whatsoever that suggests that in this scenario where the defense is overly disavowing a particular  statement of the defendant that it's the district court's obligation to consider that as a basis for the seat belt problem two questions one what's your best authority to support what you just separate now what case well here's the thing your honor there isn't a case on point and given that it's plain or review that should be sufficient but sorry second what's your basis i guess i'd like to know because it's not clear to me  rejected rejecting altogether the claim by the defendant that she did not know before she arrived in the mana bella parking lot that day that she was involved in a drug deal that the government's position all along and continues to be that she was a and a knowing member of the conspiracy heading into the overall drug deal and that's a position laid out in the sentencing position and does it matter that she was acquitted of the conspiracy no your honor certainly not the ultimately the safety valve is a sensing provision and the standard that governs it is not to prove beyond a reasonable doubt that the defendant was not truthful at that point and obviously acquitted conduct in sense in context can be raised in those situations as well and in fact in i think this goes back to address i don't want to judge what for questions earlier is certainly you don't have in the context of the safety valve analysis a rejection of the truthfulness of the post arrest statement but you do have a factual finding by the court rejecting the truthfulness and the can can door of that statement and you have got it e r ten where i thought you say we can look at anything before are sixteen no what i was saying your honor is that in terms of that analysis that analysis goes to the underlying truthfulness of what she was saying at trial now there are factual findings and there are legal conclusions and what i'm arguing to you now is that a factual finding was made that precludes what the defense is arguing for now should we be suggesting for the district courts a simple analysis where they consider the district judge considers each statement made by the defendant to law enforcement and make a determination and so if a determination is made that the post arrest proffer was truthful she'd be safety valve eligible in other words does matter that she later changes her story again it's or depends on the context and it well in this context should we have asked if this matter went back to the district court would we be asking the district court to make a determination whether she was truthful when she made the first statement the post arrest statement the the court would have to make that determination if it were remained at that point because there's certainly nothing in the record that supports the claim on its own that the post arrest statement was sufficient to satisfy the seatbelt basically there is a claim here that the court's committed clear error in its finding that both the post conviction proffer and in fact the post arrest statement were not completely candid but not only clear error a clear error that was that would have required the district courts to reject both parties analysis of the truthfulness of the underlying statements so what we have here is a situation never before encountered by the court no case on point describes this situation where the court is required to reject overtly what the defense is arguing at sentencing and accept a completely separate defense statement when stressed so supports as a proposition is the idea that the defense doesn't have to go and give an additional statement it can rely upon a previous statement given even if it's a post arrest meant but there was not that kind of reliance here here there was an overt rejection of the validity of the post arrest it meant if this had the refused to make a post conviction proffer and at sentencing and in sensing paper said no she testified one which trial but there was the statement that was me to the police we submit that this is a complete in candid recitation of her knowledge of the offense all information evidence was provided then that would have been before the court and the court could have considered it as it happens the record seems to suggest the court would have rejected that as well because the court described that explanation as itself suspect but it would at least been before the court in a way that it's not here here the defense overly rejected that i guess you didn't finish to tell me what your theory why you rejected the safety valve why you argued against it gave me the first reason was there in a second reason so the second reason is that in terms of simply persuading the court since we're going in cold as to what the court's knowing the easiest way to demonstrate that the post conviction pro that was inconsistent with the post arrest so i guess i read they're reading too much into judge radios question and i'm sorry to interrupt but i guess my question is why do you think she should serve five years even for this why are you fighting the safety valve that to me is what bothered this is as i got through reviewing the case i just question your judgment frankly as a prosecutor as to why are you thinking that five years for this woman's involvement in this particular crime was a just sentence and i don't i guess i don't even understand why you're fighting so vigorously now to defend you know a remount so that she could potentially be oh i just well i mean you know more about this defendant than what's disclosed in the record because i what i read everything at the sentencing pre sentence report and the like and i just think this this makes no sense i don't know why you charge her frankly but even if you're going to charge her why you were so adamant that she had to do at least the five years i just don't get it to be honest of congress gives you that opportunity to use your discretion on the safety valve that's the whole thing about the safety valve counsel is that you're given a lot of discretion as a prosecutor on how to exercise it it's not mandated this is not like a mandatory minimum but let's just say you have your reasons i don't know but i'm curious here it does there are a lot of questions raised because it seems like at least from the is it's it's interesting that you would so at sentencing and that's why i'm trying to figure out why you were what your position was as to why you were arguing against the valve when it appears that at various points here and maybe she was inconsistent she ultimately she did cooperate with you and it seems like another purpose of the valve is that you as you know prosecutor would want people to encourage that and i understand it's where you have a lot of discretion on whether you know what to argue what they deserve but in terms of this scenario and others that may come later that you'd want people to be more forthcoming and not less and here i just i'm just curious as to why the aggressive sort of nature of this fighting so adamantly for  against the safety considering her role or what appears to be her role from the record again you may know more that we're looking at it just from what we have here and the fact that she you know did make statements right away and it seems like you'd want to encourage that honestly your honor if the defendant had pleaded guilty and she had come in and proffered on a swing as to her knowledge the government would have been more than happy to recommend that she receive safety valve unfortunately this is a mandatory minimum offense and there is a narrow exception and the defendant opted not to take advantage of that exception so you have the rather she had pled straight up and they're not said a word and not set a work that would have been your preferred avenue here for her to plead straight up and not say a word to you and just then you know she'd have better chances at a safety valve is that what you are encouraging she certainly would have had better chances at c valve really but again valve is not about cooperation discords the statute itself may or very clearly recognize at the point of safety valve is providing narrow exception for certain low level offenders if they can come forward and be honest and truthful they can do it in the post arrest statement phase they can do it after trial they can do it before trial unfortunately here none of those three statements was in fact on asked the district court indicated that it rejected all three of those idea that this defendant is sitting in a car in a foreign country going from house to house waiting for her husband to meet strange men go into another house come back with a box go to a parking lot yet another strange woman basically she's claiming she has zero knowledge whatsoever of what's going on until she opens up the cardboard box and sees ten topper where containers that are transparent through which she sees methamphetamine at that point let's just get the drug deal done but even aside from that your honor the what the defense is asking is that you provide her c v relief that you remain to the court give her a chance to reclaim a statement that she overtly disclaimed and you have a finding  clear error essentially that rejecting the original statements and we hand in the previous argument a claim that the record is too equivocal to know without having to remit well that's the point of playing your review if this objection had been brought to the court's attention in the original sensing the court could have made clear exactly what it was finding with respect to that first statement the defense didn't bring that objection and it denied the court the opportunity to clarify whether it was overly making a finding rejecting the credibility of that post rest eight min or not and the fact that now she can sandbag the government and district court by waiting until appeal to raise this argument and rely on a completely different statement and that's exactly what plain error is meant to deter i guess i mean and maybe  safety valve if she was slightly in consistent or inconsistent i guess about when she realized there were drugs in the tupperware because that's really ultimately what we have in front of us right now that is what you are zeroing in on you know that she did not she was not truthful about when she actually but at that point here during this investigation i guess subsequent to the just want to be clear that the government my question the what matters it is is that we're talking not in terms of individual cases but in terms of precedence and the whole point of the say thought proffer is to give relief to certain types of offenders who are on assist and if an offender can overly disclaim a particular statement say i never said that what i said above ultimately but here you have both statements i mean you can point to either one where she admit that she had it pick one i mean that's i guess that's what i'm getting trying to figure out why does it matter which one at this point after you're all done and over with and it's all safety why does it matter i mean if is asking is this a major case you know at the end of the day this isn't the biggest case the office has ever brought and if you remain for sentencing i suspect that we'll have more robust factual findings given the guidance of this court's opinion and that we'll end up in a roughly similar position but at the end of the day we're asking not what we should do with individual cases but what the law is that applies and the fact of the matter is that the seed developed sis to reward people are honest this defendant had the opportunity to be honest even if you believe that the post rest it meant was in fact an honest incomplete recitation of her knowledge of all information evidence relevant to the offense then the fact that she overly disclaimed that produce persis did indeed disclaim in that statement all the way up until the point in which she realized on appeal now she's better served making a different argument that demonstrates she's not accepting responsibility in the way that the safety  that have been presented one of them is shrestha it seems very similar not quite exactly to what happened here but very similar her that seems like her the lawyer it's russia was made a slightly different argument than the lawyer here and so i don't know i mean i think you're treading too much in terms of what she's trying to do and we already are very skeptical of her of her honesty i just ultimately at the end of the day especially when you look at all the totality of the facts surrounding her in this case at least from what's provided in the record you can point to either one of these cases either one of those the post arrest or later she admits to having drugs the statement it was the defendant's burden at that point to establish that she had been honest she were why did not on the post rest a minute but a completely different statement she cannot admit that burden and so we ask that you  very brief time i don't know if you had much left i'm sticking only to the safety valve issue first it's not a question of clear factual error it's a did noble question an error of law the judge relied wholly or in part on trial testimony second the passage i was looking for that show that indicates that he was zero nion soley on the statement was it when she went to the trunk the informant's car not whether she was a member of the conspiracy or sixteen or seventeen and you gave her a good defense says the court but she made a terrible mistake by lying and it wasn't about and in significant matter now she had been lying about everything when in fact she was a coconspirator for ten pounds of methamphetamine the court would not a phrase this as an insignificant it wasn't an insignificant matter i think that indicates you would obviously be a great matter of great importance that i think this indicates that the court was zero in on that one statement