FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 30, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-13256

Non-Argument Calendar

________________________

D. C. Docket No. 03-00277-CR-T-30-TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ARUNAS MILKINTAS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 30, 2006)

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:
 Defendant-Appellant’s name is Arunas Milkintas. It was transposed in the Indictment as 1

“Milkintas Arunas.” The Judgment, however, used the correct name “Arunas Milkintas,” and this

opinion will refer to the Defendant-Appellant as Arunas Milkintas.

 Both parties discuss the two-level, safety-valve reduction as being provided in U.S.S.G. 2

§ 2D1.1(b)(6). The amendments to the Guidelines effective for the 2004 Manual added a new

provision at § 2D1.1(b)(5), shifting the safety-valve provision of that section from (b)(6) to (b)(7).

See U.S.S.G. Supp. to App. C, Amend. 667. Due to the addition of enhancements relating to the

distribution of anabolic steroids, which became effective November 1, 2005, the safety-valve

reduction is currently located at § 2D1.1(b)(9). See U.S.S.G. Supp. to App. C, Amend. 681. As

Milkintas was sentenced under the 2004 version of the Guidelines, this opinion will refer to the

provision as (b)(7). 

2

Arunas Milkintas appeals his convictions for possession with intent to 1

distribute cocaine while aboard a vessel subject to United States jurisdiction, in

violation of 46 U.S.C. app. § 1903(a), and conspiracy to possess with intent to

distribute cocaine while aboard a vessel subject to United States jurisdiction, in

violation of 46 U.S.C. app. § 1903(a), (j). Milkintas asserts there was insufficient

evidence of his knowing and willful possession of cocaine with the intent to

distribute and insufficient evidence of his knowing participation in a drug

conspiracy to sustain the convictions. Milkintas also appeals his 235-month

concurrent sentences imposed as a result of his convictions. Specifically, he

contends the district court erred by denying him safety-valve consideration under

18 U.S.C. § 3553(f), U.S.S.G. §§ 5C1.2 and 2D1.1(b)(7). We conclude there was 2

sufficient evidence for a jury to convict Milkintas of both drug offenses, and the

district court did not err in denying him safety-valve relief. Accordingly, we

affirm his convictions and sentences. 
3

I. BACKGROUND

Milkintas, along with 16 others, was indicted for possession with intent to

distribute, and conspiracy to possess with intent to distribute, five or more

kilograms of cocaine while onboard the M/V Yalta, a vessel subject to the

jurisdiction of the United States, 46 U.S.C. app. § 1903(a), (g), (j). One of the

defendants, Efren Daniel Marquez-Silva, entered into a plea agreement to testify

against Milkintas and the other defendants. The case went to trial, and the jury was

unable to reach a verdict as to Milkintas, but acquitted the other 15 defendants. 

The Government proceeded with a second trial against Milkintas. 

At the second trial, the Government presented the testimony of Coast Guard

and FBI agents, as well as Marquez-Silva, who was onboard the Yalta at the time it

was boarded by the Coast Guard, and Lazaro Fregel, a federal prisoner to whom

Milkintas spoke while in the same holding cell. Milkintas moved for a judgment

of acquittal at the close of the Government’s case, which was denied. Milkintas

then presented evidence, and the Government presented rebuttal testimony. 

Milkintas did not renew his motion for a judgment of acquittal at the close of the

evidence. The jury found Milkintas guilty on both charges. 

In the Presentence Investigation Report (PSI), the probation officer

recommended a base and total offense level of 38, U.S.S.G. § 2D1.1(a)(3), (c)(1),
4

with a criminal history category of I, resulting in a Guidelines range of 235 to 293

months’ imprisonment. The probation officer noted Milkintas’s statutory

mandatory minimum was ten years pursuant to 21 U.S.C. § 960(b)(1)(B).

Milkintas objected to the probation officer not recommending he receive safetyvalve consideration. Milkintas’s objection stated he “has or is willing to truthfully

provide information to the government.” The probation officer responded he was

not aware whether Milkintas had satisfied the prerequisites for safety-valve relief

under U.S.S.G. § 5C1.2(a)(5), and that the Government had not informed him of

whether Milkintas had satisfied those prerequisites. Milkintas also filed a

sentencing memorandum, arguing he had met the criteria for safety-valve relief.

Milkintas never proffered information regarding the drug conspiracy in either the

written objections to the PSI or the sentencing memorandum. 

At the sentencing hearing, Milkintas continued to contend he was eligible

for safety-valve relief. Milkintas asserted he had contacted the Government to let

them know he wanted to speak with them, and asserted the Government should

have made an effort to set up an interview with him. The Government responded

that Milkintas had only informed them that he was available to be interviewed the

day before the sentencing hearing, and that the Government had no obligation to

seek Milkintas out for an interview. The district court found “the safety valve
5

provisions are not applicable to the defendant in this situation,” and sentenced

Milkintas to 235 months’ imprisonment. 

II. STANDARD OF REVIEW

Milkintas did not move the district court for a judgment of acquittal at the

close of all the evidence, thus we will reverse his convictions only to prevent a

manifest miscarriage of justice. United States v. Hamblin, 911 F.2d 551, 556–57

(11th Cir. 1990). This standard requires “a finding that ‘the evidence on a key

element of the offense is so tenuous that a conviction would be shocking.’” United

States v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985) (quoting United States v.

Landers, 484 F.2d 93, 94 (5th Cir. 1973)). In making this determination, we must

view the evidence in the light most favorable to the government and accept all

reasonable inferences and credibility determinations that support the jury’s verdict. 

Hamblin, 911 F.2d at 557.

“When reviewing a district court’s safety-valve decision, we review for clear

error a district court’s factual determinations, . . . [and] de novo the court’s legal

interpretation of the statutes and sentencing guidelines.” United States v. Poyato,

454 F.3d 1295, 1297 (11th Cir. 2006) (quotations and citation omitted). 
6

III. DISCUSSION

A. Sufficiency of Evidence

Milkintas challenges the sufficiency of the evidence of his guilt of knowing

participation in a drug conspiracy and his guilt of knowing and willful possession

of a controlled substance. He asserts the only testimony resulting in his conviction

was that of a single cooperating Government witness, Marquez-Silva. Milkintas

contends the evidence at trial established only that he, a Spanish and

Russian/Lithuanian speaker, provided the legitimate services of recruiting a

Lithuanian crew for the Yalta, and translating the crew’s instructions, salary and

payment information from the representative of the ship’s owners to the crew. 

After the ship went to sea, the evidence showed only that Milkintas translated

instructions from Marquez-Silva to the Lithuanian crew to assist in unloading the

drugs off the Yalta. He contends there was little or no evidence presented that

when he set out for sea on the Yalta, he had any knowledge that the voyage would

include a drug off load at sea. 

Even if Marquez-Silva had been the only witness, we have held the

uncorroborated testimony of an accomplice is sufficient to support a conviction if

it is not on its face incredible or otherwise insubstantial. United States v. LeQuire,

943 F.2d 1554, 1562 (11th Cir. 1991). Marquez-Silva’s testimony is not incredible
7

on its face and is not otherwise insubstantial. See id. Specifically, Marquez-Silva

testified that he and Milkintas discussed the details of the drug transfer before

boarding the Yalta, and that after the Yalta was underway, Milkintas (1) had the

crew begin construction of compartments to hide the cocaine; (2) managed the

crew in bringing the cocaine on board; and (3) ordered the crew to take steps to

mask the presence of cocaine residue. Even though the Government’s proof of

Milkintas’s knowledge of, and participation in, the conspiracy depends heavily on

the testimony of a co-defendant with a prior criminal history testifying as part of a

plea arrangement, the jury was free to find Marquez-Silva credible and we will not

intrude on that decision. See United States v. Calderon, 127 F.3d 1314, 1325 (11th

Cir. 1997) (stating it is the exclusive province of the jury to determine whether a

witness is credible).

Marquez-Silva was not the only witness who testified that Milkintas knew of

the conspiracy. Milkintas’s cellmate, Fregel, testified that Milkintas had told him

that: (1) Milkintas knew about the drugs and knew they were going to Europe;

(2) this was not the first attempt to smuggle drugs on the Yalta, as a previous

attempt had been made and aborted because the smugglers on the Yalta were

unable to successfully load the drugs; and (3) Milkintas was in charge of the drug

job and gave the crew instructions. 
8

The testimony of Marquez-Silva and Fregel supports a finding that Milkintas

had knowledge of the drug conspiracy. We conclude there was sufficient evidence

for the jury to find Milkintas guilty of possession with intent to distribute, and

conspiracy to possess with intent to distribute, cocaine while aboard a vessel

subject to United States jurisdiction.

B. Safety-Valve Relief

Milkintas asserts he was deprived of the opportunity to seek safety-valve

relief, and he demonstrated a good faith attempt to cooperate with the Government. 

Milkintas admits he did not satisfy the requirement that he make a full and truthful

proffer, but asserts he was willing to, and the Government made it impossible or

impractical for him to proffer all information and evidence concerning the

offenses. 

“Safety-valve relief allows for sentencing without regard to any statutory

minimum, with respect to certain offenses, when specific requirements are met.” 

United States v. Brehm, 442 F.3d 1291, 1299 (11th Cir. 2006) (citing 18 U.S.C.

§ 3553(f)); see also U.S.S.G. § 5C1.2. Section 2D1.1(b)(7) of the Sentencing

Guidelines provides for a two-level reduction in offense level for a defendant who

meets the safety-valve criteria. The five criteria are:

(1) the defendant does not have more than 1 criminal history

point, as determined under the sentencing guidelines;
9

(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, as determined under the sentencing

guidelines and was not engaged in a continuing criminal enterprise, as

defined in section 408 of the Controlled Substances Act; 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, 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.

18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). The fifth criterion is the only one at

issue in this case. 

This Circuit has held the defendant bears the burden of proving eligibility

for safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.

1997). Thus, “[t]he burden is on the defendant to come forward and to supply

truthfully to the government all the information that he possesses about his

involvement in the offense, including information relating to the involvement of

others and to the chain of the narcotics distribution.” Id. 
 In United States v. Garcia, 405 F.3d 1260, 1275 (11th Cir. 2005), we held a defendant who 3

sought sentencing under the safety-valve provision was entitled to have his case remanded because

the district court failed to grant his motion for a continuance of sentencing for an additional

debriefing. Unlike Garcia, Milkintas did not request a continuance of sentencing in order to provide

his proffer, and Milkintas does not allege he mistakenly believed he had satisfied the safety-valve

criteria. 

In an unpublished opinion, United States v. Stallings, Nos. 03-11905, 03-12620, 04-10882,

2006 WL 2585570 at *7 (11th Cir. Sept. 7, 2006), we held a defendant who argued the government

was required to afford him an opportunity to meet prior to sentencing so he could satisfy the safetyvalve requirement was not entitled to safety-valve relief. In Stallings, there is no mention that the

defendant provided the government notice that he was willing to meet.

10

This Circuit has not addressed the issue of whether the government, having

been provided notice that a defendant is willing to provide information about a

crime, is under any obligation to solicit that information from a defendant.3

Although this is an issue of first impression in this Circuit, all Circuits that have

addressed this issue have held the government is under no obligation to solicit

information from defendants who seek to satisfy the 18 U.S.C. § 3553(f)(5) and

U.S.S.G. § 5C1.2(a)(5) requirement to provide information. See United States v.

O'Dell, 247 F.3d 655, 675 (6th Cir. 2001) (holding the defendant failed to satisfy

his burden to establish eligibility for safety-valve relief by failing to discuss in

detail the extent of his marijuana smuggling and growing operation, reasoning that

“[t]he government has no obligation to solicit information that could help a

defendant meet the requirements for the safety valve”); United States v. Ortiz, 136

F.3d 882, 884 (2d Cir. 1997) (holding a defendant’s expression of willingness to
 We note there is a circuit split regarding whether, once a defendant submits a written 4

proffer and offers to provide additional information if needed, the government then has a duty to

11

provide the required information was not enough to satisfy the requirement to

truthfully provide information to government); United States v. Flanagan, 80 F.3d

143, 146–47 (5th Cir. 1996) (holding the defendant has the burden of ensuring he

has provided the requisite information to the government no later than the time of

sentencing regardless of whether the government requests such information);

United States v. Ivester, 75 F.3d 182, 185 (4th Cir. 1996) (holding defendants

seeking to avail themselves of safety-valve relief “bear the burden of affirmatively

acting, no later than sentencing, to ensure the government is truthfully provided

with all information and evidence the defendants have concerning the relevant

crimes”). In Ivester, the Fourth Circuit noted the safety-valve provision requiring a

defendant to “provide” information would be meaningless if a defendant could

qualify for safety-valve relief merely by expressing a willingness to provide

information, and that in short, “defendants cannot claim the benefit of [safety-valve

relief] by the mere fact that the Government never sought them out for debriefing.” 

75 F.3d at 185–86. We agree. While the need for a translator may have made it

less convenient for Milkintas and his attorney to meet and prepare a proffer prior to

the sentencing hearing, it does not relieve Milkintas of his burden to provide

information.4
interview the defendant. Compare United States v. Stephenson, 452 F.3d 1173, 1182 (10th Cir.

2006) (“[T]he onus is on the defendant to come forward with all information he has concerning his

relevant conduct.”); with United States v. Brack, 188 F.3d 748, 763 (7th Cir. 1999) (holding a

defendant’s truthful written statement combined with the defendant’s offer to submit to a safety

valve interview satisfied the safety valve disclosure requirement, but noting “a defendant cannot

satisfy the disclosure requirement simply by notifying the court of his willingness to submit to a

safety valve interview”). This conflict does not affect this case, however, because Milkintas did not

submit a written proffer to the Government. 

 In United States v. Espinosa, this Court held the district court, not the government, has the 5

responsibility to determine the truthfulness of the information provided to the government, and that

it is error for the district court to rely on the government’s determination of the information’s

truthfulness. 172 F.3d 795, 797 (11th Cir. 1999). Here, Milkintas never actually provided

information, thus, his argument regarding the district court’s duty to determine the information’s

truthfulness is not at issue.

12

Contrary to Milkintas’s argument, acting in good faith is a necessary

condition for satisfying the safety-valve criteria, not a sufficient one. Even if

Milkintas acted in good faith, he was still required to come forward and truthfully

supply all information that he possessed about his involvement in the offense. 

See Cruz, 106 F.3d at 1557. He admits that he did not do so. Milkintas had the

burden of coming forward with all information in his possession that was relevant

to the criminal enterprise with which he was involved, and he did not fulfill his

burden. Accordingly, we affirm the district court’s denial of safety-valve relief.

5

IV. CONCLUSION

There was sufficient evidence for a jury to convict Milkintas of possession

with intent to distribute cocaine while aboard a vessel subject to United States

jurisdiction and conspiracy to possess with intent to distribute cocaine while
13

aboard a vessel subject to United States jurisdiction. Additionally, the district

court did not err in denying Milkintas safety-valve relief. Thus, we affirm

Milkintas’s convictions and sentences.

AFFIRMED.