Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 10-15-2021
Case Style:
United States of America v. LAURA G. MARTINEZ
Case Number: 19-1667
Judge: Kermit Lipez
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Lauren S. Zurier, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with cocaine distribution and conspiracy charges .
We draw the facts from the undisputed portions of the
presentence-investigation report ("PSR"), the plea colloquy, and
the transcript of the sentencing hearing. See, e.g., United States
v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015). We also rely
on the transcripts of Martinez's safety-valve interviews.1
A. The Traffic Stop
The charges in this case arose out of Martinez's
involvement in the transport of approximately five kilograms of
1 Martinez is a native Spanish speaker and communicated with
the government and the court through an interpreter. We rely on
the English translations of the evidence, Martinez's testimony,
and the safety-valve interviews provided by the parties in the
record. We disclose any ambiguities or translation notes where
relevant.
- 3 -
cocaine from New York to Rhode Island. Specifically, on February
21, 2017, Martinez traveled in her red Buick van from Rhode Island
to New York and back to Rhode Island with her boyfriend, Willy
Espinal. Not far from their ultimate destination (Providence,
Rhode Island), Martinez and Espinal were stopped by Rhode Island
State Trooper James D'Angelo for a traffic violation and for
driving with an expired registration. Because Espinal and Martinez
both presented suspended licenses, Trooper D'Angelo called for a
towing service.
While waiting for the tow, D'Angelo commenced an
inventory of the vehicle during which he discovered that a flat
metal sheet had been welded to the vehicle's frame, creating a
false floor below the factory-manufactured floor. Based on
D'Angelo's experience and specialized training in narcotics
trafficking, he believed the vehicle alterations were consistent
with the manufacture of a "hide" or a "trap," which is typically
used to conceal drugs or other contraband.
At D'Angelo's request, a second patrol vehicle with two
additional officers and a drug-sniffing canine ("K-9") arrived on
the scene. The K-9, named Chuck, conducted an air sniff of the
exterior of the vehicle and alerted to the presence of narcotics.
Chuck also alerted to the presence of narcotics during an interior
air sniff of the vehicle. The officers inspected the area that
Chuck identified and located a hide. D'Angelo was able to gain
- 4 -
access to the hide and discovered approximately five kilograms of
cocaine inside. Both Espinal and Martinez were placed under
arrest.
B. Martinez's Cell Phone
Martinez's cell phone was seized upon her arrest.
Government agents later performed a data extraction and searched
the contents of the phone for information relating to the transport
of narcotics. Agents recovered a video on Martinez's phone of the
hide in her vehicle in an opened position. There were also several
photos of hundreds of thousands of dollars in cash on Martinez's
phone. Metadata confirmed that both the video and the photos
were taken with the camera on Martinez's phone months before her
trip to New York. Agents also recovered images of two documents:
(1) a federal indictment from the Southern District of New York
charging several individuals in New York and Rhode Island with
conspiracy to deliver five kilograms of cocaine, and (2) a
Department of Justice press release reporting the indictment of
several individuals for narcotics trafficking in Boston.
Multiple text messages and conversations on WhatsApp (a
smartphone messaging application) were also recovered from
Martinez's phone and translated from Spanish to English. In one
WhatsApp message thread, Martinez corresponded with a number saved
in her phone as "Gordo," later determined to be her ex-boyfriend,
Oniel DeLeon. The messages spanned several months, during which
- 5 -
Gordo and Martinez appeared to discuss drug trafficking and sent
each other weblinks to various articles about drug trafficking in
New England and the Dominican Republic.2
C. The Plea
On April 6, 2017, a federal grand jury in the District
of Rhode Island returned a two-count indictment charging both
Espinal and Martinez with one count of possession with intent to
distribute 500 grams or more of cocaine and one count of conspiring
to possess with intent to distribute the same. The indictment
also contained a forfeiture allegation. About a month later, a
superseding indictment added allegations of Pinkerton3 liability
and aiding and abetting to the possession count.
Martinez agreed to plead guilty if the conspiracy charge
-- which alleged a conspiracy only between her and Espinal -- was
modified to reflect a broader conspiracy that excluded Espinal.
The government agreed and filed an information against Martinez
that alleged a broader conspiracy with persons other than Espinal.
2 The relevant portions of these text message and WhatsApp
conversations are reproduced below as part of our discussion of
Martinez's safety-valve eligibility.
3 Under Pinkerton v. United States, 328 U.S. 640 (1946), "a
defendant can be found liable for the substantive crime of a
coconspirator provided the crime was reasonably foreseeable and
committed in furtherance of the conspiracy." United States v.
Vázquez-Botet, 532 F.3d 37, 62 (1st Cir. 2008).
- 6 -
Martinez then pled guilty to both charges without a written plea
agreement. Espinal was acquitted after a trial that was overseen
by then-Chief Judge William E. Smith, the same district judge who
accepted Martinez's guilty plea and sentenced her.
D. Safety-Valve Eligibility
1. Overview
Martinez's guilty plea exposed her to a mandatory
minimum sentence of five years. Before sentencing, she agreed to
meet with government agents in an attempt to qualify for
application of the "safety-valve" provision of 18 U.S.C.
§ 3553(f). Pursuant to § 3553(f), if the court finds at sentencing
that the defendant satisfies five prerequisites, it "shall impose
a sentence pursuant to [the Sentencing Guidelines] without regard
to any statutory minimum sentence." The government concedes that
Martinez met the first four requirements.4 The fifth requirement,
4 The first four prerequisites for safety-valve relief are:
(1) the defendant does not have (A) more than
4 criminal history points . . .; (B) a prior
3-point offense . . .; and (C) a prior 2-point
violent offense . . .;
(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; [and]
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
- 7 -
and the only one at issue in this appeal, requires the court to
make a finding that, "not later than the time of the sentencing
hearing, the defendant has truthfully provided to the [g]overnment
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." 18 U.S.C. § 3553(f)(5). However,
"the fact that the defendant has no relevant or useful other
information to provide or that the [g]overnment is already aware
of the information shall not preclude a determination by the court
that the defendant has complied with this requirement."5 Id.
2. First Safety-Valve Interview
Seeking to meet the disclosure obligation of
§ 3553(f)(5), Martinez first met with government attorneys and
investigators on December 20, 2018 -- before sentencing. At the
start of the interview, Martinez was asked to describe generally
the circumstances of her crime, including how the five kilograms
of cocaine got into the hide in her van.
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[.]
18 U.S.C. § 3553(f).
5 The statute also provides that any "[i]nformation disclosed
by a defendant under this subsection may not be used to enhance
the sentence of the defendant unless the information relates to a
violent offense." 18 U.S.C. § 3553(f)(5).
- 8 -
Martinez began her explanation by stating that on
February 21, 2017 -- the day of her arrest -- she had asked her
boyfriend, Espinal, to accompany her while she drove her
grandmother from Rhode Island to her aunt's house in New York.
Espinal agreed, and Martinez stated that they traveled directly to
her aunt's apartment to drop off her grandmother. Shortly after
they reached her aunt's apartment, Gerald Ortiz, Martinez's
cousin, arrived, took her cell phone and the keys to her van, and
left. Martinez estimated that Ortiz was gone for about two hours,
and she insisted that she and Espinal remained at her aunt's
apartment during that period. Martinez recounted that, when Ortiz
returned, she "had a small argument" with him because she had been
told "it was only one. That they were going to pay [her] $2,000.
When [Ortiz] arrived, he told [her] they ha[d] put two."6 Martinez
said that she "got very nervous. [She] said no. But [Ortiz] told
[her] [she] c[ould] not go back," or "take it back." Martinez
explained that she was so nervous that she cancelled plans to see
a friend in New York and immediately left for Rhode Island. She
also confessed that on the return trip, she was in regular contact
with Gordo -- her ex-boyfriend -- and that although she was
6 Although she did not say so affirmatively, context
demonstrates that the interview participants understood that
Martinez was referring to "one" and "two" kilograms of cocaine.
- 9 -
initially driving, she got an upset stomach and Espinal drove until
the pair was pulled over in Rhode Island.
After hearing her initial explanation, government agents
pressed Martinez for more information. Martinez stated that Ortiz
and her ex-boyfriend Gordo had planned "everything." She explained
that she was having trouble paying her bills, and Gordo offered to
pay her for simply driving to New York and back. The agents asked
Martinez whether she had previously transported narcotics. She
responded, "[n]ever before. Th[is] was my first." The agents
asked whether Martinez and Gordo had ever talked about drugs.
Martinez replied, "No. He always kept, um, giving me hints and
indirect, um, ideas, but I always said no, no." Martinez insisted,
"[h]e never talked with me [about drugs], but that's why I
withdrew, g[ot] away from him, because I knew what he was doing.
Of course I knew."
The agents asked Martinez how she had acquired the van,
and she explained that Gordo had given it to her as a gift. When
the agents asked whether Martinez knew that there was a hide in
the vehicle, she responded, "Never. If I had known, I would have
never taken it. I went everywhere in that vehicle with my kids,
with my family, with my whole family." The government asked
Martinez to explain where she thought the drugs were hidden when
she was driving back to Rhode Island if not in a hide in her car.
Martinez explained, "when I got in the vehicle I was looking
- 10 -
everywhere. I was trying to figure out where it was. I couldn't
find it. I tried everywhere. I was going crazy trying to figure
out where could it be, because I wanted to take it out."
The government then asked Martinez whether she ever had
large quantities of cash -- "over $100,000" -- in her possession.
Martinez stated, "No. Not in my possession, never." The agents
then showed Martinez one of the photographs of cash that was taken
with the camera on her phone and asked whether she recognized it:
Government: This picture was taken on your
phone on October 6th, 2016 at 11:59
a.m. . . . .
Martinez: I'm looking at you in the eye so
that you know that I'm telling the truth, I
didn't take that picture.
The agents proceeded to show Martinez a series of similar
photographs taken on her phone on the same date. Martinez denied
taking any of the pictures or having any knowledge of how they
came to be on her phone. She insisted that she thought she was in
Santo Domingo -- with her phone -- at the time the photographs
were taken.
The agents then showed Martinez the video depicting the
open hide in her van. The agents asked Martinez whether she
recognized the video. She responded that she had seen the video
for the first time at her lawyer's office. The agents then told
her that metadata showed that the video was taken with her phone
- 11 -
on November 8, 2016, at a rest stop on Interstate 95 in New Haven,
Connecticut. They asked her to explain it:
Martinez: Once a guy who was my boyfriend sent
me a video similar to that, but, it wasn't
that one. . . .
Government: You're not understanding me.
The . . . evidence from your phone shows that
the camera on your phone made that video.
Martinez: But, how if I wasn't even here. I
don't remember that. I didn't know where the
compartment was. I cannot tell you that I know
where it was if I didn't know. I don't know
what it was. I don't know how to open that. I
cannot tell you something that would be a lie.
The government ended the discussion because it concluded
that Martinez was not telling the truth. Martinez insisted, "I'm
looking at you in the eyes and I'm telling you the truth. . . .
How do you want me to tell you that I know something that I don't
know about?"
3. Martinez's Request for Safety-Valve Relief and the
Government's Opposition
After her safety-valve interview but before sentencing,
Martinez filed a motion for a downward variance from the applicable
guidelines range -- 70-87 months -- and for application of the
safety valve. In its opposition, the government challenged only
the fifth criteria for safety-valve relief, which, as noted above,
requires a defendant to provide truthful and complete disclosures
to the government. See § 3553(f)(5). The government argued that
Martinez's "feigned ignorance concerning narcotics and narcotics
trafficking," as well as her claim that "the February 21, 2017
- 12 -
incident was her first and only foray into drug trafficking," were
"not only false but, quite frankly, laughable."
In support of its view, the government cited various
communications found on Martinez's phone. For example, the
government highlighted excerpts of WhatsApp conversations between
Martinez and Gordo that appeared to contradict her claim of
ignorance. In one such exchange on February 7, 2017, the pair
discussed drug raids in Boston:
Martinez: Hey but they're already doing raids
Martinez: You know, trouble's heating up in
Boston
Gordo: Don't you know it
Gordo: They should be careful
Martinez: Don't you know it
Gordo: Thank God I got out of that
Martinez: Hahahaha
Martinez: But you're going back
Gordo: Hahahaha
Martinez: Someday
Gordo: I'm not
Martinez: Of course you are
Gordo: Ok
Martinez: When everything calms down
Gordo: Yeah, Ok
Martinez: That's right
Gordo: Do you think I want to go to jail
Martinez: But the thing is, you keep a low
profile
- 13 -
Martinez: No, with the buzz that you were here7
Gordo: What do you mean, buzz
Martinez: That's right
Martinez: The big kahuna
Gordo: The only one who got me into trouble was you with
your people
On February 16, 2017 -- the Thursday before Martinez's
Tuesday trip to New York -- Martinez and Gordo had the following
conversation:
Gordo: I spoke with Peluca
Martinez: What did she tell you
Gordo: He told me that on Monday he's going
to give me 5 to test the friend
Martinez: [a series of five emojis]8
Martinez: That's good
Gordo: Don't you know it
Gordo: Are you sure you're going on Tuesday
Gordo: You heard
Martinez: Yes
Martinez: I'd hear that even if I were deaf
The next relevant communication cited by the government
took place the day of the New York trip. Gordo sent Martinez the
following message before she left Rhode Island:
Gordo: Look, he's calling you and they're
telling me it shows up as off
7 A translation note in the transcript labels this comment
"ambiguous" and suggests that the proper translation may be "not
with the buzz that you were here."
8 The emojis apparently depicted a person holding their hands
up in the air.
- 14 -
Martinez: 40154301779
Martinez: [blank message]
Gordo: Ok
Martinez: They're calling me now
The call log from Martinez's phone reveals that, moments after
sending her cell phone number to Gordo, she received a 33-second
phone call from the number 1(929)424-1961. Shortly after that
call, Martinez engaged in the following text message exchange with
that number:
1(929)424-1961: 73-21 Kissena blvd queens
1(929)424-1961: Call me when you're there
Martinez: Ok
The address texted to Martinez corresponds to a Walgreens Pharmacy
in Queens. Martinez's call log and cell site data confirm that,
on February 21, 2017, Martinez's cell phone arrived at the
Walgreens in Queens and called the number that sent her the
address.
During her trip back to Rhode Island that night, Martinez
advised Gordo of her status and location via WhatsApp until just
moments before she was arrested:
Martinez: All chill at exit 90
Gordo: Ok
Martinez: Ok
9 The phone number Martinez sent to Gordo via WhatsApp was
the number assigned to her iPhone (the one that was seized by
police). That number is different from the phone number assigned
to her WhatsApp account.
- 15 -
Gordo: What's up, love
Martinez: Here in my space now
Martinez: At exit 7
Gordo: Ok
Martinez: The police stopped me
Martinez: Let me see what they're going to
say to me
Martinez: God willing everything will be Ok
Gordo: Ok
Martinez: Ok
Gordo: Were you driving fast
Martinez No
Martinez: I believe it's because of the
broken window
Gordo: Ok
Martinez: Ok
Gordo: Call me to get you out10
Gordo: Call me
Martinez: What
Gordo: . . . . Erase everything on the cell11
Based on the evidence it described, as well as a "common
sense understanding of how drug organizations operate," the
government characterized Martinez's attempt to "portray this
transaction as her first foray into the drug world, thrust upon
her by unfortunate financial circumstances," as "nonsensical and
unworthy of belief." The government argued that the various
10 A translation note in the transcript labels this message
as "ambiguous."
11 Martinez apparently tried to erase all communications with
Gordo, but they were recovered during the government's data
extraction.
- 16 -
WhatsApp messages demonstrated that Martinez and Gordo had a level
of familiarity that allowed Gordo to feel comfortable sharing with
Martinez the sensitive details of his involvement in a criminal
enterprise. Moreover, the government argued, Martinez's call log
and text messages with the unidentified number -- the one that
provided her with the Walgreens address in Queens -- contradicted
Martinez's claims that she remained at her aunt's house for the
duration of her time in New York while Ortiz orchestrated the
placement of the drugs in the hide.
The government also pointed to the photos of large
amounts of cash and the video of the hide that were taken with the
camera on Martinez's cell phone. The government emphasized that
Martinez had no plausible explanation for who was responsible for
taking the photos and video with her phone, or how they otherwise
came to be on her phone. Moreover, the government produced travel
records confirming that Martinez was not, as she had claimed during
her safety-valve interview, in Santo Domingo when the photos and
video were taken.12
The government argued that this evidence showed that
Martinez did not fully disclose what she knew during her safetyvalve interview in an attempt to minimize her involvement in the
12 Martinez did travel to Santo Domingo in October 2016.
However, she was there from October 12 to November 2, and the
pictures and the video were taken on October 6 and November 8,
respectively.
- 17 -
criminal enterprise and to protect other members of the conspiracy.
The government characterized the information provided by Martinez
as "inherently contradictory, easily dismissed as unworthy of
belief through the application of logic, or simply devoid of any
meaningful detail." Accordingly, the government asked the court
to sentence Martinez to the mandatory minimum sentence of five
years.
4. Sentencing Day One
On February 4, 2019, the district court convened a
sentencing hearing. The court set forth the applicable guideline
calculations and then heard defense counsel's objections to the
government's opposition to safety-valve relief. Defense counsel
argued that the government's portrayal of the safety-valve
interview was inaccurate. For example, defense counsel noted that
the government had asserted that Martinez claimed to be unaware
that her van contained a hide, but the interview transcript
revealed that she admitted knowing about the hide and claimed only
that she had been unable to find it. Defense counsel also
explained that "Peluca" was a nickname for a person who worked at
a hair salon owned by Gordo and any references to Peluca must be
related to the salon and not drugs. Defense counsel provided
similar innocent explanations for each piece of evidence the
government had offered as proof of Martinez's undisclosed
involvement in drug trafficking.
- 18 -
After hearing argument from both parties, the district
court asked government counsel whether it thought Martinez was
"entitled to have an opportunity to explain" the text message
conversations referenced in the government's sentencing
memorandum, specifically the one in which Gordo refers to "5 to
test the friend." The court explained: "what I'm grappling with
is . . . you said 45 minutes was enough, we know she's lying, we
don't have to sit there forever. [Defense counsel] gets up and
says you're totally misrepresenting what that exchange is about
and she can explain it. . . . Do you think they're entitled to
that opportunity?" The government responded, "I think the court
has the ability to offer them the opportunity," but insisted that
there was other evidence available in the record to show Martinez
was lying.
Ultimately, the court determined that Martinez should be
afforded a "broader exploration" of the alleged falsehoods
identified by the government. The court suspended the sentencing
hearing and ordered that it be rescheduled after the government
conducted a supplemental safety-valve interview, at which the
government "ought to . . . explore[] very explicitly" issues such
as "the video, for example, the photos of the New York complaint,
for example, the text message exchange [regarding '5 to test the
friend'] which [defense counsel] says [Martinez] was never given
an opportunity to explain what that means." The court added that
- 19 -
the government need not "go back and repeat everything," but it
should ask Martinez, "do you have anything else to say or anything
else to add; this is what you said, is that, do you stand by that"
in addition to "mov[ing] on to []other areas."
5. Supplemental Safety-Valve Interview
The supplemental safety-valve interview ordered by the
court started with the government asking Martinez again whether
she had ever talked to Gordo about drugs or drug trafficking.
Martinez insisted that she had not. The government asked Martinez
why she and Gordo had, on several occasions, sent each other
articles about drug raids and arrests for drug trafficking in New
England and the Dominican Republic. Martinez said simply,
"[t]hat's what [Gordo] does," but that it was "not anything [she]
had to do with."
The government proceeded to ask Martinez about specific
text message conversations with Gordo. For example, the government
asked Martinez about a message she sent to Gordo on October 6,
2016, in which she stated, "[i]t's complete. The package with a
thousand was in the hide. Glory to God."13 The government asked
how this message could be squared with Martinez's insistence that
she had never trafficked in drugs before the February 2017 incident
13 This message was not referenced in the government's
opposition to the safety valve. Martinez was asked to read the
message aloud during her supplemental safety-valve interview, and
the interpreter translated it.
- 20 -
and that, prior to that incident, she did not know there was a
hide in her vehicle. Martinez explained that the "hide" in that
message did not refer to the hide in her van, but instead a hide
in a sofa.14
Directing Martinez's attention to the conversation in
which Gordo told Martinez that "Peluca" was going "to give [him]
5 to test the friend" and asked whether she was "sure [she was]
going on Tuesday," the government asked where Martinez was "going
on Tuesday that Gordo was asking you about." Martinez responded,
"I was going to do something about the salon because we hadn't yet
talked about the drugs." She told the government that Peluca
worked at Gordo's salon and "doesn't do anything bad" and so the
conversation must have had "something to do with the salon."
The government also asked Martinez about the text
message she received the day of the New York trip identifying the
address of the Walgreens in Queens. Martinez stated that the phone
number that sent her the address belonged to Ortiz, her cousin,
and she insisted that she never went to the Walgreens. Rather,
she claimed, Ortiz sent her the address because he intended to use
her phone -- and its GPS feature -- when he drove her van to the
Walgreens later that day to meet the supplier. In response, agents
14 The transcript attributes this statement to Attorney
Gendron -- a government attorney -- but context demonstrates that
this attribution is an error and that it was Martinez, through her
interpreter, who made the statement.
- 21 -
asked Martinez to explain why cell site data and call logs showed
that a call was made from her phone to Ortiz's from the Walgreens
location. Martinez replied, "I couldn't tell you. My cousin
[Ortiz] took the phone. I don't know why he called his own number.
I stayed at the apartment."
6. Post-Supplemental Interview Sentencing Hearing
The district court reconvened Martinez's sentencing
hearing on May 31, 2019. After the government again opposed
application of the safety valve, defense counsel argued that
Martinez had been truthful in both safety-valve interviews and had
offered reasonable explanations in response to each piece of
evidence the government proffered. When defense counsel asked to
call Martinez as a witness, the court continued the hearing for a
later date to allow counsel to prepare for direct and crossexamination.
The proceedings resumed a month later, and Martinez took
the stand. She acknowledged that the day the photos of large
amounts of cash were allegedly taken with her phone -- October 6,
2016 -- she was in New York and not in the Dominican Republic.
However, she adamantly denied taking the photos. She also
testified that the day the video of the hide supposedly was taken
with her phone at a Connecticut rest stop at about 9:40 p.m. --
November 8, 2016 -- she had spent the entire day and night in Rhode
Island. She stated that she voted at about 1 p.m. (and produced
- 22 -
a selfie photo that she had posted on Facebook after she had
voted), went to the store to buy some groceries, and then was at
her home with friends. She denied taking the video.
The government engaged in a brief cross-examination and
the court then conducted its own extensive questioning of Martinez.
The court asked Martinez to clarify her testimony regarding several
text messages and WhatsApp conversations in the record. The court
also asked Martinez to explain how her phone got to the rest stop
in Connecticut and took a video of the hide in her vehicle, while
she remained in Providence to vote and hang out with friends in
November 2016. Martinez simply reaffirmed her position that she
did not take the video and that she could not explain how it
appeared on her phone. Also important to the court was Martinez's
explanation of how the photos of cash got on her phone, what she
knew about the hide in her vehicle, and why she possessed articles
about local drug trafficking.15
After the court finished questioning Martinez, it
concluded that it could not make a determination as to her safetyvalve eligibility until further forensic analysis was completed on
the photo that Martinez posted to Facebook after she voted on the
day that the government asserted her phone was used in Connecticut
15 We discuss the content of the court's concerns in these
areas in detail when analyzing the sufficiency of the court's
determination that Martinez was ineligible for safety-valve
relief.
- 23 -
to take the video of the hide in her vehicle. The hearing was
continued for a day so the government could provide more
information on when, where, and how the voting selfie was taken.
When sentencing resumed the next day, before the
government provided any additional information about the voting
selfie, defense counsel requested a side bar conference at which
he asked to recall Martinez to the stand. He also asked that the
proceedings be sealed. Over the government's objections, the court
allowed Martinez to retake the stand under seal. Martinez admitted
that she had not been truthful about the origin of the photos of
the cash and the video of the hide.16 She confessed that an
individual she knew only by a nickname had borrowed her phone on
October 6, 2016 and had photographed the cash. She explained that
the same individual had borrowed both her van and her phone on
November 8, 2016, and had taken the video of the hide. She also
confessed that she had not been truthful about the WhatsApp
conversation with Gordo in which Gordo stated that "Peluca" was
going to give him "5 to test the friend." She conceded, "yes,
it's true, we were talking about the five kilos."17
16 Although this testimony was proffered under seal, these
facts were disclosed in the government's brief and, thus, are part
of the public record in this case.
17 This testimony also occurred under seal, but we quote it
here because the government's brief discloses that "Martinez
admitted that Gordo's text about Peluca sending Gordo '5 to test'
- 24 -
Following Martinez's supplemental testimony, the court
concluded, without further mention of the voting selfie, that
Martinez was not eligible for safety-valve relief:18
[I]n this case it's clear to me that on a
number of fronts the defendant failed to make
a truthful disclosure to the government in the
course of the two safety valve interviews that
she was afforded. I would note that the
defendant was given more than one opportunity
to do so, and the areas in which she did not
make truthful disclosures are many, ranging
from her discussion about her involvement in
the crime, to the meaning of and the various
text messages, to the knowledge with respect
to the hide contained in her vehicle, to what
happened with her phone at the point which
that video on her phone was made, to her
failure to disclose how pictures of cash,
pictures of court documents from the Southern
District of New York, the press releases from
the U.S. Attorney's Office in Boston all
regarding drug trafficking investigations,
and on and on. . . . So the defendant's
failure to meet her obligation is vast and is
well-reflected in the overall record.
The court added: "I don't think I need to detail chapter and verse
all the areas in which the defendant did not truthfully discuss
referred to the five kilograms of cocaine that Martinez would
transport the following Tuesday from New York. (SA:34.)"
18 Martinez contends that the sentencing court did not
consider the statements that she made under seal on the last day
of sentencing in ruling on the safety-valve issue. That is
inaccurate. The purpose of allowing Martinez to testify at
sentencing was for the court to assess whether Martinez could
demonstrate that she had provided truthful and complete
disclosures to the government. She admitted that she had not.
The court was free to -- and did -- rely on those admissions to
assess Martinez's credibility and whether her prior statements to
the government satisfied her disclosure obligation.
- 25 -
these matters with the government. We discussed it at length in
this hearing, and the government has done, I think, an excellent
job of chronicling the areas in which the defendant did not
truthfully disclose information."19
Martinez addressed the court and asked for leniency,
blaming her untruthfulness on her fears of retribution. The court
told Martinez:
The last thing I want to do, the last thing I
want to do is to give you five years in prison.
I made all sorts of arrangements and efforts
to try to avoid doing that, but you have tied
my hands and now I don't have any choice. I
have no choice but to give you [the mandatory
minimum sentence of five years].
Martinez timely appealed.
19 Technically, to be eligible for safety-valve relief, a
defendant must make complete and truthful disclosures to the
government "not later than the time of the sentencing hearing."
18 U.S.C. § 3553(f)(5). We have explained that "[t]his means that
the deadline for making a truthful and complete disclosure is the
moment that the sentencing hearing starts." United States v.
Matos, 328 F.3d 34, 39 (1st Cir. 2003). Here, however, after the
sentencing hearing commenced, the district court determined that
Martinez was entitled to a supplemental interview and, thus,
suspended sentencing until that interview could be completed. When
sentencing resumed, the court considered the substance of both
interviews in assessing Martinez's safety-valve eligibility. To
the extent that the court's reliance on the supplemental interview,
which technically occurred after sentencing began, was
problematic, the government made no issue of the sequence.
- 26 -
II.
A. Standard of Review
In safety-valve appeals, the standard of review "varies
according to the foundation upon which [the safety-valve]
determination is based." United States v. Matos, 328 F.3d 34, 38
(1st Cir. 2003). To the extent safety-valve determinations rest
on conclusions of law, our review is de novo. United States v.
Padilla-Colón, 578 F.3d 23, 29 (1st Cir. 2009). If such
determinations rest on findings of fact, we review for clear error.
Id. The district court's assessment of witness testimony involves
"fact-sensitive judgments and credibility calls," and thus is
reviewed for clear error. Matos, 328 F.3d at 40. Under the
"extremely deferential" clear error standard, an appellate court
"ought not to disturb either findings of fact or conclusions drawn
therefrom unless the whole of the record compels a strong,
unyielding belief that a mistake has been made." United States v.
Bermúdez, 407 F.3d 536, 542 (1st Cir. 2005) (first quoting United
States v. Marquez, 280 F.3d 19, 26 (1st Cir. 2002); and then
quoting Matos, 328 F.3d at 40).
B. Applicable Law
As we have explained, to qualify for relief under the
safety valve, a defendant must satisfy five criteria, only the
last of which is at issue in this appeal. A defendant will meet
that final requirement only if the sentencing court finds that:
- 27 -
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 . . . .
18 U.S.C. § 3553(f)(5).
The defendant bears the burden of showing that she made
"appropriate and timely disclosures to the government." Matos,
328 F.3d at 39. The defendant must "prove to the court that the
information [s]he supplied in the relevant time frame was both
truthful and complete." Id. The defendant must not only
"accurately" answer the government's questions, but also must
"volunteer [relevant] information even if the government fails to
ask for it." United States v. Feliz, 453 F.3d 33, 37 (1st Cir.
2006). In that sense, a safety-valve debriefing is "a situation
that cries out for straight talk; equivocations, half-truths, and
veiled allusions will not do." Matos, 328 F.3d at 39. In sum,
"full disclosure is the price that Congress has attached to relief
under the [safety-valve] statute." United States v. Montanez, 82
F.3d 520, 523 (1st Cir. 1996).
In opposing safety-valve relief, the government may not
"assure success simply by saying, 'We don't believe the defendant,'
and doing nothing more." United States v. Miranda-Santiago, 96
F.3d 517, 529 (1st Cir. 1996). "[W]here a defendant in her
submissions credibly demonstrates that she has provided the
- 28 -
government with all the information she reasonably was expected to
possess," the government must "at least come forward with some
sound reason to suggest" that the defendant's proffer is untruthful
or incomplete. Id. at 529 n.25. The government is not required,
however, to introduce independent rebuttal evidence. Marquez, 280
F.3d at 24. Looking to the record as a whole, a district court
must make its own "independent determination as to whether [a
defendant] has satisfied" her safety-valve disclosure obligation.
United States v. White, 119 F.3d 70, 73 (1st Cir. 1997). In
exercising that discretion, the district court "must be fair and
practical." Feliz, 453 F.3d at 37.
III.
Martinez contends that the district court erred in
concluding that she was ineligible for safety-valve relief because
she failed to disclose truthfully and completely the information
that she possessed concerning her offense of conviction. She
asserts that any omissions, inconsistencies, or misstatements in
the record are either unrelated to her offense conduct or
immaterial, and, thus, cannot justify denial of safety-valve
relief.
A. Scope of Relevant Information
Martinez describes her offense of conviction as a single
incident of transporting cocaine on February 21, 2017. According
to Martinez, information not directly relevant to her trip to New
- 29 -
York is "beyond the appropriate scope of factual inquiry for safety
valve purposes." We review de novo the district court's legal
interpretation of the scope of § 3553(f)(5).
By classifying her offense narrowly as a single incident
of transporting cocaine from New York to Rhode Island, Martinez
overlooks the fact that, in addition to one count of possession of
cocaine with intent to distribute, she pled guilty to a conspiracy
charge involving several other unidentified coconspirators.20
Count I of the Information alleges -- and Martinez admitted --
that she participated in a conspiracy to distribute cocaine with
"known and unknown" others that began at "a time unknown, but at
least on . . . February 21, 2017."
By its terms, § 3553(f)(5) requires a defendant to
disclose "all information or 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." 18 U.S.C. § 3553(f)(5)
(emphasis added). Application note 3 to § 5C1.2 of the Sentencing
Guidelines -- the provision that corresponds to 18 U.S.C. § 3553(f)
-- explains that the phrase "offense or offenses that were part of
the same course of conduct or of a common scheme or plan," as used
in the safety-valve provision, means "the offense of conviction
20 Indeed, the conspiracy charge was, at Martinez's request,
intentionally broadened to reflect a conspiracy with persons other
than her boyfriend Espinal.
- 30 -
and all relevant conduct." U.S.S.G. § 5C1.2 cmt. 3. Where, as
here, the offense of conviction involves a conspiracy to engage in
criminal activity with others, the relevant conduct that must be
disclosed includes any information the defendant has about the
conduct -- her own or that of her co-conspirators -- taken "in
furtherance of [the jointly undertaken] criminal activity."
U.S.S.G. § 1B1.3(a)(1)(B);21 see also United States v. MuleroAlgarín, 535 F.3d 34, 40 n.2 (1st Cir. 2008) (noting the
"expansive" scope of the § 3553(f)(5) disclosures). Hence, we
reject Martinez's attempt to limit the scope of her required
disclosures to those that directly concern the events of February
21, 2017.
B. Adequacy of the Record
Our conclusion that the evidence considered by the
district court was comfortably within the scope of § 3553(f)(5)'s
disclosure requirement, an issue of law, leaves only the question
of whether the district court clearly erred in finding that
Martinez was ineligible for safety-valve relief. See Marquez, 280
F.3d at 26. As we have explained, the clear error standard of
review is "extremely deferential," Bermúdez, 407 F.3d at 542
(quoting Marquez, 280 F.3d at 22), and we will not disturb a
21 Section 1B1.3 of the Sentencing Guidelines outlines
"relevant conduct" in the context of determining a sentencing
guidelines range.
- 31 -
district court's factual finding that a defendant failed to make
a truthful and complete disclosure to the government without
compelling support that a mistake has been made. Matos, 328 F.3d
at 40.
Martinez asserts that the district court's denial of her
safety-valve eligibility rests on nothing more than "innuendo,
impressions, and characterizations of her proffer," rather than
"substantial, specific factual misstatements." She also claims
that the district court did not support its decision in a
sufficiently detailed manner.
We disagree.22 The district court engaged in a lengthy
and detailed questioning of Martinez at sentencing. It then
expressed skepticism about Martinez's explanations and claimed
ignorance. When imposing its sentence, the district court listed
several of the areas in which it found Martinez's proffer lacking,
and observed that it did not "need to detail chapter and verse all
the areas in which the defendant did not truthfully discuss th[o]se
matters with the government" because those issues had been
"discussed . . . at length in th[e] hearing," and the government
22 In any event, we note that, in this circuit, "[a]lthough
it is preferable that the court support its decision [to deny
safety-valve relief] with 'specific factual findings,' a district
court may rest its decision on conclusory statements if those
conclusions have 'easily recognizable support in the record.'"
United States v. Bravo, 489 F.3d 1, 12 (1st Cir. 2007) (quoting
Miranda-Santiago, 96 F.3d at 529)).
- 32 -
had done "an excellent job of chronicling the areas in which the
defendant did not truthfully disclose information." Ultimately,
the court concluded that Martinez's "failure to meet her obligation
is vast and well-reflected in the overall record."
We review several of the areas identified by the district
court and, like the district court, rely on the transcript of the
sentencing hearing and the arguments of the government to
demonstrate the sufficiency of the court's finding that Martinez
was not being truthful and, thus, was not entitled to the safety
valve.
1. Meaning of Various Text Messages
The district court concluded that one of the "areas in
which [Martinez] did not make truthful disclosures" was "the
meaning of . . . the various text message conversations." The
most troublesome of those conversations to the court was the one
in which Martinez and Gordo discussed someone named "Peluca" giving
Gordo "5 to test the friend," in response to which Martinez sent
a series of excited emojis and confirmed that she was "going on
Tuesday." During cross-examination at sentencing, Martinez
insisted that "[she] didn't understand what [Gordo] was talking
about because . . . Peluca's not involved with drugs." Martinez
claimed that Peluca was "just someone that combs hair" and so she
and Gordo must have been discussing something about the salon in
that conversation. Martinez even expressed frustration at the
- 33 -
notion that she would have agreed to transport five kilos for a
mere $2,000, telling the government "I never talked about five
kilos. My understanding was about one kilo, and for one kilo I
was going to be paid $2,000. Do you really . . . believe that I
would commit to five kilos and get paid only $2,000? That doesn't
make any sense."
Following up on the government's cross-examination, the
court asked Martinez to clarify whether that conversation was
actually about Martinez going to New York on Tuesday to retrieve
five kilograms of cocaine. Martinez insisted she was being "very,
very honest" that "as far as those five kilos, there was never any
conversation or any agreement about those five kilos," and the
discussion about Peluca "ha[d] nothing to do with drugs."
Unconvinced, the court directed Martinez's attention to
the WhatsApp conversation in which she and Gordo discussed drug
raids "heating up" in Boston:
I have a real hard time believing you when you
say that you don't know what's going on in
this conversation about Peluca that you're
having with Gordo and the five coming for a
test when I read all those prior text messages
between you and Gordo that have to do with
drug trafficking and drug raids in Boston and
the Dominican Republic and all -- and there's
a long, long discussion with the two of you
that makes it obvious that you and Gordo --
that you're discussing drug trafficking on a
serious level.
- 34 -
Martinez responded, "I'm not really sure how to explain this
better," and insisted again that the conversation was not about
five kilograms of cocaine or her Tuesday trip to New York City.
The very next day, however, Martinez did an about-face
when she got back on the stand. In response to defense counsel
asking Martinez to tell "the truth" about what she understood the
"5 to test" message to mean, Martinez finally disclosed that she
had been lying: "Well, sitting here now, and very aware that what
I'm saying if I say the truth risks my life, yes, it's true, we
were talking about the five kilos."
In short, Martinez admitted that she had not been
truthful to the government about information directly related to
the circumstances of the offense that resulted in her arrest. She
sought to conceal the fact that she knew, several days before she
arrived in New York, that she would be transporting five kilograms
of cocaine to Rhode Island for Gordo. Her admission also
contradicts her claim that she agreed to transport only a single
kilogram and got into an argument with her cousin because she felt
coerced into transporting two kilograms. It also reveals that
Peluca was a member of the conspiracy -- the source of the "5 to
test" -- and not simply a hairdresser as Martinez had claimed on
several occasions. Martinez's deliberate choice to lie to the
government, and the court, about the meaning of her "5 to test"
conversation with Gordo plainly supports the district court's
- 35 -
finding that she did not provide truthful information about her
crime to the government. Indeed, despite this lie being a primary
focus of the district court, Martinez does not even attempt to
explain it away or minimize it on appeal.23
2. Knowledge of the Hide
The court also concluded that Martinez was not truthful
with the government regarding her "knowledge with respect to the
hide contained in her vehicle [and] what happened with her phone
at the point which that video [of the hide] on her phone was made."
During her safety-valve interview, Martinez insisted that she did
not know there was a hide in her vehicle, claiming that, "[i]f
[she] had known, [she] would have never taken" the car from Gordo.
The government asked Martinez where, then, she thought the drugs
were hidden when she was driving back to New York if not in a hide.
She explained that she searched the vehicle thoroughly but could
not locate the hide.
At sentencing, the court focused on the video of the
hide that was, according to the metadata, taken with Martinez's
phone at a rest stop in Connecticut. The court told Martinez,
"you have to convince me that somehow your phone got to the rest
stop in Madison, Connecticut, and took a video of a hide in your
23 Martinez simply avoids the issue by stating that the
district court did not take into account her testimony under seal
on the last day of sentencing. As we have already explained, see
supra note 18, that is an inaccurate reading of the record.
- 36 -
vehicle . . . [but] you never left Providence." Martinez insisted,
"I swear, I absolutely swear that I never left my home and that I
never took that video. I can't understand how it appears on my
phone. I swear, I swear to God, that phone and I never left the
state of Rhode Island. I was home all night. I swear so. I
cannot explain it, but that's the truth."
The court was unconvinced and told Martinez, "I'm having
a hard time seeing the truth here because there's only two
possibilities . . . you took that video or . . . somebody else
took that video. And you certainly would remember if you gave
your phone and your car to somebody else. . . ." Martinez responded
plainly that she "never saw the hide in [her] car," that she saw
the video of the hide for the first time at her lawyer's office,
and that she could not explain how it appeared on her phone.
As a follow-up, the court asked Martinez how she could
say she did not know there was a hide in her vehicle when, on
October 6, 2016, she texted Gordo, "I'm going to the van to check
it really well," and, a few moments later, "[t]he package with the
thousand was in the hide. Glory to God." Martinez responded that,
at the time she sent that message, she was in Gordo's home and he
had asked her to "receive" "about 40,000 or 38,000 dollars" in
cash and count it. When she told Gordo she found "[t]he package
with the thousand . . . in the hide," she claims that she was
telling Gordo that she had located some missing cash in "a hiding
- 37 -
spot in the house [in] the couch" not the one in her car. She had
no coherent explanation for what she meant when she said
immediately before that she was "going to the van to check it
really well."
When she got back on the stand the next day, Martinez
confirmed that she had lied and that she knew precisely where the
video of the hide on her phone had come from. She explained that
an individual she knew only by his nickname had borrowed her phone
and her vehicle and had taken the video of the hide. That
individual was frequently referenced in Martinez's communications
with Gordo, and those messages reveal that the individual was
deeply involved in the drug trafficking conspiracy in which
Martinez admitted she participated. Her failure to disclose that
information to the government not only concealed the involvement
of a coconspirator but also concealed the facts that Martinez knew
about the hide as early as November 2016 and that she had allowed
coconspirators to use her vehicle and her phone to engage in drug
trafficking activities in furtherance of the conspiracy.
Martinez claims that this is an irrelevant and
immaterial inconsistency. She argues that it does not matter that
she did not disclose the origin of the video of the hide because
she admitted to knowing there was a hide in the vehicle at the
time of the offense. Again, however, the import of the information
was not only whether she knew a hide existed, but rather when she
- 38 -
knew and who else knew. Hence, Martinez's failure to disclose the
extent of her knowledge of the hide supports the district court's
finding that she was ineligible for safety-valve relief.
3. Pictures of Cash
Also important to the court's conclusion that Martinez
was not being truthful was "her failure to disclose how pictures
of cash" came to be on her phone despite metadata showing that the
pictures were taken with the camera on her phone on October 6,
2016. During her safety-valve interview, Martinez claimed that
she did not recognize the photos or know how they appeared on her
phone. At sentencing, she echoed that sentiment. On the last day
of sentencing, however, Martinez testified under seal that the
same individual who had taken her phone and car to take the video
of the hide had also taken her phone on October 6th and taken
pictures of cash.
Martinez's obvious obfuscation regarding the photos of
cash support the district court's finding of ineligibility. Not
only did Martinez admit she was lying, the evidence in the record
suggests that even her disclosure under seal blaming the origin of
the photo on a coconspirator may have been false. The government
pointed out to the court at sentencing that the photographs of
cash were taken on October 6, 2016, the same day that Martinez
admitted she was alone at Gordo's home, texting him from her phone,
and counting "40,000 or 38,000" dollars. If Martinez was using
- 39 -
her phone to text Gordo alone at his home while counting his money,
it is unlikely that someone else took her phone to take pictures
of cash that same day.
Martinez claims that any inconsistencies regarding the
identity of the photographer are irrelevant because she disclosed
having been in the presence of large quantities of drugs in the
past. Again, however, she misses the point. The photos either
(1) tended to prove that a coconspirator -- the same one that used
her phone and car on November 8, 2016 to take the video of the
hide in Connecticut -- also used Martinez's phone more than a month
earlier to photograph a large amount of cash, or (2) showed that
Martinez herself was involved in the conspiracy as of that date.
Both of those facts are relevant to the conspiracy charge and
support the district court's finding that Martinez was not truthful
with respect to information regarding her offense.
4. Other Incomplete or False Disclosures
The district court also considered several other
inconsistencies or omissions in its assessment of Martinez's
eligibility for safety-valve relief. For example, the court found
it suspicious that Martinez's phone possessed several articles and
court documents about drug trafficking investigations in New York,
Boston, and the Dominican Republic. Martinez argued that she
possessed those documents because she knew Gordo was involved with
drugs and was concerned for his wellbeing. The government argued
- 40 -
that "these things on her phone are not out of a sense of mere
curiosity but because . . . she's a player in the game." The court
agreed with the government and incorporated its reasoning in
ultimately concluding that Martinez did not truthfully disclose
why she possessed images of court documents and press releases
about drug trafficking on her phone.
The court also concluded, relying on examples proffered
by the government, that Martinez was not truthful "about her
involvement in the crime." For example, the government argued
that Martinez lied about whether she, rather than Ortiz, traveled
to the Walgreens in Queens to meet the supplier and orchestrate
the placement of the drugs in the hide. According to the
government, that story could not be squared with the fact that
Martinez's phone called Ortiz's phone from the vicinity of the
Walgreens, consistent with an instruction Ortiz gave to Martinez
via text message. When the government asked Martinez if it was
actually she who traveled to the Walgreens and made that call, she
said, "No, no, no, that wasn't me because when I got to my . . .
auntie's house, I gave my cousin [Ortiz] my phone." The government
asked her to explain why Ortiz would have taken her phone and car
to the Walgreens and, upon his arrival, called his own phone with
her phone consistent with the instruction he had texted her.
Martinez simply stated that she did not know why her cousin called
himself with her phone and that the government would have to ask
- 41 -
him that question. Martinez's nonsensical answer tends to show,
as the government argued at sentencing, that Martinez sought to
distance herself from the crime for which she was arrested and,
thus, supports the district court's conclusion that Martinez was
not truthful in her disclosures.
Outcome: We discern no error in the district court's reasoned
assessment of Martinez's eligibly for safety-valve relief.
Martinez points out that safety-valve relief cannot be denied based
on "trivial inconsistencies" or "inconsequential omissions."
Matos, 328 F.3d at 42. But her attempt to classify each of her
mistruths as unimportant blunders strains credulity. The
falsehoods identified by the court, supported with evidence by the
government, and the record as a whole, amply justify the district
court's finding that Martinez failed "truthfully [to] provide[] to
the [g]overnment all information and evidence [she] ha[d]
concerning" her offenses and thus was not eligible for relief under
the safety valve. 18 U.S.C. § 3553(f)(5).
Affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: