is a safety valve snitching supplier

As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.

The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

A common requirement that disqualifies people is the prior criminal record requirement.  Basically, anything other than a minor one time conviction will disqualify you.  However, old convictions may not count and some minor convictions also do not count.  There is a whole section in federal sentencing guidelines manual that addresses which prior convictions count and how many points are assessed.

In order to get safety valve, you, through your criminal defense attorney, must contact the prosecuting attorney before your sentencing hearing, and tell them that you want to provide them with a statement.  You must be willing to tell them everything you know about the offense, who else was involved, and you must be forthcoming and truthful.  It will be up to the judge to determine whether you meet this requirement.  You should not wait until the last minute either, as the prosecutor has no duty to take your statement within a short period of time before the sentencing hearing and the judge has no duty to continue your sentencing hearing to give you time to provide the government with a statement.

One difference between Safety Valve and Substantial Assistance is that there is no requirement for you to cooperate against anyone else.  So, once your provide the information to the prosecutor, you should become eligible to seek safety valve at your sentencing, without having to cooperate against anyone else.

If you are not convicted under one of these statutes, there is no Safety Valve option.  For example, Safety Valve is not an option for someone convicted under the Aggravated Identity Theft statute that carries a 2 year minimum mandatory sentence consecutive to any underlying sentence.  Similarly, if you were convicted of similar conduct to those eligible for safety valve, but were convicted under a statute not listed above, you still would not be safety valve eligible.  For example, if you were convicted fo possession with intent to distribute cocaine while aboard a vessel subject to United States jurisdiction in violation of 46 U.S.C. app. §1903(a), you would not be eligible for safety valve, even though someone convicted of the same conduct on land would be eligible.

After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit.  Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Lasnetski Gihon Law and began defending citizens in criminal court.  He represents clients in both State and Federal criminal courts.

Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.

Thus is the case with the federal Sentencing Reform Act of 1984 (“SRA”), passed with strong bipartisan support during the Reagan presidency after many years of debate and study. The first indicator that the SRA was not about “reform” was that it was born out of the omnibus Comprehensive Crime Control Act which was designed to overhaul the federal criminal justice system. Notwithstanding that SRA was the afterbirth of a sweeping congressional effort to “get tough” on crime, proponents of SRA hailed its primary purposes which were: “(1) to establish comprehensive and coordinated statutory authority for sentencing [currently found in 18 U.S.C. § 3553]; (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines; and (3) principally through the sentencing commission to create a means of assembling and distributing sentencing data, coordinating sentence research and education, and generally advancing the state of knowledge about criminal behavior.”

One of the SRA’s chief sponsors, the late Sen. Edward M. Kennedy, believed the U.S. Sentencing Commission (“Commission”) and the U.S. Sentencing Guidelines (“Guidelines”) the Commission would promulgate would accomplish three primary policy goals: 1) produce just punishment, deterrence, incapacitation and rehabilitation; 2) provide certainty and fairness by eliminating the sentencing disparity, which had plagued the federal court system, through individualized sentencing that considered both aggravating and mitigating factors; and 3) enhance the knowledge of human behavior as it pertained to the criminal justice system.

Last year, the Commission issued a report based upon independent analysis and research,Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis, which made the following findings:

Black male offenders received longer sentences than white male offenders. The differences in the sentence length have steadily increased since Booker [a 2005 U.S. Supreme Court decision which held the U.S. Sentencing Guidelines are “advisory” and not mandatory as they had been uniformly interpreted since SRA’s enactment].

Female offenders of all races received shorter sentences than male offenders. The difference in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).

Non-citizen offenders received longer sentences than offender who were U.S. citizens. The differences in sentence length have steadily increased since Booker.

Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.

Thus, thirty-six years after SRA’s enactment, federal sentencing practices are just as arbitrary, discriminatory, and counterproductive to the goals of justice as they were before SRA’s enactment. This has been especially true in federal sentencing practices in drug cases, most notably those involving crack/powder cocaine. Besides the individual biases of some federal judges in these cases, the primary problem is the mandatory minimum sentence requirements in most drug cases.

Mandatory minimum sentencing was created by Congress in 1986, two years after the enactment of SRA. The Drug Policy Alliance (“DPA”) points out that mandatory drug sentences are based on three factors: type of drug, weight of the drug mixture (or alleged weight in conspiracy cases), and the number of prior convictions. The purpose of mandatory minimums was to target “drug kingpins” but, as DPA notes, the U.S. Sentencing Commission has found that only 5.5 percent of the crack cocaine cases and 11 percent of all federal drug cases involve “high-level drug dealers.”

In 1994, in another futile effort to eliminate the ever-increasing disparity between the “least culpable” and “more culpable” drug offenders, Congress enacted more “sentencing reform” legislation. This time it was the Mandatory Minimum Sentencing Reform Act, codified in § 3553(f), which created a “safety valve” in the Guidelines. The District of Columbia Court of Appeals in In Sealed Case (Sentencing Guidelines “Safety Valve”) in 1997 said the “safety valve” provisions ofU.S.S.G. § 5C1.2 requires U.S. district court judges to disregard mandatory minimums in certain drug cases and instead sentence a defendant pursuant to the Guidelines when he/she satisfies five indices of reduced culpability: “1) the defendant has no more than one criminal history point; 2) the defendant ‘did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense’; 3) the offense did not result in death or serious bodily injury; 4) the defendant was not a leader or organizer of the offense; and 5) the defendant has fully cooperated with the government.”

The defendant must satisfy all five indices to warrant a “safety valve” departure from a mandatory minimum sentence. In 2008 the Families Against Mandatory Minimums (“FAMM”) found that since 1995 more than 63,272 federal drug offenders received the benefit of a “safety valve” sentence, which saved the federal government $25,000 per year, shaved off each offender. FAMM touts the benefits of federal “safety valve” provisions as follows:

Give courts flexibility to prevent unjust sentences: safety valves allow courts – in very narrow circumstances – to sentence a defendant below the mandatory minimum if the mandatory minimum is too lengthy or doesn’t fit the offender or the crime.

Protect public safety: safety valves don’t mean that people get off without any prison time, just that they don’t get any more prison time than they deserve. Safety valves thus help 1)  prevent prison overcrowding, 2) avoid the need to release violent offenders early to make room for nonviolent offenders entering the system, and 3) save scarce space and resources for those who are a real threat to the community.

Save taxpayers money: when courts sentence offenders below the mandatory minimum, they spend less time in prison than they would otherwise be required to, which results in less corrections costs for taxpayers.

FAMM, however, advocates that the “safety valve” provisions not only be expanded for all drug offenders but extended to all federal offenses mandating a mandatory minimum. The advocacy group points out that the current “safety valve” provisions are so strict that many nonviolent, low-level drug offenders cannot satisfy its five indices. The group notes that in 2008 while 52 percent of all drug offenders had little or no criminal history and 80 percent of them did not have or use a weapon and only 5.7 percent were considered leaders, managers or supervisors of others, only 25 percent of the drug offenders benefitted from the safety valve provisions.

The Commission disputes these FAMM conclusions. In a March 2009 report titled “Impact of Prior Minor Offenses on Eligibility for Safety Valve,” the Commission reported:

“As part of its ongoing review and amendment of the guidelines, the commission, in August 2006, began to examine various aspects of the criminal history rules located in Chapter Four of the guidelines, including the treatment of misdemeanor and petty offenses (minor offenses). The Commission hosted two roundtable discussions on November 1, 2006 and November 3, 2006, in Washington, D.C., to solicit input from judges, defense attorneys, probation officers, Department of Justice representatives, and members of academia as one component of this review.  The Commission also gathered information through its training programs, the public comment process, and comments received during a public hearing held in March 2007.

“During the process, some commentators hypothesized that the inclusion of minor offenses in the criminal history calculation has an unwarranted adverse impact on offenders’ criminal history scores and, ultimately, their guideline ranges and sentences. In April 2007, the Commission promulgated an amendment to respond to these concerns and modify the provisions determining whether and when certain minor offenses are counted in the criminal history score.

“The dialogue leadings to the promulgation of the amendment focused, in part, on the frequency with which prior minor offenses caused a defendant convicted of drug trafficking to become ineligible to receive the benefit of the safety valve relief provided by statute and guideline. Data reviewed by the Commission in connection with the amendment showed that relatively few drug trafficking offenders are excluded from receiving the safety valve because of the guideline provision regarding minor offenses.”

In support of this conclusion, the Commission said it examined 24,483 drug offenders, and that 9,115 of them (37.2 percent) received the benefit of the safety valve provisions. Of the 9,115 safety valve beneficiaries, 1,519 of the offenders had a prior “minor offense” in their criminal history which did not affect their safety valve eligibility. Further, the Commission pointed out that of the 15,368 drug trafficking offenders who did not qualify for safety valve consideration, only 788 of them had a prior “minor offense” in their criminal history but who did not qualify because they failed to satisfy all five of the safety valve indices.

Whether the percentage of drug offenders who receive safety valve consideration is 25 percent as stated by FAMM or 37 percent as stated by the Commission is relatively immaterial. The issue, we feel, is that the safety valve considerations are much too stringent to achieve meaningful sentencing reform. When less one-third of the offenders receive the benefit of a “reform” sentencing statute, then it cannot reasonably be said that the desired reform is truly meaningful.

We feel that only two of the five safety valve indices are relevant to meaningful reform objectives: whether a weapon was possessed or used during the offense; and whether the offense resulted in the death or serious bodily injury of anyone.

We would like to stress that we find it particularly offensive that a fundamental aspect of the safety valve statute is that the defendant must become a full-fledged “snitch” to secure the benefit, not only against himself but anyone else who may have been involved, no matter how remote, in any criminal activity associated with the offense. Failure to fully and completely “snitch” is a sufficient basis for the Government to oppose a safety valve benefit and for the court not to extend it.

Finally, we have not only become disillusioned with the Guidelines, even if they are now “advisory,” as a sentencing reform device but have become convinced they will never produce the fair and impartial justice they were designed to achieve in the federal sentencing process. While we are not prepared to return to unfettered judicial discretion in sentencing, we are now convinced that the Guidelines, regardless of how many times they are amended, are unworkable in producing equal, racially neutral sentencing practices in the federal courts.

The Guidelines, no matter their original intent, have not led to any meaningful reform.  The result of years of Guideline sentencing has been much less about than justice and fairness in sentencing than about treating individuals as generic automatons, who have no personal and unique histories, backgrounds or accomplishments.  The Guidelines have been, and continue to be, used to force defendants to plea guilty and cooperate with the Government or face a severe and draconian sentencing regime.  The Guidelines have been used to pressure defendants to accept plea agreements rather than exercise their right to trial by jury, for fear they will lose downward sentencing adjustments for “acceptance of responsibility” and saving the government time preparing for trial.  The Guidelines have led to a justice system dependent upon snitches, in which questionable cases are prosecuted by a Government, which understands the immense pressure place upon a defendant to plea guilty, regardless of meritorious defenses the defendant may have or the reality of actual innocence.  This is not the American way…

Safety Valve is a provision codified in 18 U.S.C. 3553(f), that applies to non-violent, cooperative defendants with minimal criminal record without a leadership enhancement convicted under several federal criminal statutes. Congress created Safety Valve in order to ensure that low-level participants of drug organizations were not disproportionately punished for their conduct.

Generally applying to drug crimes with a mandatory minimum, Safety Valve has two major benefits for individuals charged with those crimes. Specifically, the two benefits of Safety Valve are:

The first benefit of Safety Valve is the ability to receive a sentence below a mandatory minimum on certain types of drug cases. Some drug charges have a mandatory minimum i.e. 5 years, 10 years. That means even if the person’s guidelines are lower than the mandatory minimum and the judge wants the sentence the individual below the mandatory minimum, the judge is legally unable to do so because that would be an illegal plea. If the Court determines that the individual meets the requirements of Safety Valve under 18 U.S.C. § 3553(f), the Judge is able to sentence the individual to a term that is less than the mandatory minimum.

The second benefit of safety valve is a two-point reduction in total offense conduct. Since 2009, federal sentencing guidelines are discretionary rather than binding. With that being said, federal sentencing guidelines still act as the Judge’s starting point in determining what the appropriate sentence on a case is. The higher the total offense score, the higher is the corresponding suggested sentencing range. A two-level difference can make a difference in months if not years of the sentence. Each point counts toward ensuring the lowest possible sentence.

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;

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 Substance Act, and

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.

In order to establish eligibility for Safety Valve, the Defendant has the burden of proof to establish that s/he meets the five requirements by a preponderance of evidence. That is to say, the Defendant must prove by 51% that the Defendant meets all the requirements of eligibility. These five Safety Valve Requirements are explained in greater detail below.

The first requirement of Safety Valve is that the individual has a limited criminal record. The U.S. Sentencing Guidelines assign a certain number of points to prior convictions. The more serious the crime, and the longer the sentence, the more corresponding criminal history points it carries.

More than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

The second requirement of Safety Valve is that the individual did not use violence, credible threats of violence or possess a firearm or other dangerous weapon. Importantly, an individual can be disqualified from Safety Valve based on the conduct of co-conspirators, if the Defendant “aided or abetted, counseled, commanded, induced, procured, or willfully caused” the co-conspirator’s violence or possession of a firearm or another dangerous weapon. Thus, use of violence or possession of a weapon by a co-defendant does not disqualify someone from Safety Valve, unless the individual somehow helped or instructed the co-defendant to engage in that conduct.

To be disqualified from Safety Valve, possession of a firearm or another dangerous weapon can either be actual possession or constructive possession. Actual possession involves the individual having the gun in their hand or on their person. Constructive possession means that the individual has control over the place or area where the gun was located. Importantly, the possession of a firearm or a dangerous weapon needs to be related to the drug crime, as the statute requires possession of same “in connection with the offense.” However, “in connection with the offense” is a relatively loose standard, in that presence of the firearm or dangerous instrument in the same location as the drugs is enough to disqualify someone from Safety Valve.

The third requirement of Safety Valve is that the offense conduct did not result in death or serious bodily injury to any person. Serious bodily injury for the purposes of Safety Valve is defined as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.”

The fourth requirement of Safety Valve is that the Defendant was not an organizer, leader, manager or supervisor of others in the office. An individual will be disqualified from safety valve if s/he exercised any supervisory power or control over another participant. Individuals who receive an enhancement for an aggravating role under §3B1.1 are not eligible for safety valve. Similarly, in order to be eligible for Safety Valve, an individual does not need to receive a minor participant role reduction.

Isolated instances of asking someone else for help do not result in the aggravating role enhancement. As the Court of Appeals for the Second Circuit has held in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993), aggravated role enhancement did not apply to “one isolated instance of a drug dealer husband asking his wife to assist him in a drug transaction.” Similarly, in United States v. Figueroa, 682 F.3d 694, 697-98 (7th Cir. 2012); the Seventh Circuit declined to apply a leadership enhancement for a one-time request from one drug dealer to another to cover him on a sale.

The fifth and final Safety Valve requirement is that the individual meet with the U.S. Attorney’s Office for a Safety Valve proffer. A Safety Valve proffer is different from a regular proffer in that in a safety valve proffer, the individual is only required to truthfully proffer about his or her own conduct.

In contrast, in a non-safety valve proffer, the individual is required to truthfully provide information about his or her own criminal conduct, as well as the criminal conduct of others. In order to meet this requirement, the individual must provide a full and complete disclosure about their own criminal conduct, not just the allegations that are charged in the offense. There is no required time as to when someone goes in for a safety valve proffer, except that it must take place sometime “before sentencing.”

Not all charges with mandatory minimums qualify for Safety Valve relief. Rather, the criminal charge must be enumerated in 18 U.S.C. 3553(f). The following criminal charges are eligible for Safety Valve:

Under the First Step Act, the eligibility for Safety Valve relief was expanded to more individuals. Specifically, The First Step Act, P.L. 115-391, broadened the safety valve to provide relief for:

Prior to the enactment of the First Step Act, individuals could have a maximum of 1 criminal history point in order to be eligible for Safety Valve relief. Similarly, individuals who were prosecuted for possession of drugs aboard a vessel under the Maritime Drug Enforcement Act, were not eligible for Safety Valve relief. After the passing of the First Step Act, individuals prosecuted under Maritime Drug Enforcement Act, specifically 46 U.S.C. 70503 or 46 U.S.C. 70506 are eligible for Safety Valve relief.

Safety Valve is an important component of plea negotiations on federal drug cases and should always be explored by experienced federal counsel. If you have questions regarding your Safety Valve eligibility, please contact us today to schedule your consultation.

Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.

Many federal criminal defense attorneys are not aware of the pitfalls of the federal safety valve provisions. Persons charged with federal drug crimes need to retain an experienced criminal attorney familiar with all aspects of federal criminal law. An inexperienced or unknowing lawyer can expose a client to catastrophic risks. Here is why.

As we are all keenly aware, the federal government’s “war on drugs” is ensnaring hundreds of people with little or no criminal records who are caught up, for a myriad of reasons, with the distribution of drugs. This can range from a person carrying cash for a friend to pay for an airline ticket, to delivering a package to another person in exchange for cash to pay the rent or feed a child. Because of very harsh federal sentencing laws, the smallest players in a drug ring often end up being the most harshly treated. Most of time this is because the leaders of drug operations very often end up cooperating against others – including those below them whose “loyalty” they often gained through fear and threats of harm. Oftentimes, those persons caught on the lowest rungs of a drug conspiracy find themselves with few alternatives because they do not have significant information to provide to federal prosecutors, who retain exclusive control over who gets cooperation departures under the federal sentencing guidelines. As a result, defendants with minor or minimal culpability in a drug operation frequently end up on the receiving end of prosecutions involving tremendously high sentencing guidelines and, more critically, large minimum mandatory sentences.

In many situations, the only relief from mandatory sentences for those with little or no criminal history is the so-called “safety valve.” Many lawyers talk about the safety valve, but very few understand what it is and what it truly entails. It is perhaps the most misunderstood and most difficult opportunity for relief from mandatory minimum sentences and the sentencing guidelines. Federal crimes lawyers who do not specialize in federal criminal defense work run the risk of harming their clients through misguided efforts to gain relief under the safety valve provision.

It is critical to remember that there are only two ways to avoid minimum mandatory sentences upon conviction for a drug trafficking or drug conspiracy offense in federal court. One way is to cooperate with law enforcement and provide “substantial assistance” in the prosecution of others under section 5K1.1 of the guidelines. The other is to seek relief under the safety valve — Section 5C1.2 of the federal sentencing guidelines. (18 U.S.C. § 3553(f)) This section allows a judge to reduce federal sentencing guidelines and ignore mandatory minimum sentences in determining punishment for eligible defendants.

But while understanding the possible benefits of relief under the safety valve is easy, becoming eligible for the relief is more difficult and fraught with peril for the unwary defendant. In fact, a failed attempt to gain “safety valve” relief can have a tremendously negative impact on a federal criminal defendant.

Section 5C1.2 allows guideline reduction and relief from mandatory minimum sentences when 1) a defendant ‘s criminal history is one point or less under the guidelines, and 2) the defendant truthfully discloses before sentencing everything the defendant knows about his own actions and those who participated in the crime with him. While a defendant is not required to testify in court or become a cooperator, the section does requires that he sit down with federal agents and prosecutors and tell them everything he knows about the charged crime. While a defendant won’t be a witness against others in his case, he still must tell on them. Government agents can affirmatively use the defendant’s information against others in the case without any limitation.

For example, if the defendant tells agents that he stored drugs in his brother’s house, agents can use that information to get a search warrant and raid that house for evidence, even though the defendant would never want his brother to be harmed. Moreover, because the defendant would not be a “cooperator,” prosecutors would be free to name him in their search warrant applications and make no effort to hide the source of their information.

Talking to the government in the context of a safety valve interview can potentially expose the client to consequences worse than those faced by cooperating witnesses.

Next, the attorney has to be 100% certain that the client is telling everything he knows and is not holding back information about himself or others. This requires that attorney be sure of what the government knows in the case before allowing a client to meet for a safety valve interview. If the government thinks that the client is lying, they can make the safety valve process impossible by telling the court about their impressions. If the government can prove the client is lying, then a court is free to increase a client’s sentence for obstruction of justice. Even worse, a client may also lose guideline point reductions for accepting responsibility for the offense and become subject to harsh mandatory minimum sentences.

A defense attorney has to know what the evidence the government has before allowing his client to even think about the safety valve. Anything less can expose the client to catastrophic risk.

The bottom line is that defendants considering a “safety valve” reduction had better have counsel who is experienced in federal criminal law and the pitfalls of federal criminal statutes – even those designed to help defendants. Before becoming a defense attorney, I spent almost a decade prosecuting federal criminal cases in U.S. District Court in Maryland. If you have any questions, contact Federal defense attorney Andrew C. White at Silverman, Thompson, Slutkin & White. There is no situation with which we are not familiar.

The devil is in the details is a truism, and certainly true of the Senate’s sentencing reform law.  That it’s bipartisan, a word rarely used in the past two decades, conveys a special meaning to advocates: this is the best you’re gonna get, as your champions of reform have surrendered to Chuck Grassley.  Take it or leave it.

And indeed, advocates of sentencing reform, such as FAMM, know when they’ve been beaten, and so they’re lining up behind this bill. We’re not privy to their kitchen table talks, but it’s impossible to imagine they don’t realize that this is a mutt. Still, a mutt is better than a dog that’s dead on arrival. Those are the compromises advocates tend to make.

But of the terms of the bill, the actual words that come into play in real courtrooms, with real defendants, in real life, are what the janitors of the law are left to clean up. And they are, indeed, a mess.

The New York Times, unsurprisingly, has given its blessing to this mutt bill, and in the process, has demonstrated yet again that it has no clue what’s in there.Among the most significant are those that would reduce mandatory-minimum sentences for many drug crimes.

These may seem like minor tweaks to pointlessly long sentences, and for the most part they are. But when half of all federal inmates are in for drug crimes, even small changes can make a real difference.

“Even small changes can make a real difference” belongs in a fortune cookie.  At best, they are “minor tweaks to pointlessly long sentences.” When a sentence that ran ten years before the Sentencing Guidelines was bumped up to life, and now, provided certain conditions be met that few prisoners (except the mythical low-level, non-violent first-offender) could possibly meet, gets, potentially, a few years off the back end, it’s nothing to write home about. How many will die in prison waiting for that backend reward to come?In addition, the bill would give federal judges more power to impose sentences below the mandatory minimum in certain cases, rather than being forced to apply a strict formula. This would shift some power away from prosecutors, who coax plea deals in more than 97 percent of cases, often by threatening defendants with outrageously long punishments.

But this is the most cynical, most misleading, of the “reforms.”  What it refers to is Section 103 of the bill:Section 103. Creates a Second Safety Valve that Preserves but Targets the 10-Year Mandatory Minimum to Certain Drug Offenders. A second safety valve is created that preserves but targets the existing 10-year mandatory minimum to (1) offenders who performed an enhanced role in the offense or (2) otherwise served as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer. Consistent with the existing safety valve, the offender must not have used violence or a firearm or been a member of a continuing criminal enterprise, and the offense must not have resulted in death or serious bodily injury. The defendant must also truthfully “proffer” with the government and provide any and all information and evidence the defendant has about the offense. This provision also excludes offenders with prior serious drug or serious violent convictions or offenders who distributed drugs to or with a person under the age of 18. This provision is not retroactive.

Under the existing Safety Valve, a low-level defendant is required to “proffer” in order to get out from under the mandatory minimum. The word “proffer” is a euphemism for rat out his co-defendants. The difference is that the defendant wouldn’t be subject to “enhancements” for his role in the offense or prior convictions.

Under the new bill, defendants with “enhancements” or priors are still subject to the 10-year mandatory minimum unless they, too, become rats and proffer to the government, in a form the government believes to be “truthful,” “any and all information and evidence the defendant has about the offense.”

This law doesn’t eliminate the ten year mandatory minimum. It creates a new path for the government to coerce snitching from people who wouldn’t snitch before.

Yet, the Times, and almost all commenters, believe that “this would shift some power away from prosecutors, who coax plea deals.”  On the contrary, it extends the prosecutor’s power to coerce snitching.

But doesn’t this reform have a significant benefit for many? Won’t it go a long way in reducing our national shame of mass incarceration?In particular, 6,500 prisoners are still serving time under an old law that punished crack-cocaine offenses far more severely than powder-cocaine offenses.

As of today, there are 205,795 prisoners in federal custody.  While the 6,500 estimate of prisoners who might benefit is quite rosy, since a significant percentage has other charges, such as “use and carry” of a weapon, that preclude any benefit, let’s accept that number for the sake of argument.

That means a grand total of 3.16% of federal prisoners may be able to get a sentence reduction.  Not a big sentence reduction, but a reduction. They won’t be coming home anytime soon.  And that’s for a law that was so insanely misguided in the first instance, a 100 to 1 disparity for crack versus powdered cocaine, that no rational nation should have ever used it in the first place.

Some will find no problem in turning every defendant into a coerced snitch.  After all, we’ve spent so much time adoring the mythical “good guy” prisoner, and consequently despising the real defendants for whom life plus cancer is good enough, our national mindset is that the bad dudes should rot in hell forever and no one will shed a tear.

If you focus only on the wrongfully convicted or the low-level, non-violent first-offender, and ignore the reality that these are not the people filling our prisons with sentences of forever, maybe this reform doesn’t strike you as too meaningless.

But after the party is over, what we will be left with is pretty much the same mass incarceration we have now, the same outrageously long sentences that find no rational justification anywhere, and a whole new crop of potential snitches to facilitate the government’s putting more people in prison.

Federal drug conspiracy charges can be daunting for defense attorneys and their clients. These cases are often the product of covert investigations spanning years. The quantity of narcotics and the conduct of the conspirators will dictate the potential penalties that can – and will – be imposed.

Unlike a typical criminal prosecution, the defendant’s conduct and/or culpability does not necessarily determine their sentencing exposure in drug conspiracy cases. Rather, federal statutes allow the government to attribute the conduct of all coconspirators to each defendant who knew the purpose of the conspiracy and agreed to assist in its success. Th us, defendants can be subjected to significant mandatory minimum sentences despite their limited involvement in or knowledge of the overall conspiracy.

Most federal statutes contain a maximum term of incarceration that a defendant will face if convicted of a particular offense. These statutes, however, afford the trial courts discretion to determine a fair and appropriate sentence. In such instances, trial courts are required to consider the recommended range, which is calculated by applying reductions and enhancements promulgated by the United States Sentencing Commission. These mathematical “adjustments” are based upon specific conduct or characteristics of the defendant as well as their conduct relative to the underlying offense.

For some offenses, Congress has removed the trial court’s discretion by requiring mandatory minimum terms of incarceration. Most mandatory minimum sentences apply to drug offenses and are oft en triggered by the quantity of narcotics involved in the conspiracy. These one-size-fits-all sentencing laws are said to provide uniformity and assurances that defendants receive a significant punishment for certain classes of offenses. However, mandatory minimum sentences can also undermine justice by preventing judges from tailoring a punishment in light of the individual defendant and the circumstances of their offenses.

Th e safety valve is a statutorily created exception whereby certain defendants can avoid mandatory minimum sentences that would otherwise apply. Th e safety valve is codified in 18 U.S.C. § 3553(f) and instructs trial courts to impose a sentence without regard to any statutory minimum sentence if the court finds that the following conditions have been satisfied:

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous ordinance in connection with the offense;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise; and

(5) at or before the time of the sentencing hearing, the defendant has truthfully provided the Government with all information and evidence that they have concerning the offense.

Many defendants facing federal drug conspiracy charges may consider cooperating with the government in an effort to secure a more favorable plea agreement. In most cases, defendants who have the most information regarding the criminal activity receive substantial consideration because of the value of their information. Th is system benefits defendants who bear more culpability for the overall operation of the conspiracy. Because of this, less-culpable defendants are at a significant disadvantage and oft en face harsher sentences.

Th e safety valve counteracts this disparity by permitting courts to sentence minor participants without regard to mandatory minimum sentences. And, since the safety valve requires the defendant to disclose all information and evidence to the government, the statute provides that a defendant is not precluded from obtaining relief if their information is not useful or if the government is already aware of it.

Counsel should prepare the client for their “proffer” meeting with the government. Although the defendant’s lack of information is not a prohibitive factor to obtaining relief, their refusal to truthfully and completely disclose information they do possess will be detrimental to their case.

Although the safety valve removes any mandatory minimum provisions, trial courts are still required to consider the factors set forth in 18 U.S.C. § 3553(a), as well as the recommended guidelines range in determining an appropriate sentence. Removing the mandatory minimum threshold is only the first step in counsel’s efforts to obtain a favorable and appropriate disposition. Attorneys must also explore other potential grounds for a reduced sentence, including arguing for reductions for the defendant’s limited role in the offense pursuant to U.S.S.G. § 3B1.2, as well as any other grounds for a downward departure pursuant to 18 U.S.C. § 3553(a). Eric Nemecek

Imagine this scenario: Drug Enforcement Administration (DEA) agents bust a small-time drug dealer for, let’s say, nickel-and-diming in heroin. They take him to booking, run his fingerprints and discover this is his third arrest. As a multiple offender facing a long stretch in prison and with a public defender at his side, the suspect offers a deal.

The lead agent and his partner glance at each other. Here it is: a chance to nail the slippery kingpin who runs a multi-million dollar heroin ring that covers three states, but who has somehow managed to elude capture again and again. Never mind that coincidentally their case-closure rate will skyrocket, making them look good. There is a brief pause as the lead agent again glances at his partner, then back at our suspect.

You might think so, and you’d be right. But in the daily trenches of law enforcement, this scenario is not as far-fetched as it appears. In fact, wheeling and dealing is more of a way of life than many police officers and prosecutors care to openly admit. It is, quite simply, the practice of using snitches to obtain convictions. [See: PLN, June 2010, p.1; Feb. 2006, p.28].

But wait, you say. What about the old saying, “snitches get stitches?” Don’t rats end up at the bottom of the nearest river? If that’s true, then the river bottom is a very crowded place.

Nationwide, court records indicate that 25% of offenders sent to federal prison for drug-related crimes provided information to prosecutors in exchange for shorter sentences. In some jurisdictions, like Idaho, Colorado and the Eastern District of Kentucky, more than half did. Sometimes these sentence reductions can amount to 50% or more, according to the U.S. Sentencing Commission.

Given that incentive, it’s inevitable that some prisoners would find a way to profit from such a dysfunctional system. According to a 2012 USA Today investigation that examined hundreds of thousands of court cases, “snitching has become so commonplace that in the past five years at least 48,895 federal convicts – one out of every eight – had their prison sentences reduced in exchange for helping government investigators....”

Citizens who live their lives happily ignorant of the criminal justice system are unaware that it is a closed loop, starting at the top. Judges, many of whom are former prosecutors and who draw their paychecks from the same government that pays the police and prosecution, are generally hesitant to cast doubt on the legitimacy of their brethren’s crime-fighting methods. Further, judge-made case law over the years has upheld the right of the police to use almost any tactic to solve crimes, including lying and the use of informants.

As a result, prosecutors at both the state and federal levels face few checks upon their power. Knowing that jurors fear crime and seek safer neighborhoods, U.S. Attorneys and their local district attorney counterparts gather information to use as evidence in criminal cases from whomever they can, including prisoners seeking to shorten their sentences.

The incarcerated – and the people who guard them – know there are few secrets in jail or prison. People talk about everything, including their cases. The more canny and opportunistic prisoners realize from first-hand experience that prosecutors “pay” well with sentence reductions for information on someone they have insufficient evidence to convict.

To the naïve or uninitiated, law enforcement, in its battle against crime, should be able to use every tool at its disposal. If that means relying on testimony from one criminal to convict another, so be it. Except in the most obvious cases of prosecutorial overreach, juries hold their collective noses and vote guilty, ignoring misgivings about the source of the incriminating “proof” or the motives of the jailhouse snitch who takes the stand against a defendant.

However, the USA Today investigation that examined the culture of snitching questioned the usefulness of such testimony and cast doubt on whether it serves the ends of justice.

Justice, in its purest form, relies on truth – but within the snitching community, truth is a rare commodity and can be the first casualty in a system that seems more interested in obtaining convictions than dispensing justice. Prosecutors eager to close a case often reward criminals with sentence reductions for inaccurate, manufactured or questionable “evidence” or testimony against another offender.

The case of federal prisoner Marcus Watkins is one example of the unintended consequences of the institutionalized culture of snitching. According to USA Today, “For a fee, [Watkins] and his associates on the outside sold ... information about other criminals that they could turn around and offer up to federal agents in hopes of shaving years off their prison sentences.”

Watkins’ case is not the only one of its kind, but certainly one of the most documented. His outside associates collected and offered to sell information about the drug trade to fellow prisoners at the Atlanta City Detention Center, most of whom had the money, and incentive, to pay for it. And they were not the only customers; according to Watkins, “the biggest buyer of information is the government.” Only the currency was different. “They pay in years,” Watkins said, claiming that federal agents he spoke with “knew money’s been changing hands. They basically authorized all of this.”

Robert McBurney, a former federal prosecutor from Atlanta, called it “a pernicious situation that sadly, undid some good works,” but FBI agent Mile Brosas testified under oath that agents acted “just based on the names that Mr. Watkins gave us.” At the time Watkins provided the information and names referred to by Brosas, he had already been behind bars for some time. Therefore, the logical assumption would have been that he was receiving his information from outside the prison – though that did not deter the prosecutors who relied on that information in other criminal cases.

The court was not amused. The then-chief judge of the federal district court in Atlanta, Judge Julie E. Carnes, decried the “abominable situation” of such information peddling, stating she was “appalled that it’s going on to the level it appears to be going on.”

And Watkins’ case is clearly not an isolated example. As noted by Professor Tim Saviello at the John Marshall Law School in Chicago, “People are willing to pay $20,000 or $30,000 to get a piece of information. That tells you how valuable it is.”

The pressure to snitch is overwhelming. Suspects accused of federal crimes almost always accept plea bargains. Those who don’t are generally convicted at trial, and the lengthier sentences they typically receive for refusing to plead guilty are known as the “trial penalty.” For someone in such a position, who may be facing a mandatory minimum prison term of 10 to 20 years, informing on fellow criminals is their only chance at leniency.

The fact remains that most prisoners serving time for drug offenses are not major players in the drug trade. In 1995, the U.S. Sentencing Commission found that only 11% of federal drug trafficking defendants were major traffickers; the rest were lower-level offenders. Even “safety-valve” modifications to the mandatory minimum sentencing guidelines did little to reduce the explosion in the number of prisoners convicted of drug crimes. Such offenders are under pressure to offer “substantial assistance” to the government, often in the form of information about other drug dealers, as a means of obtaining sentencing relief. During the past five years, fully one-third of drug traffickers sentenced in federal court received sentence reductions for providing “substantial assistance.”

Drug conspiracy laws enacted in 1988 also contributed to the influx of federal drug offenders, allowing the government to win convictions for what prisoners often term “ghost drugs,” by swearing that any information provided was about a suspect who was part of the snitch’s drug ring. Unfortunately, such a system can snare innocent bystanders – defendants who become the victims of lies told by their codefendants who have figured out how to manipulate the sentencing laws in order to reduce their own prison terms.

One of the most egregious examples of misuse of the justice system by both police and prosecutors occurred in Louisiana, where the Colomb family suffered years of prosecution, imprisonment and economic disaster that began with a minor drug possession charge against the teenaged son of Ann Colomb, the family matriarch. According to court filings, prosecutors claimed that Colomb and her sons, living on a mostly black street in a white section of the town of Church Point, Louisiana, ran a $70 million drug operation.

The trouble started when two of Colomb’s sons, Sammie and Edward, pleaded no contest to felony possession and received probation. Church Point, like many southern towns, suffered from documented racial tensions, heightened by the fact that another Colomb son, Danny, dated a white woman. According to Rodney Baum, the Colomb family lawyer, “They took a bunch of unrelated police harassments of these people over 10 years, coupled it with a parade of jailhouse snitches.... It was ridiculous.” The federal prosecutor, U.S. Attorney Bret Grayson, used more than 30 imprisoned informants to compile his evidence of a drug conspiracy.

As the case neared trial, U.S. District Court Judge Tucker Melancon began having misgivings and sought to bar many of the informants from testifying. The case, despite being already weakened by a lack of hard evidence and the fact that Colomb family members had continued to work construction and oilfield jobs while supposedly netting millions in the illicit drug trade, moved forward. The jury convicted the family in 2006 and they went to prison.

Then another convicted federal prisoner, Quinn Alex, in a letter to his former prosecutor, revealed the scope and details of a snitching-for-hire scheme at the Federal Correctional Institution in Three Rivers, Texas, the source of the information used by U.S. Attorney Grayson in the Colomb case. A motion for a new trial soon followed, and Judge Melancon vacated the convictions and freed the family.

The Colombs were “fortunate,” as they were released from prison and justice prevailed. But under any definition of justice they shouldn’t have been convicted in the first place, and the case vividly demonstrated the unintended consequences of the snitching industry that is firmly entrenched in the U.S. justice system. Ann Colomb expressed it best: “What happened to us should never happen to anyone. It breaks my heart....”

But the real victim is justice itself, in the form of wrongful convictions, official corruption, public deception and the weakened legitimacy of the criminal justice system in the eyes of the public. The use of snitches has become so prevalent that the practice and its damaging effects are the subject of a book, Snitching: Criminal Informants and the Erosion of American Justice, by Alexandra Natapoff, published in April 2011.

Under such scrutiny the practice of snitching, spurred by harsh sentencing laws and win-at-any-cost prosecutors, might gradually fade. Snitching has already faced a backlash due to a controversial DVD series called “Stop Snitching,” created by Ronnie Thomas, a Baltimore resident also known as Skinny Suge. The first video was released in 2004 and a sequel followed in 2007; Baltimore police have called the DVDs a form of witness intimidation.

Suge is now serving a 19-year federal prison term. In an ironic twist of fate, his 14-year-old son, Najee Thomas, was murdered in April 2014, shot in the head as he sat inside his home in the Cherry Hill section of Baltimore. Police have not said whether Najee’s death was related to his father’s violent past, but blame the DVDs for a declining case-closure rate. They say the “Stop Snitching” videos have created an increasing unwillingness by members of the public to come forward with crime tips.

Perhaps a TV crime drama might not be the best setting for a discussion of the culture of snitching in our nation’s criminal justice system. A more appropriate venue might be a game show – for example, “Let’s Make a Deal.”

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Just ask Jody Michael Hubbs, 28, a marijuana dealer whose bid to get a lawman to help him funnel money to a federal judge in hopes of getting his supplier a break wound up instead earning Hubbs a break.

Because Hubbs made his bribery pitch during his involvement in a drug conspiracy with a Blount County family of pot suppliers, Winck said that state conviction could not count against Hubbs in determining his federal fate.

Without the safety valve, Hubbs would have been facing a minimum mandatory 10-year prison term. Instead, he walked away Tuesday with a six-year prison sentence.

According to Winck and state court records, Hubbs bought more marijuana from Donald Harmon and his pot-supplying relatives than any other customer of the Blount County clan.

So Hubbs was naturally upset when Harmon wound up arrested on a federal drug charge in September 2005, worried enough that he sought help for his supplier from an unlikely source - veteran Knox County Sheriff"s Office drug investigator David Henderson.

In January 2006, Hubbs offered to pay Henderson if the lieutenant would funnel money to U.S. District Judge Thomas Phillips to cut Harmon some sentencing slack. Hubbs cited a bribe amount of "$10,000 to $15,000," court records showed.

Henderson responded by ordering an arrest of Hubbs, who wound up pleading to a misdemeanor. All the while, Winck said, Hubbs was dealing pounds upon pounds of pot.

In June 2006, federal authorities nabbed Hubbs via a reverse sting involving 100 pounds of the illegal weed. They seized $65,000 from Hubbs. He agreed to cooperate and was allowed to go free to work as a snitch.

Seven months later, Hubbs was again nabbed by authorities. This time, authorities seized 34 pounds of pot and some $51,000 in drug money. Now facing the ire of Winck for his snitch double-trick, Hubbs agreed to set up the Harmon clan.

Defense attorney Bruce Poston noted Hubbs did so from a jail cell, convincing Donald Harmon, still free on bond in a separate federal case, to deliver 150 pounds of marijuana. That deal would ultimately take down not only the Harmon family but also lead to the indictment of the clan"s Mexican suppliers.

In federal cases, Congress not only defines what is a crime that can cost the accused both freedom and property, but it also passes statutes that control how federal judges are allowed to sentence those who have been convicted of federal drug crimes.  For instance, federal judges must follow the United States Sentencing Guidelines when sentencing someone upon conviction of a federal crime.  For more on sentencing guidelines and how they work, read our discussion in Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases.

Sometimes, Congress sets a bottom line on the number of years someone must spend behind bars upon conviction for a specific federal crime.  The federal judge in these situations has no discretion: he or she must follow the Congressional mandate.

These are called “mandatory minimums” in sentencing.  They are c