United States v. Morales ( 1995 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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        No. 94-2045

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                 ANA IVETTE MORALES,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                     [Hon. Carmen C. Cerezo, U.S. District Judge]
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                                        Before

                                  Cyr, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Carey  R. Dunne, orally;  John P.  Cooney, Jr.,  by appointment of
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        the Court, with whom Karen V. Walker was on brief for appellant.
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            Jorge  E. Vega-Pacheco,  Assistant  United  States Attorney,  with
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        whom Guillermo Gil, United  States Attorney, was on Motion  Requesting
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        Summary Affirmance for appellee.
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                                    April 18, 1995
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                      ALDRICH,  Senior  Circuit Judge.   In  October 1990
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            defendant  Ana Ivette  Morales was  arrested in  Puerto Rico,

            with  others, importing drugs.  She was sentenced on a guilty

            plea, and  engaged to  some  extent in  cooperating with  the

            government.  In 1994  one of her associates was  indicted and

            her substantial cooperation, pursuant  to a supplemental plea

            agreement, resulted  in his conviction.   The court rejected,

            however,  the government's  motion for  the reduction  of her

            sentence therefor  under Fed. R. Crim. P. 35(b), holding that

            it was  without jurisdiction1  to grant the  requested relief

            because  this cooperation took  place more than  a year after

            sentencing and was based  upon information she possessed from

            the  beginning.   Under the rule  such cooperation  cannot be

            considered  unless the  information  was "not  known" to  the

            defendant  until one  year  or more  after imposition  of the

            sentence.2  The district court


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            1.  United States v. Addonizio, 442 U.S. 178, 189 (1979).
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            2.        (b)   REDUCTION  OF SENTENCE  FOR CHANGED
                      CIRCUMSTANCES.   The court,  on motion of
                      the Government made within one year after
                      the  imposition  of  the   sentence,  may
                      reduce   a   sentence   to    reflect   a
                      defendant's    subsequent,    substantial
                      assistance   in   the  investigation   or
                      prosecution  of  another  person who  has
                      committed an offense, in  accordance with
                      the  guidelines   and  policy  statements
                      issued   by  the   Sentencing  Commission
                      pursuant  to section  994  of  title  28,
                      United  States  Code.     The  court  may
                      consider a government motion to  reduce a
                      sentence  made one  year  or  more  after

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            read "not known" literally; we read it more broadly.

                      Rule  35(b)   has   gone  through   a   series   of

            liberalizations.  The time limit  was originally but 60 days,

            then  120 days,  then one year;  and, at  first not  only the

            government's motion,  but even  the court's  order had  to be

            entered within the  time limit.  See Fed. R.  Crim. P. 35, 18
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            U.S.C.A., and  amendments thereto,  1966, 1987, 1991.   Until

            now, the concept was limited  to cooperation before, or  soon

            after, the sentencing.  At issue is the  exception to the one

            year time bar introduced in 1991.

                      Manifestly,  the  purpose  for  denying   value  to

            retained knowledge  is to  induce immediate full  disclosure.

            If, however, a defendant had not disclosed information simply

            because  she was not asked,  or was otherwise  unaware of its

            value,  there is no reason she  should be restricted; nothing

            would  be served by rejecting  later use when  a value became

            apparent.   Rather, to deny  a benefit to  late disclosure in

            such circumstances  would be contrary to  the rule's purpose.

            The Advisory Committee notes  to the 1991 amendment  speak of

            information "useful to the government."  This appears to be a

            novel  question, but we hold that until becoming aware of its


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                      imposition  of  the  sentence  where  the
                      defendant's     substantial    assistance
                      involves  information   or  evidence  not
                      known by the defendant until one  year or
                      more after imposition of sentence.

            Fed. R. Crim. P. 35(b), 18 U.S.C.A. (1991).

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            value,  or being  specifically asked,  a defendant  cannot be

            said to "know" useful information.

                      On this reading of the  rule the court, upon proper

            findings,  could  have jurisdiction  to  grant  relief.   We,

            accordingly, reverse the denial of  the motion and remand for

            further proceedings consistent herewith.









































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