Posted On: October 19, 2008 by Andrew C. White

BEWARE THE FEDERAL SAFETY VALVE

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.

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