Federal Safety Valve: To Disclose or Not to Disclose?

Website By The Law Office of Russell S. Babcock, California
Firm's Profile & Articles Law Firm's Profile & Articles
Phone Call (619) 531-0887Free ConsultationFree Consultation
Law Firm in San Diego: The Law Office of Russell S. Babcock
The federal “safety valve” provides, in most cases, the only alternative for an individual charged with a serious drug case to escape a mandatory penalty of five or ten years.

In addition to having virtually no criminal record, not being a leader in the drug transaction, and not possessing a gun or using a threat of violence, the law requires the following, which often is the bugaboo in achieving a safety valve recommendation:

" [N]ot 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. "

Herein, lies the dilemma. What happens if the client has crossed drugs into the United States fifteen times before and the government does not know about it? Under an expansive reading of the rule, the other drug crossing could be construed to be part of the “same course of conduct or common scheme or plan,” but on the other hand disclosing these other drug crossings could result in the judge giving a sentence much higher than for only importing drugs one time.

This is a dilemma that comes up in many of my cases. My advice is that there is no blanket rule that should be followed in deciding whether to disclose this information to the government, but it requires consideration on a case by case basis. In my analysis I factor in the following factors:

1. What is the probability that the government knows about the other drug crossing already? For instance was the arrest based on information of an informant. What does the history of border crossings reveal about the client’s previous driving behavior between Mexico and the United States?

2. What is the chance that if the client withholds information, and is caught in this sin of omission, he will be given a subsequent chance to de-brief? This depends on the policies of the individual U.S. Attorney’s Office and the Assistant United States Attorney assigned to the case.

3. How does the judge assigned to the case deal with this issue? Does he force the Assistant United States Attorney to disclose such information? Often, the client is promised that the information is confidential and will never be disclosed when in fact this is not true.

Safety valve de-briefs require the skill and experience of an experienced criminal practitioner. As defense attorneys, it is our obligation to make sure that we do not make a client’s exposure to jail time even greater, just to receive a downward adjustment of two-levels under the Guidelines, especially when the safety valve client is not facing a mandatory minimum sentence. Only by having a strong command of the facts, seeking out information about the judge and the Assistant United States Attorney, and gathering as much information about what the government already knows about your client, can the most effective representation be achieved. As the drug laws become enforced more harshly under the current Administration, it is incumbent upon us as criminal defense attorneys to be more vigilant and savvy.

ABOUT THE AUTHOR: Russell S. Babcock
Russell Babcock is a preeminent federal and state criminal defense attorney. He is bilingual en Espanol. He is a certified criminal law specialist. The emphasis of his firm is on complex federal felonies including border and drug crime, white-collar crime and appeals He has argued six times in front of the California Supreme Court. Mr. Babcock received his JD from the University of California Davis in 1981.

Copyright The Law Office of Russell S. Babcock
More information from The Law Office of Russell S. Babcock

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Find a Lawyer

Find a Local Lawyer