United States Court of Appeals For the First Circuit

No. 19-1667

UNITED STATES OF AMERICA,

Appellee,

v.

LAURA G. MARTINEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Lipez, and Barron, Circuit Judges.

Ralph A. Jacobs for appellant.

Lauren S. Zurier, Assistant United States Attorney, with whom Aaron L. Weisman, United States Attorney, was on brief, for appellee.

August 13, 2021 LIPEZ, Circuit Judge. Appellant Laura Martinez pled

guilty to cocaine distribution and conspiracy charges that carried

a five-year mandatory minimum sentence. After careful

consideration during a lengthy sentencing proceeding, the district

court denied Martinez safety-valve relief, concluding that she had

not met her duty of disclosure to the government, see

(f)(5), and imposed the mandatory five-year term of

imprisonment. Martinez appeals, arguing that the district court

erred in finding that she was not eligible for the safety valve on

the ground that she provided untruthful or incomplete information

to the government. We affirm.

I.

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,

(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

1Martinez 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.

- 2 - 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

- 3 - 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

- 4 - 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,

(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,

(1st Cir. 2008).

- 5 - 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

(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

- 6 - 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."

(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

. 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[.]

(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."

(f)(5).

- 7 - 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

6Although she did not say so affirmatively, context demonstrates that the interview participants understood that Martinez was referring to "one" and "two" kilograms of cocaine.

- 8 - 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

- 9 - 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

- 10 - 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

- 11 - 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

- 12 - 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.

- 13 - 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

9The 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.

- 14 - 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.

- 15 - 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 safety-

valve 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.

- 16 - 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.

- 17 - 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

- 18 - 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.

- 19 - 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.

- 20 - 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 cross-

examination.

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

- 21 - 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 safety-

valve 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.

- 22 - 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. 17This 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'

- 23 - 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.

- 24 - 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."

(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,

(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.

- 25 - 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,

(1st Cir. 2003). To the extent safety-valve determinations rest

on conclusions of law, our review is de novo. United States v.

Padilla-Colón,

(1st Cir. 2009). If such

determinations rest on findings of fact, we review for clear error.

The district court's assessment of witness testimony involves

"fact-sensitive judgments and credibility calls," and thus is

reviewed for clear error. Matos,

. 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,

(1st Cir. 2005) (first quoting United

States v. Marquez,

(1st Cir. 2002); and then

quoting Matos,

).

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:

- 26 - 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 . . . .

(f)(5).

The defendant bears the burden of showing that she made

"appropriate and timely disclosures to the government." Matos,

. The defendant must "prove to the court that the

information [s]he supplied in the relevant time frame was both

truthful and complete."

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,

(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,

. In sum,

"full disclosure is the price that Congress has attached to relief

under the [safety-valve] statute." United States v. Montanez,

(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,

(1st Cir. 1996). "[W]here a defendant in her

submissions credibly demonstrates that she has provided the

- 27 - 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.

at 529 n.25. The government is not required,

however, to introduce independent rebuttal evidence. Marquez,

. 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,

(1st Cir. 1997). In

exercising that discretion, the district court "must be fair and

practical." Feliz,

.

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

- 28 - 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."

(f)(5)

(emphasis added). Application note 3 to § 5C1.2 of the Sentencing

Guidelines -- the provision that corresponds to

(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

20Indeed, the conspiracy charge was, at Martinez's request, intentionally broadened to reflect a conspiracy with persons other than her boyfriend Espinal.

- 29 - 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. Mulero-

Algarín,

, 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,

. As we have explained, the clear error standard of

review is "extremely deferential," Bermúdez,

(quoting Marquez,

), 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.

- 30 - 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,

.

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

In any event, we note that, in this circuit, "[a]lthough 22

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,

(1st Cir. 2007) (quoting Miranda-Santiago,

)).

- 31 - 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

- 32 - 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.

- 33 - 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

- 34 - 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.

- 35 - 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

- 36 - 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

- 37 - 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

- 38 - 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

- 39 - 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

- 40 - 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.

5. Conclusion

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,

. 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.

(f)(5).

Affirmed.

- 41 -