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Safety Valve, Government Power, And Marijuana in the Woods of Arkansas

The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial – like crushingly long mandatory minimum sentences.

An aside to illustrate the point

The government’s use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client “Has anyone threatened you to get you to plead guilty?”

My client said yes.

1207444_courtroom_1.jpgThe judge, clearly taken aback, and, frankly, looking at me, said “Who threatened you? How?”

My client pointed at the prosecutor and said “They said I’ll get mandatory life if I don’t take a plea.”

The judge, relieved, said “Oh, ok, but no one threatened you with any violence or anything, right?”

My client said right, and the hearing moved on.

I think my client’s honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn’t coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the “safety valve.”

The “safety valve” is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn’t lead the criminal enterprise that he’s being sentenced for, didn’t use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn’t exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he’s being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit’s case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea’s daughter, Paula, was using Mr. Honea’s land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea’s house to the marijuana operation, using massive amounts of water. Paula’s husband, Mr. Honea’s son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea’s son-in-law wrote to Mr. Honea. He wrote:

Don’t go to trial, just take a plea. You’re a smart man, I know you’ll make the right decision.

Mr. Honea’s Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies – which made sense to him since his son-in-law was a contractor – but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order “to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the ‘safety valve.'” The district court noted that Honea was “acquitted . . . on 2 of the 3 counts,” including “the most serious charge–conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3).” The court surmised that Honea’s conviction for “aiding and abetting the manufacture of marijuana (Count 2)” was “based principally on the jury’s finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply.” According to the court, “no competent evidence” existed that “Honea profited in any way from the manufacture or distribution of the marijuana.” The court also cited Honea’s lack of a “criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied – Mr. Honea met with the government and said that he didn’t ask questions, but should have, and didn’t know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea’s statement was inconsistent with the jury’s verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail – 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury’s verdict and the safety valve proffer.

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