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Eighth Circuit Confirms Safety Valve Relief Available After Trial
Oct 14th, 2013

Among the many proposals currently being advanced to reduce our shameful mass incarceration is the expansion or duplication of the “safety valve” under 18 U.S.C. § 3553(f). This provision grants first-time, low-level, non-violent drug offenders a path to avoid heavy mandatory minimum penalties. They must meet certain criteria: only one criminal history point, no weapon used, no serious injury in offense, no managerial role and – the one that requires intensive preparation and generates much litigation – a truthful disclosure to the government prior to sentencing of all information and evidence concerning the offense in the defendant’s knowledge and possession). How the current provision works in practice and is continually refined by courts can impact the breadth of any future “safety valve” provisions. The Eighth Circuit confirmed in United States v. Hinojosa, issued on August 27, 2013, that a guilty verdict does not per se preclude safety valve relief. (“[I]t is true that a guilty verdict does not legally foreclose any possibility that a defendant could receive safety valve relief.” (emphasis in original)) A post-verdict safety-valve proffer, however, is not without its hazards. Admissions in a safety-valve proffer can undermine appellate prospects. And, as Ms. Hinojosa learned, denials in the face of a jury finding can make it hard, if not impossible, for a district court to find that the safety-valve criteria are satisfied. The Eighth Circuit found no error in the district court’s conclusion that Hinojsoa’s “denial of involvement altogether,” contrary to extensive cooperator and F.B.I. agent testimony, precluded a finding that she was entitled to safety valve relief.


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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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