United States v. Galbraith, Roger G. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1676
United States of America,
Plaintiff-Appellee,
v.
Roger G. Galbraith,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 CR 40069--J. Phil Gilbert, Chief Judge.
Argued October 1, 1999--Decided January 11, 2000
Before Cudahy, Easterbrook and Kanne, Circuit Judges.
Cudahy, Circuit Judge. In October 1997, the Drug
Enforcement Agency (DEA) received a tip that
Roger Galbraith was manufacturing methamphetamine
at his home in Cisne, Illinois. Acting on that
tip, agents went to Galbraith’s home where they
found significant evidence of drug production.
The agents waited at the home, interviewed
Galbraith when he arrived, and later arrested
him. Galbraith moved to suppress evidence
gathered and statements given at the officers’
original search; his motion was denied. Galbraith
pleaded "not guilty," but changed his plea after
jury selection began. The trial judge sentenced
him on the basis of statements given by his
codefendants and others. The judge enhanced
Galbraith’s offense level for obstruction of
justice, and denied Galbraith’s requests for
sentence reductions based on acceptance of
responsibility and application of the United
States Sentencing Guidelines’ so-called safety
valve provision. Galbraith now appeals the denial
of the motion to suppress, the judge’s
calculation of his relevant conduct, the
obstruction of justice enhancement and the
denials of his two requests for sentence
reduction. We do not reach the merits of the
suppression issue, and we affirm on all other
issues.
I. Facts
On October 31, 1997, officers from the county
sheriff’s department and the DEA went to
Galbraith’s home. Galbraith lived in a house
trailer, and maintained on his land a small
cinder block building near the road and a shed
closer to the residence. The officers smelled
ammonia and other odors associated with
methamphetamine manufacture. They traced the
odors to the cinder block building, put on
protective suits and breathing devices, and
entered the building. There, they found
methamphetamine production apparatus. They then
approached the residence, but before reaching it,
smelled ammonia and ether fumes coming from the
shed. An agent later testified that the shed was
open. Looking inside, the agent saw a tank
leaking ammonia. He also saw Coleman fuel and
empty ether cans. All are used in methamphetamine
production. Next, the agents noticed ether and
ammonia smells near the residence. When they
examined the house, they saw a hose stuck in the
front door, and heard rustling. The agents
testified that they were concerned that occupants
of the home might be in trouble because ether and
ammonia can be dangerous. They entered the home,
and found it empty, but noticed two jars that
appeared to contain methamphetamine.
About three hours later, the Galbraiths drove
onto their land. What happened next is disputed.
Galbraith contends that he was immediately
handcuffed. He also notes that two agents present
at the scene have different recollections about
whether the officers drew their guns, and when
the officers read Galbraith and his wife their
Miranda rights. The government contends that both
were read their rights, waived them and were
interviewed by the agents and released.
The government arrested Galbraith in November
1997, and he was released on bond. The government
later moved to revoke the bond because Galbraith
had allegedly continued to manufacture
methamphetamine after his arrest. Galbraith was
taken into custody on April 16, 1998. He moved to
suppress evidence seized from his residence
during the search described above. Galbraith also
moved to suppress the statement he gave on that
day. The trial court denied both motions. On
April 23, a grand jury returned a two-count
indictment naming Galbraith, his wife and five
others as defendants. Count one alleged a
conspiracy with six codefendants and two others
indicted in related proceedings to possess and
distribute methamphetamine in violation of 21
U.S.C. sec.sec. 841(a)(1) and 846. Count two
alleged conspiracy to manufacture
methamphetamine, in violation of the same
provisions.
Galbraith initially opted for trial, but changed
his mind after jury selection began. At that
point, he entered an unconditional plea of guilty
to both counts. He was sentenced on March 3,
1999. At the sentencing hearing, DEA agent
Christopher Hoyt was the government’s sole
witness. Hoyt established the amount of drugs
Galbraith was responsible for based on
Galbraith’s post-search interview and the
statements of two codefendants. In addition, Hoyt
related the statements of a third man, George
Songer, who claimed knowledge of additional drug
amounts. Galbraith disputes the reliability of
Songer’s statement.
At sentencing, the judge accepted Songer’s
statement and used it to raise Galbraith’s
relevant conduct calculation. He also enhanced
Galbraith’s offense level by two levels for
obstruction of justice, denied a two-level
downward adjustment for acceptance of
responsibility and found Galbraith ineligible for
the safety valve provisions of United States
Sentencing Guidelines section 5C1.2. Ultimately,
the judge sentenced Galbraith to 151 months in
prison. Galbraith now appeals the denial of his
motion to suppress, the calculation of his
relevant conduct, the obstruction of justice
enhancement, the denial of his downward
adjustment for acceptance of responsibility and
the denial of safety valve treatment. We do not
reach the merits of the motion to suppress, and
we affirm the trial court on the remainder of the
issues.
II. Analysis
A. Motion to Suppress
Galbraith contends that the court below erred
by denying his motion to suppress evidence seized
from his property and to suppress the statement
he gave on the day of the search. He argues that
because the officers had no warrant, they were
not entitled to go onto his land. He further
argues that the exigent circumstances exception
to the warrant requirement is not available to
the officers because the situation was not
sufficiently urgent to justify immediate action.
The evidence was inadmissible because it was
obtained in violation of the Fourth Amendment, he
argues. And his post-search statement was
inadmissible fruit of the poisonous tree. Whether
or not these arguments have merit, Galbraith
foreclosed his right to raise them when he
entered an unconditional plea of guilty to the
charges. He did not, as permitted by Federal Rule
of Criminal Procedure 11, reserve the right to
seek appellate review of the denied motion to
suppress. See Fed. R. Crim. P. 11(a)(2). "[A]
guilty plea constitutes a waiver of non-
jurisdictional defects occurring prior to the
plea. . . . This waiver includes Fourth Amendment
claims." United States v. Cain, 155 F.3d 840, 842
(7th Cir. 1998) (citations omitted). Galbraith
cites United States v. Yasak for the proposition
that a guilty plea may not always amount to a
waiver. 884 F.2d 996, 1000 (7th Cir 1989). But
all we stated in Yasak was that the court could
consider statements of conditionality at a
defendant’s plea hearing even if there was no
written conditional plea, or was a written
unconditional plea. 884 F.2d at 999-1000. A
review of the transcript from Galbraith’s plea
hearing merely reaffirms that Galbraith’s guilty
plea was unconditional. Because Galbraith waived
his right to appeal the suppression issue by
entering this unconditional plea, we will not
review his Fourth Amendment claims. See Cain, 155
F.3d at 842; see also United States v. Newman,
148 F.3d 871, 879 (7th Cir. 1998) (relinquishment
of known rights constitutes waiver, which
extinguishes appellate review, while rights
forfeited by failure to raise them timely may be
reviewed for plain error).
B. Relevant Conduct Calculation
Under the Sentencing Guidelines, the relevant
conduct of one charged with manufacture,
possession and distribution of drugs depends on
the quantity of drugs manufactured, possessed and
distributed. See U.S.S.G. sec.sec. 2D1.1 (a)(3),
(c)./1 At sentencing, DEA Agent Hoyt testified
to statements given by Galbraith and Rodney
Calhoun, a defendant in a related conspiracy
case, which established that Galbraith had
produced 361.46 grams of methamphetamine. Then
Hoyt testified to statements given by
codefendants Harlis Moulton, John Bierman and a
third man, David Wood, which corroborated that
amount. Next, Hoyt testified to two statements
given by George Songer, who was introduced to
Galbraith by codefendant Wood and bought
methamphetamine from Wood starting in late 1996.
According to Hoyt, some time after Galbraith’s
arrest, Galbraith asked Songer if he could cook
methamphetamine at Songer’s home. Hoyt related
Songer’s description of these sessions, and
reported that Galbraith eventually taught Songer
how to cook methamphetamine. In exchange for this
tutorial, Songer alleged that he gave Galbraith
a Ford Falcon, a motor and a chain saw. Hoyt
testified that in total Songer saw Galbraith
produce 148.83 grams of methamphetamine in
addition to the amount established by Calhoun and
those who corroborated his testimony. Hoyt also
testified that in the second of the two
interviews, Songer reported receiving a total of
between 30 and 60 ounces (850.5 to 1701 grams) of
Galbraith’s methamphetamine. It is not clear
whether he received this methamphetamine directly
from Galbraith or through intermediate dealers.
The prosecutor did not rely on Songer’s
statements regarding either the 148 grams or the
850 to 1700 grams when calculating the drug
amount constituting Galbraith’s relevant conduct.
The prosecutor stated that "[o]ur position will
be that [the drug amount] falls between the 350
to 500 in accordance with the PSI. . . . Roger
Galbraith establishes more than . . . 350 grams.
That’s corroborated by Calhoun. . . . If you put
Songer in, it puts him nine grams over the 500,
but I’m willing to concede that." Sent. Tr. at
47. The trial court, however, did rely on
Songer’s statements, noting that "[h]ere we have
a Probation report that establishes relevant
conduct between 350 and 500 grams, and yet I’m
provided evidence that it’s clearly over 500
grams. . . . [T]here’s nothing to counter Songer
here. The evidence that’s produced is such that
I don’t see how this Court can make a finding
below 500 grams. The evidence is clearly that
it’s over 500 grams." Sent. Tr. at 54. Later,
speaking to Galbraith’s attorney, the trial court
stated: "[Y]our client takes the position that he
doesn’t even know Songer in his objections. And
yet at this hearing I have been presented no
evidence that he didn’t know him. Your client’s
elected not to testify. If he was so convinced
with his position and so sure of it, he probably
would have testified. I’m not holding that
against him. I’m just saying that I have evidence
that this thing is over 500 grams." Sent. Tr. at
56. As a result of holding Galbraith responsible
for more than 500 grams, the judge was required
under the Sentencing Guidelines to place
Galbraith’s base offense level at 32 rather than
30.
Galbraith challenges the trial court’s decision
to credit information provided by George
Songer./2 The district court’s determination of
the quantity of drugs involved in a defendant’s
conduct is a finding of fact reviewed for clear
error. United States v. Lanterman, 76 F.3d 158,
160 (7th Cir. 1996). We will reverse a district
court’s conclusion regarding drug amount only if
"after reviewing the record, we are left with the
firm and definite conviction that a mistake has
been made." Id. (quoting United States v. Corral-
Ibarra, 25 F.3d 430, 437 (7th Cir. 1994)). The
government has a considerable advantage in
proving a defendant’s relevant conduct. At
sentencing it must prove the quantity of drugs
only by a preponderance of the evidence.
Lanterman, 76 F.3d at 160. Further, the Federal
Rules of Evidence do not apply at sentencing,
meaning the court may consider hearsay evidence
and other information not admissible at trial.
United States v. McEntire, 153 F.3d 424, 435 (7th
Cir. 1998). Not only procedural but also
substantive advantages go to the government in
the contest over calculating relevant drug
conduct. For instance, the testimony of just one
witness, even a potentially biased witness, is
sufficient to support a finding of fact. See
United States v. Cedano-Rojas, 999 F.2d 1175,
1180 (7th Cir. 1993). Further, the trial court is
entitled to credit testimony that is "totally
uncorroborated and comes from an admitted liar,
convicted felon, large scale drug-dealing, paid
government informant." McEntire, 153 F.3d at 436
(quoting United States v. Garcia, 66 F.3d 851,
857 (7th Cir. 1995)).
There is one significant counterweight to these
government advantages: the defendant has a due
process right to be sentenced on the basis of
reliable information. See Lanterman, 76 F.3d at
160. We have suggested that inconsistent evidence
may be unreliable. See McEntire, 153 F.3d at 436.
When evidence is inconsistent, the district court
must undertake a "sufficiently searching inquiry
into the government’s evidence to ensure its
probable accuracy." Id. This inquiry is
particularly warranted where a witness has a
history of drug use and admits his memory is not
sharp. See id. (collecting cases). For instance,
in McEntire, a witness offering information on
the defendant’s relevant conduct first stated in
a proffer that he gave the defendant 50 pounds of
methamphetamine; he then testified at trial that
he gave the defendant 80 to 100 pounds; the
witness later signed an affidavit stating that he
could not estimate the amount, and then he stated
at a sentencing hearing that he gave him more
than 100 pounds. Id. The witness admitted that he
used "a lot" of methamphetamine and that it
sometimes affected his memory. Id. The trial
court accepted the 80 to 100 pound estimate
without specifying why that was the most reliable
estimate, and we reversed and remanded for a more
searching inquiry. Similarly, in United States v.
Beler, 20 F.3d 1428 (7th Cir. 1994), a witness to
relevant conduct first stated that he purchased
150 to 200 ounces of cocaine from the defendant,
then disclaimed any ability to pinpoint an
amount, and finally set the amount at 15 to 20
ounces. See id. at 1430-33. We found the judge’s
decision to credit the smaller amount
unacceptable because he failed to explore the
factual basis for these bare estimates. See id.
at 1433-34. Similarly, in McEntire, we rejected
as unreliable a witness’s "conclusory estimates
. . . not supported . . . with any further
explanations or details as to how he arrived at
the amounts." 153 F.3d at 437. Thus, consistent
facts, details and explanations suggest the
reliability we require before crediting one of
several inconsistent statements.
Galbraith complains that Songer had been
convicted of prior drug offenses, and was facing
possible drug charges himself. He also decries
the fact that Songer’s testimony was
uncorroborated. These facts do not necessarily
render him unreliable. See, e.g., Cedano-Rojas,
999 F.2d at 1180 (testimony of one biased witness
may be sufficient to support a finding of fact);
McEntire, 153 F.3d at 436 (trial court may credit
uncorroborated testimony of a convicted felon and
government informant).
We are more disturbed by the fact that Songer’s
two interviews yielded vastly different
information. In Songer’s first interview, he
stated that Galbraith cooked about six ounces of
methamphetamine in his home. No mention was made
of additional drugs procured through Galbraith.
In the second interview, Songer again stated that
Galbraith cooked between six and eight ounces of
methamphetamine. He added, however, that he had
purchased between 30 and 60 ounces of
methamphetamine produced by Galbraith. Songer’s
initial silence and later loquaciousness on this
score are troubling though not, strictly
speaking, contradictory. The wide gulf between
these stories, coupled with Songer’s admitted
heavy drug use--he became addicted to
hallucinogenic drugs at age 15; to
methamphetamine at age 18, to cocaine powder at
age 20, to crack cocaine at age 35 and apparently
used between 850 and 1700 grams of
methamphetamine during the period in question--
suggest that the trial court might have performed
a more searching inquiry than it did. The judge
noted the discrepancy, and decided to credit
Songer’s statement about the 148 grams, but not
the larger amount. He did not explain why he
found the latter statement reliable but the
former suspicious. Given the government’s
disavowal of Songer’s entire statement, an
explanation demonstrating the judge’s scrutiny of
the evidence might have been advisable.
Nevertheless, after reviewing the record as we
are directed to do by Corral-Ibarra, 25 F.3d at
437, we are not left with a definite and firm
conviction that the judge was mistaken to credit
the testimony on the 148 grams but not on the
larger amount. The testimony regarding the 148
grams bore indicia of reliability--facts and
details--that were missing from the statement
regarding the larger amount. Songer twice told
officers that he observed Galbraith cook
approximately this amount of methamphetamine in
his home. He specified exact quantities cooked at
various times. He described the ingredients used
each time, and explained who provided those
ingredients. He told officers about the items he
gave Galbraith in exchange for the cooking
lessons, including a car./3 This detailed
testimony was far more reliable than the mere
conclusions rejected in McEntire and Beler. In
contrast, Songer estimated just once, and in
passing, that he purchased between 30 and 60
grams of Galbraith’s methamphetamine. He did not
specify the quantities he purchased on various
dates, or the locations of the purchases.
Further, his statement suggests that he did not
purchase all of the drugs directly from
Galbraith, but instead through intermediate
dealers. Therefore, Songer could very likely have
misunderstood who supplied the drugs to his
dealer. This single, isolated statement, like
those rejected in McEntire and Beler, did not
bear sufficient indicia of reliability. The judge
was correct to ignore it. We are, therefore, not
left with the conviction that the trial judge
made a mistake in crediting Songer’s testimony on
the 148 grams. There was no clear error in the
relevant conduct calculation, and we affirm it.
C. Obstruction of Justice
Galbraith also contests the trial judge’s
decision to enhance his sentence two levels for
obstruction of justice as provided for in section
3C1.1 of the Guidelines. The Presentence
Investigation Report (PSR) recommended the
enhancement because of Galbraith’s alleged
perjury at the suppression hearing. Galbraith did
not object below to this enhancement, and thus we
review the judge’s decision to enhance under the
plain error standard. See United States v.
Santoro, 159 F.3d 318, 320-21 (7th Cir. 1998). "A
plain error is not only a clear error but an
error likely to have made a difference in the
judgment, so that failure to correct it could
result in a miscarriage of justice, that is, in
the . . . imposition of an erroneous sentence."
Newman, 965 F.2d at 213.
If a defendant does not object to the
enhancement at the time of sentencing, the judge
is entitled to adopt the PSR’s findings without
making independent findings on the record. See
Fed. R. Crim. P. 32(b)(6)(D) ("Except for any
unresolved objection . . . the court may, at the
[sentencing] hearing, accept the presentence
report as its findings of fact."). See also
United States v. Dunnigan, 507 U.S. 87, 95 (1993)
("[I]f a defendant objects to a sentence
enhancement resulting from her trial testimony,
a district court must review the evidence and
make independent findings . . . ."). Galbraith
did not object to the enhancement at sentencing,
and the judge both adopted the PSR and took
judicial notice of the suppression hearing at
which the alleged perjury took place. We take
Galbraith’s specific challenges in logical order.
First, Galbraith argues in essence that two of
his alleged perjurious statements (that officers
did not read his Miranda rights, and threatened
him to alter the content of his statement) were
not false at all. Instead, he posits, the trial
judge wrongly credited the government’s version
of events rather than his own. Naturally, we
review the trial court’s credibility
determination with great deference. See, e.g.,
United States v. Agostino, 132 F.3d 1183, 1198
(7th Cir. 1997). The judge below heard the
testimony and decided whom to believe, and in
light of Galbraith’s subsequent turnaround on
several of these issues, we cannot say this
decision was erroneous.
Second, Galbraith complains that, even if his
statements were false, the judge did not follow
the proper procedure and go on to find that the
falsehoods were material and willful. As
discussed above, the judge needed only to adopt
the PSR’s findings to satisfy the requirements of
Dunnigan. The PSR did not include a specific
finding of materiality. Because Galbraith did not
dispute the enhancement, this failure is reviewed
for plain error. That is, we ask whether the
record’s silence on materiality was likely to
have made a difference in the judgment. See
Newman, 965 F.2d at 213. Here, because the PSR
specifically detailed the falsehoods and the
context constituting perjury, the judge was not
prevented from drawing a meaningful conclusion
about materiality. Further, the judge himself
presided at the suppression hearing and took
judicial notice of that hearing at the sentencing
proceeding. The judge was better qualified than
the author of the PSR to assess the materiality
of Galbraith’s perjury, and the PSR’s silence did
not affect the judgment or amount to plain error.
Next, Galbraith argues that, on the merits, his
falsehoods were not material. We have stated that
false testimony is material if it is "’designed
to substantially affect the outcome of the case.’"
United States v. Parker, 25 F.3d 442, 448 (7th
Cir. 1994) (quoting Dunnigan, 507 U.S. at 95). In
both Parker and Dunnigan, the lies at issue were
alleged to have had a bearing on the final
outcome of the case, namely the defendant’s guilt
or innocence. The situation here is slightly
different, because Galbraith testified falsely at
a suppression hearing rather than a trial. Thus,
in a strict sense even the most blatant falsehood
he told would have had a direct effect only on
the judge’s evidentiary ruling and at best an
indirect effect on the outcome of the case.
Notably, however, the Sentencing Guidelines
define materiality for non-perjurious false
statements to law enforcement officers or
probation officers as those that if believed
would affect the issue under determination. See
U.S.S.G. sec. 3C1.1, Application Note 5. This
definition essentially applies the Dunnigan
"outcome of the case" standard to lies in
settings where something less ultimate than guilt
or innocence is at stake. Further, logic dictates
that a lie influencing a pretrial issue will, in
an attenuated sense, influence the ultimate
outcome of the case itself. Thus, both Dunnigan
and the Guidelines suggest that a falsehood told
at a pretrial hearing is material if it is
calculated to substantially affect the issue
under determination at that hearing.
This result was foreshadowed by United States
v. Emenogha, 1 F.3d 473, 485 (7th Cir. 1993), in
which we affirmed the district court’s
application of an obstruction of justice
enhancement based on perjury at a pretrial
hearing. In Emenogha, the defendant stated at a
suppression hearing that prior to executing a
consent to search form, he and his family had
been threatened by law enforcement officers. This
lie was perjury because if believed it would have
negated the defendant’s consent and perhaps
rendered the search unconstitutional and its
fruits inadmissible. Galbraith told two similar
lies that if believed would have influenced the
outcome of the suppression hearing. He told the
court that on the day of the search, law
enforcement officers did not read him his Miranda
rights before he gave a statement. See
Suppression Hrg. Tr. at 110. And he told the
court that law enforcement officers threatened
him with jail in order to make him alter the
content of his statement. See id. The trial
court, in its Memorandum and Order denying the
motion to suppress, specifically stated that in
deciding whether to admit Galbraith’s statement,
"[t]he only question for the Court . . . is
whether the defendants were informed of their
Miranda rights." Mem. at 8. Obviously, if this
was the only question, and the trial judge had
believed Galbraith’s version of events, he might
well have suppressed Galbraith’s statement.
Therefore, at least two of Galbraith’s falsehoods
at the suppression hearing were designed to
influence the outcome of the issue under
determination, namely the admission of the
statements. Other falsehoods, regarding the
manufacturing operation in his home in the month
before the search, were not obviously relevant to
the outcome of the suppression hearing, and were
not material./4
Galbraith next argues that the PSR erred in
finding the falsehoods willful. Galbraith argues
persuasively that several of the "false"
statements identified in the PSR merely reflect
his inability to follow the prosecutor’s compound
or complex questions. But the "confused"
statements were the ones concerning Galbraith’s
pre-arrest drug activity, which would have no
influence on the outcome of the motion to
suppress and were therefore immaterial.
Galbraith’s material falsehoods, regarding the
Miranda warnings and the officers’ threats, were
offered in response to simple questions posed by
his own attorney./5 Galbraith’s confusion on
immaterial issues does not offset his willful
untruths on material issues, and the finding of
perjury was not plainly erroneous. The perjury
finding justified the obstruction of justice
enhancement, which we affirm.
D. Acceptance of Responsibility
Galbraith next appeals the district court’s
finding that he failed to accept responsibility
and therefore did not qualify for the two-level
reduction in base offense level offered by the
Sentencing Guidelines. See U.S.S.G. sec. 3E1.1
(two-level decrease if "defendant clearly
demonstrates acceptance of responsibility for his
offense"). Whether a defendant has accepted
responsibility is a factual determination that
the trial court is to make as a result of its
conclusions about the defendant’s conduct and
credibility. United States v. Scott, 145 F.3d
878, 885 (7th Cir. 1998). We review a trial
court’s findings on acceptance of responsibility
for clear error. See id.
The Guidelines specifically state that "timely"
notice of the intention to enter a guilty plea is
a clear demonstration of acceptance of
responsibility. See U.S.S.G. sec. 3E1.1(b)(2).
Conversely, last-minute guilty pleas do not
demonstrate the requisite acceptance. See, e.g.,
United States v. Ewing, 129 F.3d 430, 436 (7th
Cir. 1997) (affirming denial where defendant
pleaded guilty on last business day before start
of trial). Galbraith waited until jury selection
was underway before pleading guilty. This plea
was nothing if not last-minute, and therefore the
trial court’s finding that it did not demonstrate
acceptance of responsibility was not error. The
judge also noted that Galbraith had obstructed
justice, a finding that ordinarily is
inconsistent with acceptance of responsibility.
See, e.g., Ewing, 129 F.3d at 435. Occasionally,
in an extraordinary situation, a defendant may
initially obstruct justice and later accept
responsibility. See id. Here, however, after his
performance at the suppression hearing, Galbraith
declined to submit to additional interviews with
the government and maintained his "not guilty"
plea until the eleventh hour. The situation was
ordinary, and the obstruction of justice
enhancement is further support for our conclusion
that the judge did not err in denying the
"acceptance of responsibility" reduction to
Galbraith.
E. Safety Valve Reduction
Finally, Galbraith contends that the judge erred
by refusing to apply the provisions of section
5C1.2 of the Guidelines, known as the "safety
valve" provision. Under this provision and
U.S.S.G. sec. 2D1.1(b)(6), if Galbraith met five
specific criteria, the court could lower his
offense level by two. The defendant bears the
burden of proving he is eligible for the safety
valve reduction. See United States v. Ramirez, 94
F.3d 1095, 1099-1102 (7th Cir. 1996). We review
the trial court’s finding on this issue for clear
error. United States v. Ramunno, 133 F.3d 476,
482 (7th Cir. 1998). The trial court found that
Galbraith foundered on the fifth criteria: "not
later than the time of the sentencing hearing,
the defendant [must] truthfully provide[ ] 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 . . . ." See U.S.S.G.
sec. 5C1.2(5). Galbraith gave one statement to
law enforcement agents, on the day his home was
searched. Following that, he did not make a
proffer and did not expand on his initial
statement regarding his codefendants. The
proffers of his codefendants suggest that
Galbraith was not forthcoming in his post-arrest
interview. The judge’s finding that Galbraith did
not truthfully provide all information he had was
not clearly erroneous, and we affirm it.
III. Conclusion
In sum, we dismiss Galbraith’s challenge to the
denial of the motion to suppress. We affirm the
trial court’s relevant conduct determination, the
two-level enhancement for obstruction of justice,
the denial of the acceptance of responsibility
reduction and the denial of the safety valve
provision.
Affirmed.
/1 All citations are to the 1997 Sentencing
Guidelines, since those are the Guidelines the
trial court found applicable.
/2 A second matter of calculation is unchallenged.
The Presentence Investigation Report states that
Calhoun tied Galbraith to between 212.62 to
240.97 grams of methamphetamine. At the
sentencing hearing, however, Hoyt presented
Calhoun’s testimony regarding a much larger
amount--361.46 grams. Apparently, this larger
amount included some methamphetamine that Calhoun
produced on his own. Hoyt testified that Calhoun
was "directly involved with" Galbraith for the
"joint purpose of manufacturing methamphetamine."
Sent. Tr. at 17-18. Galbraith himself stated in
his one interview with police that he provided
Calhoun with cold pills needed to make the drug
and knew Calhoun made methamphetamine on his land
and elsewhere. Galbraith’s attorney did not
object at sentencing to the government’s larger
offer of proof, and admitted in his brief to this
court that "the government met its burden on . .
. 360 grams." Appellant’s Br. at 22. Therefore,
Galbraith has waived this issue, and we will not
disturb it. See United States v. Newman, 148 F.3d
871, 879 (7th Cir. 1998). For the record, the
Guidelines determine relevant conduct of a
conspirator with reference to "all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity." U.S.S.G. sec. 1B1.3(a)(1)(B). The
testimony that Galbraith acted jointly with
Calhoun, and Galbraith’s own statements suggest
that he could reasonably foresee Calhoun’s
independent drug production; therefore, the
entire 361.46 grams was properly included in
Galbraith’s relevant conduct.
/3 Unfortunately, as Galbraith points out, the
government did not try to locate the car to
corroborate Songer’s story. However, because
uncorroborated testimony is not necessarily
unreliable, this oversight is not important.
/4 Galbraith now argues that if the search of his
home prior to his arrest was conducted in
violation of the Fourth Amendment, his statements
were fruit of the poisonous tree whether or not
he was read his Miranda rights, thus rendering
his falsehood on this point at the suppression
hearing immaterial. This logic is, of course,
specious. Materiality turns on a statement’s
effect if believed. When Galbraith spoke, the
legality of the search and the admissibility of
his post-search statements were both under
review. Therefore, when Galbraith spoke, it was
possible the judge would find the search legal.
If so, his belief in Galbraith’s lies about the
Miranda warnings would have influenced his
decision whether to suppress the post-search
statements. Thus, at the time Galbraith made
them, and still today, the falsehoods were
material.
/5 Mr. Isaacson: Were you ever read those rights
that day?
Galbraith: No, sir. . . .
Mr. Isaacson: Did [the officers] tell you
anything before you made any statements?
Galbraith: That if I didn’t tell them what they
wanted to hear that I would do life in jail.
Suppression Hrg. Tr. at 110.