United States v. Galbraith, Roger G.

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.