Tell All [N]ot 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, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement, 18 U.S.C. Β§ 3553(f)(5).54 At one time the most heavily contested safety valve prerequisite, Section 3553(f)(5) requires full disclosure on the part of the defendant. As in the case of the other prerequisites, the defendant here bears the burden of establishing his qualification for safety valve relief.55 The requirement extends not only to information concerning the crime of conviction, but also to information concerning other crimes that βwere part of the same course of conduct or of a common scheme or plan,β including uncharged related conduct.56 Neither Section 3553(f) nor the Sentencing Guidelines explain what form the defendantsβ full disclosure must take. At least one court has held that under rare circumstances disclosure through the defendantβs testimony at trial may suffice.57 Most often the defendant provides the information during an interview with prosecutors or by a proffer. The defendant must disclose the information to the prosecutor, however. Disclosure to the probation officer during preparation of the presentence report is not sufficient.58 Moreover, a defendant does not necessarily qualify for relief merely because he has proffered a statement and invited the prosecution to identify any additional information it seeks; for βthe government is under no obligation to solicit information from a defendant.β 59 The defendant must provide the government with all the relevant information in his possession.60 And, he must do so βno later than the time of the sentencing hearing.β 61 Information offered after the sentencing hearing does not qualify,62 although information offered following appellate remand for resentencing and prior to the resentencing hearing may qualify.63 On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety valve, although they may undermine his credibility.64
