U.S. v. Martinez-Navarro, MARTINEZ-NAVARR

• Citation: 604 F.2d 1184
• Decision Date: 17 August 1979
• Docket Number: 78-3446,MARTINEZ-NAVARR,D,Nos. 78-3445,ENRIQUES-SANCHE,s. 78-3445
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juanefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Martinefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1184

604 F.2d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Juan MARTINEZ-NAVARRO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Martin ENRIQUES-SANCHEZ, Defendant-Appellant.

Nos. 78-3445, 78-3446.

United States Court of Appeals, Ninth Circuit.

Aug. 17, 1979.

Rehearing Denied Oct. 15, 1979.

Michael J. McCabe, Glorene Franco (argued), Michael S. Sideman, San Diego, Cal., for defendants-appellants.

Barbara F. Brown, Asst. U.S. Atty. (on the brief), Michael H. Walsh, U.S. Atty., Bruce R. Castetter, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court For the Southern District of California.

Before CHAMBERS, WALLACE and TANG, Circuit Judges.

PER CURIAM:

Martinez-Navarro and Enriques-Sanchez assert that the district court impermissibly considered their testimony in a companion trial when fixing their sentences. We conclude that the trial judge, believing they lied while testifying under the grant of immunity, did not err when he considered that fact in determining, within the statutory limits, appropriate sentences.

Martinez-Navarro and Enriques-Sanchez were arrested by Border Patrol agents near the United States border along with a group of illegal aliens. A third person, Palomino-Figueroa, was stopped in the same area about an hour later. Martinez-Navarro and Enriques-Sanchez executed sworn statements that Palomino-Figueroa was "El Socio," the smuggler with whom they had been working.

On September 19, 1978, Martinez-Navarro and Enriques-Sanchez were found guilty at a court trial, on stipulated facts, of violation of 18 U.S.C. § 371, 8 U.S.C. § 1324, and 18 U.S.C. § 2. On September 20, 1978, the district court granted the government's motion compelling them to testify at the trial of codefendant Palomino-Figueroa under a grant of immunity, pursuant to 18 U.S.C. § 6002. During the jury trial, both Martinez-Navarro and Enriques-Sanchez denied making the statements contained in the signed statements. In addition, Enriques-Sanchez testified that Martinez-Navarro was "El Socio" and Martinez-Navarro testified that Enriques-Sanchez was "El Socio." Palomino-Figueroa was acquitted.

On October 30, 1978, Martinez-Navarro and Enriques-Sanchez appeared for sentencing. The district judge stated that a consideration in their sentencing was that he believed they had lied when they testified at the trial of Palomino-Figueroa.

A sentencing judge may consider a wide range of information in determining a defendant's sentence. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Stevenson, 573 F.2d 1105, 1108 (9th Cir. 1978); United States v. Read, 534 F.2d 858, 859 (9th Cir. 1976) (per curiam). Indeed, Congress in 1970 enacted 18 U.S.C. § 3577, which provides that "(n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." Punishment should be individualized, fitting the offender as well as the crime. Williams v. New York, supra, 337 U.S. at 247, 69 S.Ct. 1079; King v. United States, 410 F.2d 1127, 1128 (9th Cir. 1969) (per curiam). A defendant's truthfulness while on the witness stand is probative of his prospects for rehabilitation and, therefore, is relevant in determining a sentence. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Thus, an assessment by a sentencing judge that a defendant has perjured himself is a proper consideration in determining the length of a sentence within the appropriate statutory range for a particular crime. Id.; United States v. Lustig, 555 F.2d 737, 751 (9th Cir. 1977), Cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977), Cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978); See United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972). ¹

In this case, however, the testimony involved was offered under a grant of immunity. Martinez-Navarro and Enriques-Sanchez assert that the use of such testimony to enhance their sentences was a violation of the immunity granted them under 18 U.S.C. §§ 6002, 6003, and of their Fifth Amendment privilege against self-incrimination.

The protection provided by the immunity statute is coextensive with the Fifth Amendment privilege against self-incrimination. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The object of that privilege " 'was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892)." Lefkowitz v. Turley, ...