U.S. v. Sainz

• Decision Date: 24 September 1985
• Docket Number: No. 85-1009,85-1009
• Citation: 772 F.2d 559
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar D. SAINZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 559

772 F.2d 559

UNITED STATES of America, Plaintiff-Appellee, v. Oscar D. SAINZ, Defendant-Appellant.

No. 85-1009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 1985.

Decided Sept. 24, 1985.

Stephen M. McNamee, U.S. Atty., John Leonardo, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

D. Jesse Smith, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before TANG and FERGUSON, Circuit Judges, and McNICHOLS, ^* District Judge.

FERGUSON, Circuit Judge:

The defendant, Oscar Sainz, appeals his conviction on one count of perjury for a statement he made before a federal grand jury. 18 U.S.C. Sec. 1623. The defendant, formerly an employee of the Immigration and Naturalization Service ("INS"), was tried on two counts of perjury for statements he made before the grand jury, was convicted on one count, and was sentenced to a year in prison. On appeal, the defendant raises a number of contentions; we need only reach one of his arguments. We reverse.

I.

At all relevant times alleged in the indictment the defendant was employed as a United States Inspector for the INS near the Mexican border at Nogales, Arizona. As a part of his duties the defendant inspected travelers arriving in the United States by car from Mexico at the Nogales point of entry. It is an INS practice to enter the license plate numbers of all entering automobiles into a computer terminal. The information entered into the computer serves a variety of purposes but, at the point of entry, this information is used to alert the INS inspector on duty that further inquiry is warranted. When the computer has alerted the inspector, he is supposed to follow a procedure whereby the identified car is routed into a secondary lane of traffic for further investigation by other INS officers. INS standard procedure requires the initial INS inspector to put the driver's papers in a cone which is then placed on top of the car in a location beyond the driver's reach.

On May 15, 1984, the defendant was called before a grand jury which was investigating allegations that the defendant had conspired with others to facilitate the illegal entry of automobiles into the United States. The grand jury eventually indicted the defendant on three counts of perjury before the grand jury and one count of conspiracy. The counts were subsequently severed and the defendant proceeded to trial on two perjury counts. The jury convicted the defendant of one of the two perjury counts. For purposes of our discussion, therefore, we need only discuss the grand jury proceedings as they related to this perjury allegation.

During his grand jury testimony the defendant responded to a series of questions posed by the prosecutor exploring the general nature of the defendant's duties at the Nogales station. The government's perjury theory rested on the fact that on two separate occasions, on September 29, 1982 and on December 7, 1983, automobiles had traveled through the defendant's Nogales lane and the defendant had failed to enter their license plate numbers into the INS computer. In the first instance, the car was diverted into a secondary station and, after being searched, an illegal alien was located in the car's trunk. On the second occasion, two vehicles went through the defendant's post with different results; one entered the United States while the other hastily returned to Mexico after being directed to a secondary station. During the defendant's grand jury questioning the prosecutor never mentioned or inquired into the specifics of either incident. Instead, the prosecutor asked general questions of the defendant regarding the defendant's duties and experiences as an inspector at the Nogales station.

According to the indictment, the following colloquy forms the basis for the defendant's perjury offense:

Q[uestion]: Have you ever failed to follow your agency's procedure in running license plates of cars coming into the United States to determine whether or not they were listed as suspicious narcotics vehicles?

A[nswer by Defendant]: No, sir.

The government contends that this response was perjurious because of the defendant's failure to enter the license plate numbers into the INS computer on the two occasions previously mentioned.

A review of the grand jury transcript reveals that this question was subsequently followed by questions about the entry procedures used by the INS. For example, the prosecutor inquired as follows:

Q: Is it a proper procedure for an Immigration officer who is working at the Port of Entry at the primary gate to record the license numbers of every car that comes through in the Immigration computer?

A: Yes.

....

Q: And is that the procedure that you generally follow?

A: Yes, sir.

Q: Have you ever failed to follow that procedure?

A: Well, sometimes, you know, like New Mexico plates won't have a plate in the front and so if I see they are from New Mexico I will try to let them through and catch the car as it's going through, but normally I will keep to that procedure.

Q: And are you required to do that for every car[,] record it in the computer?

A: Yes.

....

Q: In the event that an individual comes through and you record the number in the computer and the computer reacts with an alarm, which is the procedure to be followed?

A: We get a little pad, we write the number 111, which means hit, put a cone on the car and send it down to secondary.

Q: So, the standard procedure when you have a hit on your computer, is to place a cone on top of the car, place the documents received from the driver in the cone?

A. Yes, sir.

(Emphasis added).

At the close of the defendant's trial, the prosecutor's closing argument to the jury restated the allegedly perjurious colloquy as follows:

And when the question was put to Mr. Sainz, "Have you ever failed to enter these numbers into the system," and he answered, "No," that was false.

As we explain further below, the prosecutor's recollection in his summation of what transpired at the grand jury hearing is incorrect; the most that can be said for the prosecutor's recharacterization of his question before the grand jury is that it reveals what the prosecutor's question should have been.

II.

On appeal, the defendant challenges the sufficiency of the evidence supporting his perjury conviction and contends that he is entitled to a judgment of acquittal. Citing Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), the defendant argues that the prosecution's grand jury questioning was so ambiguous that it will not sustain a perjury conviction. In reviewing a perjury conviction we apply a de novo standard. United States v. Cowley, 720 F.2d 1037, 1040 (9th Cir.1983). Our central task is to determine "whether the jury could conclude 'beyond a reasonable doubt that the defendant understood the question as did the government and that, so understood, the defendant's answer was false.' " Id. at 1040 n. 2 (quoting United States v. Matthews, 589 F.2d 442 (9th Cir.1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979)).

Our inquiry into the defendant's allegedly perjurious statement must begin with an appreciation of the context in which the statement was offered. United States v. Cook, 497 F.2d 753, 764-65 (9th Cir.1972) (Ely, J., dissenting), dissenting opinion reinstated on rehearing as majority position in relevant part, 489 F.2d 286 (9th Cir.1973). The practice of lifting statements uttered by a witness out of context can serve no useful purpose in advancing the truth-seeking role of the perjury statutes. Such a practice not only fails to advance the cause of truth in our judicial system, it undermines the primary policy consideration which has governed the contours of the perjury offense from its inception.

The seminal modern treatment of the history of the offense concludes that one consideration of policy overshadowed all others during the years when perjury first emerged as a common-law offense: "that the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying."

Bronston v. United States, 409 U.S. 352, 359, 93 S.Ct. 595, 600, 34 L.Ed.2d 568 (1973) (quoting from Study of Perjury, reprinted in Report of New York Law Revision Commission, Legis.Doc. No. 60, p. 249 (1935)). Common sense reveals that permitting a perjury conviction to be drawn from statements dislodged from their normal context will chill the willingness of witnesses to engage in discourse under oath. Consequently, we must look to the context of the defendant's statement to determine whether the defendant and his questioner joined issue on a matter of material fact to which the defendant knowingly uttered a false declaration.

During his questioning of the defendant about the INS practice of entering license plate numbers into a computer, the prosecutor rarely descended from the level of generalities. Although they remained on that level, these general questions did take a slow march toward the specific. The pertinent questions uniformly used the term "procedure" to describe the INS practices governing the admission of vehicles into the United States. The term was never defined; the term was used by the questioner to refer equally to the practice of routing entering traffic as it was to placing a driver's documents in a cone on the top of entering vehicles. Thus, it was unclear whether the term "procedure," as used by the questioner, meant the full complement of duties required of an INS...