United States v. Peter John Capriola and Ronald Freeze

*320 OPINION

Appellants Capriola and Freeze were convicted under 21 U.S.C. §§ 952 & 963, for conspiracy to smuggle marijuana from Mexico into this country. Capriola was also convicted on a second count for attempting to import marijuana from Mexico.

Here, the appellants present only three contentions worthy of comment. They first argue that delay by the Government in seeking and obtaining indictments against them infringed due process rights guaranteed to them by the Fifth Amendment. The record does not disclose that the delay resulted in any such prejudice to the appellants as to require reversal. See United States v. Marion, 404 U.S. 307, 326 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971).

The second argument made by appellants is that evidence of a wholly separate conspiracy was admitted against them to their prejudice. Based upon our conclusion that there was, essentially, only one continuing conspiracy, the admission of the challenged testimony did not constitute reversible error.

Finally, appellants argue that more severe sentences were imposed upon them because they exercised their right to stand trial. If this is true, the constitutional rights of the appellants have been…

(concurring and dissenting):

I concur in affirming the convictions of Capriola and Freeze. I cannot agree that the case should be remanded to the trial court. In my view it is not only unnecessary but also improper for us to require the trial court to make a finding on whether it penalized the defendants for exercising their right to a trial.

The time may come when trial judges in every case will be required to set forth their reasons for the sentences they impose. That time has not yet arrived. Unless a sentence is wrong as a matter of law, this circuit has traditionally refused to disturb a sentence on appeal.

Some cases, like United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948 , 93 S.Ct. 1924 , 36 L.Ed.2d 409 (1973), cited in the majority opinion, require the sentencing judge to give his reasons for the particular sentence. But Stockwell was an unusual case and the sentence imposed upon the co-defendant who pleaded guilty was not material to the court’s holding. In Stockwell , the judge threatened to give Stockwell five to seven years if he went to trial but only three years if he pleaded guilty. Stockwell was tried and convicted; he got seven…

537 F.2d 319 UNITED STATES of America, Appellee, v. Peter John CAPRIOLA and Ronald Freeze, Appellants. Nos. 75-1099, 75-1158. United States Court of Appeals, Ninth Circuit. Jan. 22, 1976. As Amended Feb. 6, 1976. Rehearing and Rehearing en Banc Denied July 16, 1976. Gregory J. Miller (argued), San Jose, Cal., appellant in 75-1158 and Marvin F. Cooper, Santa Ana, Cal., for Appellant in 75-1099. Anthony P. Capozzi, Asst. U. S. Atty. (argued), Fresno, Cal., for appellee.OPINION Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge. * PER CURIAM: 1 Appellants Capriola and Freeze were convicted under 21 U.S.C. §§ 952 & 963, for conspiracy to smuggle marijuana from Mexico into this country. Capriola was also convicted on a second count for attempting to import marijuana from Mexico. 2 Here, the appellants present only three contentions worthy of comment. They first argue that delay by the Government in seeking and obtaining indictments against them infringed due process rights guaranteed to them by the Fifth Amendment. The record does not disclose that the delay resulted in any such prejudice to the appellants as to require reversal. See United States v.…