Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

No. 87-5068.

United States Court of Appeals, Ninth Circuit.

Before TANG^**  and NELSON, Circuit Judges, and KAY^*** , District Judge.

MEMORANDUM^* 

Appellant Martinez-Herrera appeals his conviction for making false statements to a grand jury in violation of 18 U.S.C. § 1623. He challenges the conviction on several grounds. We affirm.

Martinez-Herrera first appeals from the district court's denial of his motion for a continuance. We review for abuse of discretion the district court's decision to deny the continuance. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), amended on other grounds, 764 F.2d 675 (1985).

A district court abuses its discretion when its decision to deny was arbitrary or unreasonable. Flynt, 756 F.2d at 1358. The district court here did not abuse its discretion in denying appellant's request for a continuance.

When a continuance is sought to obtain witnesses, the accused must show who they are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and due diligence has been used to obtain their attendance on the day set for trial.

United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978) (citations omitted).

Appellant's motion was defective in several respects. Martinez-Herrera did not identify any particular witness whose testimony he sought to obtain if a continuance was granted. Nor could the district court assess the competency or relevancy of potential testimony by unidentified witnesses. Neither did Martinez-Herrera demonstrate that potential witnesses, if any, were available if the district court granted a continuance. Martinez-Herrera's prior efforts to obtain the voluntary testimony of certain witnesses residing in Mexico had failed to produce any witness regarding his whereabouts during the periods in question. The district court could reasonably conclude that a continuance, if granted, would probably not have produced any additional witnesses in such circumstances.

Appellant next contends that 18 U.S.C. § 1623(e) violates his Sixth Amendment confrontation rights by abandoning the "two-witness" rule. It is unclear whether appellant raised this issue at trial or otherwise preserved this objection for appeal. In any case, appellant's contention is without merit. Congress, through appropriate legislation, may abolish rules that are of less than constitutional stature. The "two witness" rule is not one of constitutional dimensions. Weiler v. United States, 323 U.S. 606, 608-10 (1945) (adhering to two-witness rule in the absence of congressional legislation "in derogation of it"); United States v. Isaacs, 493 F.2d 1124, 1155-56 (7th Cir.), cert. denied, 417 U.S. 976 (1974); United States v. Ruggiero, 472 F.2d 599 (2d Cir.), cert. denied, 412 U.S. 939 (1973); see also United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979) (noting, in context of false oath prosecution in bankruptcy proceeding, that "Congress has abolished the 'two-witness' rule for proof of perjury prosecutions, 18 U.S.C. § 1623").

In a perjury prosecution under 18 U.S.C. § 1623, the government must prove the materiality of false statements to a grand jury. Materiality is a question of law determined by the district court. United States v. Prantil, 764 F.2d 548, 557 (9th Cir. 1985). We review such determinations de novo. Givens v. Housewright, 786 F.2d 1378, 1380 (9th Cir. 1986). False statements are material if they are relevant to any matter before the grand jury and their falsity "would have a natural tendency to influence the grand jury's investigations." Prantil, 764 F.2d at 557 (quoting United States v. Kelly, 540 F.2d 990, 993 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977)). Martinez-Herrera's statements to the grand jury were clearly relevant. In response to questions concerning whether Martinez-Herrera had ever visited a particular residence in Guadalajara or otherwise visited or lived in Guadalajara, Martinez-Herrera stated that he had never been in Guadalajara. The grand jury which questioned Martinez-Herrera was investigating the kidnapping and murder of DEA Special Agent Camarena Salazar which occurred in part in Guadalajara and, perhaps, at that particular residence. The falsity of Martinez-Herrera's statements would have a "natural tendency" to mislead the grand jury on an important issue: the identity of the participants in or potential witnesses to Agent Salazar's kidnapping and murder.

Martinez-Herrera's final argument challenges the sufficiency of the indictment and information. Defenses and objections regarding the sufficiency of the indictment or information must be made prior to trial under Fed. R. Crim. P. 12(b) (2). These arguments were not properly preserved for review and we decline to review them here.

Appellant's claims of ineffective assistance of counsel and denial of due process are without merit.

AFFIRMED.