Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM^* 

Jacqueline Hendricks ("Hendricks") appeals her sentence after guilty pleas to two counts of conspiring to distribute and distributing cocaine. We affirm.

DISCUSSION

Hendricks contends that the district court erred when it adjusted her sentence upwardly on obstruction of justice grounds. Specifically, Hendricks asserts that her testimony varied from the officers' statements on only one matter--the length of time she claimed the officers told her she could spend in prison for her conduct. She argues, therefore, that her misstatements were not material to any important issue in her case. We disagree.

Hendricks' perjured testimony is material because whether the district court believed her version or the officers' version of the facts affected the court's determination on the voluntariness of her incriminating statements. If the court believed Hendricks' assertion that the agents had threatened her with 30 years in prison, it could well have concluded that her incriminating statements to the agents were coerced and therefore inadmissible. Because the truth or falsity of Hendricks' testimony could have directly affected the exclusion of her incriminating statements, the district court did not err when it found Hendricks' testimony to be an obstruction of justice. See Commentary Note 1(c) to Section 3C1.1 of the Sentencing Guidelines (obstruction of justice includes testifying untruthfully concerning a material fact).

Hendricks also asserts that the government cross-examined her improperly. We disagree.

Once a defendant testifies, the government can test the defendant's credibility. See Federal Rule of Evidence 611(b). At the hearing, Hendricks portrayed herself as a novice in the drug business. If the government could show that Hendricks was in fact a professional drug runner, her testimony would be less credible. Thus, the government could probe Hendricks about her prior statements which indicated she was a professional drug runner. Similarly, the government could legitimately inquire about the cloth belt which was specially designed to carry drugs, an obvious sign of a professional drug runner.

Hendricks asserts that the government violated the terms of the plea agreement's pledge against taking a position on Hendricks' sentence by reporting Hendricks' misrepresentations to the probation officer. We disagree.

There was no government violation of the plea agreement. The government made no recommendation as to a specific sentence. It merely reported her misrepresentations to the probation officer as it was lawfully required to do. The district court in rendering sentence followed the probation officer's recommendation in the presentence report and not a government recommendation.

Hendricks assertion that the government's cross examination violated her due process rights and amounted to a "perjury trap" is rejected. A perjury trap could only have occurred if the government had called Hendricks to testify for the sole purpose of obtaining perjured testimony. The government never called Hendricks as a witness to testify. The claim is meritless.

AFFIRMED.