Unpublished Disposition, 917 F.2d 28 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 917 F.2d 28 (9th Cir. 1987)

No. 88-5071.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and KING, Senior District Court Judge* .


Appellant alleges errors in his jury trial below. First, he contends that the district court erred by refusing to grant his request for immunity for a co-defendant whom he wished to call as a witness.

A decision to seek immunity for a witness is a matter of government discretion, and a defendant's request for use immunity "is beyond the power of the district court to grant." United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, 469 U.S. 1035 (1984); see also United States v. Carmen, 557 F.2d 556, 561 (9th Cir. 1978).

Appellant, citing United States v. Patterson, 819 F.2d 1495, 1506 (9th Cir. 1987), and United States v. Lord, 711 F.2d 887, 891 (9th Cir. 1983), notes that the defendant has a due process right to use immunity for a witness where the prosecutor intentionally distorts the factfinding process by preventing that witness from giving relevant testimony. The record does not reveal any basis for the application of such a principle here. No prosecutorial misconduct is shown and none is alleged.

Second, appellant contends that his sentence is illegal. The district court sentenced appellant to five years imprisonment on counts 1, 2, 6, and 8; five years probation on counts 3 and 5, to run consecutively with the imprisonment on counts 1, 2, 6, and 8; and five years supervised release on counts 1, 2, 6, and 8. Appellant claims that: (1) the five-year term of supervised release was not authorized, and (2) a five-year term of probation for a crime that has a maximum prison term of four years is not authorized.

Appellant committed the crimes for which he was convicted in June and July of 1987. Appellant was sentenced under 21 U.S.C. § 841(b) (1) (B), which requires that a district court, in sentencing a first-time drug offender, must "include a term of supervised release of at least 4 years." Id. The Anti-Drug Abuse Act ("Act") has an effective date for most of its provisions of November 1, 1987. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Sec. 1004(b), 100 Stat. 3207, 3207-6 (amending 21 U.S.C. §§ 841, 845, 960, & 962). Section 1004 has an effective date while section 1002, the provision at issue, does not. See United States v. Torres, 880 F.2d 113, 115 (9th Cir. 1989) (per curiam), cert. denied, 110 S. Ct. 873 (1990). This court has held that absent a specific provision governing the effective date, a statute takes effect upon the date of its enactment. Id. That date, for this provision, is October 27, 1986. Id.; United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988).

Appellant's sentence to five years probation was imposed under 18 U.S.C. § 3651 (1985), which has been repealed but which was applicable to crimes committed before November 1, 1987. Under that statute, a district court may sentence a defendant to a maximum term of probation of five years, even if the maximum possible term of imprisonment for the offense is less that five years. See Frank v. United States, 395 U.S. 147, 151 (1969).



The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation


This disposition is not appropriate for publication and may not be cited to or buy the courts of this circuit except as provided by Ninth Cir.R. 36-3