APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 74-392) (D.C. Crim. No. 74-393)
Before: SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.
The major question presented by these consolidated appeals from judgments of sentence on pleas of guilty is whether the sentencing procedures trenched upon appellants' Fifth Amendment right against self-incrimination. We conclude that the procedures did and, accordingly, we vacate the sentences appealed from and remand for resentencing on the pleas previously entered.
As part of a plea agreement with the United States Attorney, Wilfredo Antonmarchi and Pio Garcia each pleaded guilty under 21 U.S.C. § 841(a)(1) to one count of possessing with intent to distribute cocaine. In return, the remaining counts against them were dismissed. In making its judgment of sentence on the guilty pleas, the court announced that it could not extend "clemency and lenity" to Antonmarchi, or be "lenient and merciful" to Garcia, because neither man had assisted in law enforcement investigations of illicit narcotic traffic. Garcia was sentenced to eight years imprisonment with a 3-year special parole term, and Antonmarchi was sentenced to ten years imprisonment with the same special parole term.
On collision course in these appeals run two venerated principles of jurisprudence. The first is that unique jewel in the showcase of American liberty, the Fifth Amendment, commanding that one may not be compelled to testify against oneself; the second is the principle that a court may properly invoke its power to grant lenity to those who, having admitted transgressions against the sovereign, thereafter assist the sovereign in improving social order and the public welfare.
It is not open to serious question that the sentencing court strove to vindicate the second principle. Indeed, the court expressly announced its intention to reward those whose actions would serve the public order. In Garcia's case, after receiving negative replies to the question whether Garcia had been "helpful at all in terms of revealing his source of supply of cocaine," the court stated:
... The Court would like to be lenient and merciful. I don't understand, however, how one convicted of selling dangerous drugs can stand before a sentencing judge and on the one hand ask for leniency and compassion, clemency and consideration and, on the other hand, tell the Court there isn't any chance in heaven that he is going to help this society to rid itself of this cancerous purveying of drugs.
It is the view of this Court that this Court would not be faithful to the public trust which it holds were it not to take into consideration what amounts to your absolute refusal to be of the slightest assistance to the proper authorities in stamping this problem out.
You participated in it. You were caught and to this day, in the view of this Court, you have shown not the slightest degree of remorse.
Accordingly, it is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a term of eight years to be followed thereafter by a special parole term of two years.
Counselor, you may apprise your client of Rule 35 and the possibility of reduction of sentence.
You may also apprise him that this Court will carefully consider in the petition for any such reduction of sentence any showing of good faith which he may make towards the society ...