(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 years. This Court held that when such a threat appears on the record, the reasons for the eventual sentence must also appear on the record.
But here, unlike Stockwell, there was no attempt to coerce the defendants to plead guilty. It has been the rule that different sentences may be imposed upon different defendants for the same or similar offense.
Capriola and Freeze, who were tried and convicted, both received more severe sentences than did their co-defendants who pleaded guilty. As the majority points out, “a number of individuals were originally supposed to have been involved in the criminal activity” and the charges against some of them were dismissed; others were permitted to plead guilty or nolo contendere to fewer counts or to a lesser offense; some received probation and others sentences concurrent with the ones they were then serving. The majority concludes that there may be good and sufficient reasons for this disparity but that the record does not make those reasons readily discernible.
The evidence showed that Capriola and Freeze were among the leaders of the conspiracy. Capriola, a lawyer and a former deputy district attorney, supplied the legal knowledge, and Freeze was the contact with the airplane sales company which the conspirators took over.
In spite of strong proof of guilt, neither Capriola nor Freeze has ever admitted guilt, and both testified falsely.
One of the risks a defendant takes when he elects to go to trial is that unfavorable information about his background or character may surface during the trial. The risk is even greater when a defendant is convicted in spite of his false testimony.
*322The majority opinion refers to the dismissal of all charges against some defendants and the dismissal of some charges against other defendants. Were these dismissals prima facie improper? Must a judge pass on the validity of the reasons for the dismissals whenever he sentences another defendant who was convicted after a trial?
The majority opinion also refers to the probationary terms and concurrent sentences given other defendants who pleaded guilty. Does this mean that whenever two defendants receive different sentences, a presumption of impropriety arises which can only be overcome by a statement of the reasons the judge imposed the sentence?
I do not believe that there is any such presumption. In addition, the record here contains ample justification for the differences in the sentences. The sentences of those defendants who pleaded guilty were imposed at least three years before Capriola and Freeze were tried. Other defendants admitted their participation and testified. For example, Mazzie, who was placed on probation, was persuaded to join the conspiracy by his brother-in-law, Capriola. When Mazzie flew to Mexico, he was arrested. He spent two years in a Mexican prison. Mexican prisons are not known for their humane treatment, and Mazzie testified that his incarceration was a brutal experience.
On these facts, it was within the discretion of the trial judge to determine, within the limits provided by law, the sentences he should impose and also to determine whether to set forth the reasons for these sentences.
I would affirm the sentences as well as the convictions.