FILED

United States Court of Appeals

Tenth Circuit

August 25, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE FERNANDO RIVAS-MACIAS,

 Defendant-Appellant.

No. 06-2274

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 05-CR-2764-JB)

Mark T. Baker (Little V. West with him on the briefs), Long, Pound & Komer,

P.A., Santa Fe, NM, for Appellant.

Terri J. Abernathy, Assistant United States Attorney (Larry Gomez, United States

Attorney, with her on the briefs), Las Cruces, NM, for Appellee.

Before HENRY, Chief Judge, BALDOCK, and TYMKOVICH, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury charged Defendant Jose Fernando Rivas-Macias with:

(1) conspiracy to possess, with the intent to distribute, five hundred grams or more

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846; and (2) possessing, with
2

the intent to distribute, five hundred grams or more of cocaine, in violation of 21

U.S.C. § 841(a)(1). After a two-day trial, a petit jury convicted Defendant on both

counts. Defendant raises two points of error on appeal. 

First, Defendant argues the district court infringed his right to present a

defense when it erroneously concluded that one of Defendant’s coconspirators,

Alvaro Jimarez, retained his Fifth Amendment privilege against self-incrimination.

Jimarez pled guilty shortly before Defendant’s trial. Subsequently, at the time of

Defendant’s trial, Jimarez’s sentencing had not yet occurred. Jimarez had, however,

debriefed the government on several occasions, in an attempt to qualify for a

sentence below the mandatory, statutory minimum under 18 U.S.C. § 3553(f).

Defendant contends that by pleading guilty, and giving these unsworn statements,

Jimarez waived his Fifth Amendment privilege. Consequently, Defendant claims the

district court’s refusal to compel Jimarez to testify at his trial was in error. 

Second, Defendant Rivas-Macias raises an alternative argument, suggesting

the district court erred in failing, sua sponte, to continue his trial until after Jimarez’s

sentencing. At that point, Defendant suggests, Jimarez’s Fifth Amendment privilege

would no longer apply. Our jurisdiction over this appeal arises under 28 U.S.C.

§ 1291. Finding no merit to Defendant’s points of error, we affirm.

I.

United States Border Patrol agents took Defendant Rivas-Macias, and a group

of four other adults, into custody on an isolated roadway near Hatch, New Mexico.
1

 Agent Dooley testified at Defendant’s trial that aluminum tape serves to

cushion bundles of drugs during transport, while helping to contain the odor of

illegal substances. 

3

The suspects were traveling in two vehicles: a maroon Taurus and a gold Accord.

Defendant Rivas-Macias was seated in the backseat of the Accord. Alvaro Jimarez,

the driver of the Accord, and his cousin occupied the front of the car. Traveling in

the Taurus were Sergio Serra, the driver, along with his wife and two small children.

Both drivers consented to a canine inspection of their respective vehicles. A canine

alerted underneath the rear of the Taurus. Subsequently, a border patrol agent

discovered an “after-market compartment” in that location, which had recently been

covered in black spray paint. Thereafter, agents transported both vehicles, and their

passengers, to a border patrol checkpoint for further investigation.

Inside the compartment, which was rigged with an electronic opening device,

agents found seven bundles of cocaine wrapped in various substances. A canine

inspection of the Honda resulted in the discovery of a similar compartment.

Although the compartment in the Honda was empty, agents noted that it was lined

with aluminum tape, which drug smugglers often use to insulate spaces in which

drugs are stored.1

II.

A grand jury charged Jimarez, Defendant Rivas-Macias, and Serra with

possessing cocaine, with the intent to distribute, and conspiracy to possess cocaine,
4

with the intent to distribute. Jimarez initially pled not guilty, but later entered an

unconditional guilty plea. Serra entered into a plea agreement with the Government.

Defendant Rivas-Macias pled not guilty and proceeded to trial.

Serra served as the Government’s primary witness against Defendant RivasMacias at trial. Serra testified that he asked Jimarez if Jimarez knew how Serra

could make some money. Jimarez put Serra into contact with a man named Carlos.

Serra subsequently made at least two trips to Denver for Carlos, once to transport

cocaine and once to pick up a shipment of money that never materialized. During

Serra’s first drug run to Denver, Defendant Rivas-Macias followed him in a

separate vehicle. Defendant then led Serra to an apartment complex where he

delivered the cocaine. 

Serra testified that Defendant Rivas-Macias was again present when Carlos

gave him the maroon Taurus, which Serra was driving when border patrol agents

took him into custody. According to Serra, the conspirators planned for Serra to

switch vehicles with Jimarez and Defendant near Hatch, New Mexico. Jimarez and

Defendant Rivas-Macias would then take the Taurus – laden with cocaine – to

Denver, while Serra and his family took the Honda on a legitimate business trip

elsewhere. According to Serra, after authorities took Defendant Rivas-Macias and

Serra into custody, Defendant warned Serra not to rat him out.

In order to rebut Serra’s testimony, Defendant Rivas-Macias took the stand in

his own defense. Defendant stated that he met Jimarez at a party. On the night in
2

 The substance of Jimarez’s statements to the Government is not reflected in

the record on appeal.

3

 Because a jury may not draw any legitimate inferences from a witness’

decision to exercise his Fifth Amendment privilege, we have repeatedly held

that neither the prosecution nor the defense may call a witness to the stand

simply to compel him to invoke the privilege against self-incrimination. See, e.g.,

United States v. Costrena-Jaime, 285 F.3d 916, 931 (10th Cir. 2002); United States

v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983); United States v. Martin, 526 F.2d

485, 487 (10th Cir. 1975); United States v. Coppola, 479 F.2d 1153, 1160 (10th

(continued...)

5

question, Defendant explained that he believed he was traveling to Albuquerque,

with Jimarez, to inquire about a construction job. Defendant disclaimed any

knowledge of a man named Carlos and denied telling Serra not to incriminate him.

Faced with this conflicting testimony, the jury had to determine whether Serra

or Defendant Rivas-Macias was the more credible witness. Based on the content of

Jimarez’s debriefing statements, Defendant’s trial counsel had reason to believe that

Jimarez’s version of events differed significantly from Serra’s.2

 Consequently,

Defendant’s trial counsel planned to use Jimarez’s testimony to impeach Serra.

Jimarez was, in fact, on the Government’s witness list. Before the Government

called Jimarez to the stand, however, his attorney notified the district court that

Jimarez would invoke his Fifth Amendment privilege against self-incrimination, if

called to the stand. Faced with precedent stating that a party may not call a witness

to the stand merely to compel him to invoke his Fifth Amendment privilege in front

of the jury, the district court decided to examine Jimarez outside of the jury’s

presence.3

 But Defendant’s trial counsel declined this course of action, indicating
3

(...continued)

Cir. 1973). 

4

 Defendant’s trial counsel stated: “We’re not even going to bother. We’re

not going to even put him on the stand. I believe he is going to be released at this

point from the [G]overnment’s subpoena.” 

5

 The district court must decide, in the first instance, whether a witness’

invocation of his Fifth Amendment privilege is justified. See Costrena-Jaime, 285

F.3d at 931; United States v. Nunez, 668 F.2d 1116, 1121 (10th Cir. 1981); see also

Hoffman v. United States, 341 U.S. 479, 487 (1951) (explaining that the “trial judge

in appraising” an individual’s invocation of the privilege “must be governed as much

by his personal perception of the peculiarities of the case as by the facts actually in

evidence”). No standardized procedure exists for making this determination. See

Hoffman, 341 U.S. at 486-87. Rather, the Supreme Court has generally charged a

district court with sustaining an individual’s invocation of the privilege, regardless

of setting, where it is evident from the implication of a question that a responsive

answer, or explanation as to why it cannot be answered, “might be dangerous

because injurious disclosure could result.” Id. at 487; see also Emspak v. United

States, 349 U.S. 190, 197 (1955) (stating that the individual invoking the privilege

is not required “to disclose the precise hazard which he fears”). To avoid the general

prohibition on calling a witness to the stand merely to compel him to invoke the Fifth

Amendment privilege, however, a common practice has developed whereby the

district court examines a witness invoking the privilege outside of the presence of

the jury. See United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)

(describing this practice); see also 1 McCormick on Evidence § 132 (6th ed. 2006).

The district court properly attempted to employ that practice in this case. 

6

to the court: (1) the parties had agreed not to put Jimarez on the stand and (2) the

Government planned to release Jimarez from its subpoena.4

 Subsequently, the

district court did not examine Jimarez concerning his invocation of the Fifth

Amendment privilege.5

 Ultimately, neither party called Jimarez to the stand and the

petit jury convicted Defendant Rivas-Macias on all counts.

III.

We first consider Defendant’s assertion that the district court erred in
6

 Defendant failed to press the district court for an explicit ruling on this

constitutional issue. Consequently, one could question the appropriateness of our

review. See United States v. Duncan, 242 F.3d 940, 950 (10th Cir. 2001) (noting

that we generally refuse to consider on appeal issues “not presented, considered, and

decided by the district court”). Because the Government failed to note this concern

and the Defendant has raised a pure question of law, the proper resolution of which

is certain, we exercise our discretion to hear and resolve this question. See id. 

7

 A defendant’s collective right to testify, present defense witnesses,

and cross-examine Government witnesses is commonly referred to as the right to

present or establish a defense. See United States v. Markey, 393 F.3d 1132, 1135

(10th Cir. 2004).

8

 Although the language of the Fifth Amendment speaks in terms of an

individual serving as a “witness against himself,” courts have long held that the

privilege against self-incrimination “protects a witness as well as an accused party.”

8 Wigmore on Evidence § 2252 (McNaughton rev. 1961). Thus, “it is immaterial,”

for purposes of the Fifth Amendment, “whether the prosecution” at hand is “against”

(continued...)

7

upholding Jimarez’s right to invoke his Fifth Amendment privilege against selfincrimination, thus infringing upon Defendant’s constitutional right to present a

defense.6

 Our review of matters of constitutional law is de novo. See United States

v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005). Thus, we must take a “fresh,

independent” look at the question at bar. Timmons v. White, 314 F.3d 1229, 1234

(10th Cir. 2003).

A.

At the heart of this case lies two important constitutional values: (1) a

witness’ privilege not to incriminate himself, and (2) a defendant’s right to establish

a defense.7

 The former is grounded in the Fifth Amendment, which states that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.”8
8

(...continued)

the individual invoking the privilege. Id.; see also Roach v. Nat’l Transp. Safety

Bd., 804 F.2d 1147, 1151 (10th Cir. 1986).

9

 Given the central importance of the accusatorial nature of our system of

justice, the privilege against self-incrimination applies “in any proceeding,”

regardless of whether it is “civil or criminal, administrative or judicial, investigatory

or adjudicatory.” Maness, 419 U.S. at 464. 

8

U.S. Const. amend. V. The latter is predicated on the Sixth Amendment’s

confrontation and compulsory process clauses, as well as the Fifth Amendment’s

guarantee of due process. See United Sates v. Markey, 393 F.3d 1132, 1135 (10th

Cir. 2004). Here, we are faced with the tension that arises when these two pillars of

our criminal justice system collide. 

On the one hand, an individual’s privilege against self-incrimination, rooted

in our society’s “traditional respect for the individual,” Maness v. Meyers, 419 U.S.

449, 461 (1975), serves to ensure the continued vitality of our accusatorial system

of justice. See Garner v. United States, 424 U.S. 648, 655 (1976); see also Rogers

v. Richmond, 365 U.S. 534, 541 (1961) (affirming that “ours is an accusatorial and

not an inquisitorial system” of justice). The privilege safeguards against the

recurrence of the evils associated with the Inquisition and the Star Chamber, see

Michigan v. Tucker, 417 U.S. 433, 440 (1974), by ensuring the Government produces

evidence sufficient to convict an individual through the “independent labor of its

officers,” rather than the “simple cruel expedient of forcing” incriminating

information from that individual’s own lips.9

 Mitchell v. United States, 526 U.S.
9

314, 326 (1999). 

Of course, an individual cannot avoid his duty to testify merely by voicing his

own fears of self-incrimination and reciting the Fifth Amendment’s familiar terms.

See Hoffman v. United States, 341 U.S. 479, 486 (1951); United States v. Castro,

129 F.3d 226, 229 (1st Cir. 1997). For the privilege to apply, an individual must

face “some authentic danger” of self-incrimination. Castro, 129 F.3d at 229; see also

Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478 (1972) (“It is well

established that the privilege protects against real dangers, not remote and

speculative possibilities.”); Ullmann v. United States, 350 U.S. 422, 439 (1956)

(clarifying that the privilege’s “sole concern” is with the “danger to a witness forced

to give testimony leading to the infliction of ‘penalties’ affixed” to “criminal acts”).

When no further danger of incrimination is present, the privilege ceases to apply.

See Mitchell, 526 U.S. at 326; see also Brown v. Walker, 161 U.S. 591, 600 (1896)

(stating the prohibition against an individual being “compelled to testify against

himself presupposes a legal detriment to the witness arising from the exposure”).

Accordingly, the privilege generally remains available, absent a valid waiver, until

an individual’s “sentence has been fixed and the judgment of conviction has

become final.” Mitchell, 526 U.S. at 326; see also Maness, 419 U.S. at 466 (noting

an individual may waive the privilege); Rogers v. United States, 340 U.S. 367, 373-

74 (1951) (same). 

On the other hand, a defendant’s right to present a defense is also a keystone
10 Of course, substantial interference, by the Government, with a defense

witness’ decision to claim the privilege violates a defendant’s due process rights.

See Crawford, 707 F.2d at 449. Defendant has not alleged the Government engaged

in such unconstitutional interference here. 

10

of our legal system. See United States v. Hernandez-Hernandez, 519 F.3d 1236,

1238 (10th Cir. 2008). Indeed, few rights are more fundamental than a defendant’s

right to testify, present witnesses in his own defense, and cross-examine witnesses

against him. See id. at 1239; Markey, 393 F.3d at 1135. We have repeatedly

recognized, however, that the right to present a defense, “while fundamental, is not

absolute.” Hernandez-Hernandez, 519 F.3d at 1238; see also United States v.

Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005); Markey, 393 F.3d at 1135; United

States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998). In appropriate cases, a

defendant’s right to present a defense must bow to accommodate legitimate,

competing interests in the criminal trial process. See Serrano, 406 F.3d at 1215.

Traditional testimonial privileges – including the Fifth Amendment privilege against

self-incrimination – represent legitimate trial interests sufficient to force a

defendant’s right to present a defense to give way.10 See id.; Valdez v. Winans, 738

F.2d 1087, 1089 (10th Cir. 1984). Accordingly, if Jimarez retained his Fifth

Amendment privilege against self-incrimination, Defendant cannot establish that his

right to present a defense was unduly impaired. 

B.

Defendant Rivas-Macias contends the Fifth Amendment privilege was not
11

available to Jimarez after he pled guilty and gave several unsworn, debriefing

statements to authorities prior to Defendant’s trial. Whether an individual may

properly invoke the privilege against self-incrimination is a question of law, which

we review de novo. See United States v. Bautista, 145 F.3d 1140, 1150 (10th Cir.

1998). In this case, to determine whether the privilege was available to Jimarez we

must ascertain: (1) whether Jimarez faced some authentic danger of further

incriminating himself by testifying at Defendant’s trial before his sentencing, and

(2) whether Jimarez waived his Fifth Amendment privilege by giving several

unsworn, debriefing statements to authorities in an effort to qualify for a sentence

below the mandatory minimum prescribed by statute. See 18 U.S.C. § 3553(f).

1.

We first examine whether Jimarez faced some authentic danger of selfincrimination in testifying, before his sentencing, at Defendant’s trial. The Supreme

Court has “broadly construed” the protection afforded by the Fifth Amendment

privilege. Maness, 419 U.S. at 461; see also Hoffman, 341 U.S. at 486 (instructing

lower courts to give the privilege a “liberal construction”). As a result, the

constitutional guarantee against testimonial compulsion extends not only to “answers

that would in themselves support a conviction,” Hoffman, 341 U.S. at 486, but also

to information that would “furnish a link in the chain of evidence that could lead to

prosecution.” Maness, 419 U.S. at 461. 

Not much is required, therefore, to show an individual faces some authentic
11 See Mitchell, 526 U.S. at 330 (“The [G]overnment retains the burden of

proving facts relevant to the crime at the sentencing phase and cannot enlist the

defendant in this process at the expense of the self-incrimination privilege.”).

12

danger of self-incrimination, see Castro, 129 F.3d at 229, as the privilege “extends

to admissions that may only tend to incriminate.” Emspak v. United States, 349 U.S.

190, 197 (1955) (emphasis added). Accordingly, an individual does not lose his right

to claim the Fifth Amendment privilege merely because “a successful prosecution is

unlikely to add to the punishments” he already faces for “other crimes.” United

States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir. 1984). To the contrary, we will

uphold an individual’s invocation of the privilege against self-incrimination unless

it is “perfectly clear, from a careful consideration of all the circumstances in the

case,” that the witness “is mistaken” and his answers could not “possibly have” a

“tendency to incriminate.” Hoffman, 341 U.S. at 488; see also Costrena-Jaime, 285

F.3d 916, 931 (10th Cir. 2002); United States v. Nunez, 668 F.2d 1116, 1121 (10th

Cir. 1981). 

Defendant Rivas-Macias cannot establish, with perfect clarity, that Jimarez’s

testimony at Defendant’s trial would have had no tendency to further incriminate

him. The Supreme Court has recognized that an individual whose sentence “has not

yet been imposed” has a “legitimate fear of adverse consequences” from testifying

in a related judicial proceeding. Mitchell, 526 U.S. at 326. Consequently, the law

is clear that the Fifth Amendment privilege applies at sentencing.11 See id. at 326-
12 As the First Circuit cogently explained:

“We give short shrift to [Defendant’s] contention that the district

court had an obligation to compel answers and then to forestall selfincrimination by severely limiting the scope of the government’s

inquiry on cross-examination. We recognize, as [Defendant] asserts,

that the Sixth Amendment assures a criminal defendant of the right to

mount a defense – but that right must coexist with the government’s

right to test the truth of testimony proffered by the defense through the

medium of cross examination.”

. . .

. . . [O]n cross-examination, the government most assuredly

would have explored the extent to which [Jimarez] himself was

involved in the conspiracy in order to test his level of familiarity with

the players. Such cross-examination would have required [Jimarez] to

testify about any and all narcotics transactions that occurred in or about

the same time frame. Though [Jimarez] could not be prosecuted again

for the conspiracy, he was not shielded from criminal liability for any

substantive crimes which may have been the object of, or which were

committed in the course of, that conspiracy. 

. . .

. . . [W]hen honoring the Fifth Amendment privilege will

preclude or unfairly circumscribe cross-examination as to non-collateral

matters – and by “non-collateral matters” we mean matters that are both

within the scope of the direct examination and of consequence to the

resolution of the issues in the case – it is fully within the trial court’s

discretion to sustain the claim of privilege and bar the witness’s

(continued...)

13

27; see also United States v. Garcia, 78 F.3d 1457, 1463 (10th Cir. 1996). Indeed,

the privilege against testimonial compulsion normally extends to an individual until

his or her “sentence has been fixed and the judgment of conviction has become

final.” Mitchell, 526 U.S. at 326. Because Jimarez faced an authentic danger of

further incriminating himself by testifying at Defendant’s trial, we conclude he

properly invoked the Fifth Amendment privilege against self-incrimination.12 See
12(...continued)

testimony altogether.

Castro, 129 F.3d at 230-31; see also Nunez, 668 F.2d at 1121 (noting that where

“cross-examination is restricted by the competing Fifth Amendment right of [a]

witness, it may be necessary to strike all or a part of the direct testimony of that

witness”); United States v. Morgan, 757 F.2d 1074, 1077 (10th Cir. 1985) (same).

14

United States v. Bahadar, 954 F.2d 821, 824 (2d Cir. 1992) (discussing the dangers

an individual, who pled guilty, would face by testifying at the trial of a co-defendant

before his sentencing).

2.

Next, we must determine whether Jimarez waived his Fifth Amendment

privilege by pleading guilty and giving several unsworn, debriefing statements to the

Government prior to Defendant’s trial. An individual may lose the right to claim the

Fifth Amendment privilege in three distinct ways. First, because the privilege “is not

a self-executing mechanism; it can be affirmatively waived, or lost” if an individual

fails to assert it “in a timely fashion.” Maness, 419 U.S. at 466; see also Emspak,

349 U.S. at 196 (noting “the privilege against self-incrimination must be claimed”).

Here, Defendant does not dispute that Jimarez timely claimed the Fifth

Amendment privilege. 

Second, the privilege may also dissipate if the Government gives the

individual immunity, such that he is protected from the “use of his compelled

answers” and all “evidence derived therefrom in any subsequent criminal case in
13 “Requiring full disclosure of details after a witness freely testifies as to a

criminating fact does not rest upon a further ‘wavier’ of the privilege against selfincrimination.” Rogers, 340 U.S. at 374. The witness has “already ‘waived’ her

privilege of silence when she freely” answers “criminating questions.” Id. 

15

which he is a defendant.” Lefkowitz v. Turley, 414 U.S. 70, 78 (1973). The

Government did not grant Jimarez such immunity here. Third, an individual may

lose his right to claim the privilege if, in a single proceeding, he voluntarily

testifies about a subject and then invokes the privilege when asked to disclose

the details.13 See Mitchell, 526 U.S. at 321; Rogers, 340 U.S. at 372-73; United

States v. Constantine, 263 F.3d 1122, 1128 n.4 (10th Cir. 2001); Nunez, 668 F.2d at

1121 n.2. In such cases, the “privilege is waived for the matters to which the

witness testifies, and the scope of the wavier is determined by the scope of

relevant cross-examination.” Mitchell, 526 U.S. at 321; see also Constantine, 263

F.3d at 1128 n.4. But see Emspak, 349 U.S. at 198 (recognizing that courts must

“indulge every reasonable presumption against” a testimonial waiver of the Fifth

Amendment privilege). 

The Supreme Court has explained that pleading guilty to a crime is not

analogous to the type of selective admission capable of waiving the privilege against

self-incrimination. See Mitchell, 526 U.S. at 322-23. Far from voluntarily putting

a matter into dispute and then attempting to invoke the privilege against testimonial

compulsion, an individual who pleads guilty to a crime takes “matters out of dispute”

by “confirming the prosecution’s version of the facts.” Id. at 323. We thus squarely
14 See, e.g., United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (“It

is settled that a waiver of the Fifth Amendment privilege is limited to the particular

proceeding in which the waiver occurs.”); United States v. Yurasovich, 580 F.2d

1212, 1220 (3d Cir. 1978) (acknowledging that it is “well settled” that “a person who

has waived his privilege of silence in one trial or proceeding is not estopped to assert

it (the privilege) as to the same matter in a subsequent trial or proceeding”); United

States v. Housand, 550 F.2d 818, 821 n.3 (2d Cir. 1977) (stating that an individual’s

testimony to a Grand Jury “did not waive his right to claim privilege at trial [in] a

separate proceeding”); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976)

(“It is hornbook law that the waiver is limited to the particular proceeding in which

the witness appears.”).

16

reject the proposition that an individual waives the Fifth Amendment privilege by

pleading guilty to a crime. See id. at 321; Garcia, 78 F.3d at 1463.

That leaves Defendant’s claim that Jimarez’s unsworn statements to

authorities, prior to Defendant’s trial, waived his right to claim the Fifth Amendment

privilege, at least to the extent of his revelations to the Government. A witness’

testimonial waiver of the privilege is only effective, however, if it occurs in the same

proceeding in which a party desires to compel the witness to testify. See

Constantine, 263 F.3d at 1128 n.4 (“It is well established that a witness, in a single

proceeding, may not testify voluntarily about a subject and then invoke the privilege

against self-incrimination when questioned about the details.”) (emphasis added)

(quoting Mitchell, 526 U.S. at 321). Because Jimarez refused to testify at Defendant

Rivas-Macias’ trial, the proceeding at issue here, Defendant cannot establish that

Jimarez engaged in a testimonial wavier of the privilege.14 

Defendant’s argument to the contrary is unpersuasive. The privilege against
17

self-incrimination protects against a party forcing an individual to adopt, at trial,

“his unsworn out-of-court confession.” Silverstein, 732 F.2d at 1347; see also

United States v. James, 609 F.2d 36, 45 (2d Cir. 1979) (ruling that an individual “had

not waived his privilege” by making “previous statements to the FBI and the grand

jury” because a “waiver of the privilege in one proceeding does not affect a witness’

rights in another proceeding”); United States v. Diecidue, 603 F.2d 535, 552 (5th

Cir. 1979) (holding an individual’s “admission to a Government agent prior to trial

that he had previously committed perjury did not waive his privilege to invoke the

Fifth Amendment as to that matter” at trial). That is exactly what Defendant RivasMacias seeks to do here, i.e., force Jimarez, at Defendant’s trial, to adopt his

unsworn, out-of-court admissions. We, therefore, have little difficulty in concluding

Jimarez properly invoked the Fifth Amendment privilege.

IV.

Defendant Rivas-Macias also contends the district court erred in failing, sua

sponte, to continue his trial until after Jimarez’s sentencing. Because Defendant

failed to request a continuance below, we review only for plain error. See United

States v. Barrett, 496 F.3d 1079, 1090 (10th Cir. 2008). Under this standard, even

if a defendant demonstrates an error that is plain, we may only take corrective action

if that error not only prejudices the defendant’s substantial rights, but also seriously

affects the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Vigil, 523 F.3d 1258, 1264 (10th Cir. 2008). Here, we are unable
15 Cf. United States v. Mitchell, 518 F.3d 740, 749 (10th Cir. 2008) (“Ours is

an adversarial system of justice. The presumption, therefore, is to hold the parties

responsible for raising their own defenses.”). 

18

to discern any error, plain or otherwise. 

District courts necessarily possess “broad discretion” in deciding whether to

grant a party’s request for a continuance. United States v. Flanders, 491 F.3d 1197,

1216 (10th Cir. 2007). Accordingly, we review the district court’s determination in

this regard for an abuse of discretion. See Rogers v. Andrus Transp. Servs., 502 F.3d

1147, 1151 (10th Cir. 2007). Our practice is thus to uphold the district court’s ruling

unless we conclude its decision was (1) “arbitrary or unreasonable” and (2)

“materially prejudiced” the movant. Id. 

Defendant cites no authority, and we have found none, suggesting a district

court is required, sua sponte, to continue a defendant’s trial until a witness invoking

the Fifth Amendment privilege has been sentenced. Absent extraordinary

circumstances, our adversarial system of justice imposes “an abiding duty” on each

party to take the legal steps “necessary to protect his or her own interests.”15 Cotto

v. United States, 993 F.2d 274, 278 (1st Cir. 1993); see also Ackermann v. United

States, 340 U.S. 193, 197 (1950) (describing a defendant’s “duty to take legal steps

to protect his interest in litigation in which the United States was a party adverse to

him”). No extraordinary circumstances exist, which justify relieving Defendant

Rivas-Macias of that duty here. Because we cannot say, under these circumstances,
16 In light of our decision in this case, we deny the parties’ Stipulated Motion

to Supplement the Record on Appeal as moot. 

19

that the district court’s refusal to grant a continuance, sua sponte, was arbitrary or

unreasonable, we reject Defendant’s claim of error. 

AFFIRMED.16