FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  Nos. 06-30621

Plaintiff-Appellee, 06-30622

v. D.C. Nos.  CR-05-00023-2- JOHN FREDERICK JAEGER,

Defendant-Appellant. DWM

CR-06-00003-DWM

OPINION 

Appeals from the United States District Court

for the District of Montana

Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted

May 5, 2008—Seattle, Washington

Filed August 18, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Graber

10963
COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders

of Montana, Great Falls, Montana, for the defendantappellant. 

Joshua S. Van De Wetering, Assistant United States Attorney,

United States Attorney’s Office, Missoula, Montana, for the

plaintiff-appellee.

OPINION

GRABER, Circuit Judge: 

A jury convicted Defendant John Frederick Jaeger of conspiracy to distribute methamphetamine, distribution of

methamphetamine, distribution of methamphetamine to a

juvenile, and possession of a firearm by a felon, for which he

received a sentence of 324 months in prison. He timely

appeals, arguing, among other things,1 that the district court

violated his Sixth Amendment right to present a defense when

it admonished Julie Jaeger, his wife, concerning the possible

detrimental consequences to her of her testimony. Mrs. Jaeger

then invoked her Fifth Amendment privilege and refused to

testify on Defendant’s behalf. We affirm because the court’s

1We reject Defendant’s remaining arguments in a memorandum disposition filed this date. 

UNITED STATES v. JAEGER 10965
admonition was neither coercive nor intimidating and did not

interfere with Mrs. Jaeger’s decision whether to testify. 

FACTUAL AND PROCEDURAL BACKGROUND

On a fall day in 2004, local law enforcement officers in

Butte, Montana, saw a pickup truck driving erratically and

nearly striking another vehicle. Believing that the driver

might be under the influence of drugs or alcohol, an officer

pulled over the truck. Defendant was driving and had two passengers with him. Defendant could not produce the truck’s

registration, his driver’s license, or proof of insurance. When

a records check revealed that he had been cited four times for

driving without proof of insurance, Defendant was taken into

custody. 

An officer questioned one of the passengers, who initially

gave a false name (Tony Hoffman) and a false birth date in

what the officer described as “broken English.” After more

questioning, the passenger said that his name was Victor

Sepulveda and that he was a friend of Defendant’s and was

staying in Defendant’s home. The officer arrested the passenger for obstructing a police officer. Responding later to questions from an agent of Immigration and Customs

Enforcement, the passenger finally provided his full, correct

name (Victorino Sandoval-Sepulveda) and admitted that he

was a citizen of Mexico who was in the United States illegally. The agent knew Sandoval-Sepulveda and knew that he

had been deported from Montana twice previously, most

recently about eight months earlier. 

On the basis of those facts, federal agents obtained a warrant to search the truck that Defendant was driving for evidence of the entry, transportation, or harboring of illegal

aliens, such as “[r]eceipts, canceled checks, payment books,

credit card information, fraudulent Immigration documentation, letters, papers, audio recordings, video recordings, airline or bus tickets, passports and United States currency.” The

10966 UNITED STATES v. JAEGER
search instead revealed 6 grams of marijuana, a marijuana

pipe, a disposable camera, packaging materials, several thousand dollars in cash, and a piece of paper with a telephone

number on it. 

After law enforcement officers searched the truck, seized

the listed items, and gathered additional incriminating information, they obtained a second warrant, this time to search the

two Butte, Montana, residences of Defendant and his wife for

drugs and drug paraphernalia. Under the authority of the second warrant, agents seized drug paraphernalia, two scales, a

propane torch, 14 pills, a handgun, a water bong, a glass pipe

with methamphetamine residue, and a hide-a-can novelty

item. 

Defendant and four named co-defendants, including Defendant’s wife, were indicted for conspiracy to distribute

methamphetamine and distribution of methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment

alleged that the conspiracy included Defendant, his four

named co-defendants, and individuals both known and

unknown to the grand jury. A superseding indictment added

charges of distributing methamphetamine to a juvenile in violation of 21 U.S.C. § 859 and money laundering in violation

of 18 U.S.C. § 1956(a)(1)(B)(i). A separate indictment added

a count of possession of a firearm by a felon in violation of

18 U.S.C. § 922(g)(1). All counts were consolidated for trial.

After the government completed its rather extensive casein-chief, Defendant called two witnesses in his defense: his

son, Jesse Jaeger, and his wife who, by this time, had pleaded

guilty to the drug charges and was awaiting sentencing. A few

questions into Defendant’s direct examination of his wife, the

court interrupted the testimony and held a sidebar with counsel. The court asked defense counsel if Mrs. Jaeger was represented by a lawyer, where that lawyer was, and whether Mrs.

Jaeger was aware that her testimony could result in adverse

consequences at her sentencing. Defense counsel responded

UNITED STATES v. JAEGER 10967
that he did not know where Mrs. Jaeger’s lawyer was, but that

he had spoken with Mrs. Jaeger and her lawyer the week

before and that Mrs. Jaeger desired to testify. Without objection from either party, the court explained to Mrs. Jaeger that

her testimony could have adverse consequences and recessed

the proceeding to provide her an opportunity to call her lawyer for advice. The following exchange took place in front of

the jury: 

THE COURT: Mrs. Jaeger, you are represented

by a lawyer, right? 

THE WITNESS: Yes, yes. 

THE COURT: And your lawyer’s not here today.

THE WITNESS: No. 

THE COURT: Well, you have entered a plea of

guilty to the charges in this case, right? 

THE WITNESS: Yes. 

THE COURT: I need to admonish you that there

may be things that are elicited from you that may

impact you personally if you testify here. So if you

want to have your lawyer here, we’ll take a break so

that you can have your lawyer come over and provide advice to you. 

THE WITNESS: Okay. I’m not sure what you

meant by that first part, though when you say - - 

THE COURT: Well, that’s why you need to have

your lawyer here. 

THE WITNESS: Okay. Um, he’s in Helena now.

10968 UNITED STATES v. JAEGER
THE COURT: Who is it; Michael Donahoe? 

THE WITNESS: No, Andrew Huff. 

THE COURT: Well, ladies and gentlemen,

because of the circumstances, we’re going to take a

15-minute break and I’m going to give Ms. Jaeger an

opportunity to call her attorney so that there isn’t

anything that is adversely — that she isn’t aware of

that could adversely impact here. 

After Mrs. Jaeger spoke with her lawyer, the court held the

following colloquy without the jury present: 

THE COURT: Mrs. Jaeger, it’s my understanding

that you’ve had an opportunity to speak with your

attorney; is that right? 

THE WITNESS: Yes. 

THE COURT: Okay. Now, what I don’t want to

do is create a situation where we put you in an

uncomfortable position as it relates to testifying here.

And without telling me what your lawyer and you

talked about, I have an understanding that you are

going to invoke the Fifth Amendment right against

self-incrimination; is that right? 

THE WITNESS: Yes, yes. 

THE COURT: All right. I think, under the circumstances, Mr. Judnich [Counsel for Defendant], is

there some area of examination which would not

delve into the Fifth Amendment issue that you

intended to inquire about? Because I do not want to

be in a situation where Mrs. Jaeger invokes the Fifth

Amendment and her right against self-incrimination

UNITED STATES v. JAEGER 10969
and how that may impact whatever her situation is in

front of the jury. 

MR. JUDNICH: I would agree, Your Honor. And

just to be safe, I think I should not ask any further

questions in case she needs to do that. 

The jury returned guilty verdicts on all three drug counts,

finding that each involved more than 50 grams of methamphetamine, and on the firearms count. The jury found Defendant not guilty of the money laundering count. The district

court sentenced him to 324 months in prison. Defendant

timely appeals. 

STANDARD OF REVIEW

Because Defendant did not object contemporaneously, we

review for plain error the district court’s explanation to Mrs.

Jaeger that her testimony might have adverse consequences to

her in her upcoming sentencing proceeding.2See United

States v. Olano, 507 U.S. 725, 731-32 (1993) (explaining that

Federal Rule of Criminal Procedure 52(b) governs the appeal

of an error not timely raised before the district court). To

establish plain error, Defendant must prove that: “(1) there

was error; (2) the error was plain; and (3) the error affected

substantial rights.” United States v. Geston, 299 F.3d 1130,

1134-35 (9th Cir. 2002) (internal quotation marks omitted). A

conviction will be reversed for plain error “only if, viewed in

the context of the entire trial, the impropriety seriously

affected the fairness, integrity, or public reputation of judicial

2Defendant asserts that we should review for abuse of discretion. See,

e.g., United States v. Seschillie, 310 F.3d 1208, 1211 (9th Cir. 2002) (stating that we review for abuse of discretion a district court’s limitation on

a witness’ testimony); United States v. Laurins, 857 F.2d 529, 537-38 (9th

Cir. 1988) (addressing allegations of a trial judge’s advocacy on behalf of

a party). Although failure to object in the district court results in our

review only for plain error, we observe that the outcome would be the

same here under either standard. 

10970 UNITED STATES v. JAEGER
proceedings, or where failing to reverse a conviction would

result in a miscarriage of justice.” Id. at 1135 (internal quotation marks omitted).

DISCUSSION

[1] The Supreme Court has held that, in certain circumstances, a judge’s admonition can be so threatening as to

interfere with a witness’ testimony and “effectively dr[i]ve

that witness off the stand” in violation of a defendant’s constitutional rights. Webb v. Texas, 409 U.S. 95, 98 (1972) (per

curiam); see also United States v. Vavages, 151 F.3d 1185,

1189 (9th Cir. 1998) (extending Webb to prosecutorial misconduct and holding that “[a] defendant’s constitutional rights

are implicated only where the prosecutor or trial judge

employs coercive or intimidating language or tactics that substantially interfere with a defense witness’ decision whether

to testify”). 

The trial judge in Webb admonished a witness as follows:

“Now you have been called down as a witness in this

case by the Defendant. It is the Court’s duty to

admonish you that you don’t have to testify, that

anything you say can and will be used against you.

If you take the witness stand and lie under oath, the

Court will personally see that your case goes to the

grand jury and you will be indicted for perjury and

the lik[e]lihood is that you would get convicted of

perjury and that it would be stacked onto what you

have already got, so that is the matter you have got

to make up your mind on. If you get on the witness

stand and lie, it is probably going to mean several

years and at least more time that you are going to

have to serve. It will also be held against you in the

penitentiary when you’re up for parole and the Court

wants you to thoroughly understand the chances

you’re taking by getting on that witness stand under

UNITED STATES v. JAEGER 10971
oath. You may tell the truth and if you do, that is all

right, but if you lie you can get into real trouble. The

court wants you to know that. You don’t owe anybody anything to testify and it must be done freely

and voluntarily and with the thorough understanding

that you know the hazard you are taking.” 

409 U.S. at 95-96. The witness then “refused to testify for any

purpose and was excused by the court.” Id. at 96. 

[2] The Supreme Court characterized the judge’s admonition to the defendant’s sole witness as having been made in

“unnecessarily strong terms.” 409 U.S. at 98. The Court concluded that the “lengthy and intimidating warning[ ] strongly

suggests that the judge’s comments were the cause of [the

witness’] refusal to testify.” Id. at 97. The judge not only gave

a “lengthy admonition on the dangers of perjury,” but also

“implied that he expected [the witness] to lie” and that, if the

witness lied, the judge would ensure that the witness “would

be prosecuted and probably convicted for perjury.” Id. In

addition, the judge emphasized that any sentence for perjury

would be added to the witness’ present sentence, likely

impairing any future chance for parole. Id. Consequently, “the

judge could well have exerted such duress on the witness’

mind as to preclude him from making a free and voluntary

choice whether or not to testify.” Id. at 98. 

[3] Here, unlike in Webb, the district court’s statements to

Mrs. Jaeger were brief, factual, and explanatory; they were

mildly worded; they were designed to allow Mrs. Jaeger an

opportunity to make her own decision, in consultation with

her counsel in an ongoing and related matter, rather than to

impose a decision on her; and they conveyed neither an

assumption that perjury would occur nor a threat of prosecution for perjury. And, unlike in Webb, Mrs. Jaeger was not

lectured on any specific consequences that might flow from

her testimony. Additionally, the court expressly allowed

defense counsel to explore any area of questioning that would

10972 UNITED STATES v. JAEGER
not trigger Mrs. Jaeger’s invocation of the Fifth Amendment,

although defense counsel declined. On those facts, we find no

substantial interference with Mrs. Jaeger’s decision whether

to testify, let alone any coercion or intimidation. See United

States v. Harlin, 539 F.2d 679, 680-81 (9th Cir. 1976) (concluding that the trial judge’s warning given to the codefendant’s counsel, “ ‘I assume you have advised her of the

penalties of perjury . . . and that if it appears that a defendant

is lying, the Court can take that into account, too,’ ” was “neither coercive, threatening, grossly improper nor prejudicial”).

Other circuit courts, considering similar facts, have reached

the same conclusion. See, e.g., United States v. George, 363

F.3d 666, 670-71 (7th Cir. 2004) (holding that warnings given

to a witness by the trial court and the prosecutor concerning

the possibility that testifying could place the witness in jeopardy of revocation of his plea agreement and charges of perjury or false statement did not violate the defendant’s due

process rights because the warnings “merely corroborated, in

a straight-forward and nonthreatening manner, the information given by [the witness’] attorney”); United States v.

Blanche, 149 F.3d 763, 768-69 (8th Cir. 1998) (concluding

that, although the conduct of the government and the district

court in contacting the public defender and adjourning the

proceedings to permit a witness, over her “unequivocal objection,” to consult a lawyer before testifying came close to overreaching, there was no error in the court’s warning of the

consequences of perjury and the witness’ decision to not testify was on advice of counsel and not because of the actions

of the judge or prosecutor); United States v. SantiagoBecerril, 130 F.3d 11, 24-26 (1st Cir. 1997) (holding that the

trial court’s admonition of a witness, even though “detailed

and strongly stated,” did not coerce the witness because the

court did not threaten or badger the witness, and the court provided the witness with her own counsel to ensure that the

decision was voluntary). 

[4] In sum, the district court carefully walked a line that

avoided error in Defendant’s case and in his wife’s case. The

UNITED STATES v. JAEGER 10973
court did not prevent Mrs. Jaeger from testifying, did not

threaten her, did not coerce her, did not substantially interfere

with her decision whether to testify, and did not drive her off

the stand. The court merely provided the witness with information and access to her counsel once it became aware of

possible self-incrimination. Thus, the court’s admonition of

Mrs. Jaeger did not violate Defendant’s Sixth Amendment

rights. 

AFFIRMED. 

10974 UNITED STATES v. JAEGER