IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Criminal Case No. 11-cr-00406-CMA

UNITED STATES OF AMERICA,

Plaintiff,

v.

1. MANUEL SANTISTEVAN,

2. DANIEL SHAW,

3. DUSTIN PFEIFFER,

Defendants.

ORDER DENYING MOTION TO QUASH SUBPOENA

This matter is before the Court on the Motion to Quash Subpoena, filed on July

10, 2012, by Cecil Wilhelm. (Doc. # 211.) For the reasons that follow, the motion is

denied.

I. BACKGROUND

The defendants in this case are charged in a single-count Indictment with having

committed aggravated sexual abuse of a federal prisoner, Trent Hix, in violation of 18

U.S.C. ' 2241(a)(1). (Doc. # 1.) Although the Government did not charge Mr. Wilhelm

as a defendant in this case, it has proffered evidence indicating that Wilhelm was

present when the assault on Hix occurred and that he participated with Defendants

Pfeiffer and Shaw in assaulting Government witness Ryan Greeves, which evidence

the Court has previously deemed admissible. 

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 Additionally, Wilhelm’s counsel submitted an affidavit in which she avers that, “[i]f

called to testify in [this] matter[,] Mr. Wilhelm will assert his right to remain silent pursuant

to the 5th amendment of the United States Constitution.” (Doc. # 204-3.)

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However, following the assault charged in this case, Mr. Wilhelm made

statements, recorded in an FBI report, which are exculpatory as to him and Defendant

Pfeiffer. (See Doc. # 204-2.) Accordingly, on July 6, 2012, Defendant Pfeiffer filed

a motion for issuance of a subpoena to Mr. Wilhelm (Doc. # 204), which the Court

subsequently granted (Doc. # 213). 

On July 10, 2012, Wilhelm filed the instant motion to quash. Through counsel,

Wilhelm states that he will “assert his Fifth amendment right to remain silent” if called to

testify.1 (Doc. # 211 at 2.) In response, Defendant Pfeiffer acknowledges the “good

faith of Mr. Wilhelm’s assertion of his privilege against self-incrimination” but submits

that “the trial court must decide in the first instance whether the witness’ invocation of

his Fifth Amendment privilege is justified.” (Doc. # 212 at 2-3.) 

II. DISCUSSION

A defendant’s right to establish a defense by presenting his own witnesses is

a fundamental component of due process. See, e.g., Webb v. Texas, 409 U.S. 95, 93

(1972); United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983). Governmental

interference with a defense witness's decision to testify violates a defendant's due

process rights if such interference is substantial. Crawford, 707 F.2d at 449. Although

it is true that, generally, “neither the prosecution nor the defense may call a witness

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incrimination,” id., “[w]hen a witness indicates that he will assert the fifth amendment

privilege, the trial judge must make a proper and particularized inquiry into the

legitimacy and scope of the witness’ assertion of the privilege,” Gaskins v. McKellar,

916 F.2d 941, 950 (4th Cir. 1990). “A witness may be totally excused only if the court

finds that he could legitimately refuse to answer any and all relevant questions.” Id.

In the instant case, in the absence of specific questions directed toward

Mr. Wilhelm, the Court is unable to make a particularized inquiry into whether his

blanket assertion of the Fifth Amendment is valid. Given Defendants’ due process

rights, and in light of the potentially exculpatory testimony of Mr. Wilhelm, the Court

cannot grant his request to quash the subpoena without knowing specifically what

questions would be put to him by counsel. 

III. CONCLUSION

Accordingly, it is ORDERED that the Motion to Quash Subpoena (Doc. # 211)

be DENIED.

DATED: July 13 , 2012

BY THE COURT:

_______________________________

CHRISTINE M. ARGUELLO

United States District Judge

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