The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court *

of Appeals for the Second Circuit, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JARVIS MARTIN JUAN,

Defendant-Appellant.

No. 11-10539

D.C. No.

2:11-cr-00554-

JAT-1

OPINION

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

November 6, 2012—San Francisco, California

Filed January 7, 2013

Before: Robert D. Sack, Ronald M. Gould, *

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. JUAN

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Criminal Law

The panel affirmed a conviction and sentence for assault

in a case in which the defendant claimed that his right to due

process was violated where the prosecution threatened one of

its own witnesses, the defendant’s wife, with possible perjury

charges, allegedly causing her to change her previously

exculpatory trial testimony to be inculpatory.

The panel wrote that the government’s substantial

interference with the testimony of its own witness, even if the

wrongful interference does not drive the witness off the stand,

can in certain circumstances violate the defendant’s right to

due process. Without expressing judgment as to whether the

prosecutor’s conduct here was warranted, the panel held that

the defendant’s claim would fail in any event because he can

point to no evidence that proves that the allegedly threatening

statements – which the defendant concedes were directed

solely to the district judge – were ever communicated to the

witness.

The panel rejected the defendant’s contention that the

district court committed procedural error at sentencing when

it explained the 18 U.S.C. § 3553(a) reasons supporting its

chosen sentence immediately after imposing sentence.
UNITED STATES V. JUAN 3

COUNSEL

Daniel Kaplan, Assistant Federal Public Defender (argued),

Phoenix, Arizona, for Defendant-Appellant.

Joan G. Ruffennach, Assistant United States Attorney

(argued), Phoenix, Arizona, for Plaintiff-Appellee.

OPINION

M. SMITH, Circuit Judge:

Appellant Jarvis Martin Juan appeals his conviction and

sentencing for felony and misdemeanor assault. Juan

challenges his conviction on due-process grounds, claiming

his constitutional rights were violated where the prosecution

“threatened” one of its own witnesses with possible perjury

charges, allegedly causing the witness to change her

previously exculpatory trial testimony to be inculpatory.

Because Juan cannot meet his evidentiary burden, his dueprocess challenge must be rejected.

Similarly, Juan’s claim of sentencing error fails. Juan’s

argument that the district court committed procedural error

where it explained the 18 U.S.C. § 3553(a) factors supporting

its chosen sentence immediately after imposing sentence

relies on a misunderstanding of our opinion in United States

v. Waknine, 543 F.3d 546 (9th Cir. 2008).

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 2010, Juan and his wife, C.J., celebrated

C.J.’s birthday on the Gila River Indian Reservation. The
4 UNITED STATES V. JUAN

celebration started early, and by the afternoon Juan and C.J.

had each consumed several forty-ounce bottles of malt liquor,

along with some whiskey and cocaine.

As dusk fell, Juan and C.J. began arguing after Juan

accused her of infidelity. C.J. interrupted the argument to

drive a friend to a nearby motel, but the row continued over

text message. When C.J. returned home, Juan was waiting.

Before she could get out of the car, Juan punched C.J. in the

head and pulled her out of her SUV. Juan then got into the

vehicle and sped off around the corner.

Juan returned in the vehicle almost immediately, and he

and C.J. continued their argument in the middle of the road.

At some point, Juan kicked and punched C.J., who fell to the

pavement. Juan then got back into the SUV, put the car in

reverse, and ran over C.J., dragging her under the vehicle.

Juan exited the vehicle once again, punched C.J. two more

times, and then drove off.

C.J. was taken to the hospital, where she was treated for

her injuries. She wasreleased from the hospital early the next

morning, but not before she was interviewed by Detective

Romo Lewis of the Gila River Police Department. During

that tape-recorded interview, C.J. claimed that Juan had

beaten her and run her over with the SUV. Juan was later

indicted for assault with a dangerous weapon in violation of

18 U.S.C. §§ 1153 and 113(a)(3) and assault resulting in

serious bodily injury in violation of 18 U.S.C. §§ 1153 and

113(a)(6).

At trial, C.J. refused to cooperate with the government,

and her attendance had to be compelled by the district court.

On direct examination, C.J. testified that she sustained her
UNITED STATES V. JUAN 5

injuries when she accidentally fell behind Juan’s SUV. C.J.

also testified that Juan never hit her.

Sensing its case slipping away, the government sought to

introduce C.J.’s earlier statements to Detective Lewis. The

district court properly denied this request. Frustrated by the

status of the case, and convinced that C.J. was lying on the

stand, the government requested that both C.J. and the jury be

excused so that the parties could determine “nextsteps.” C.J.

and the jury were excused, and during the long colloquy that

followed, the government repeatedly claimed that C.J. was

lying, or otherwise indicated that her trial testimony was

“nonsense.” After nearly forty-five minutes of legal

discussion, the government finally suggested to the district

court that it was “beginning to wonder if [C.J.] needs a

lawyer appointed because I believe she’s committed perjury

and after looking at jail calls between her and her husband I

actually believe she’s committed perjury.” The district judge

agreed, and appointed counsel for C.J. At no point did Juan’s

attorney object.

The next day, after C.J. had the opportunity to consult

with her lawyer, the government recalled C.J. to the stand.

The government asked C.J. if she “wanted to correct some of

[her] testimony” or “add to it.” C.J. said she did, and then

testified that Juan hit her with both his hands and the SUV.

Juan was later convicted on all counts.

The district court held a sentencing hearing on October

18, 2011. After considering the views of both parties, the

judge sentenced Juan to 37 months imprisonment.

Immediately after imposing sentence the district court

explained its reasons for selecting the chosen sentence, and
6 UNITED STATES V. JUAN

also explained how it would further the objectives of

18 U.S.C. § 3553(a). Juan did not object.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review Juan’s conviction under

28 U.S.C. § 1291. Because this is a direct appeal from a

judgment of conviction in the federal system, the Federal

Rules of Criminal Procedure apply. Johnson v. United States,

520 U.S. 461, 466 (1997). Rule 51(b) codifies the familiar

procedural principle that a defendant must

contemporaneously object to an alleged error in order to

preserve the issue. Puckett v. United States, 556 U.S. 129,

134 (2009). Where, as here, the defendant does not object to

an error in the trial court, any review is for plain error. Fed.

R. Crim. P. 52(b); see also Johnson, 520 U.S. at 466.

We have jurisdiction to review Juan’s sentence under

18 U.S.C. § 3742. Where a defendant does not object to his

sentencing in the district court, we review for plain error.

United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).

DISCUSSION

I. Witness Intimidation

Juan contends his Fifth Amendment right to a fair trial

was violated where the government allegedly threatened his

wife with perjury charges, thereby coercing her into giving

incriminating testimony.

The Fifth Amendment Due Process Clause “guarantees

that a criminal defendant will be treated with the fundamental

fairness essential to the very concept of justice.” United
UNITED STATES V. JUAN 7

 A number of the cases following Webb v. Texas, including United 1

States v. Vavages, have held that Webb protects a defendant’s Sixth

Amendment right to compulsory process. See, e.g., Vavages, 151 F.3d at

1188; United States v. Jaeger, 538 F.3d 1227 (9th Cir. 2008). These

holdings are fully consistent with Juan’s argument that Webb also protects

a defendant’s broader due-process rights. The Supreme Court has made

clear that much of its reasoning regarding the Compulsory Process Clause

of the Sixth Amendment is borrowed from cases involving the Due

Process Clause of the Fifth Amendment. United States v. ValenzuelaBernal, 458 U.S. 858, 872 (1982). Other courts have also recognized that

“[t]he Fifth (or Fourteenth if a state is involved) and Sixth Amendments

concomitantly provide a criminal defendant the right to present a defense.”

United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005).

Therefore, we do not unduly concern ourselves with drawing fine

distinctions between cases interpreting the Sixth Amendment Compulsory

Process Clause and those interpreting the Fifth Amendment Due Process

Clause.

States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)

(internal quotations and citation omitted). At its core, the

right to due process is the right to fairly “present a defense.”

Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam) (quoting

Washington v. Texas, 388 U.S. 14, 19 (1967)); see also

United States v. Scheffer, 523 U.S. 303, 325–27 (1998)

(Stevens, J. dissenting).

Although a defendant’s right to present a defense is not

absolute, the Supreme Court has recognized that the

government may not substantially interfere with the

testimony of defense witnesses. Webb, 409 U.S. at 98; see

also United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir.

1998); United States v. Little, 753 F.2d 1420, 1438 (9th Cir.

1984). “Unnecessarily strong admonitions against perjury

aimed at discouraging defense witnesses from testifying have

been held to deprive a criminal defendant of his

[constitutional rights].” Vavages, 151 F.3d at 1188. “The 1
8 UNITED STATES V. JUAN

seminal case is Webb v. Texas,” in which the Supreme Court

reversed a defendant’s conviction after the trial judge

“gratuitously singled out” the defense’s sole witness for a

“lengthy admonition on the dangers of perjury,” including

assuring the witness that if he lied on the stand, “he would be

prosecuted and probably convicted for perjury.” Id. at

1188–89 (quoting Webb, 409 U.S. at 97–98). The witness

then refused to testify. Webb, 409 U.S. at 95.

Although the trial judge was the target of the defendant’s

allegations of error in Webb, “a number of post-Webb cases

reveal that the trial judge is not the only person whose

admonitions against perjury can deprive a criminal defendant

of his [constitutional] right[s].” Vavages, 151 F.3d at 1189.

“[T]he conduct of prosecutors, like the conduct of judges, is

unquestionably governed by Webb.” Id. 

What is not unquestionably governed by Webb is whether

the government’s substantial interference with the testimony

of its own witness can ever violate a defendant’s due-process

rights. To our knowledge, no court applying Webb has ever

extended its principles to prosecution witnesses. Similarly,

no court applying Webb has ever extended it to situations,

like this one, where the allegedly threatened witness

continued to testify after the alleged threat. Instead, the

prototypical Webb challenge involves conduct so threatening

as to “effectively drive [the] witness off the stand.” United

States v. Jaeger, 538 F.3d 1227, 1231 (9th Cir. 2008)

(quoting Webb, 409 U.S. at 98).

Despite this dearth of precedent, Juan persuasively argues

that Webb and its progeny should apply to all witnesses. We

have often stressed the “imperative that prosecutors and other

officials maintain a posture of strict neutrality when advising
UNITED STATES V. JUAN 9

witnesses of their duties and rights.” Vavages, 151 F.3d at

1193 (quoting United States v. Rich, 580 F.2d 929, 934 (9th

Cir. 1978)). Violating this duty by bullying a prosecution

witness away from testimony that could undermine the

government’s case is no less distortive of the judicial factfinding process than improperlymeddling with the testimony

of a defense witness. Regardless of whose witness is

interfered with, the constitutional harm to the defendant is the

same—the inability to mount a fair and complete defense.

We see no reason to doubt that the government’s substantial

interference with the testimony of its own witnesses can

violate the Due Process Clause.

It also seems clear that the substantial and wrongful

interference with a prosecution or defense witness that does

not “drive the witness off the stand,” but instead leads the

witness to materially change his or her prior trial testimony

can, in certain circumstances, violate due process. Indeed,

such violations have the potential to work even greater harm

than those that simply result in a blanket refusal to testify.

Where a witness is coerced into recanting testimony that was

favorable to the defendant, the harm to the defense involves

not merely the prevention of prospective testimony that might

have bolstered its case, but the retraction of testimony that

did bolster its case. See Valenzuela-Bernal, 458 U.S. at 872

(due process is offended where the defendant is wrongfully

denied testimony that “would have been favorable and

material.”).

Nevertheless, although we agree with Juan that the

principles of Webb should extend to his case, we cannot

conclude that he is entitled to relief. In order to prevail, Juan

must “demonstrate misconduct by a preponderance of the

evidence.” Vavages, 151 F.3d at 1188 (citing United States
10 UNITED STATES V. JUAN

v. Lord, 711 F.2d 887, 891 n.3 (9th Cir. 1983)). “The

substantial interference inquiry is extremely fact specific,”

and Juan must prove that under the totality of the

circumstances, “the substance of what the prosecutor

communicates to the witness is a threat over and above what

the record indicates is necessary[.]” Id. at 1190 (internal

quotations and citations omitted). We note that in many

circumstances, warning a witness about the possibility and

consequences of perjury charges is warranted. See, e.g.,

Williams v. Woodford, 384 F.3d 567, 603 (9th Cir. 2004)

(“merely warning a witness of the consequences of perjury

does not unduly pressure the witness’s choice to testify or

violate the defendant’s right to due process.”). We need

express no judgment as to whether the prosecutor’s conduct

in this case was, or was not, warranted. For even assuming,

arguendo, that the prosecutor’s statements here were

inappropriately threatening, Juan’s claim would still fail

because Juan can point to no evidence that proves that the

allegedly threatening statements—which Juan concedes were

directed solely to the district judge—were ever

communicated to C.J. Without proof that C.J. ever heard the

prosecutor’s remarks, or proof that C.J.’s appointed lawyer

relayed those remarks to C.J., Juan simply cannot establish

the necessary causal link between the prosecutor’s “threats”

and C.J.’s changed testimony. Because, Juan has not

adequately shown causation, he cannot meet his burden to

demonstrate misconduct by a preponderance of the evidence.

Accordingly, we affirm Juan’s conviction.

II. Sentencing Procedures

Juan also appeals his sentence, arguing that the district

court committed procedural error when it explained the

18 U.S.C. § 3553(a) reasons supporting its chosen sentence
UNITED STATES V. JUAN 11

immediately after imposing sentence. Juan claims that such

a procedure is proscribed by our opinion in United States v.

Waknine, which found plain procedural error where the

“district court gave no reasons in reference to the § 3553(a)

factors before imposing sentence.” 543 F.3d at 554 (9th Cir.

2008) (emphasis added).

Juan’s reliance on one sentence from our opinion in

Waknine is misplaced. In the very same paragraph that Juan

cites for the proposition that the § 3553(a) factors must be

addressed “before” imposing sentence, we explained that the

district court erred because it gave “no contemporaneous

announcement of the calculated Guidelines range or

satisfaction of the requirement that the sentence be reconciled

for reasonableness in light of the § 3553(a) factors.” Id.

(emphasis added). The plain language of Waknine simply

does not require the strict sequencing of events urged by

Juan. Nor would such a stringent requirement advance any of

the “important goals” of § 3553, namely “(1) informing the

defendant of the reasons for his sentence, (2) permitting

meaningful appellate review, (3) enabling the public to learn

why the defendant received a particular sentence, and (4)

guiding probation officers and prison officials in developing

a program to meet the defendant’s needs.” United States v.

Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007) (citing S. Rep.

No. 98-225, at 79–80 (1983)); see also Gall v. United States,

552 U.S. 38, 50 (2007) (“After settling on the appropriate

sentence, [the court] must adequately explain the chosen

sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.”) (citation omitted)
12 UNITED STATES V. JUAN

(emphasis added). Where, as here, the district court

adequately and contemporaneously explains its sentencing

rationale, we will not find procedural error. To hold

otherwise would needlessly elevate form over substance.

AFFIRMED.