United States v. 2008-08-18 | 06-30621 | USA VJAEGER | precedential | opinion |

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, DWMDefendant-Appellant. 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
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COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the defendant-
appellant.
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 con-
spiracy 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 disposi-
tion filed this date.
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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 pas-
sengers 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 passen-
ger for obstructing a police officer. Responding later to ques-
tions 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 ille-
gally. 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 war-
rant to search the truck that Defendant was driving for evi-
dence of the entry, transportation, or harboring of illegal
aliens, such as “[r]eceipts, canceled checks, payment books,
credit card information, fraudulent Immigration documenta-
tion, letters, papers, audio recordings, video recordings, air-
line or bus tickets, passports and United States currency.” The
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search instead revealed 6 grams of marijuana, a marijuana
pipe, a disposable camera, packaging materials, several thou-
sand 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 infor-
mation, 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 sec-
ond 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 Defen-
dant’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 vio-
lation 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 case-
in-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 coun-
sel. The court asked defense counsel if Mrs. Jaeger was repre-
sented 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
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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 objec-
tion 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 law-
yer 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 pro-
vide 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.
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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 circum-
stances, 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
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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 metham-
phetamine, and on the firearms count. The jury found Defen-
dant 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.2 See 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) (stat-
ing 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.
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proceedings, or where failing to reverse a conviction would
result in a miscarriage of justice.” Id. at 1135 (internal quota-
tion marks omitted).
DISCUSSION
[1] The Supreme Court has held that, in certain circum-
stances, 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 consti-
tutional 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 mis-
conduct 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 sub-
stantially 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
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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 any-
body 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 admoni-
tion to the defendant’s sole witness as having been made in
“unnecessarily strong terms.” 409 U.S. at 98. The Court con-
cluded 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 prosecu-
tion 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
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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) (con-
cluding that the trial judge’s warning given to the co-
defendant’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 “nei-
ther 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 jeop-
ardy of revocation of his plea agreement and charges of per-
jury 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 informa-
tion 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 objec-
tion,” to consult a lawyer before testifying came close to over-
reaching, there was no error in the court’s warning of the
consequences of perjury and the witness’ decision to not tes-
tify was on advice of counsel and not because of the actions
of the judge or prosecutor); United States v. Santiago-
Becerril, 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 pro-
vided 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
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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 infor-
mation 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.
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