UNITED STATES of America, Plaintiff-Appellee, v. Jarvis Martin JUAN, Defendant-Appellant, 704 F.3d 1137

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 due-process 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 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 was released 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 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 “next steps.” 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 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, 117 S.Ct. 1544, 137 L.Ed.2d 718 (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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (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, 117 S.Ct. 1544. 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 States v. Valenzuelar- Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (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, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)); see also United, States v. Scheffer, 523 U.S. 303, 325-27, 118 S.Ct. 1261, 140 L.Ed.2d 413 (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, 93 S.Ct. 351; 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 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, 93 S.Ct. 351). The witness then refused to testify. Webb, 409 U.S. at 95, 93 S.Ct. 351.

Although the trial judge was the target of the defendant’s allegations of error in Webb, “a number of post-We66 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, 93 S.Ct. 351). 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 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 fact-finding process than improperly meddling 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 Valenzuelctr-Bemal, 458 U.S. at 872, 102 S.Ct. 3440 (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 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 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), 1984 U.S.C.C.A.N. 3182, 3262-63); see also Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (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) (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. .

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

Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (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.