Sunday, January 13, 2013

Case o' The Week: He Lost, We Juan -- Juan, Due Process, and Perjury Threats

When disgruntled AUSAs threatens defense witnesses with perjury, it is a due process violation. 

But when AUSAs threatens their own witnesses with perjury -- to make testimony fit the government's story -- it is just effective “witness preparation,” right?

Wrong, wrong, most happily, wrong. United States v. Jarvis Martin Juan, 2013 WL 57894 (9th Cir. Jan. 7, 2013), decision available here.

Players: Important Defense (though not defendant) win for D. Az. AFPD Dan Kaplan. Decision by Judge M. Smith, in an important opinion that provides two new and welcome rules of first impression.

Facts: Juan and his wife celebrated her birthday on an Indian reservation, with malt liquor, whiskey, and cocaine. Id. at *1. When the celebration soured Juan punched his wife, kicked her, and ran over her with an SUV. Id. Juan was charged federally with assault offenses. Id. 

At trial, the wife was called by the government, refused to cooperate, and her testimony was compelled. Id. She then testified and exonerated Juan. Id. In an extended sidebar where the wife was not present, the AUSA mused of perjury charges for the wife and suggested that she be appointed counsel. Id. 

The district court appointed counsel who consulted with the wife – the next day, she returned to trial, inculpated Juan, and he was convicted. Id. at *2. 

(Note: the Supremes have prohibited the government from substantially interfering with the testimony of a defense witness. Id. (citing Webb v. Texas, 409 U.S. 95 (1972)).
Hon. Milan Smith

Issue(s): “[W]hether 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 . . . . Despite this dearth of precedent, Juan persuasively argues that Webb and its progeny should apply to all witnesses.” Id. at *3 (emphasis in original) (citations omitted).

Held: “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.” Id. at *3.

Of Note: Juan, sadly, didn’t win because he couldn’t show that the perjury threat was actually conveyed to the witness-wife. Id. (Though it is safe to assume that any competent attorney appointed to the wife would have immediately spoken with the AUSA, and – persuasively – conveyed all “dangers” (i.e. perjury threats) to the client as she evaluated her testimony). 

Nonetheless, Juan’s loss is still two big wins for the Defense. Here’s two great new rules from this important opinion:

1. It violates due process for the government to threaten its own witnesses to get the testimony it wants, and

2. The government can trigger this violation even if the witness ultimately testifies.

How to Use: Can the government hide its threats to witnesses by conveying them through the witnesses’ counsel? Safe bet that’s what happened here – anyone who has represented a snitch has had (and conveyed) that “cautionary” chat with a “concerned” AUSA. Is that little talk Giglio impeachment information that must be disclosed by the AUSA, trumping any attorney-client privilege for the witness? Juan invites discovery litigation for counsel confronted with a witness whose testimony has – “evolved” – after counsel was appointed.                       

For Further Reading: The Sixth Amendment requires that any fact that triggers a mandatory-minimum sentence must be alleged in an indictment and proved beyond a reasonable doubt to a jury. 

So say we – will the Supremes agree? For a thoughtful preview of January 14th’s Alleyne argument, see SCOTUS blog here

 Preserve the issue! We’re just one vote shy of kissing Harris goodbye.

“Perjury” highlight image from Image of the Honorable Judge Milan Smith from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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