United States v. Clark , 284 F. App'x 555 ( 2008 )


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  •                                                                            FILED
    United States Court of Appeals
    Tenth Circuit
    July 11, 2008
    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                      No. 06-2339
    v.                                                    (D. New Mexico)
    BRANDON CLARK,                                   (D.C. No. CR-05-914-JB)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before MURPHY, EBEL, and O’BRIEN, Circuit Judges.
    Following a melee on the Navajo Reservation in New Mexico, Brandon
    Clark was convicted on two counts of assault, in violation of 
    18 U.S.C. §§ 113
    (a)(3), (a)(6) and 1153. Clark appeals his convictions, arguing the
    government violated his Fifth and Sixth Amendment rights to present a defense
    when it advised the court it was contemplating charges against a defense witness
    and recommended appointing an attorney for the witness before he testified. We
    exercise our jurisdiction pursuant to 
    28 U.S.C. § 1291
    . Because Clark cannot
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    show the witness’s testimony would have been material and favorable, we affirm
    his conviction.
    I.        Background
    Clark was charged in a two-count indictment with assault resulting in a
    serious bodily injury, in violation of 
    18 U.S.C. §§ 113
    (a)(6) and 1153 and assault
    with a dangerous weapon, in violation of 
    18 U.S.C. §§ 113
    (a)(3) and 1153. The
    charges arose from a brawl on the Navajo Reservation, involving Clark and
    several other young adults and juveniles. Clark stabbed two victims during the
    fight.
    Two weeks prior to Clark’s trial, his counsel designated his minor brother,
    B.C., as a witness for the defense. On the morning of the first day of trial, the
    prosecution informed the district court that it had not ruled out charging B.C. with
    assault in this case. The prosecutor stated the government was acting on its
    “duty” to “make sure that the Court is made aware, that the defense is made
    aware, that the witness is made aware that there [are] potential charges that are
    still out there.” 1 The government then asked the court to appoint an attorney to
    assist B.C. in determining whether he should exercise his Fifth Amendment
    rights.
    1
    The government argues its basis for warning B.C. about a possible assault
    charge arose from B.C.’s actions during the altercation. At trial, Nicolia Blake
    testified that B.C. kicked her in the mouth during the brawl. Blake’s examining
    physician testified that due to “some kind of blunt injury to the anterior face” she
    had lost a tooth and a portion of her anterior mandible was broken off.
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    Clark’s attorney expressed her displeasure with the government’s last-
    minute notice. She noted the unfairness of advising B.C., an important defense
    witness, that he may be charged while at the same time not administering the
    same warning to a government witness, Ron Henio. She acknowledged the
    district court did not have the power to force the government to charge Henio, but
    in comparing the two situations, pointed out that,
    Mr. Henio is a Government witness, and he’s not being charged, nor
    is he apparently at any risk of being charged for discharging a
    firearm in the midst of a fight, by his own admission, at property and
    at a human being. . . .
    [B]ecause he is a Government witness . . . [he] gets apparent
    immunity for some horrendous acts, whereas at the very last moment
    one of my important witnesses is threatened with prosecution.
    The district court appointed counsel for B.C. and he refused to testify. Following
    a jury trial, Clark was convicted on both counts.
    II.   Discussion
    On appeal, Clark argues the government’s actions constituted improper
    coercion, violating his Fifth and Sixth Amendment rights to present a defense.
    This court reviews claims that the government violated a defendant’s
    constitutional right to present a defense de novo. United States v. Serrano, 
    406 F.3d 1208
    , 1214 (10th Cir. 2005).
    The right to present a defense “is essential to a fair trial.” 
    Id.
     “The Fifth
    . . . and Sixth Amendments concomitantly provide a criminal defendant the right
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    to present a defense by compelling the attendance, and presenting the testimony,
    of his own witnesses.” 
    Id. at 1215
    ; see also Washington v. Texas, 
    388 U.S. 14
    , 19
    (1967) (holding the right to present witnesses and establish a defense is “a
    fundamental element of due process of law”). The right to present a defense can
    be infringed if the court or the prosecution substantially interferes with a defense
    witness’s decision to testify. Webb v. Texas, 
    409 U.S. 95
    , 97-98 (1972) (per
    curiam) (holding trial judge’s “lengthy and intimidating warning” and
    “threatening remarks,” causing defendant’s only witness to invoke the Fifth
    Amendment, violated the Due Process Clause); Serrano, 
    406 F.3d at 1215-16
    (applying Webb to the prosecution).
    In determining whether “the government actor’s interference with a
    witness’s decision to testify was ‘substantial,’” we have examined whether the
    witness was actively discouraged from testifying “through threats of prosecution,
    intimidation, or coercive badgering.” 
    Id. at 1216
    . Conducting a “case-by-case”
    analysis, we have taken into account factors such as (1) whether the witness
    consulted with an independent lawyer before refusing to testify; (2) the degree
    and kind of warning made to the witness; and (3) whether evidence shows the
    prosecutor acted in bad faith. Id.; see also United States v. Smith, 
    997 F.2d 674
    ,
    679-80 (10th Cir. 1993). Further, “a defendant must establish ‘more than the
    mere absence of testimony.’” Griffin v. Davies, 
    929 F.2d 550
    , 553 (10th Cir.
    1991) (quoting United States v. Valenzuela-Bernal, 
    458 U.S. 858
    , 867 (1982)).
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    “There must be a plausible showing that an act by the government caused the loss
    or erosion of testimony that was both material and favorable to the defense.” 
    Id.
    Clark argues the government failed to provide evidence that it had
    sufficient probable cause to indict B.C. at the time it advised him to consult an
    attorney, and thus the warning was given in bad faith and constitutes an
    unconstitutional threat. He also contends the government’s disparate treatment of
    its own witness, Ron Henio, and B.C., proves it acted with bad faith. The
    government asserts it had probable cause to indict B.C. based on Nicolia Blake’s
    testimony that B.C. kicked her in the mouth during the brawl. As Clark points
    out, however, this evidence was not before the court at the time the government
    advised B.C. to consult with a lawyer. See Martin v. Kemp, 
    760 F.2d 1244
    , 1248
    (10th Cir. 1985) (explaining in the context of a plea negotiation that the
    government must have probable cause “at the time it made the threats” (emphasis
    omitted)).
    Although probable cause is necessary before the government threatens a
    third party with prosecution in the context of plea negotiations, United States v.
    Wright, 
    43 F.3d 491
    , 498-500 (10th Cir. 1994), we have never extended this
    principle to the context of trial witnesses. We need not, however, resolve the role
    of probable cause in assessing bad faith. Nor must we determine whether the
    government’s disparate treatment of Henio and B.C. evinces bad faith. Instead,
    we can affirm Clark’s convictions based on the materiality requirement. Clark
    -5-
    cannot show that B.C.’s testimony would have been “material and favorable to the
    defense.” Griffin, 
    929 F.2d at 553
    . Rather, he asks us to infer materiality from
    B.C.’s voluntarily agreement to testify for Clark. A plausible showing that the
    lost evidence would have been material and favorable,
    may be based upon agreed facts, and will be in the nature of a legal
    argument rather than a submission of additional facts. In other cases
    the criminal defendant may advance additional facts, either
    consistent with facts already known to the court or accompanied by a
    reasonable explanation for their inconsistency with such facts, with a
    view to persuading the court that the testimony of a . . . witness
    would have been material and favorable to his defense.
    Valenzuela-Bernal, 
    458 U.S. at 873
    . Clark makes no proffer as to the substance
    of B.C.’s testimony. Without such a proffer, Clark cannot prevail on his claim.
    See e.g., United States v. Caballero, 
    277 F.3d 1235
    , 1242 (10th Cir. 2002)
    (explaining the “failure to show the materiality of . . . lost testimony” ends our
    analysis).
    III.   Conclusion
    For the foregoing reasons, we affirm Clark’s convictions.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
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