                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                         No. 11-10539
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           2:11-cr-00554-
                                                       JAT-1
 JARVIS MARTIN JUAN ,
              Defendant-Appellant.                    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.




 *
   The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court
of Appeals for the Second Circuit, sitting by designation.
2                    UNITED STATES V . JUAN

                           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.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  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 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
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 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
                  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 “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
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

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].”1 Vavages, 151 F.3d at 1188. “The


   1
     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 (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.
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 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 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.
