                     FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                        No. 10-50114
                 Plaintiff-Appellee,
                                                     DC No.
                     v.                           2:06-cr-00109-
                                                      DSF-1
 JOANN WIGGAN ,
             Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Central District of California
         Dale S. Fischer, District Judge, Presiding

                   Argued and Submitted
            October 9, 2012—Pasadena, California

                    Filed November 20, 2012

      Before: David M. Ebel,* Ferdinand F. Fernandez,
           and Marsha S. Berzon, Circuit Judges.

                 Opinion by Judge Fernandez;
                    Dissent by Judge Ebel




 *
   The Honorable David M. Ebel, Senior United States Circuit Judge for
the Tenth Circuit, sitting by designation.
2                  UNITED STATES V . WIGGAN

                           SUMMARY**


                           Criminal Law

    Reversing a conviction for making a false statement to the
FBI and perjury before a grand jury and a district court, the
panel held that the district court abused its discretion by
admitting the grand jury foreman’s testimony that the
defendant was not credible.

    The panel held that the danger of undue and unfair
prejudice far outweighed the probative value of the foreman’s
testimony, and that the error, which was devastating to the
defendant’s defense, was not harmless.

    The panel rejected the defendant’s contentions that the
district court erred when it determined that she had not
recanted her testimony before the grand jury and that the
district court should have submitted the defense of
recantation to the petit jury. The panel also rejected the
defendant’s contention that the evidence was insufficient to
support the verdict that she perjured herself at her first trial.

    Judge Ebel dissented from the majority’s conclusion that
the district court committed reversible error in allowing the
grand jury foreperson to testify that he did not believe the
defendant was being truthful in her testimony before the
grand jury.




    **
    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 . WIGGAN                     3

                         COUNSEL

Cristina Gabrielidis, San Diego, California, for the
Defendant-Appellant.

Max B. Shiner, Office of the United States Attorney, Los
Angeles, California, for the Plaintiff-Appellee.


                         OPINION

FERNANDEZ, Circuit Judge:

    Joann Wiggan appeals her conviction and sentence for
perjury and for making a false statement. See 18 U.S.C.
§§ 1001(a), 1623(a). Principally she challenges the district
court’s admission of testimony from a grand juror. She also
challenges the district court’s rejection of her claim of
recantation, the sufficiency of the evidence, and her sentence.
Because we hold that the admission of the grand juror’s
testimony was unduly prejudicial, we reverse.

                     BACKGROUND

    Joann Wiggan was a facilities technician at SBC
Communications (“SBC”). In that capacity, she had the
technical skill and opportunity to implement surreptitious
wiretaps. Agents of the Federal Bureau of Investigation
interviewed her on October 18, 2004, in connection with an
investigation into a wiretapping conspiracy led by Anthony
Pellicano. That investigation had revealed that Pellicano’s
source for the acquisition and implementation of wiretaps was
Ray Turner, a former SBC employee who had retired in 2001.
By examining Turner’s telephone records, the FBI
determined that he had contacted SBC employees Michelle
4                  UNITED STATES V . WIGGAN

Malkin, Teresa Wright, and Wiggan. The FBI suspected that
those individuals were helping Turner implement the
wiretaps, and Turner’s telephone records indicated that he
had made a number of calls to telephone number 323-889-
0813, which was a voicemail account at SBC assigned
exclusively to Wiggan.

    During that October interview, Wiggan admitted that the
voicemail account was hers, but she claimed that she had not
used that voicemail account in so long that she could not
remember the password and that she had only used it to
inform callers that she was away from her desk. Wiggan
admitted that she had worked with Turner before 1990, but
further stated that she had not spoken to him in the last five
or six years (i.e., since 1998 or 1999). That was inconsistent
with Turner’s telephone records, which showed that Turner
had called her voicemail multiple times after 1999. Wiggan
could not explain why Turner would have called her and
insisted that she had not spoken with him during the year
2002.

    One year later, on October 26, 2005, Wiggan testified
before the grand jury1 that was investigating the Pellicano
conspiracy. She admitted that the voicemail account had
been assigned to her since 2000, but she claimed that she did
not use it at all until 2003. She also testified that she knew
Turner because they had worked together in the 1980s, and
that while they were acquaintances, they did not socialize
outside of work. However, she did say that she had a chance
meeting with Turner in 2000 or 2001. She indicated that she
spoke to him about her marital problems, and that she and


    1
    Hereafter we will refer to this particular grand jury as the “Grand
Jury.”
                UNITED STATES V . WIGGAN                    5

Turner talked on the telephone about those problems
approximately ten times, but she then testified that she had
not had any conversations with Turner after December 2000.

     Upon being shown Turner’s records and seeing a large
number of calls from Turner to her voicemail, Wiggan
claimed that she had never received any of those calls and did
not use her voicemail prior to 2003. She asserted that she
first activated her voicemail in 2003, and even then she never
retrieved any messages from the voicemail. She was
reminded a few times that she was testifying under oath, was
subject to the penalties of perjury, and that her telephone
records could be subpoenaed.

    A few days after that appearance, Wiggan left a message
for the prosecutor saying that she wished to correct some of
her Grand Jury testimony. She then appeared before the
Grand Jury again on January 11, 2006, and testified that on
her way home after her first day of testimony, her husband
had told her that he thought she was using her voicemail
during the period in question. She said that she thought he
might be right, and that she “might have accessed it.” She
also acknowledged that the voicemail was activated prior to
2003, but she could not remember how often she had actually
accessed it or when she began or stopped using it. She still
denied having retrieved any messages left by Turner and
claimed that she had just retrieved a few messages from her
boss or from her husband. Moreover, she said that she had
not used her voicemail in the years prior to 2003, so that SBC
had to activate her voicemail that year. However, upon close
questioning and after much tergiversation, when asked
whether her prior testimony that she had never used her
voicemail before 2003 was true or false, she replied, “False.
My husband said I did.”
6                 UNITED STATES V . WIGGAN

     Wiggan was indicted on five counts of perjury on
February 15, 2006. Those counts all stemmed from her two
days of testimony before the Grand Jury. Trial began in
September of 2006, and she testified in her own defense. At
trial Wiggan admitted that she had spoken with Turner from
2001 to 2003, even though she had previously denied that, but
reiterated that she could not recall having received any
voicemail from him. She also testified that because she could
not remember receiving voicemail from Turner, it was not
possible that she had received any. Wiggan then said that
most of the messages she received on voicemail were
annoying complaints from her children, so she did not check
voicemail very often. The jury acquitted Wiggan on most
counts of the indictment, but deadlocked on Count Three, on
which the district court later granted a mistrial.

    A first superseding indictment was then returned against
Wiggan. Count Two realleged the mistried count from the
original indictment; that is, Wiggan’s testimony in her first
appearance before the Grand Jury that she never retrieved any
messages from her voicemail account was false.2 Count One
charged that Wiggan had made a false statement when she
told the FBI in 2004 that she had not spoken with Turner in
five or six years. Count Three alleged that Wiggan had
perjured herself at her 2006 trial when she testified that she




    2
             Q. Is it your testimony here today that as far as
        your SBC voicemail account, (323) 889-0813, that
        during the entire time that account was assigned to you,
        you never retrieved a single message from that account;
        is that correct?

            A. Yes.
                 UNITED STATES V . WIGGAN                     7

could not remember if she had ever received a voicemail
message from Turner.3

    At the 2009 trial, the government called the Grand Jury
foreman, Thomas Venable, to testify regarding the materiality
of Wiggan’s statement to the Grand Jury, the atmosphere of
the Grand Jury room, Wiggan’s demeanor, and the demeanor
of the grand jurors and the prosecutor during her testimony.
Venable also testified a number of times that he and the other
grand jurors did not think that Wiggan was credible or
believable. Venable had not testified at Wiggan’s first trial.

    At her 2009 trial, Wiggan testified in her own defense.
She denied that she ever told the FBI that she had not spoken
to Turner in five or six years. She reiterated her claim that at
the time of her Grand Jury testimony, she did not remember
that she had used her voicemail and that she had been
reminded of that by her husband at a later time. She also said
that she told the truth at her 2006 trial when she said that she
did not remember receiving any voicemail from Turner, and
she reiterated her testimony from that trial that most of the
voicemail messages she had received were annoying
messages from her children.

    Wiggan’s son, Chaz Wiggan, testified that he and his
sister, Linnett, frequently called Wiggan’s voicemail




 3
           Q. Did you ever call your voicemail and have a
       voicemail from Ray Turner?

           A. Not that I can remember, no.
8                   UNITED STATES V . WIGGAN

regarding their disagreements.4 He also testified that when he
left voicemails, he expected that Wiggan would receive the
messages and call him back.

   Wiggan was convicted and sentenced on all counts. This
appeal followed.

    JURISDICTION AND STANDARDS OF REVIEW

    The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

    We typically review the admission of evidence for an
abuse of discretion. See United States v. Hankey, 203 F.3d
1160, 1166 (9th Cir. 2000); see also Boyd v. City & Cnty. of
S.F., 576 F.3d 938, 948 (9th Cir. 2009). “A district court’s
decision to exclude or admit evidence under [Federal Rule of
Evidence] 403 is reviewed with considerable deference.”
Hankey, 203 F.3d at 1167 (internal quotation marks omitted);
see also Boyd, 576 F.3d at 948.

    “We review the district court’s denial of the motion to
dismiss the [i]ndictment de novo,” but review the underlying
factual findings for clear error. United States v. Marguet-
Pillado, 560 F.3d 1078, 1081 (9th Cir. 2009).

    We review the district court’s decision to exclude
evidence of a claimed defense de novo. United States v.
Schafer, 625 F.3d 629, 637 (9th Cir. 2010), cert. denied, __
U.S. __, 131 S. Ct. 2919, 179 L. Ed. 2d 1259 (2011). We also
review whether a defense is legally cognizable de novo, but

  4
    Linnett did not testify at the 2009 trial, but she had told the Grand Jury
that she never called W iggan at work because she did not have W iggan’s
work phone numbers.
                UNITED STATES V . WIGGAN                    9

review whether the factual foundation was sufficient to
warrant a jury instruction for an abuse of discretion. See
United States v. Perdomo-Espana, 522 F.3d 983, 986 (9th
Cir. 2008).

    We review de novo the district court’s denial of a Federal
Rule of Criminal Procedure 29 motion for judgment of
acquittal. United States v. Williams, 547 F. 3d 1187, 1195 n.6
(9th Cir. 2008). In reviewing the sufficiency of the evidence,
we “construe the evidence ‘in the light most favorable to the
prosecution,’” and then ask “whether ‘any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’” United States v. Nevils, 598
F.3d 1158, 1161 (9th Cir. 2010) (en banc).

                       DISCUSSION

     Despite evidence of a good deal of telephonic contact
between Ray Turner and Wiggan, she asserted that there was
little or none. While there was evidence of fifty-three calls
between her home and his from December 1999 to February
2003, she told the FBI agents that she had not had contact
with Turner during that time. And, while there was evidence
that Turner made 127 calls to her voicemail account from
December 1999 to December 2002, she testified at her first
trial that she did not remember retrieving any of those calls,
and told the Grand Jury that she had not actually retrieved
any messages whatsoever from that account. Thus, this
prosecution for false statements and perjury followed. She
was convicted, sentenced, and now points to a number of
claimed errors at trial. We will consider her claims in turn.
10                 UNITED STATES V . WIGGAN

      A. Federal Rule of Evidence 403

    The first issue before us is Wiggan’s claim that pursuant
to Federal Rule of Evidence 403 (“Rule 403”), the district
court should have excluded the testimony of Thomas
Venable, who was the foreman of the Grand Jury before
which Wiggan appeared. That was the Grand Jury which also
issued the present indictment against her. Whatever the
ultimate validity of any particular decision to admit testimony
from members of a grand jury that issued an indictment
against a defendant might be, admitting that evidence is
sensitive and even dangerous. It is redolent of peril to the
fairness of the trial itself.5

    We have indicated that grand jurors’ testimony can be
admitted on questions regarding the materiality of a
defendant’s testimony to a grand jury’s investigation. See
United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir.
1999) (“[W]e have allowed the prosecution to prove
materiality . . . by presenting testimony from a member of the
grand jury . . . .”).6 We have not commented on grand juror
testimony that extends beyond the materiality issue; nor have
we reflected on the dangers that grand juror testimony



  5
    It also implicates some of the concerns reflected in Federal Rule of
Evidence 606(b). That is, it threatens to subject grand jurors to
annoyance, embarrassment and exposure of the grand jury’s internal
decisionmaking process. See Fed. R. Evid. 606(b) advisory committee’s
note. Thus, it can endanger the grand jury system itself. However, that is
not our focus in this case.

   6
     The elements of perjury include materiality. See United States v.
McKenna, 327 F.3d 830, 838 (9th Cir. 2003) (indicating that materiality
is one of the elements).
                     UNITED STATES V . WIGGAN               11

presents. However, we have alluded to the dangers presented
when judges testify.

    In Chein v. Shumsky, 373 F.3d 978, 989 n.6 (9th Cir.
2004) (en banc), we indicated our disquiet when we noted
that “[a]lthough we do not reach the merits of that challenge,
the likely impact on the jury of a sitting state court judge
pronouncing the existence of an essential element of a crime,
while vigorously denouncing the defendant and his
credentials, is difficult to ignore[,]” and then went on to
reflect “that this highly unusual testimony at least explains
why the jury returned a guilty verdict on sparse,
constitutionally insufficient evidence.” Similarly, in United
States v. Sine, 493 F.3d 1021, 1033 (9th Cir. 2007), while the
judge in question did not testify, the prosecution used his
order, which contained derogatory “findings and
determinations relevant to credibility.” We pointed out that
“jurors are likely to defer to findings and determinations
relevant to credibility made by an authoritative, professional
factfinder rather than determine those issues for themselves.”
Id. at 1033–34. And we approvingly cited a decision from
the Fourth Circuit Court of Appeals,7 where it noted that
“judicial findings of fact present a rare case where, by virtue
of their having been made by a judge, they would likely be
given undue weight by the jury, thus creating a serious danger
of unfair prejudice.” Id. at 1034 (internal quotation marks
omitted). That, of course, does not mean that a judge’s
testimony or the use of a judge’s findings and conclusions
will always result in unfair prejudice to the defendant, but
when their use is proposed, courts should proceed cautiously.




 7
     Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993).
12                  UNITED STATES V . WIGGAN

    While use of a grand juror’s testimony does not generate
exactly the same concerns as use of a judge’s testimony, the
dangers are rather similar. We have not so declared, but
courts in the Second Circuit have had occasion to do so, and
we agree with their assessment.8 Osama Awadallah, a citizen
of Jordan, was questioned by a grand jury regarding the
September 11, 2001, terrorist attacks. United States v.
Awadallah (Awadallah I), 401 F. Supp. 2d 308, 310–11
(S.D.N.Y. 2005). As a result of his answers, he was
ultimately charged with perjury, and the government sought
to call grand jurors to testify about the “physical conditions”
of the grand jury room and about Awadallah’s “physical
appearance,” as well as the “behavior and manner of the
prosecutor.” Id. at 313. The government also wished to have
the grand jurors testify about “whether, in their opinion,
Awadallah’s testimony was knowingly false, or whether
Awadallah appeared ‘confused’ during his testimony.” Id.

    In a pretrial ruling, the district court permitted the former
two lines of questioning, but not the latter one. Id. One basis
for the exclusion was Rule 403. In reaching that conclusion,
the district court pointed to a number of sources of possible
prejudice. It was concerned that the trial jurors would give
undue weight to grand juror testimony because they would


  8
    W e do not overlook the brief, unexplained comment in a footnote in
one other case. See United States v. Frazier, 944 F.2d 820, 822 n.1 (11th
Cir. 1991). There, the court simply stated in a sentence disposing of many
other arguments by the defendant that: “W e find meritless Frazier’s
arguments that she was denied a fair trial by . . . a grand juror’s testimony
that called her testimony before the grand jury ‘evasive.’” Id. W e just do
not find that brief statement to be very illuminating; neither the
justification for the evidence admitted in Frazier nor its potential for
prejudice in the context of the particular trial is ascertainable from the
opinion.
                     UNITED STATES V . WIGGAN                        13

“regard the grand jurors as their peers,”9 and be tempted to
“defer” to the grand jurors’ perceptions of falsity rather than
making their own assessments.10 It also saw real danger in
that because “any testimony from a grand juror that
Awadallah appeared not to be confused, or that he appeared
lucid and coherent, is tantamount to a statement that, in the
grand juror’s opinion, Awadallah’s statements were
knowingly false.” Id. at 319. In addition, the district court
was concerned that trial jurors might well “interpret the grand
jurors’ testimony as proof that Awadallah has already been
found to have committed perjury by a jury of his and their
peers.” Id. The long-standing rule is that the indictment
itself “is not evidence against the accused and affords no
inference of guilt or innocence,”11 and “use of grand jurors to
testify, in essence, as to their opinion of [a defendant’s] guilt
and their reasons for indicting him, is squarely at odds with
that policy.”12

    On the government’s interlocutory appeal from the
district court’s ruling, the Second Circuit Court of Appeals
affirmed. United States v. Awadallah (Awadallah II), 436
F.3d 125 (2d Cir. 2006). That court, of course, reviewed the
district court’s decision for abuse of discretion, and gave the
district court the deference it was due. Id. at 131. The court
of appeals noted that the district court acted well within its
discretion when it:



 9
      Id. at 318.

 10
      Id.

 11
      United States v. Ramirez, 710 F.2d 535, 545 (9th Cir. 1983).

 12
      Awadallah I, 401 F. Supp. at 319.
14                   UNITED STATES V . WIGGAN

            concluded that permitting testimony by grand
            jurors regarding whether or not, in their
            opinion, the defendant’s false statements were
            the product of confusion and/or intimidation
            potentially causes significant prejudice to the
            defendant because it could be interpreted as a
            grand juror giving the petit jurors advice on
            how to determine the central issue of the case.

Id. at 133–34. To the government’s contention that it only
sought demeanor and appearance evidence, the court
responded: “This distinction draws an extremely fine line,
one best entrusted to the trial court’s expertise. Here, the
court could easily view the proffered testimony as opinion
and advice regarding the defendant’s mental state, the key
element in the case.” Id. at 134. And, while the line between
“permissible statements regarding objective manifestations
and impermissible statements of subjective opinions”13 would
be difficult to maintain, the court of appeals left that delicate
task to the district court.14

    Because we agree that many dangers are subtended when
a grand juror testifies, especially when that testimony goes
beyond mere materiality and objectively physical matters, we
cannot ignore that brooding brume as we turn to the Rule 403
analysis.

   Although relevant evidence is generally admissible,15
Rule 403 provides: “The court may exclude relevant

 13
      Id.

 14
      Id. at 135.

 15
      See Fed. R. Evid. 401, 402.
                     UNITED STATES V . WIGGAN                           15

evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice
. . . .” Relevance is a fairly coarse filter,16 and when evidence
is minimally relevant, it is likely to be minimally probative as
well.17 Moreover, a decision regarding probative value must be
influenced by the availability of other sources of evidence on
the point in question. See Old Chief v. United States, 519 U.S.
172, 182–85, 117 S. Ct. 644, 651–52, 136 L. Ed. 2d 574
(1997); Awadallah II, 436 F.3d at 132. And, as we have noted:
“Where the evidence is of very slight (if any) probative value,
it’s an abuse of discretion to admit it if there’s even a modest
likelihood of unfair prejudice or a small risk of misleading the
jury.” United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).

    With all of that in the background, we must consider
exactly what happened here in some detail. Here, Venable
did testify about the materiality of Wiggan’s answers before
the Grand Jury. He also testified about the physical
arrangement of the Grand Jury room. So far, so good. But,
Venable then went on to testify about Wiggan’s demeanor
and, thus, entered the region that gave the Second Circuit
courts concern. See Awadallah II, 436 F.3d at 134;
Awadallah I, 401 F. Supp. 2d at 319. Among other things, he
testified that Wiggan was belligerent, quick to respond to
questions, inattentive to documents shown to her, repeatedly
adamant, and did not appear intimidated, confused or
forgetful. And the testimony did not stop there either.
Rather, Venable went on to testify to his (and even the other
Grand Jurors’) opinion that Wiggan was not credible. Nor
was that a single passing reference; it was repeated many


 16
      See United States v. Vallejo, 237 F.3d 1008, 1015 (9th Cir. 2001).

 17
      See Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011).
16                    UNITED STATES V . WIGGAN

times.18 As we will show, that testimony cannot possibly pass


 18
      Here are those references:

               Q. Did you find that testimony credible?

               ....

               THE W ITNESS: W e did not find – the grand jury
          did not find or feel that it was credible responses to the
          questioning.

               Q. Based on the evidence that you had gathered
          and based on the defendant’s entire testimony before
          the grand jury on both occasions, did you find the story
          that she told about how she was reminded in the car on
          the way home by her husband that she had used her
          voicemail to – did you find that credible?

               ....

              THE W ITNESS: M y opinion was it was not
          credible.

              Q. And with respect to the entirety of her second
          grand jury appearance, did you find her testimony
          credible?

               ....

              THE W ITNESS: . . . . No.           It was no more
          consistent – it’s not credible.

               Q. Did the defendant’s testimony during her
          second grand jury appearance in any way alleviate your
          concerns as foreman of the grand jury as to whether the
          defendant was being candid and truthful in her
          testimony?
                    UNITED STATES V . WIGGAN                            17

Rule 403 analysis.

    (1) Relevance and Probative Value: If Venable’s
testimony regarding credibility was relevant at all, it was
rather weakly so. The government suggests that it was
relevant to the materiality of Wiggan’s answers to the Grand
Jury investigation, but we fail to see how that can be so.
Whether she was credible or not (and regardless of her
answers), the information sought either was, or was not,
material to the Grand Jury. By the same token, while the
layout of the Grand Jury room and the way Wiggan
objectively behaved, might have relevance to whether she
was intimidated or confused, testimony that a Grand Juror
thought that she was, or was not, confused or intimidated, in
fact, is less relevant to her state of mind. And, while the
statement in the Grand Juror’s opinion that she was not
credible does, undoubtedly, indicate that Venable, and others,
thought that Wiggan’s testimony was false, and has some
relevance, it is not particularly probative.19


              A. I did not feel that she was being candid and
         truthful with the grand jury.

             Q. Did that change at all as a result of her second
         grand jury appearance?

              A. No, it did not change.

             A. In my opinion, it was extremely obvious to
         everybody in the room that we were not being – the
         grand jury was not being given the truth.

 19
    The lack of probative value is underscored by the fact that the opinion
regarding credibility was not particularly “helpful to clearly understanding
the witness’s testimony or to determining a fact in issue.” Fed. R. Evid.
701(b). The jury already had the evidence that formed the basis of his
opinion. See Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d
18                  UNITED STATES V . WIGGAN

    Much of the evidence in question was available in other
forms—by alternative means—without risking the dangers of
unfairness that use of a grand juror’s testimony would
present. As the Second Circuit Court of Appeals pointed out,
other persons present in the Grand Jury room could have been
brought forward,20 and, in fact, much of the pertinent
information—whether she was adamant or confused or
forgetful or belligerent—could be gleaned from the Grand
Jury transcript. Moreover, the objective evidence of
Wiggan’s behavior was more probative than Venable’s
opinion about that behavior. And, as far as pursuing cases of
perjury related to testimony before a grand jury is concerned,
we, like the other courts that have opined on this subject, find
it curious that the government found it necessary to pursue
this particular testimonial approach, when “the Government
has tried hundreds, if not thousands, of perjury cases without
eliciting opinion evidence from a grand juror to prove
knowledge. None of our opinions indicate that a grand juror
has ever previously been called in this Circuit to give such
testimony and . . . .” Id. at 132; see also Awadallah I, 401 F.
Supp. 2d at 315, 320. That, too, strongly suggests that
alternative means of pursuing the same ends were readily
available, and that the evidence was weakly probative.

   But, even given the existence of some probative value, we
must still consider whether there was undue prejudice.

   (2) Prejudice: We have already spoken to the serious
dangers that exist when grand jurors are called to testify. All



1051, 1059–60 (9th Cir. 2008); United States v. Henke, 222 F.3d 633,
641–42 (9th Cir. 2000) (per curiam).

 20
      Awadallah II, 436 F.3d at 132–33.
                   UNITED STATES V . WIGGAN                           19

of those presented themselves in this case. In fact, it is rather
apparent that the possible undue prejudice that caused the
courts in the Awadallah cases to shudder reified here. Those
courts wanted to avoid even suggesting to the petit jurors that
grand jurors thought a defendant was a liar. See Awadallah
I, 401 F. Supp. 2d at 318–19. And the district court was
concerned enough that it concluded that grand jurors “may
not testify as to their mental impressions: i.e., that [the
defendant] did or did not appear lucid or composed, or did or
did not appear confused, or that the prosecutor did or did not
appear to be intimidating.” Id. at 320. In this case, there was
not a mere hint or mental impression about Wiggan’s
truthfulness; there was an outright statement that she was not
credible. Regardless of the other testimony, the direct
testimony regarding credibility stepped over the line.

    Moreover, it is worth noting that the prejudice here was
exacerbated by evidence that Venable, the Grand Jury
foreman, and, by the way, his fellow grand jurors, had sat for
two years, heard 100 to 150 cases (some lengthy) and heard
in the neighborhood of 200 to 30021 witnesses during that
time. In other words, Venable (and the others) had a lot of
experience in judging witnesses’ testimony. That could only
emphasize the impression that he was expert in the process of
witness evaluation, and should be given special credence.22
To make matters worse, he also ultimately testified on
redirect examination that the Grand Jurors were the victims



 21
    The government specifically mentioned this to the jury in its closing
argument.

 22
    That threatens the same sort of danger that emanates from testimony
by sitting judges. See Sine, 493 F.3d at 1033–34.
20                  UNITED STATES V . WIGGAN

of Wiggan’s crime,23 and that of the hundreds of witnesses
heard by them, she was the only one they had indicted for
perjury before them.24 That exacerbated the damage already
wrought by the improper credibility evidence.

    In short, while we do recognize our duty to give the
district court a great deal of leeway in this area,25 we are
constrained to hold that it did abuse its discretion when it
admitted Venable’s testimony that Wiggan was not credible
— the danger of undue and unfair prejudice far outweighed
the probative value of the evidence.

    Nor can we say that the error was harmless; that is, we are
unable to hold that “it is more probable than not that the error
did not materially affect the verdict.” Boyd, 576 F.3d at 949
(internal quotation marks omitted); United States v. Liera,
585 F.3d 1237, 1244 (9th Cir. 2009). Credibility was at the
very heart of this case, and Wiggan’s testimony was the most

 23
               Q. To the extent that those lies caused your grand
          jury to do additional work or not reach the outcome of
          an investigation, were you a victim of that crime?

               A. Yes, we were.

               Q. And your fellow grand jurors?

               A. Yes, I was. Yes, we were.

 24
               Q. Out of the hundreds of witnesses whom your
          grand jury heard from in the course of its two years of
          service, nervous or otherwise, how many did the grand
          jury seek to charge with perjury?

               A. Just one, Mrs. W iggan.

 25
      See Boyd, 576 F.3d at 948; Hankey, 203 F.3d at 1167.
                  UNITED STATES V . WIGGAN                         21

important evidence that the defense could present on that
topic. See United States v. Foster, 227 F.3d 1096, 1101 (9th
Cir. 2000); United States v. Mejia, 529 F.2d 995, 996 (9th
Cir. 1976) (per curiam). Moreover, we cannot accept the
government’s suggestion that there was no prejudice because
the jury already knew that the Grand Jury did not believe
Wiggan when it indicted her. That argument overlooks the
fact that an indictment is not evidence; that the very fact was
one of the major concerns of the courts in the Second Circuit.
See Awadallah II, 436 F.3d at 133; Awadallah I, 401 F. Supp.
2d at 319. It concerns us also, and does not help the
government’s position.

   Also, an indictment need only be based on probable
cause. So the testimony that the Grand Jury did not believe
Wiggan was telling the truth—as opposed to having probable
cause to believe that she was not telling the truth—does go
beyond the determination needed for the indictment.

    In fine, we hold that Wiggan’s convictions must be
reversed due to the admission of Venable’s highly prejudicial
testimony against her. While we recognize that his testimony
directly involved only Count Two of the indictment (perjury
before the Grand Jury), we are unable to cabin the effect of
that testimony to Count Two alone, and the government has
not asked us to do so. Thus, we reverse and remand as to all
three counts.26




   26
      Because we hold that the evidence should have been excluded
pursuant to Rule 403, we need not, and do not, opine on whether it was
also excludable under Federal Rules of Evidence 701 and 606(b). Nor
need we opine on W iggan’s claim that the testimony of the G rand Jury
foreman denied her an impartial petit jury.
22                   UNITED STATES V . WIGGAN

      B. Recantation

    Wiggan also claims that the district court erred when it
determined that she had not recanted her testimony before the
Grand Jury, and that the district court should have submitted
the defense of recantation to the petit jury. While our
reversal of Wiggan’s conviction makes a decision regarding
recantation strictly unnecessary to resolution of this appeal,
we will decide the issue because it is likely to arise on any
retrial. See United States v. Sayetsitty, 107 F.3d 1405, 1411
(9th Cir. 1997).

    After Wiggan’s first appearance before the Grand Jury,
she appeared a second time and, she says, recanted her prior
erroneous statements. Were it true that she made a timely
recantation, her prosecution on Count Two might have been
barred.27 She did not do so, and the district court did not err
when it determined that § 1623(d) did not apply.

    Recantation requires a defendant “to renounce and
withdraw” the prior statement. Llanos-Senarillos v. United
States, 177 F.2d 164, 166 (9th Cir. 1949). And the defendant
“must unequivocally repudiate his prior testimony to satisfy


 27
      The applicable perjury statute contains the following provision:

                W here, in the same continuous court or grand jury
           proceeding in which a declaration is made, the person
           making the declaration admits such declaration to be
           false, such admission shall bar prosecution under this
           section if, at the time the admission is made, the
           declaration has not substantially affected the
           proceeding, or it has not become manifest that such
           falsity has been or will be exposed.

18 U.S.C. § 1623(d).
                   UNITED STATES V . WIGGAN                           23

§ 1623(d).” United States v. Tobias, 863 F.2d 685, 689 (9th
Cir. 1988). It is not enough if the defendant “merely
attempted to explain his inconsistent statements,” but never
really admitted to the facts in question. Id. And, as we have
pointed out: “Testimony which serves to cast doubt as to the
truth of that which is perjurious is not a recantation. Being a
poor liar does not make one a repentant sinner.” United
States v. Anfield, 539 F.2d 674, 679 (9th Cir. 1976). What
recantation requires is “[a]n outright retraction and
repudiation of . . . false testimony”; that “is essential to a
‘recantation’ within the meaning of the statute.” United
States v. D’Auria, 672 F.2d 1085, 1092 (2d Cir. 1982). Mere
attempts to “clarify” rather than actually change one’s
testimony will not do. Id.

    On this record, it is plain that if Wiggan did give
perjurious testimony at her first appearance, her statements at
her second appearance were not sufficient to deflect the
consequences. Rather, she attempted to spin an excuse for
the falsity, and even then hedged her bet. So when she, after
some close questioning, finally agreed that the statement in
question was “false,” she immediately followed that with the
further statement: “My husband said I did.” So even then,
she remained equivocal, and, in effect, only admitted to a
possible error.28

    But even if we accepted Wiggan’s hedged statements as
a recantation, they amounted to no more than an attempt to
tailor her “testimony to [the evidence that the government
possessed] rather than [giving her] truthful recollection of the

  28
    Notably that the statement came in the context of others where she
denied any memory of access, stated her husband might be right, and that
she might have used it. As the district court found, “her January 11, 2006
grand jury testimony was filled with hedging and ambiguity.”
24                  UNITED STATES V . WIGGAN

facts.” Id.; see also Tobias, 863 F.2d at 689 (finding D’Auria
“persuasive”). That is, it had “become manifest” that the
falsity of her statements “[had] been or [would] be exposed.”
18 U.S.C. § 1623(d); see also United States v. Scivola,
766 F.2d 37, 46 (1st Cir. 1985); United States v. Scrimgeour,
636 F.2d 1019, 1021–22 (5th Cir. 1981). She then adjusted
her testimony as a reaction to that reality. Moreover, it is
apparent that her false statement had already materially
affected the proceeding; it had caused considerable additional
work for the Grand Jury.29 See 18 U.S.C. § 1623(d). As the
district court declared, the government proved beyond a
reasonable doubt that the recantation defense did not apply.
See Tobias, 863 F.2d at 688.

    But, argues Wiggan, her recantation defense should have
been submitted to the jury. However, § 1623(d) does not
suggest that it is a defense at the trial itself. Rather, it
declares that a repudiation “shall bar prosecution.” Id. As
such, the recantation claim is one that should be raised with
the district court before trial. In fact: “It is common ground
that the issue whether an effective and timely recantation has
been made is one of law to be decided by the court.” United
States v. Goguen, 723 F.2d 1012, 1017 (1st Cir. 1983). The
Second Circuit Court of Appeals has also declared that
“[w]hether a valid offer to recant has been made is an issue of
law that must be decided by the court.” D’Auria, 672 F.2d at
1091; see also United States v. Fornaro, 894 F.2d 508, 51\1
(2d Cir. 1990) (per curiam). And the Fifth Circuit Court of
Appeals agrees. See United States v. Denison, 663 F.2d 611,
618 (5th Cir. Dec. 1981) (holding “that the defense of
recantation must be raised before trial under Federal Rule of


 29
    W e note that as a result of her statements, the Grand Jury was required
to subpoena more documents and witnesses.
                    UNITED STATES V . WIGGAN                              25

Criminal Procedure 12(b)(2) [now 12(b)(3)] as a
jurisdictional bar to prosecution”). We have not held to the
contrary. Our discussion in Tobias, 863 F.2d at 688, might be
read as suggesting that recantation was a jury question.
However we did not so state, and that issue was not part of
the case, which involved a bench trial. Id. at 687. We now
agree with the other circuits that the repudiation issue is one
for the court itself.30

      C. Insufficiency of the Evidence

    Wiggan then asserts that the evidence was insufficient to
support the verdict that she perjured herself at her first trial
(Count Three).31 We disagree. No doubt the government was
required to prove that Wiggan’s false, material statement
regarding voicemails from Ray Turner was made
“knowingly.” McKenna, 327 F.3d at 838. There was ample
evidence to that effect.

    When a memory lapse is claimed, the government may
submit, and support its case with, circumstantial evidence.
See Gebhard v. United States, 422 F.2d 281, 288 (9th Cir.
1970); see also United States v. Dearing, 504 F.3d 897, 901
(9th Cir. 2007); Gibson v. Cnty. of Washoe, Nev., 290 F.3d
1175, 1190 (9th Cir. 2002). In fact, when the claim is



 30
    W e do not hold that evidence of steps taken to allegedly repudiate can
never be admitted at trial. For example, at trial a district court might admit
that kind of evidence, as the district court did here, to support a claim that
no untruth was ever intended in the first place.

  31
     W e consider this issue because W iggan could not be retried if the
evidence was insufficient. United States v. Shipsey, 190 F.3d 1081, 1088
(9th Cir. 1999).
26                 UNITED STATES V . WIGGAN

memory loss, that may well be the only evidence available.
See Gebhard, 422 F.2d at 287–88.

    Here, the sheer number of calls by Turner to Wiggan’s
voicemail (127 in all), Wiggan’s own calls to her voicemail,
which were long enough to retrieve messages, and the timing
of those calls constituted circumstantial evidence of her guilt.
That was especially true where she was unable to offer
evidence to explain why she received but did not retrieve
those calls, and we, of course, cannot overlook the issue of
her own credibility. All in all, the evidence sufficed to
support the jury’s guilty verdict beyond a reasonable doubt.
See Nevils, 598 F.3d at 1164.

    Wiggan’s argument that, in effect, the evidence could also
sustain a determination that she had a failure of memory and
did not, therefore, knowingly tell a falsehood does not
undermine the jury’s determination. As we have carefully
explained, we do not “ask whether a finder of fact could have
construed the evidence produced at trial to support acquittal.”
Id. That is, we do not construe the “evidence in a manner
favoring innocence rather than in a manner favoring the
prosecution.” Id. at 1167. We, therefore, reject Wiggan’s
invitation to do just that.32

                         CONCLUSION

    When Wiggan was prosecuted for false statements and
perjury, her credibility was crucial because her defense
depended largely on her own testimony that she had, at most,
made a mistake rather than knowingly lied. On the record


 32
    Because we reverse the convictions, we need not, and do not, take up
the sentencing issues raised by W iggan.
                 UNITED STATES V . WIGGAN                    27

before us, the erroneous admission of the testimony of the
Grand Jury foreman setting out his opinion about her
credibility, which had some probative value but was unduly
prejudicial, was both an error and devastating to her defense.
We are, therefore, constrained to reverse her convictions and
remand.

   REVERSED and REMANDED.


EBEL, Circuit Judge, dissenting:

    I join in the parts of the majority opinion finding no error
in the district court’s ruling declining to submit the
recantation defense to the jury and determining that the
evidence was sufficient to support Ms. Wiggan’s conviction
for the count of perjury at her first trial. However, I
respectfully dissent from the majority opinion concluding that
the district court committed reversible error in allowing the
grand jury foreperson, Mr. Venable, to testify that he did not
believe that Ms. Wiggan was being truthful in her testimony
before the grand jury.

    I readily acknowledge the paucity of precedent on
whether it is error to submit testimony from a grand juror on
a defendant’s demeanor or credibility as part of the
Government’s evidence in support of a charge that the
defendant committed perjury before the grand jury. As the
majority opinion accurately notes, the other federal circuit
case that has directly considered the issue before us in any
substantive way is United States v. Awadallah (Awadallah II),
28                  UNITED STATES V . WIGGAN

436 F.3d 125 (2d Cir. 2006).1 In that case, the Second Circuit
found that the district court had not committed an abuse of
discretion in excluding such evidence. Id. at 131. Although
Awadallah II clearly disapproved of the practice of calling
grand jurors to testify before the petit jury regarding the
defendant’s demeanor or credibility on a charge that the
defendant had committed perjury before the grand jury, the
case is not strictly on point because, in that case, the Second
Circuit affirmed a district court decision excluding such
evidence. Id. In our case, on the other hand, we are being
asked by the plaintiff to reverse a district court decision
admitting such evidence. To me, that distinction makes all
the difference.

    We must give great deference to a district court’s
evidentiary rulings, and we may reverse only if we find a
clear abuse of discretion—which is a very high bar. See
United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000)
(explaining that “[a] district court’s decision to exclude or
admit evidence under FRE 403 is reviewed with considerable
deference” (internal quotation marks omitted)); see also
United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th
Cir. 2009) (“The district court is to be given wide latitude
when it balances the prejudicial effect of proffered evidence
against its probative value.” (internal quotation marks
omitted)). Here, although I agree with the majority that there
are dangers in calling a grand juror to testify about alleged
false statements made to the grand jury, in this case, I do not



 1
   There is one other federal circuit case that briefly addresses the issue,
United States v. Frazier, 944 F.2d 820, 822 n.1 (11th Cir. 1991). That case
found no error in admitting testimony from a member of the grand jury to
prove perjury before the grand jury. As the majority opinion aptly notes,
however, there was no meaningful discussion of the issue in Frazier.
                 UNITED STATES V . WIGGAN                     29

believe that the ruling is so clearly unsupportable that we
should reverse.

    This case comes before us to review a ruling under
Federal Rule of Evidence 403, which requires determining
whether the “probative value [of the evidence] is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury . . . .” Fed. R. Evid. 403.

    As to the probative value of this evidence, I think it is
fairly significant. The issue that the petit jury had to decide
was whether Ms. Wiggan was truthful in her testimony before
the grand jury. The people to whom she was speaking, the
grand jurors, are in the best position to judge her truthfulness.
They are the only ones who observed her demeanor, body
language, context, and the like. Those characteristics are
probative of whether the speaker is being truthful or not. Yet,
they are not as clearly revealed from the cold transcript of her
grand jury testimony as they are from grand juror Venable’s
testimony. Judgments of the truthfulness of someone’s
statements are often subtle and even subjective, but all of that
can be probed by cross-examination. In my opinion, there is
no better evidence of whether a witness is being truthful
before the grand jury than the testimony of grand jurors who
heard and observed the witness’s testimony.

    On the other side of the equation, I acknowledge that a
grand juror’s testimony presents the potential for prejudice.
The Ninth Circuit has disapproved of the admission of
derogatory statements from a judge concerning a defendant’s
credibility because a judge is an “authoritative, professional
fact finder” who is apt to carry excessive weight with the
jury. United States v. Sine, 493 F.3d 1021, 1033-34 (9th Cir.
2007); see id. at 1031 (agreeing with a defendant that
“derogatory factual findings and comments” from a judge’s
30               UNITED STATES V . WIGGAN

order in a prior related case created “too great a danger of
unfair prejudice and thus violated Rule 403”). But see id. at
1034 (“Our determination that references to facts found in a
judicial opinion can unfairly prejudice a party does not mean
that admission of such facts will always fail the balancing test
of Rule 403.”). However, I do not see quite the same danger
when the evidence comes from a grand juror who is not a
professional fact finder, and to the contrary is presumably
chosen from a random jury pool, similar to the pool of people
selected for petit jurors.

    Indeed, several statements made by Mr. Venable
ameliorate any potential concern in this regard because he
repeatedly explained that it was the petit jury’s responsibility
to assess the evidence and make a determination. At one
point in his testimony, Mr. Venable stated, “We felt, as a
grand jury, that there was enough evidence in Mrs. Wiggan’s
case to turn it over to a petit jury, and that then becomes this
jury’s responsibility to review, listen to all sides, all the
testimony, and make a decision.” He then reiterated, “[W]e
as a grand jury, felt that there was enough evidence present to
turn it over to this jury. What this jury decides to do and how
they decide and finally handle it belongs to this jury, not to
me or the grand jury.” (3 ER 499.) Further, he stated “I have
done my job as a grand jury [sic]. It’s now been turned over,
and however that comes out, that’s the way it comes out. I
have no further interest in it.”

    Moreover, any potential prejudice from a grand juror’s
testimony can be greatly ameliorated by cautionary
instructions to the petit jury. Here, Ms. Wiggan has not
indicated that she ever requested a limiting jury instruction
related to the testimony of Mr. Venable. Further, although
defense counsel filed a motion in limine to preclude Mr.
Venable’s testimony prior to trial, the district court held that
                   UNITED STATES V . WIGGAN                           31

a ruling on “the scope of the foreman’s demeanor testimony
. . . must await proffer of the testimony at trial.” Although
defense counsel objected multiple times during the
presentation of the testimony, counsel never objected to any
statement made by Mr. Venable during the trial on the explicit
grounds that it was unduly prejudicial under Rule 403.

    Indeed, even if the court had abused its discretion in
allowing certain statements made by Mr. Venable, given
defense counsel’s failure to object to any specific testimony,
under a plain error standard, I would conclude that Ms.
Wiggan has failed to meet this standard because her
“substantial rights” were not violated in light of the weight of
the evidence against her. See Sine, 493 F.3d at 1031 (holding
that “although we agree that the many references to [the]
adverse findings and comments” of the judge from an order
in a prior related matter “should not have been allowed, the
plain error standard of review proves fatal to [the
defendant’s] contention that the conviction should be
reversed because of those references”); id. at 1041 (“[T]he
defendant completely failed to object to the government’s
repeated impermissible references to the judge’s order.
Because the trial judge’s failure sua sponte to prevent such
references did not affect [the defendant’s] substantial rights
in a case where other evidence overwhelmingly proved the
defendant’s guilt, [his] conviction must stand.”).

   I am troubled about testimony from Mr. Venable that
seemed to speak on behalf of the entire grand jury.2 I believe


  2
   During his testimony, the prosecution asked Mr. Venable if he found
credible Ms. W iggan’s testimony before the grand jury that she had never
received any of the messages that Turner left for her. Mr. Venable
responded, “W e did not find— the grand jury did not find or feel that it
was credible responses to the questioning.”
32                 UNITED STATES V . WIGGAN

that testimony is improper, but the prejudicial effect of that
was blunted when the district court instructed Mr. Venable,
in the presence of the jurors, to only testify on his own behalf
and not on behalf of the other jurors.3


   Additionally, the following exchanges took place during Mr.
Venable’s testimony:

             PROSECUTION: Did I [the prosecutor] and/or the
         grand jurors who asked questions express to the
         defendant, through their questions or tone of voice, any
         skepticism about her answers?

              THE W ITNESS: It was made very clear that the
         grand jury, as well as yourself, felt that we were not
         getting straight answers.

         ....

              PROSECUTION: Did you have an understanding
         when . . . [Ms. W iggan was reminded of the penalties
         of perjury] of why those reminders were being issued to
         her?

             THE W ITNESS: In my opinion, it was extremely
         obvious to everybody in the room that we were not
         being— the grand jury was not being given the truth.

     3
     Following several questions about Ms. W iggan’s credibility and
demeanor before the grand jury, the district court stated to M r. Venable,
“I just want to make sure that you’re answering based on things that you
observed and that you’re giving us your opinion, your own opinion.” Mr.
Venable responded, “Yes, Your Honor. Personal observation and my
opinion.” Additionally, the following exchanges took place over the
course of the Mr. Venable’s trial testimony:

              PROSECUTION: And based on the totality of the
         evidence that the grand jury had gathered, including the
         entirety of the defendant’s testimony that day in her
         second appearance, did you find [Ms. W iggan’s] story
         credible?
                   UNITED STATES V . WIGGAN                    33

    For the reasons stated, I would affirm the district court on
the issue of the testimony of grand juror Venable. In all other
regards, I am pleased to join the majority opinion.



           DEFENSE COUNSEL: Objection. Calls for a
       conclusion, Your Honor.

           THE COURT: You know, are you talking about
       “you, Mr. Venable” or “you, the grand jury”?

          PROSECUTION: I am talking about you, Mr.
       Venable.

       ....

            PROSECUTION: And with respect to the entirety
       of her second grand jury appearance, did you find her
       testimony credible?

           DEFENSE COUNSEL: Objection. Calls for an
       opinion.

            THE COURT: It does, and I’ll allow it. W e’re
       talking about you, yourself, sir, not the grand jury.

       ....

           PROSECUTION: Did defendant’s testimony
       during her grand jury appearance the second time
       reassure the grand jury that she was, in fact, being
       candid and truthful in her testimony?

           DEFENSE COUNSEL: Objection. Argumentative
       and calls for a conclusion.

           THE COURT: W ell, you are talking in terms of the
       grand jury.

              PROSECUTION: I will rephrase it.
