
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1937                                    UNITED STATES,                                      Appellee,                                          v.                       BENIGNO SANTIAGO-BECERRIL, a/k/a BENNY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Lagueux,* Chief District Judge.                                       ____________________                                 ____________________            Jorge L.  Arroyo-Alejandro with whom  Rachel Brill  were on  brief            __________________________            ____________        for appellant.            W. Stephen  Muldrow, Assistant United  States Attorney,  with whom            ___________________        Nelson  Perez-Sosa,  Assistant  United States  Attorney,  and  Jose A.        __________________                                             _______        Quiles-Espinosa,  Senior Litigation  Counsel, were  on  brief for  the        _______________        United States.                                 ____________________                                  November 20, 1997                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                      CAMPBELL,   Senior  Circuit   Judge.     Defendant-                                  _______________________            appellant Benigno Santiago-Becerril ("Santiago") appeals from            convictions  for the  wrongful taking of  a motor  vehicle by            force and violence, with a  resulting death, see 18 U.S.C.                                                            ___            2119(3) (Supp. 1997), 2 (1969), and  for the knowing use of a            firearm in relation to a crime of violence, see  18 U.S.C.                                                           ___            924(c)(1) &  (3) (Supp. 1997), 2 (1969).  He argues on appeal            that   the  district   court  violated   his  statutory   and            constitutional  rights  to a  speedy  trial, as  well  as his            constitutional right to present witnesses in his own defense.                                          I.                                          I.                      Santiago  was arrested on October 20, 1994 pursuant            to a warrant issued after a criminal complaint had been filed            against  him  on  the  previous  day.    He  has  since  been            incarcerated.                      Criminal complaints  and arrest warrants  were also            issued on October 20,  1994 against two minors, Antonio  Jose            Esquilin-Garcia  ("Esquilin")  and Pedro  Antonio  Ramos-Rosa            ("Ramos"), alleged to  have participated in the  same offense            as Santiago.  Both were arrested on November 11, 1994.                      Because  Esquilin  and  Ramos   were  minors,  only            Santiago was charged in an indictment returned on November 2,            1994.  At his arraignment  on November 9, 1994, Santiago pled            not guilty to both counts of the indictment.                                         -2-                                          2                      On  November 22, 1994,  Santiago filed a  motion to            continue his trial, which had  been scheduled for January 12,            1995.  As  a reason for  the continuance, Santiago's  counsel            stated that  he (counsel) would  be on trial  at the time  in            another case.  The district court granted the  continuance on            December 1, 1994,  finding that Santiago's interest  in being            represented by competent counsel  outweighed his interests in            a speedy  trial and ordering  counsel for Santiago  to notify            the court when the other trial had ended.                      On  February 2,  1995, Santiago's  counsel notified            the district  court that his  other trial was  over, allowing            the setting  of a  new trial  date.   On March  1, 1995,  the            district  court ordered  a pretrial  conference  on March  6,            1995, and set Santiago's trial for March 13, 1995.                      On  March  10,  1995, the  government  requested  a            continuance of the March 13 trial date, stating that Esquilin            and  Ramos  were both  awaiting  a  hearing  on a  motion  to            transfer to adult status.  If the transfers were allowed, the            government proposed to try them along with Santiago.  Without            objection,  the  district  court allowed  the  continuance on            March 13,  1995.   The court found  the ends of  justice were            served by continuing  the trial, and that the  ability to try            together all persons  implicated in this case  outweighed the            interests in a speedy trial.                                         -3-                                          3                      On  October 10,  1995, the  district court  ordered            that both Esquilin and Ramos  be transferred to adult status.            On October 18,  1995, the grand  jury returned a  superseding            indictment, charging the two transferred minors and  Santiago            with the  same offenses  charged in  the original  indictment            against Santiago alone.                        On December 4, 1995, Ramos entered a plea of guilty            as  to  counts  one and  two  of  the  superseding indictment            pursuant to a Plea and Cooperation Agreement.  On January 22,            1996, Esquilin did  the same in respect  to count one  of the            superseding indictment.  Santiago's trial was set for January            23, 1996.                      On January  18, 1996,  Santiago filed  a motion  to            dismiss  the  superseding  indictment for  violation  of  his            constitutional and statutory  rights to a speedy trial.  Five            days later, following  argument, the district court  ruled to            deny Santiago's motion to dismiss.                      Trial began, as scheduled, on January 23, 1995.  On            the  fifth day  of trial,  the  defense called  Wanda Caceres            ("Caceres"),  Santiago's stepmother,  to  the witness  stand.            Before she  could testify, the court required  the defense to            make   a  proffer  of   her  expected  testimony.     Counsel            represented that Caceres would testify about her post-offense            conversations  with the defendants  and about her  efforts to            purchase airline tickets for them to travel  to the mainland.                                         -4-                                          4            After  the proffer, the  district court warned  Caceres about            her right  to refuse to  testify, because of  the possibility            that she might incriminate herself.  The court also appointed            an attorney to advise Caceres,  who was unrepresented to that            point.                      After Caceres s  lawyer explained  "her rights  and            the possible or probable consequences of testifying," Caceres            decided  not to  testify.    Later that  same  day, the  jury            returned a verdict, finding Santiago guilty on counts one and            two of the superseding indictment.                        On  May  23,  1996,  the  district  court sentenced            Santiago   to   life   imprisonment   on   count   one   and,            consecutively, to  sixty months'  imprisonment on count  two.            Santiago appealed.                                         II.                                         II.            A.   Santiago's  Statutory  and  Constitutional Rights  to  a                 Santiago's  Statutory  and  Constitutional Rights  to  a                 Speedy Trial                 Speedy Trial                 1.   The Statutory Right                      ___________________                      The  Speedy Trial Act ("STA"), 18  U.S.C.   3161 et                                                                       __            seq.   (1985),   is  designed   "to  protect   a  defendant's            ___            constitutional  right to a  speedy . . . trial, and  to serve            the public interest in bringing prompt criminal proceedings."            United States v.  Saltzman, 984  F.2d 1087,  1090 (10th  Cir.            _____________     ________            1993) (citing  United States v.  Noone, 913 F.2d 20,  28 (1st                           _____________     _____            Cir. 1990)).  The STA provides that the government must bring            a criminal defendant to trial no more than seventy days after                                         -5-                                          5            the later of the filing date of the information or indictment            or the  date on  which the  criminal defendant  first appears            before a judicial officer of the court in which the charge is            pending.   18  U.S.C.    3161(c)(1) (1985);  see also  United                                                         ___ ____  ______            States v.  Torres Lopez, 851  F.2d 520, 525 (1st  Cir. 1988).            ______     ____________            In calculating the seventy days the STA excludes certain time            periods.   See 18  U.S.C.    3161(h)(1)-(9) (1985);  see also                       ___                                       ___ ____            United  States v.  Sposito,  106 F.3d  1042,  1043 (1st  Cir.            ______________     _______            1997); United  States v. Thurlow,  710 F. Supp. 380,  381 (D.                   ______________    _______            Me. 1989).  If a criminal  defendant is not brought to  trial            within the seventy-day  time limit required by    3161(c)(1),            as extended  by operation  of    3161(h)(1)-(9), the  penalty            provisions  of the  STA  mandate  that  "the  information  or            indictment  shall be dismissed  on motion of  the defendant."            18 U.S.C.   3162(a)(2) (1985);  see also Sposito, 106 F.3d at                                            ___ ____ _______            1043; Thurlow, 710 F. Supp. at 381.                  _______                      Santiago  argues that the  district court  erred in            denying his motion to dismiss the superseding indictment.  He            says that the delay in his being brought to trial added up to            twice the number of statutorily allowable days.  In response,            the government  asserts that  only forty-nine  non-excludable            days passed before Santiago was brought to trial.                        We find no error in the district court's refusal to            dismiss the superseding  indictment.  This court  reviews the            disposition  of a  STA issue  for clear  error as  to factual                                         -6-                                          6            findings and de novo as to legal rulings.  See United  States                         __ ____                       ___ ______________            v.  Rodriguez,  63 F.3d  1159,  1162  (1st  Cir. 1995).    We                _________            conclude  that fewer than seventy non-excludable days went by            before Santiago was brought to trial.                      a)   November  4, 1994 to March 1, 1995 (Santiago's                           ______________________________________________                           motion for a continuance of trial)                           __________________________________                      The original indictment was returned on November 2,            1994.  Santiago first appeared  before a judicial officer  of            the district  court on  November 4,  1994.   STA  calculation            begins with the latter  of these two dates.  See  18 U.S.C.                                                           ___            3161(c)(1) (1985).                      November  4,  1994  is  itself  excludable  because            Santiago appeared before the district court on that day.  See                                                                      ___            18 U.S.C.    3161(h)(1)  (1985) ("proceedings concerning  the            defendant").  That day is also excludable for another reason,            to  wit, the government's  motion to detain  Santiago without            bail pending the  detention hearing, which the  court granted            that  same day.    See  18  U.S.C.     3161(h)(1)(F)  (1985).                               ___            Section 3161(h)(1)(F) excludes any "delay resulting from  any            pretrial  motion, from the  filing of the  motion through the            conclusion of the hearing on, or other prompt disposition of,            such motion."  Id.  November 9, 1994 is excludable because of                           ___            Santiago's  arraignment and  detention hearing  on that  day.            See 18 U.S.C.   3161(h)(1) (1985).            ___                      Santiago contends that the period from November 10,            1994 up to and including November 21, 1994 is non-excludable.                                         -7-                                          7            The government agrees.  We  therefore find a total of sixteen            non-excludable days up to this point.                      On  November  22,  1994,  Santiago  filed a  motion            notifying the district court of his counsel's  unavailability            on January  12, 1995, the  scheduled trial  date, because  of            another trial.   Santiago requested an indefinite continuance            of the trial as set for January 12, 1995.  The  court granted            this  motion ten  days later,  on December 1,  1994, ordering            counsel to  notify the court  when the other trial  was over.            The parties agree  that the ten days the court took to decide            the  motion were excludable  from the STA's  seventy-day time            limit.  See 18 U.S.C.    3161(h)(1)(F) (1985).  They likewise                    ___            agree  that December  2,  1994  was  excludable,  a  pretrial            conference  being  held  on  that  day.    See 18   U.S.C.                                                          ___            3161(h)(1) (1985).                      Santiago asserts that the six days from December 3,            1994 to  December 8, 1994 are non-excludable.  The government            contends  that  the  indefinite  continuance  of  the  trial,            granted at  defendant's request  on December  1, 1994,  makes            these days excludable.                      The STA excludes any period of delay resulting from            the court's granting of a  continuance if the continuance was            granted on  the basis  of findings that  the ends  of justice            served  outweigh the speedy trial  interest.  See 18 U.S.C.                                                            ___                                         -8-                                          8            3161(h)(8)(A)  (1985).1  An  ends of justice  continuance was            granted  here.     Santiago  contends,   however,  that   the            excludable  time  attributable  to  the  continuance must  be            limited to the  period of time between January  12, 1995, the            original  trial date, and February 2,  1995, the date defense            counsel notified  the court  of his  availability for  trial.            The government maintains  that the entire three  month period            of  time starting  on December  1, 1994,  the date  the court            continued the original  trial date,  and ending  on March  1,            1995, the day the court set  a new trial date, is  excludable            from the STA's seventy-day time limit.                      We  agree  with  the government.    The  "period of            delay"  resulting from the  continuance began on  December 1,            1994, when the January 12,  1995, trial date was canceled and            the  trial put  on hold  until further  order. The  period of            delay  remained in effect  from then  through March  1, 1995,                                            ____________________            1.   Section 3161(h)(8)(A)  provides, in  pertinent part,  as            follows:                      (h)  The  following  periods  of  delay  shall   be                 excluded in  computing the  time . . . within  which the                 trial . . . must commence:                           (8)(A) Any  period of  delay resulting from  a                 continuance granted by any judge on his own motion or at                 the request  of the defendant  or his counsel or  at the                 request of the attorney for the Government, if the judge                 granted  such continuance on  the basis of  his findings                 that the  ends of justice  served by taking  such action                 outweigh  the  best  interest  of  the  public  and  the                 defendant in a speedy trial.            18 U.S.C.   3161(h)(8)(A) (1985).                                           -9-                                          9            when,  after   having  been  earlier  advised   of  counsel's            availability, the court set a new trial date.                 There is  no way to  regard the period from  the court's            December 1 ruling to the original January 12 trial date as if            no continuance  were then in  effect.  The  continuance ruled            out all possibility of a trial while it lasted, relieving the            parties of  the need to prepare  for trial on  January 12, as            previously scheduled, or at any  time from December 1 until a            new trial date was set.                      Contending  that a continuance  of trial  ends when            the reason for it ends, Santiago argues that the twenty-seven            day period beginning on February  2, 1995 and ending on March            1,  1995,  during  which  the  court  was  aware  of  defense            counsel's availability but had not  yet set a new trial date,            cannot  be  excludable.   To  exclude  that  period, Santiago            asserts, citing to United States v. Rush, 738  F.2d 497, 505-                               _____________    ____            06  (1st   Cir.  1984),  would  give  rise  to  an  automatic            additional  period of exclusion after every "ends of justice"            continuance  between the notice that the event triggering the            continuance of trial has ended  and the court's order setting            a  new  trial  date.    Santiago  argues  that  his counsel's            February 2, 1995 notice of  availability left nothing for the            district court to do but set a new trial date, a routine act.                      We  do not accept Santiago's argument.  The "period            of delay" caused by the ends of  justice continuance included                                         -10-                                          10            the time, following  counsel's notice of readiness,  that the            judge reasonably required to schedule  a new trial date.  The            mere   announcement   of  counsel's   availability   did  not            automatically  terminate   the  continuance  of   the  trial.            Setting  a new  date required  consideration  of the  court's            calendar; an available window had to be found.  The court may            not  have  been  able  to  determine  as  soon  as  counsel s            availability was known when its other obligations would allow            the scheduling of a trial.  The  court took less than a month            to schedule a  new trial date, which was  not an unreasonable            delay.                      We  add  that the  twenty-seven  days that  elapsed            before  a new trial date was set  can be viewed as separately            excludable  under the  provisions of    3161(h)(1)(F),  which            excludes the  time  pending  disposition of  a  motion.    By            notifying  the court of  his availability for  trial, defense            counsel  may be said to have  impliedly moved for a new trial            date.  The court acted on the implied motion on March 1, 1995            by setting a new trial date of March 13, 1995.   Motions that            do not require a hearing  may toll the seventy-day time limit            for up to thirty days.   See Henderson v. United States,  476                                     ___ _________    _____________            U.S.  321,  29   (1986)  (noting  that  the   phrase  "prompt            disposition"  in   3161(h)(1)(F) so limits the amount of time            that can be  excluded).  As  already noted, the  twenty-seven            days  taken  by  the  court  to  determine  a  new  date  was                                         -11-                                          11            reasonable enough.   We conclude that the entire  period from            December 1,  1994 through  March 1,  1995 was  excludable for            purposes of the STA, leaving us still with a total of sixteen            non-excludable days at this point in time.                      b)   March   2,  1995  to  October  18,  1995  (The                           ______________________________________________                           government's  motion  for   a  continuance  of                           ______________________________________________                           trial)                           ______                      The new March 13 trial date did not stand for long.            On  March  10,   1995,  the  government  moved   to  continue            Santiago's trial in order to allow it to obtain permission to            try  the two  juveniles, Ramos  and  Esquilin, as  adults, in            which event they  would be eligible to be  tried jointly with            Santiago.  Finding that the "ends of justice" would be served            by continuing  the trial  pending resolution  of Ramos's  and            Esquilin's  adult  status,  the district  court  allowed  the            government's motion  on March  13, 1995.   The parties  agree            that the period of time from March 2, 1995, the day after the            district court  set the March  13 trial date, until  March 9,            1995,  the  day before  the  government filed  its  motion to            continue the new  trial date, was non-excludable.   They also            agree  that the  days between  March  10, 1995,  the day  the            government filed its motion to continue the trial, and  March            13, 1995, the day the district court granted the government's            motion to continue the trial, were excludable.  See 18 U.S.C.                                                            ___              3161(h)(1)(F)  (1985).    The addition  of  the  eight non-                                         -12-                                          12            excludable  days yields  a  new  total  of  twenty-four  non-            excludable days.                      c)   March 14, 1995 to October 18, 1995                           __________________________________                      The parties disagree sharply over exclusion of  the            219-day period beginning on March 14, 1995, the day after the            district court  granted the  government's motion to  continue            the   trial, until  October 18, 1995,  the day  a superseding            indictment  against all three  defendants was returned.   The            March  13  continuance was  open-ended, although  as Santiago            acknowledges,   that,  in  and  of itself,  did  not make  it            invalid.   Open-ended continuances are not prohibited per se.                                                                  ___ __            See United States v. Spring, 80 F.3d 1450, 1457-58 (10th Cir.            ___ _____________    ______            1996); United  States v.  Jones, 56 F.3d  581, 585-86  & n.10                   ______________     _____            (5th Cir. 1995); United States  v. Lattany, 982 F.2d 866, 868                             _____________     _______            (3d Cir. 1992); Rush, 738 F.2d at 508.  But see United States                            ____                    ___ ___ _____________            v. Jordan, 915 F.2d 563,  565-66 (9th Cir. 1990) ("The Speedy               ______            Trial  Act   . . . requires   that  an   'ends  of   justice'            continuance  be specifically limited in time . . . .").  This            court  has  said, "it  is  generally  preferable  to limit  a            continuance to a definite period  for the sake of clarity and            certainty; but at the same time it is inevitable that in some            cases . . . a court is forced  to order an (h)(8) continuance            without knowing exactly  how long the reasons  supporting the            continuance  will remain valid."  Rush, 738  F.2d at 508.  An                                              ____            open-ended continuance may, therefore, bring to bear a factor                                         -13-                                          13            of  "reasonableness."  See Lattany, 982 F.2d at 868 ("[O]pen-                                   ___ _______            ended  continuances to  serve  the ends  of  justice are  not            prohibited if  they are  reasonable in  length."); Rush,  738                                                               ____            F.2d at 508 ("It may well be that some sort of reasonableness            limitation  is  appropriate  to  prevent  continuances   from            delaying  trials  unfairly  and  circumventing the  dismissal            sanctions in the Speedy Trial Act . . . .").                      Santiago argues  that, when viewed in  the totality            of  the circumstances, including the previous delays, the 219            day delay was  clearly unreasonable.  Much of  that delay, he            contends, was  attributable to government  foot-dragging and,            therefore,  lacked an element of defendant s involvement that            has led  us to exclude  open-ended continuances in  the past.            See  Lattany, 982 F.2d  at 883 (holding that  the length of a            ___  _______            continuance was not unreasonable  because of defendant's part            in extending the delay).  Santiago maintains  that the docket            entries  for  the  transfer  proceedings2  are suggestive  of            governmental bad faith and needless  delay.  He points to the            postponement  of a  March 21,  1995  evidentiary hearing  for            Ramos  after the  government said  that it  had not  received            notice of it.  Santiago contends that this delay, in addition            to other  questionable delays,  indicate that  the government            was not acting expeditiously in  spite of knowing that he was                                            ____________________            2.   Many of the records relating to the transfer proceedings            do not appear in the record before us.                                         -14-                                          14            still awaiting  trial.   And, finally, Santiago  says he  was            misled into believing that the transfer proceedings would end            momentarily.                       We find  little support for  Santiago's charge that            the transfer  proceedings  were  protracted  by  governmental            indifference and impropriety.   Their duration does  not seem            extreme  in   the  circumstances,  and  the   continuance  of            Santiago s trial  until it could be determined whether to try            the  minor   codefendants  with   Santiago  was   reasonable,            especially  where Santiago raised  no objection at  the time.            Cf. United  States v. Parker,  404 F.2d 1193, 1196  (9th Cir.            ___ ______________    ______            1968)  (noting  the  substantial  public  interest  in  joint            trials).                      The two  juveniles'  natural  resistance  to  being            tried  as adults affords an  obvious explanation for the time            consumed by the transfer proceedings.  The seriousness of the            charges  provided good  reason  for  them  to  do  everything            possible to retain  their juvenile  status.   That the  adult            classification  issue was not simple is suggested by the fact            that, although the district judge ultimately transferred both            minors to adult  status, the magistrate judge  presiding over            the transfer proceedings recommended the transfer of only one            of them.   The  limited record that  we have  reflects delays            arising  from, among other  things, difficulties in arranging            for  psychological evaluations of  the two juveniles.   At no                                         -15-                                          15            time within this period did Santiago seek either to terminate            the  continuance of  his trial  or to  expedite the  transfer            proceedings.                      We conclude  that the continuance  for the transfer            proceedings  was   not  unreasonable  or   excessively  long.            Accordingly,  we  exclude  the period  between  March  14 and            October   18,  1995,  pursuant  to     3161(h)(8)(A).    This            exclusion keeps  the STA count at  twenty-four non-excludable            days at this point in the calculations.                      c)   October   19,  1995   to   January  23,   1996                           ______________________________________________                           (Esquilin's motion for a change of plea)                           ________________________________________                      The October 18,  1995 superseding indictment, which            included  Ramos  and   Esquilin  as  defendants  along   with            Santiago, did not  restart Santiago's STA's clock  because it            was  based on  the original  charges.   See United  States v.                                                    ___ ______________            Rojas-Contreras,  474  U.S. 231,  240  (1985) (Blackmun,  J.,            _______________            concurring);  United States v. Karsseboom, 881 F.2d 604, 606-                          _____________    __________            07 (9th Cir. 1989).                      The  parties  agree  that, with  the  exception  of            October 25, 1995, the days  between October 19, 1995, the day            after  the filing of the superseding indictment, and November            13,  1995, the  day  before the  filing  of the  government's            motion  as to Ramos  to seal documents,  were non-excludable.            October 25, 1995  was excludable because it was  the day that            Santiago was  arraigned  under  the  superseding  indictment.            See 18  U.S.C.   3161(h)(1) (1985).  Adding these twenty-five            ___                                         -16-                                          16            non-excludable  days gives  a new  total  of forty-nine  non-            excludable days.                      Because the superseding indictment pertained to all            three, any  defendant's motion resulting  in excludable  time            tolled the STA clock for his codefendants.  See United States                                                        ___ _____________            v. Ortiz,  23 F.3d 21,  27-28 (1st Cir. 1994);  Torres Lopez,               _____                                        ____________            851 F.2d at 526 ("A  pretrial motion resulting in  excludable            time for one defendant also  stops the Speedy Trial clock for            all codefendants." (citations  omitted)); Rush,  738 F.2d  at                                                      ____            503  ("Every circuit court that has considered [  3161(h)(7)]            has  held in  essence that  'an exclusion  applicable to  one            defendant   applies   to   all   codefendants.'"   (citations            omitted)).3   Accordingly, November  14, 1995,  the date  the            government filed  its motion to  seal documents as  to Ramos;            November  15, 1995,  the date  Ramos filed  his motion  for a            change of  plea; and  November 16, 1995,  the date  the court            granted  the motion  to seal  as to  Ramos and  scheduled his            change  of plea hearing,  are all excludable  from Santiago's                                            ____________________            3.   Section 3161(h)(7) states, in relevant part, as follows:                      (h)  The   following  periods  of  delay  shall  be                 excluded  in computing the  time . . . within  which the                 trial . . . must commence:                           (7)  A reasonable  period  of  delay when  the                      defendant is joined for trial with a codefendant as                      to  whom the  time for  trial  has not  run and  no                      motion for severance has been granted."              18 U.S.C.   3161(h)(7) (1985).                                         -17-                                          17            STA  computation.    See 18  U.S.C.     3161(h)(1)(F), (h)(7)                                 ___            (1985).                      Santiago  argues  that,   with  the  exception   of            November 27, 1995, the period of time from November 17, 1995,            the  day after  the court  acted  on the  two motions,  until            December  3,  1995, the  day  before Ramos's  change  of plea            hearing,  is non-excludable.   He concedes that  November 27,            1995 is excludable  because of the arraignment  and detention            hearings of Esquilin and Ramos on that date.  See 18 U.S.C.                                                            ___            3161(h)(1)(F), (h)(7) (1985).  The government, however, would            exclude the entire  period from November 17  through December            4,  arguing   that  Ramos's   change  of   plea  motion   was            continuously under advisement  until allowed at a  hearing on            December 4, 1995.  We agree with the government, as discussed            below,  and  exclude that  period  of  time  from  the  STA's            seventy-day time limit.                      Santiago also disputes any exclusion of  the period            of time from  December 5, 1995, the day  after Ramos's change            of plea hearing, through January 17, 1996, the day before the            filing  of  Santiago's  motion  to  dismiss  the  superseding            indictment.   Santiago  contends that  Esquilin's motion  for            change of plea, filed on December 1, 1995, was not excludable            until at least December 26,  1995, when the court set January            19, 1996 as  the date for Esquilin's change  of plea hearing.            This is so, he says,  because Esquilin's motion required  "no                                         -18-                                          18            disposition" until  December 26,  (apparently because  it was            not yet scheduled for hearing), and because a contrary ruling            would  allow  district  judges  to  toll  the  STA  clock  by            intentionally delaying their orders scheduling change of plea            hearings.   The  short answer  to this  argument is  that the            exclusion  provided  by      3161(h)(1)(F)  applies   without            qualification  "from the  filing of  the  motion through  the            conclusion of  the hearing on . . . such motion," 18 U.S.C.              3161(h)(1)(F) (1985); see  United States v. Jenkins,  92 F.3d                                  ___  _____________    _______            430, 440  (6th Cir. 1996);  United States v. Mentz,  840 F.2d                                        _____________    _____            315, 327 n.25 (6th Cir. 1988).4                      Santiago also  questions the  excludability of  the            post-December  26 period  during which  Esquilin's  change of            plea motion  continued under advisement.   As in the  case of            Ramos's  similar   motion,  Santiago   would  have   us  deny            excludability on the ground that  Jenkins does not stand  for                                              _______            the proposition that  the entire period from the  filing of a            motion for  a change of plea until the change of plea hearing            is   excludable.    The  holding  in  Jenkins,  according  to                                                  _______            Santiago, dealt with a motion that did not require a hearing,                                            ____________________            4.   Santiago  points  out  that  the  district   court  also            excluded the period of time starting on October 18, 1995, the            filing  date of  the superseding  indictment,  and ending  on            December 12,  1995, because  of "ongoing  plea negotiations."            According to Santiago, this exclusion of time is  contrary to            both the relevant facts and the applicable law.  We need not,            however, consider the  appropriateness of this theory,  as we            do not make use of it in our STA calculation and instead rely            on other grounds for excluding most of this period of time.                                         -19-                                          19            to  wit, a  motion to  use a  jury questionnaire.5   Santiago            contends that the hearing referred to in both   3161(h)(1)(F)            and the Jenkins case is  one that is necessary to decide  the                    _______            merits of the motion, and that such was not the case here.                      We  agree with the government that  all of the days            between the date a codefendant files a motion for a change of            plea and  the date of the  change of plea  hearing itself are            excludable from  the STA's  seventy-day time  limit.   See 18                                                                   ___            U.S.C.     3161(h)(1)(F), (h)(7)  (1985); accord  Jenkins, 92                                                      ______  _______            F.3d at 440; see also Henderson, 476 U.S. at 326-27; Sposito,                         ___ ____ _________                      _______            106 F.3d at 1044.                       A  change of plea hearing is essential to establish            the  knowing and voluntary  nature of the  defendant's guilty            plea, and to determine the sufficiency of its  factual basis.            Until  these factors are established,  the court may not rule            definitively on  whether  or not  to  accept the  motion  for            change of plea.                      Santiago argues that the district court in  Thurlow                                                                  _______            sets  forth a  better reasoned  view  than the  one we  take.            Citing to    3161(h)(8)(C),  the Thurlow  court ruled  that a                                             _______                                            ____________________            5.  At  oral argument, Santiago's attorney  acknowledged that            there is  what he  called "a brief,  passing comment"  in the            Jenkins  opinion  that goes  into the  question of  whether a            _______            change of plea notice is "a motion requiring a hearing" under            the STA.   Still, he dismissed it  as being "bad law"  and as            not  having  in  consideration the  rationale  of  cases like            United States  v. Thurlow,  710 F. Supp.  380 (D.  Me. 1989),            _____________     _______            which is more in harmony with the intent behind the STA.                                         -20-                                          20            delay caused by the "general congestion of the courts" is not            a sufficient basis  for the exclusion of time  from the STA's            seventy-day time limit.  Thurlow,  710 F. Supp. at 383.   The                                     _______            court thus concluded that an  exclusion of time under the STA            could not be granted for the period of time starting with the            defendant's  notice and  ending  with  the  court's  hearing,            because  the delay was  due solely to  the court's scheduling            requirements.  See id.                           ___ ___                      We remain unpersuaded.   A  defendant's request  to            change  his plea  clearly constitutes  a  pretrial motion,  a            motion  which automatically  triggers  an exclusion  of time.            See  18  U.S.C.     3161(h)(1)(F)  (1985).    The  weight  of            ___            authority is to this effect.  In Sposito, Jenkins, Henderson,                                             _______  _______  _________            and  other cases,  courts  have agreed  that the  entire time            between the  filing of a  pretrial motion and the  hearing on            that motion  is excludable  from the  STA's seventy-day  time            limit.   See, e.g., Henderson,  476 U.S. at  326-27; Sposito,                     _________  _________                        _______            106 F.3d at 1044;  Jenkins, 92 F.3d at 440.   Hence, the days                               _______            between  December 1, 1995, the date Esquilin filed his motion            for  change  of plea,  and  January  22,  1996, the  date  of            Esquilin's actual change of plea hearing, are all excludable.                      On January 18,  1996, Santiago filed his  motion to            dismiss  the  superseding  indictment for  lack  of  a speedy                                         -21-                                          21            trial.  The  district court denied the motion  on January 23,            1996.6    Both   parties  agree  that  these   six  days  are            excludable.   See 18 U.S.C.   3161(h)(1)(F)  (1985).  January                          ___            23,  1996 was the first  day of jury  trial, bringing the STA            clock  to a  stop  in the  instant  case.   See  18 U.S.C.                                                           ___            3161(c)(1) (1985).                        We  conclude  that only  forty-nine  non-excludable            days ran off  the STA clock before the  commencement of trial            and  that,  therefore, no  violation of  Santiago's statutory            right to a speedy trial occurred.                 2. The Constitutional Right                    ________________________                      Santiago  insists  that  the  delay  in  his  being            brought  to  trial  violated his  constitutional  right  to a            speedy trial.  We find no merit in this contention.                        The   Sixth   Amendment   to   the  United   States            Constitution  provides,  in pertinent  part,  that  "[i]n all            criminal prosecutions, the accused shall enjoy the right to a            speedy and public  trial."  U.S.  Const. amend. VI  (emphasis            ______            added).    This  right attaches  upon  arrest  or indictment,            whichever occurs first.  See  United States v. MacDonald, 456                                     ___  _____________    _________            U.S. 1, 6-7  (1981); United States v. Mala, 7 F.3d 1058, 1061                                 _____________    ____                                            ____________________            6.   During trial,  the district court ruled  that Santiago's            motion  to dismiss  had  been "untimely",  since it  had been            filed just  prior to  trial.  We  accept Santiago's  argument            that untimeliness  would not,  on this  record, constitute  a            valid independent ground for denying the motion to dismiss.                                                       -22-                                          22            (1st Cir.  1993); United States  v. Colombo, 852 F.2d  19, 23                              _____________     _______            (1st Cir. 1988).   For Sixth Amendment  purposes, Santiago is            entitled to a computation of  time from October 20, 1994, the            date of his arrest.                      That there was no violation of the STA in this case            would  not  necessarily  preclude  a  court  from  finding  a            violation of  Santiago's Sixth  Amendment right  to a  speedy            trial.  See United States v. Koller, 956 F.2d 1408, 1413 (7th                    ___ _____________    ______            Cir.  1992).   Section  3173  of the  STA  states that  "[n]o            provision of  this chapter shall  be interpreted as a  bar to            any claim of denial of  speedy trial as required by amendment            VI of the  Constitution."  18 U.S.C.    3173 (1985); see also                                                                 ___ ____            United  States v. Mitchell,  723 F.2d  1040,  1049 (1st  Cir.            ______________    ________            1983).  "It would be, however, 'an unusual  case in which the            time  limits of  the  [STA]  have been  met  but the  [S]ixth            [A]mendment  right  to  speedy  trial  has  been  violated.'"            Mitchell, 723 F.2d at  1049 (quoting United States v.  Nance,            ________                             _____________     _____            666  F.2d 353,  360 (9th Cir.  1982)).  This  court reviews a            district court's speedy  trial determination under  the Sixth            Amendment for abuse of discretion.   See Colombo, 852 F.2d at                                                 ___ _______            21.                      In  Barker v. Wingo,  407 U.S. 514,  530-33 (1972),                          ______    _____            the Supreme Court  established a four-part balancing  test to            be used  in determining whether a defendant's Sixth Amendment            right to a speedy trial has been violated.   See, e.g., Mala,                                                         _________  ____                                         -23-                                          23            7 F.3d  at 1061.  A court should  consider: (1) the length of            the  delay;  (2)  the  reason(s)   for  the  delay;  (3)  the            defendant's assertion of his speedy trial right; and (4)  the            prejudice to the  defendant caused by the delay.   See, e.g.,                                                               _________            id. (citing  to Barker,  407 U.S.  at 530).   "None  of these            ___             ______            factors is 'either a necessary or sufficient condition to the            finding  of  a  deprivation  of the  right  of  speedy trial.            Rather,  they  are  related factors  and  must  be considered            together  with such other circumstances as may be relevant.'"            United States  v. Henson, 945  F.2d 430, 437 (1st  Cir. 1991)            _____________     ______            (quoting Barker, 407 U.S. at 533).                     ______                      The  first factor,  the length  of  the delay,  was            identified by the Supreme Court as:                      to  some extent  a triggering  mechanism.                      Until  there  is   some  delay  which  is                      presumptively  prejudicial,  there  is no                      necessity  for  inquiry  into  the  other                      factors   that  go   into  the   balance.                      Nevertheless, because of  the imprecision                      of the right to speedy trial,  the length                      of  delay  that   will  provoke  such  an                      inquiry is necessarily dependent upon the                      peculiar circumstances of the case.   For                      example, the delay  that can be tolerated                      for an ordinary street crime is less than                      for a serious, complex conspiracy charge.            Barker,  407 U.S.  at 530-31;  see also  Koller, 956  F.2d at            ______                         ___ ____  ______            1413.  The Supreme Court has said that "the lower courts have            generally   found    postaccusation   delay    'presumptively            prejudicial' at least as it approaches one year."  Doggett v.                                                               _______            United  States, 505  U.S.  647,  652  n.1  (1992)  (citations            ______________                                         -24-                                          24            omitted); see also  United States v. King, 909  F. Supp. 369,                      ___ ____  _____________    ____            372 (E.D. Va.  1995).  We shall assume,  under the foregoing,            that the fifteen month delay in this case was  "presumptively            prejudicial" so as to trigger further inquiry as to Santiago,            see, e.g.,  Koller, 956 F.2d  at 1414 (holding that  an eight            _________   ______            and  one-half month  delay  was  enough  to  warrant  further            inquiry); Colombo, 852 F.2d at 24 (holding that a twenty-four                      _______            month  period   was  long   enough  to     be   presumptively            prejudicial);  King,  909 F.  Supp.  at 372  (holding  that a                           ____            thirty-one month delay  was sufficient to trigger  the Barker                                                                   ______            test).   Still,  we hold  that the  cumulative effect  of the            pretrial  delay, viewed  under all the  factors set  forth in            Barker, falls  far short  of establishing  a Sixth  Amendment            ______            violation.                      As  noted,  the length  of  the delay  is  both the            trigger for  the Barker  analysis and one  of the  factors in                             ______            that  analysis.   See  Colombo, 852  F.2d  at  24.   Once  an                              ___  _______            examination of  the  Sixth Amendment claim is  triggered, the            weight  given in  the analysis  to  the length  of the  delay            depends upon the  extent to which the delay  exceeds the bare            minimum considered presumptively  prejudicial.  See  Doggett,                                                            ___  _______            505 U.S. at 652; King, 909 F. Supp. at 373.   Santiago waited                             ____            over fifteen  months for the  commencement of  trial in  this            case, a case more complicated than "an ordinary street crime"            but  less so  than "a  serious,  complex conspiracy  charge."                                         -25-                                          25            Barker, 407 U.S. at 531.   Arguably, therefore, the period of            ______            the delay was long enough to tip the scales slightly in favor            of Santiago's instant claim.                      The second factor, the reason(s) for the delay, has            been called,  "the focal inquiry."   United States  v. Sears,                                                 _____________     ______            Roebuck &  Co., 877 F.2d  734, 739 (9th Cir.  1989) (citation            ______________            omitted).  As with the first factor,  "[h]ere, too, different            weights  should be assigned  to different reasons."   Barker,                                                                  ______            407 U.S. at 531.   Santiago argues that the chief contributor            to  the  delay was  the  government's  lack  of diligence  in            advancing the  transfer proceedings, and  that the government            used this  period of time  to further its case  by debriefing            minors  Esquilin  and  Ramos, both  of  whom  were eventually            called  to provide  testimony against  him.   We find  in the            record  below, however, scant  indication that the  length of            the transfer proceedings was attributable to the government's            misconduct or negligence.   See Henson, 945 F.2d  at 437 n.7;                                        ___ ______            Colombo, 852 F.2d  at 25.   The rest of  the delay in  trying            _______            Santiago   resulted  mainly  from   his  own  motion   for  a            continuance  of the trial  and his codefendants'  motions for            changes of  pleas.  Santiago never sought  relief from delays            occasioned by his codefendants by requesting a severance.  We            conclude that  the various delays  were each justified  by "a            valid reason."  Barker, 407 U.S. at 531.                            ______                                         -26-                                          26                      The third factor, the  defendant's assertion of his            speedy trial right, "is entitled to strong evidentiary weight            in determining whether the defendant is being deprived of the            right."   Barker, 407 U.S.  at 531-32; see also  Colombo, 852                      ______                       ___ ____  _______            F.2d   at 26.   The failure to  assert the right,  the Barker                                                                   ______            Court noted, "will make it difficult for a defendant to prove            that he was denied a speedy trial."  Barker, 407 U.S. at 532;                                                 ______            see also  Colombo 852 F.2d  at 26.   A defendant  should give            ___ ____  _______            some indication, prior  to his  assertion of  a speedy  trial            violation, that he  wishes to proceed to trial.   See Henson,                                                              ___ ______            945 F.2d at  438-39; Sears, Roebuck &  Co., 877 F.2d at  740;                                 _____________________            Colombo, 852 F.2d at 26.            _______                      Santiago did not demand a  speedy trial at any time            prior to  his motion to  dismiss, which he  filed immediately            prior to the commencement of his trial.  See United States v.                                                     ___ _____________            Vachon,  869  F.2d  653,  657  (1st  Cir. 1989)  (finding  no            ______            violation  of any  constitutional right  in a case  where the            defendant did not raise the constitutional speedy trial issue            until  two days  before  trial).   The  record  in this  case            suggests  that  Santiago  only got  around  to  demanding his            speedy trial right when "it 'became a possible means by which            to obtain dismissal of the  charges against [him].'"  Henson,                                                                  ______            945 F.2d at  439 (quoting Colombo, 852 F.2d at 26).  Hence in                                      _______            respect to the  third factor, Santiago's failure to request a            speedy trial earlier than he did weighs against him.                                         -27-                                          27                      The fourth, and  final, factor -- the  prejudice to            the defendant caused  by the delay -- "should  be assessed in            the  light of  the interests of  defendants which  the speedy            trial  right  was  designed  to protect.    Th[e]  Court  has            identified  three such  interests: (i) to  prevent oppressive            pretrial incarceration;  (ii) to minimize anxiety and concern            of the accused;  and (iii) to limit the  possibility that the            defense will be impaired."  Barker, 407 U.S. at 532 (footnote                                        ______            omitted);  see also  Koller, 956  F.2d at  1414.   The Barker                       ___ ____  ______                            ______            Court  went  on  to  discuss  the  disadvantages  of  lengthy            pretrial  incarceration for the accused who cannot obtain his            release.  See Barker,  407 U.S. at  532-33.  We shall  assume                      ___ ______            that  many  of  those   disadvantages  were  experienced   by            Santiago,  who  was  subjected  to  over  fifteen  months  of            pretrial  imprisonment without  bail.   However, the  fifteen            months of pretrial  incarceration by itself was  insufficient            to  establish a  constitutional  level  of  prejudice.    Cf.                                                                      __            Barker,  407  U.S. at  534  (finding that  the  prejudice was            ______            minimal in a case in which  the defendant spent ten months in            jail before  trial); Koller,  956 F.2d  at 1414  ("Koller did                                 ______            spend the entire eight and  one-half months of delay in jail,            but  in   Barker  the   Court  found   that  ten   months  of                      ______            incarceration  prior to trial was not  sufficient to raise to            the level of prejudice."  (citation omitted)).                                           -28-                                          28                      In  respect to  Santiago's anxiety  and concern  in            awaiting  trial, we  do not  weigh  this heavily,  especially            where Santiago took  no early action  to expedite his  trial,            either  by  demanding  an  earlier  trial  or  by  seeking  a            severance from the minor codefendants.  "While 'this  type of            prejudice is  not to  be brushed  off lightly,'  considerable            anxiety  normally  attends  the initiation  and  pendency  of            criminal  charges;   hence   only   'undue   pressures'   are            considered."  Henson,  945 F.2d at  438 (citing Colombo,  852                          ______                            _______            F.2d   at  25   (stressing  that   "the   standard  here   is            minimization, not  necessarily  elimination  of  the  natural            consequences of an indictment")).                        "Among the three interests safeguarded by the right            to  speedy trial as guaranteed under the [S]ixth [A]mendment,            'the  most serious is  [protection against impairment  of the            defense] because the  inability of a defendant  adequately to            prepare his case skews  the fairness of the entire  system.'"            Barker, 407  U.S. at  532 (citations omitted).   There  is no            ______            indication  here that the period of pretrial delay interfered            in any  way with  Santiago's ability  to present  evidence or            obtain the testimony of witnesses,  or that it had any impact            on the  fairness of his trial.  See  Colombo, 852 F.2d at 25-                                            ___  _______            26.   Accordingly, this paramount  interest in no  way favors            Santiago's claim of constitutional impairment.                                         -29-                                          29                      We conclude, applying Barker's balancing test, that                                            ______            Santiago's constitutional  right to  a speedy  trial was  not            violated.            B.   Santiago's Due Process Right to Present Witnesses in His                 Santiago's Due Process Right to Present Witnesses in His                 Own Defense                 Own Defense                      Finally,  Santiago   contends  that   the  district            judge's  strongly  worded  advice  to  defense witness  Wanda            Caceres  concerning  her  right  not  to  incriminate herself            exerted  such influence  on her  so  as to  prevent her  from            freely choosing  whether to testify  or not, in  violation of            Santiago's due process  right to present witnesses in his own            defense.   See Washington  v. Texas, 388  U.S. 14,  19 (1967)                       ___ __________     _____            ("Just  as  an  accused   has  the  right  to  confront   the            prosecution's witnesses for the purpose of  challenging their            testimony, he has  the right to present his  own witnesses to            establish a defense.  This  right is a fundamental element of            due process of law.").                      On January 30, 1996, Santiago called his stepmother            Wanda Caceres  to the witness  stand.  Before she  could take            the  stand, however,  the district  court warned  her  of her            right  to refuse to  testify because of  the possibility that            she might incriminate herself.  The court stated, inter alia:                      -- Caceres, I  want to advise you  -- and                      listen to  me carefully because  this may                      have  serious  --   I  would  say  severe                      consequences for  you.   Listen to  this,                      what I'm going to tell you.                                         -30-                                          30                           If you're going  to testify what Mr.                      Arroyo said  you would,  then  I have  to                      warn you  that you will  be incriminating                      yourself  and you  will be  violating two                      statutes: One will be accessory after the                      fact, and I'm going  to read to you.   It                      says:  Whoever, knowing  that an  offense                      against  the  U.S.  has  been  committed,                      receives, relieves,  comforts or  assists                      the  offender  in   order  to  hinder  or                      prevent   his   apprehension,   trial  or                      punishment  is  an  accessory  after  the                      fact.                           And listen to this carefully, listen                      to the penalty.  I'm going to read to you                      the pertinent  provision.   In this  case                      the maximum possible penalty is life  for                      the defendant, life imprisonment, and the                      . . . statute  says  that whoever  is  an                      accessory after the  fact exposes himself                      or herself  as follows: If  the principal                      is  punishable  by life  imprisonment  or                      death, the accessory -- that means you --                      shall  be  imprisoned  not more  than  15                      years.                           . . . .                            So that's  one of the  offenses that                      you will be committing if  you testify --                      if  -- I mean that can be charged against                      you by incriminating yourself.                           Second, there's another  offense.  A                      mis -- there's -- there's a misprision of                      a felony,  and I'm  going to  read it  to                      you.   Whoever, having  knowledge of  the                      actual commission  of a  felony, conceals                      and does  not  as soon  as possible  make                      known  the same  to some  judge or  other                      person  in  civil or  military  authority                      under  the United  States, shall  be fine                      [sic] under this title  or imprisoned not                      more  than three years or both.  It seems                      to  me that it  is my duty  as a judicial                      officer to advise you, to warn  you, that                      if  you  testify  pursuant  to  what  Mr.                      Arroyo said -- and that's your decision -                      -  you  will  be  incriminating  yourself                                         -31-                                          31                      under  oath in a  record, and you  may be                      exposed to 15  years in prison up  to the                      maximum and  also three  years but  [sic]                      misprision  of a  felony  which might  be                      served  concurrently.     But  with  your                      testimony  on the  record,  that will  be                      enough  to take  it to  a  grand jury  to                      obtain an indictment against you, and you                      will be a  defendant in this court.   And                      under the sentencing  guidelines you will                      most probably have to do time, serve time                      in  jail.   And there  is  no parole,  no                      probation.                           . . . .                           So  I want to warn you again for the                      last time so that if you do this you will                      do this knowingly and willfully and after                      having been  advised about  your --  your                      right  not   to  be   incriminated  [sic]                      against yourself,  but of course  that is                      your decision.  My duty is to advise you,                      to forewarn you about it.  If you want to                      talk to your  lawyer, I will give  you an                      opportunity to talk to him."                           . . . .                           But  --  let me  put  on the  record                      again it is  your own decision.   I'm not                      coercing you  into not  testifying.   I'm                      telling you  may  [sic]  testify  if  you                      wish.   If  you  wish  to testify  that's                      fine.   You  just  go ahead  and testify.                      I'm simply  telling you  the consequences                      that  might ensue,  and  I underline  the                      word "might," not that they "shall."                      After  giving this warning,  the court appointed an            assistant federal public defender to advise Caceres regarding            her right not to incriminate herself.  Caceres consulted with            this lawyer and then decided not to testify for Santiago.                      Santiago insists that, although  the court had wide            discretion to warn a witness of the constitutional right  not                                         -32-                                          32            to  testify, it went  too far in  this instance.   See United                                                               ___ ______            States v. Arthur, 949 F.2d  211, 215-16 (6th Cir. 1991). ("An            ______    ______            abuse  of  that  discretion  can  occur,  however,  when  the            district court actively  encourages a witness not  to testify            or badgers a witness into remaining silent.")                       Santiago argues that Caceres's testimony would have            supported the  defense theory that  he was not a  knowing and            willing participant in  the criminal venture, but  rather was            "merely present"  at the  scene of the  crime.   The witness,            according   to   Santiago,    was   privy   to   post-offense            conversations  between the  codefendants,  and was  entrusted            with the  purchase of airline  tickets for them to  leave the            island.  Caceres's testimony, Santiago says, would have shown            that  both Esquilin  and  Ramos had  admitted  that they  had            participated  in the offense, and had indicated that Santiago            was not a participant.                      In  Webb v.  Texas,  409 U.S.  95,  98 (1972)  (per                          ____     _____            curiam), the Supreme Court said, respecting a judge's warning            to a witness not to perjure himself, that:                       in light  of the great  disparity between                      the  posture of  the presiding  judge and                      that of a witness in these circumstances,                      the  unnecessarily strong  terms used  by                      the  judge could  well have  exerted such                      duress  on  the   witness'  mind  as   to                      preclude  him  from  making  a  free  and                      voluntary  choice   whether  or   not  to                      testify.                                         -33-                                          33                      Santiago likens the judge's  comments here to those            in Webb, pointing to  the fact that Caceres had come to court               ____            to testify on  the defendant's behalf, and declined  to do so            only  after the  judge's  lengthy and  allegedly intimidating            warning.  The district court, Santiago concludes, should have            put the more  immediate interests of  the defendant on  trial            and those of the general  public in the fullest disclosure of            the   relevant  evidence   before  the   protection  of   the            volunteering witness in this case.                      It  is  true  that the  court's  admonition  to the            witness  here was  relatively  detailed and  strongly stated.            However, the court was careful to emphasize that the  witness            could testify if she  wished, and we do not believe that what            was  said came  even close  to exerting  "such duress  on the            witness's mind  as to preclude  [her] from making a  free and            voluntary choice whether or not to testify."  Id.                                                          ___                      In Webb, the trial judge apparently  suspected that                         ____            a prison inmate called  as defendant's sole witness  was bent            on perjury.   The judge admonished  him that if he  lied, the            court would "personally see that  your case goes to the grand            jury and you will be  indicted for perjury and the likelihood            [sic] is that you would get convicted  of perjury and that it                                         -34-                                          34            would be stacked on to what you already got."7  Id. at 95-96.                                                            ___            No such threat, or threat of any type, was made here.                      Rather the court sought to advise  this uncounseled            witness   of  her   constitutional   right  to   avoid  self-            incrimination, having learned  from defense counsel  that she            proposed  to  give  testimony of  an  obviously incriminating            nature.  A  further difference between this case  and Webb is                                                                  ____            that,  here, the court  ultimately provided the  witness with            counsel with whom  she conferred privately before  making her                                            ____________________            7.   The  trial  judge  admonished  the  defense  witness  as            follows:                 Now you have been called  down as a witness in this                 case by the  Defendant.  It is the  Court's duty to                 admonish you that  you don't have to  testify, that                 anything you say can and will  be used against you.                 If  you take the witness stand  and lie under oath,                 the Court will  personally see that your  case goes                 to  the grand  jury and  you will  be  indicted for                 perjury  and the likelihood [sic] is that you would                 get  convicted  of  perjury and  that  it  would be                 stacked onto what you have already got, so that  is                 the matter  you have got  to make up your  mind on.                 If you  get on  the witness stand  and lied,  it is                 probably going to  mean several years and  at least                 more  time that you are going to have to serve.  It                 will  also be held  against yo in  the penitentiary                 when  you're up for parole  and the Court wants you                 to thoroughly understand the chances you're  taking                 by getting on that witness  stand under oath.   You                 may tell the truth and if yo do, that is all right,                 but if  you lie you can get into real trouble.  The                 court  wants  you to  know  that.   You  don't  owe                 anybody anything to   testify and  it must be  done                 freely  and  voluntarily  and  with  the   thorough                 understanding  that  you know  the  hazard  you are                 taking.            Webb, 409 U.S. at 95-96 (internal quotation marks omitted).             ____                                         -35-                                          35            decision whether to testify.  The provision of counsel helped            assure that Caceres's  decision was made voluntarily,  in her            own  interest,  rather  than being  the  product  of judicial            coercion.8   The  court  took pains  here  to emphasize  that            Caceres could testify if she wished.  The Webb judge's sparse                                                      ____            comments  along similar  lines were  weakly  stated and  were            overshadowed  by the court's  threats to proceed  against the            witness for perjury if he took the stand.                      Santiago  also  relies  upon  the  Sixth  Circuit's            Arthur decision.   Unlike  Webb, Arthur  involved a  judicial            ______                     ____  ______            warning  to a  witness  about  Fifth  Amendment  rights.  The                                            ____________________            8.   After  Caceres received  advise  from Assistant  Federal            Public Defender Carlos  Vazquez, the following  exchange took            place:                 "MR.  VAZQUEZ: Your Honor, we have  talked both with Mr.                 Arroyo and the witness in this case.  We have once again                 explained to her her rights and the possible or probable                 consequences of testifying or not testifying.  And after                 this discussion this  witness has opted not  to continue                 testifying in this case.                 THE COURT: She  will not testify?   She hasn't testified                 at all.                 MR. VAZQUEZ: Then she will not testify.                  THE COURT: Very  well.  Let  me ask  you, did you  heard                 [sic] counsel, what he said?                   WANDA CACERES: Yes.                 THE COURT: And what is your decision?                 WANDA CACERES: Not to testify.                 THE COURT:  Very well.   You're excused.   You  may step                 down."                                           -36-                                          36            witness,  however, had  his own  attorney  and stated  to the            district court,  after being advised  of his rights,  that he            wanted to testify  in order to clear the  defendant.  Arthur,                                                                  ______            949  F.2d  at 214-15.    Instead  of acquiescing,  the  court            continued to warn the witness of the adverse  consequences of            testifying, finally saying,  "I think it's  not in your  best            interest to  testify  because anything  you say  may be  held            against  you  in  another prosecution  against  you  for bank            robbery, could and  would be used  against you."  Id.   After                                                              ___            that, the witness changed his mind about testifying.                        The Sixth Circuit, citing Webb, held that it was an                                                ____            abuse of  discretion for  a  judge to  repeatedly inform  the            counseled  witness,  after  the witness  had  stated  that he            wanted to testify following an initial warning, of  his right            to  remain  silent  and  that  to  testify  was  against  his            interest.  Id. at 216.                       ___                      In the  present case,  there was  no repetition  of            warnings  after  an  informed announcement  of  an  intent to            testify, nor did  the court keep insisting on  a decision not            to  testify, as  was done in  Arthur.   To the  contrary, the                                          ______            district judge made the following statement:                           But  I -- let  me put on  the record                      again it is  your own decision.   I'm not                      coercing you  into not  testifying.   I'm                      telling  you may testify if you wish.  If                      you wish  to  testify that's  fine.   You                      just go  ahead and  testify.   I'm simply                      telling you  the consequences  that might                                         -37-                                          37                      ensure, and I underline the word 'might,'                      not that they 'shall.'                      We  conclude that Caceres was not "badgered" by the            court  into declining  to  testify.    Rather,  the  district            judge's  warnings were  meant to  strengthen  rather than  to            weaken the voluntariness of Caceres's choice by informing her            of the  risks inherent in  her proposed testimony and  of her            constitutional right not to testify.                        In  doing this,  the judge might  understandably be            concerned  lest   the  uncounseled  Caceres   be  manipulated            unfairly  by  defendant,  to   her  own  great  disadvantage.            Providing Caceres with access to a public defender before she            took the stand further  assured that her decision whether  or            not to  testify would be  an informed  and voluntary one.   A            judge  is entitled  to make  sure  a witness  understands her            Fifth Amendment rights.   While different trial  judges might            handle the  matter differently, we see no  impropriety in the            court's   conduct,  and  no  duress  precluding  a  free  and            voluntary  choice.   To  the contrary,  the  court sought  to            facilitate the  ability of  the witness  to make an  informed            choice free from coercion by the defendant or anyone else.                      We conclude  there was no error in the character of            the warnings given  to Caceres by the district  court in this            case.   While the judge's  language was forceful, he  made it            clear that  she was free to  testify and we may  presume that            her provided counsel confirmed that right.  We conclude  that                                         -38-                                          38            Santiago's  due process right to present witnesses in his own            defense was not  compromised by Caceres's voluntary  decision            not to take the stand,  and that the court's handling of  the            matter was within its discretion.                      Affirmed.                      ________                                         -39-                                          39
