                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 16, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-1323
                                                  (D.C. No. 1:15-CR-00149-RM-6)
CRISTINA PORTILLOS,                                          (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, McKAY, and McHUGH, Circuit Judges.
                  _________________________________

      Defendant-Appellant Cristina Portillos was convicted of conspiracy to file

false claims for a refund, 18 U.S.C. § 286 (Count 1), and aiding and abetting the

filing of false claims for refunds, 18 U.S.C. §§ 2(a), 287 (Counts 17 and 30). She

was sentenced to 21 months on each count, to run concurrently, as well as three

years’ supervised release on each count, also to run concurrently. On appeal, Ms.

Portillos challenges the district court’s denial of discovery and an evidentiary hearing

on her selective and vindictive prosecution claims, and she further claims a violation

of her due process right to call witnesses in her defense. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         Background

      Ms. Portillos and seven other defendants were indicted based on their

involvement in an income tax fraud scheme in which prisoners would obtain

identifying information from other inmates and inmates’ relatives to generate false

tax returns. 1 R. 40–60. Several nonincarcerated members of the conspiracy

provided addresses for the receipt of refund checks; the refund checks were then

cashed and distributed among the conspirators. Id. at 41–45. Ms. Portillos allowed

her address to be used on several of the false tax returns and forwarded the refund

checks she received to a coconspirator. Id. at 43. After a jury trial, she was

convicted for her involvement in the scheme. Id. at 152.

      Prior to trial, Ms. Portillos filed a motion alleging selective and vindictive

prosecution and requesting discovery and an evidentiary hearing on her claims. 2 R.

22. Her selective prosecution claim focused on four unindicted women whose

addresses were also used for some of the false returns. Id. at 22–44. Ms. Portillos

(who is Mexican American) alleged that these four women (who are white) were

similarly involved in the tax fraud scheme but were not indicted, evincing a racially

motivated prosecution. Id. at 25, 44. In her vindictive prosecution claim, Ms.

Portillos alleged that her prosecution was in retaliation for her refusal to cooperate

with the government during its investigation. Id. at 51–52. The district court denied

Ms. Portillos’s motion, finding that differences in the evidence explained the decision

to indict Ms. Portillos (and not the other women) and that no evidence suggested that



                                            2
the government prosecuted Ms. Portillos merely for her refusal to cooperate. 3 R.

178–80. Accordingly, neither discovery nor an evidentiary hearing was ordered.

      After the district court denied her motion, Ms. Portillos informed the

government that she intended to call the four unindicted women as defense witnesses.

1 R. 81. The government requested that the court appoint counsel for each witness,

reasoning that the witnesses might either incriminate themselves or subject

themselves to perjury charges during questioning about their involvement in the tax

fraud scheme. Id. at 81–83. The district court denied the request but noted that the

government could interview the witnesses and had the right to advise them of their

right to an attorney and warn them about the penalties for perjury. Id. at 124, 130.

      An IRS agent interviewed the four potential witnesses, telling each that the

court had authorized the interview and that Ms. Portillos was suggesting that they

might be involved in the tax fraud scheme. 1 Aplt. App. 152, 155, 165, 170, 182,

185, 196, 203. The agent also informed each witness of her right to testify, of her

right to counsel, and of the penalties for perjury. Id. at 155–56, 160, 170–71, 185–

87, 202–05. After the interviews, two of the witnesses requested and received court-

appointed counsel. 1 R. 99.

      Ms. Portillos then filed a motion alleging that the IRS agent had interfered

with the witnesses’ decisions to testify, thus infringing on Ms. Portillos’s right to a

fair trial, id. at 91–92, and she moved to dismiss the indictment against her, 3 R. 237.

After listening to recordings of the interviews, the court denied the motion. Id. at



                                            3
247, 249. It held that the interviews did not have the effect of chilling the witnesses,

finding no suggestion that the witnesses were discouraged from testifying. Id. at 247.

      At trial, one of the witnesses who received appointed counsel invoked her

Fifth Amendment privilege and was excused from testifying. 1 R. 150. None of the

other unindicted women did the same.1 See id. Of those three, Ms. Portillos called

only one to testify.2 See Courtroom Min., ECF No. 439.



                                            Discussion

      On appeal, Ms. Portillos challenges the district court’s denial of her motion for

discovery and an evidentiary hearing on her selective and vindictive prosecution

claims. She also challenges the district court’s denial of her motion alleging witness

interference and a denial of due process.

A.    Selective Prosecution

      A district court’s grant or denial of a defendant’s selective prosecution

discovery motion is reviewed de novo. United States v. Deberry, 430 F.3d 1294,

1298 (10th Cir. 2005). Defendants seeking discovery on a selective prosecution

claim “must produce ‘some evidence’ of both discriminatory effect and

discriminatory intent.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th

Cir. 2006) (quoting United States v. Armstrong, 517 U.S. 456, 470 (1996)). “To


      1
         One of the unindicted women initially indicated that she would also invoke
her Fifth Amendment privilege but eventually decided not to. 1 R. 150.
       2
         This witness was appointed counsel by the court in connection with her
testimony at trial. Min. Order, ECF No. 455.
                                             4
establish a discriminatory effect in a race case, the claimant must show that similarly

situated individuals of a different race were not prosecuted.” Armstrong, 517 U.S. at

465. A claimant must also show “that discriminatory intent was a ‘motivating factor

in the decision’ to enforce the criminal law against the defendant.” Alcaraz-Arellano,

441 F.3d at 1264 (quoting Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157,

1168 (10th Cir. 2003)). “Discriminatory intent can be shown by either direct or

circumstantial evidence.” Id.

      Even if Ms. Portillos were able to show that the four unindicted women were

similarly situated to her (which the government contends she has not done), she has

made no showing of discriminatory intent. As proof of discriminatory intent, she

primarily relies on a comment made by the district court judge: “There is something

there from which one could draw at least an inference of some kind of a racial

decision.” 3 R. 175. That comment, however, was made in reference to whether Ms.

Portillos had shown that similarly situated individuals of a different race were not

prosecuted, which goes to discriminatory effect. See id. at 174–75. It does not

address discriminatory intent.

      Ms. Portillos claims that discriminatory intent can be inferred from

discriminatory effect. Although intent can be shown by circumstantial evidence, the

evidence here is not “a clear pattern, unexplainable on grounds other than race.”

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

And Ms. Portillos cannot rely solely on evidence of discriminatory effect when there

is direct evidence of the motivation for prosecuting her. See Alcaraz-Arellano, 441

                                           5
F.3d at 1265. The district court found that the government prosecuted Ms. Portillos

because it had additional evidence of her guilt. 3 R. 175–78. Consequently, Ms.

Portillos cannot establish discriminatory intent by showing discriminatory effect

alone.

         Ms. Portillos further attempts to show discriminatory intent by arguing that

although the government claimed it did not have enough evidence to obtain

convictions, it had impeachment evidence against the unindicted women. In addition

to this not necessarily being an inconsistent position, it does not address

discriminatory intent. To be inconsistent, the impeachment evidence would have to

be enough to indict the women. If this were so, it could show that the women were

similarly situated to Ms. Portillos, which could support discriminatory effect, not

intent. As Ms. Portillos did not produce any evidence of discriminatory intent, she

was not entitled to discovery or an evidentiary hearing, and we need not address the

discriminatory effect element of her selective prosecution claim. See Alcaraz-

Arellano, 441 F.3d at 1266 (“Having held that [the defendant] failed to present

evidence satisfying Armstrong’s discriminatory-intent prong, we need not address

whether the evidence he presented satisfied the discriminatory-effect prong.”).

B.       Vindictive Prosecution

         “This court reviews the district court’s factual findings on prosecutorial

vindictiveness for clear error, and reviews de novo its legal conclusions.” United

States v. Sarracino, 340 F.3d 1148, 1177 (10th Cir. 2003) (emphasis omitted). To

establish a claim for vindictive prosecution, the defendant must prove “either (1)

                                             6
actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give

rise to a presumption of vindictiveness.” United States v. Raymer, 941 F.2d 1031,

1040 (10th Cir. 1991). “Thereafter, the burden shifts to the prosecution to justify its

decision with legitimate, articulable, objective reasons.” Id. “In determining

whether the government has engaged in prosecutorial vindictiveness, this court must

determine whether the prosecution engaged in conduct that would not have occurred

but for the prosecution’s desire to punish the defendant for exercising a specific legal

right.” Sarracino, 340 F.3d at 1178. Vindictiveness may not be presumed from the

mere appearance of vindictive motives, id. at 1177–78, and “the Supreme Court has

generally rejected the presumption of prosecutorial vindictiveness in the pretrial

context,” United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997).

      Ms. Portillos claims that she was prosecuted in retaliation for exercising her

Fifth Amendment right against self-incrimination by not cooperating with the

government during its investigation of the tax fraud scheme. However, the district

court made a factual finding that the decision to prosecute was made based on the

evidence, not for refusing to cooperate, 3 R. 179–80, and Ms. Portillos has not

explained how that finding constituted clear error. Moreover, even if Ms. Portillos

were able to meet her burden of proving vindictiveness, the government has justified

its prosecutorial decision with evidence of Ms. Portillos’s guilt. See United States v.

Peters, 625 F.2d 366, 369 (10th Cir. 1980) (holding that a defendant’s refusal to

cooperate during an investigation was insufficient to establish vindictiveness where

there was probable cause to charge the defendant). Given probable cause, the

                                            7
decision to prosecute is a matter of discretion, see Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978), and no evidence suggests that Ms. Portillos would not have been

prosecuted had she cooperated. Consequently, the district court did not err when it

denied Ms. Portillos discovery and an evidentiary hearing on her vindictive

prosecution claim.

C.    Witness Interference

      “We review de novo a defendant’s claim that the prosecution and district court

deprived the defendant of the defendant’s constitutional right to present a defense by

using undue influence to dissuade witnesses from testifying.” United States v. Pablo,

696 F.3d 1280, 1295 (10th Cir. 2012). “A criminal defendant’s right to present a

defense is essential to a fair trial.” United States v. Serrano, 406 F.3d 1208, 1214

(10th Cir. 2005). That right, “however, is not absolute”; courts have held that “a

defendant’s right to present a defense does not include the right to compel a witness

to waive his Fifth Amendment privilege.” Id. at 1215. “That said, the government

cannot substantially interfere with a defense witness’s decision to testify.” Id. For

example, in Webb v. Texas, 409 U.S. 95 (1972), the Supreme Court held that a

defendant’s due process rights were violated where a judge “gratuitously singled

out . . . one witness for a lengthy admonition on the dangers of perjury.” 409 U.S. at

97. There, the Court found that “the judge’s threatening remarks, directed only at the

single witness for the defense, effectively drove that witness off the stand, and thus

deprived the petitioner of due process of law.” Id. at 98.



                                           8
      Webb’s due process analysis requires a case-by-case inquiry regarding

“whether the government actor’s interference with a witness’s decision to testify was

‘substantial.’” Serrano, 406 F.3d at 1216 (quoting United States v. Crawford, 707

F.2d 447, 449 (10th Cir. 1983)). “Interference is substantial when the government

actor actively discourages a witness from testifying through threats of prosecution,

intimidation, or coercive badgering.” Id. “The potential for unconstitutional

coercion by a government actor significantly diminishes, however, if a defendant’s

witness elects not to testify after consulting an independent attorney.” Id. (emphasis

omitted).

      While the district court did not approve of the IRS agent telling the witnesses

that she had court authorization to talk to them, it denied Ms. Portillos’s motion to

dismiss because there was never any suggestion that a witness should not testify. 3

R. 245, 247, 249. The court found the interviews unremarkable and not intimidating

— describing them as “low key” — and ruled that informing the witnesses of their

right to counsel, of their right not to incriminate themselves, and of the penalties for

perjury did not have the effect of chilling the witnesses. Id. at 247–48. The district

court’s assessment of the interviews compels the conclusion that they were not

coercive. Cf. Serrano, 406 F.3d at 1212 n.1 (10th Cir. 2005) (rejecting the notion

that a prosecutor raised witness self-incrimination solely to gain tactical advantage at

trial, noting that prosecutors have an ethical obligation to advise unrepresented

witnesses of their possible need for counsel and of their right against self-

incrimination). Ultimately, only one of the witnesses invoked her Fifth Amendment

                                            9
privilege at trial, and that decision was made after consulting an independent

attorney, which weighs against a finding of coercion. See id. at 1216.

       Furthermore, a defendant must make a plausible showing that a witness’s

testimony would have been material and favorable to his or her defense, and not

merely cumulative to other witnesses’ testimony, before he or she can demonstrate a

denial of due process. United States v. Caballero, 277 F.3d 1235, 1241 (10th Cir.

2002). It is not enough to show “the mere potential for favorable testimony” or to

“merely point to any conceivable benefit” from a witness’s testimony. Id. (first

quoting United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997)). Ms.

Portillos has not explained how the single witness to invoke the Fifth Amendment

would have helped her defense. Instead, she merely characterizes the witness’s

testimony as “critical” and states that the testimony “could have aided Portillos and

allowed her to argue that she . . . was not part of the conspiracy.” Aplt. Br. at 40, 42.

This is not enough to plausibly show materiality, especially considering that the three

other unindicted women were still available to testify, and Ms. Portillos called only

one of them. Consequently, even if Ms. Portillos could show that the government

interfered with her ability to call witnesses in her defense, she has failed to show

prejudice from the interference. The district court did not err when it held that Ms.

Portillos was not denied her due process right to a fair trial.




                                            10
AFFIRMED.


             Entered for the Court


             Paul J. Kelly, Jr.
             Circuit Judge




            11
