                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 11, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 06-2339
 v.                                                    (D. New Mexico)
 BRANDON CLARK,                                   (D.C. No. CR-05-914-JB)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, EBEL, and O’BRIEN, Circuit Judges.



      Following a melee on the Navajo Reservation in New Mexico, Brandon

Clark was convicted on two counts of assault, in violation of 18 U.S.C.

§§ 113(a)(3), (a)(6) and 1153. Clark appeals his convictions, arguing the

government violated his Fifth and Sixth Amendment rights to present a defense

when it advised the court it was contemplating charges against a defense witness

and recommended appointing an attorney for the witness before he testified. We

exercise our jurisdiction pursuant to 28 U.S.C. § 1291. Because Clark cannot


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
show the witness’s testimony would have been material and favorable, we affirm

his conviction.

I.        Background

          Clark was charged in a two-count indictment with assault resulting in a

serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153 and assault

with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153. The

charges arose from a brawl on the Navajo Reservation, involving Clark and

several other young adults and juveniles. Clark stabbed two victims during the

fight.

          Two weeks prior to Clark’s trial, his counsel designated his minor brother,

B.C., as a witness for the defense. On the morning of the first day of trial, the

prosecution informed the district court that it had not ruled out charging B.C. with

assault in this case. The prosecutor stated the government was acting on its

“duty” to “make sure that the Court is made aware, that the defense is made

aware, that the witness is made aware that there [are] potential charges that are

still out there.” 1 The government then asked the court to appoint an attorney to

assist B.C. in determining whether he should exercise his Fifth Amendment

rights.

          1
        The government argues its basis for warning B.C. about a possible assault
charge arose from B.C.’s actions during the altercation. At trial, Nicolia Blake
testified that B.C. kicked her in the mouth during the brawl. Blake’s examining
physician testified that due to “some kind of blunt injury to the anterior face” she
had lost a tooth and a portion of her anterior mandible was broken off.

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      Clark’s attorney expressed her displeasure with the government’s last-

minute notice. She noted the unfairness of advising B.C., an important defense

witness, that he may be charged while at the same time not administering the

same warning to a government witness, Ron Henio. She acknowledged the

district court did not have the power to force the government to charge Henio, but

in comparing the two situations, pointed out that,

      Mr. Henio is a Government witness, and he’s not being charged, nor
      is he apparently at any risk of being charged for discharging a
      firearm in the midst of a fight, by his own admission, at property and
      at a human being. . . .

            [B]ecause he is a Government witness . . . [he] gets apparent
      immunity for some horrendous acts, whereas at the very last moment
      one of my important witnesses is threatened with prosecution.

The district court appointed counsel for B.C. and he refused to testify. Following

a jury trial, Clark was convicted on both counts.

II.   Discussion

      On appeal, Clark argues the government’s actions constituted improper

coercion, violating his Fifth and Sixth Amendment rights to present a defense.

This court reviews claims that the government violated a defendant’s

constitutional right to present a defense de novo. United States v. Serrano, 406

F.3d 1208, 1214 (10th Cir. 2005).

      The right to present a defense “is essential to a fair trial.” Id. “The Fifth

. . . and Sixth Amendments concomitantly provide a criminal defendant the right


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to present a defense by compelling the attendance, and presenting the testimony,

of his own witnesses.” Id. at 1215; see also Washington v. Texas, 388 U.S. 14, 19

(1967) (holding the right to present witnesses and establish a defense is “a

fundamental element of due process of law”). The right to present a defense can

be infringed if the court or the prosecution substantially interferes with a defense

witness’s decision to testify. Webb v. Texas, 409 U.S. 95, 97-98 (1972) (per

curiam) (holding trial judge’s “lengthy and intimidating warning” and

“threatening remarks,” causing defendant’s only witness to invoke the Fifth

Amendment, violated the Due Process Clause); Serrano, 406 F.3d at 1215-16

(applying Webb to the prosecution).

      In determining whether “the government actor’s interference with a

witness’s decision to testify was ‘substantial,’” we have examined whether the

witness was actively discouraged from testifying “through threats of prosecution,

intimidation, or coercive badgering.” Id. at 1216. Conducting a “case-by-case”

analysis, we have taken into account factors such as (1) whether the witness

consulted with an independent lawyer before refusing to testify; (2) the degree

and kind of warning made to the witness; and (3) whether evidence shows the

prosecutor acted in bad faith. Id.; see also United States v. Smith, 997 F.2d 674,

679-80 (10th Cir. 1993). Further, “a defendant must establish ‘more than the

mere absence of testimony.’” Griffin v. Davies, 929 F.2d 550, 553 (10th Cir.

1991) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).

                                         -4-
“There must be a plausible showing that an act by the government caused the loss

or erosion of testimony that was both material and favorable to the defense.” Id.

      Clark argues the government failed to provide evidence that it had

sufficient probable cause to indict B.C. at the time it advised him to consult an

attorney, and thus the warning was given in bad faith and constitutes an

unconstitutional threat. He also contends the government’s disparate treatment of

its own witness, Ron Henio, and B.C., proves it acted with bad faith. The

government asserts it had probable cause to indict B.C. based on Nicolia Blake’s

testimony that B.C. kicked her in the mouth during the brawl. As Clark points

out, however, this evidence was not before the court at the time the government

advised B.C. to consult with a lawyer. See Martin v. Kemp, 760 F.2d 1244, 1248

(10th Cir. 1985) (explaining in the context of a plea negotiation that the

government must have probable cause “at the time it made the threats” (emphasis

omitted)).

      Although probable cause is necessary before the government threatens a

third party with prosecution in the context of plea negotiations, United States v.

Wright, 43 F.3d 491, 498-500 (10th Cir. 1994), we have never extended this

principle to the context of trial witnesses. We need not, however, resolve the role

of probable cause in assessing bad faith. Nor must we determine whether the

government’s disparate treatment of Henio and B.C. evinces bad faith. Instead,

we can affirm Clark’s convictions based on the materiality requirement. Clark

                                         -5-
cannot show that B.C.’s testimony would have been “material and favorable to the

defense.” Griffin, 929 F.2d at 553. Rather, he asks us to infer materiality from

B.C.’s voluntarily agreement to testify for Clark. A plausible showing that the

lost evidence would have been material and favorable,

       may be based upon agreed facts, and will be in the nature of a legal
       argument rather than a submission of additional facts. In other cases
       the criminal defendant may advance additional facts, either
       consistent with facts already known to the court or accompanied by a
       reasonable explanation for their inconsistency with such facts, with a
       view to persuading the court that the testimony of a . . . witness
       would have been material and favorable to his defense.

Valenzuela-Bernal, 458 U.S. at 873. Clark makes no proffer as to the substance

of B.C.’s testimony. Without such a proffer, Clark cannot prevail on his claim.

See e.g., United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002)

(explaining the “failure to show the materiality of . . . lost testimony” ends our

analysis).

III.   Conclusion

       For the foregoing reasons, we affirm Clark’s convictions.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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