U.S. v. Vavages, s. 97-10394

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCYNTHIA HOLCOMB HALL
Citation151 F.3d 1185
Parties98 Daily Journal D.A.R. 8427 UNITED STATES of America, Plaintiff-Appellee, v. Gabriel VAVAGES, Defendant-Appellant.
Docket NumberNos. 97-10394,s. 97-10394
Decision Date03 August 1998

Rubin Salter, Jr., Tucson, Arizona, for the defendant--appellant.

Jerry R. Albert, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding. D.C. No. CR-96-00421-WDB.

Before: HALL and THOMAS, Circuit Judges, and MOSKOWITZ, District Judge. *


Gabriel Vavages appeals his jury trial conviction for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841. We reverse and remand for retrial.


On May 24, 1996, a Tohono O'Odham police officer observed a beige colored sedan traveling at a high rate of speed, weaving, and straddling the highway's center dividing line. The officer stopped the vehicle after a short chase and discovered large quantities of marijuana inside. The four occupants of the vehicle took off on foot, and the officer was only able to apprehend one person, John D. Adams. Adams first stated that "Gabe," presumably defendant Gabriel Vavages, was in the car, then recanted the statement several hours later. The officer subsequently identified Vavages as the driver of the vehicle.

Tribal officers found a tribal enrollment card and a pager belonging to Vavages inside the vehicle, and U.S. Customs agents traced ownership of the vehicle to Vavages. The agents eventually located Vavages, and he was arrested and charged with conspiracy to possess and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846.

Prior to trial, Vavages filed a notice of intention to offer the defense of alibi and disclosed that his alibi witnesses would include Rose Marie Manuel, his common law wife, as well as Manuel's adult sister, his minor children, and several codefendants. On the first day of trial, the district court learned through Manuel's attorney that she would be invoking the Fifth Amendment privilege against self-incrimination. The district court recognized Manuel's blanket invocation of the Fifth Amendment but, following Vavages' conviction, sua sponte held a hearing to consider whether the prosecutor had coerced Manuel into refusing to testify. The court determined that the prosecutor had engaged in "intimidating" and "troublesome" conduct in threatening to file perjury charges and to withdraw Manuel's plea agreement in an unrelated prosecution in the event she testified in support of Vavages' alibi defense. Nonetheless, the court found that the prosecutor's conduct had not prejudiced Vavages' defense.

Vavages stood by his alibi defense at trial. Codefendants Jeffrey Joe Valenzuela and Sanford Albert Serapo testified that they had borrowed the beige sedan from Vavages and that Vavages had not been in the vehicle when it was pulled over by the police. Vavages also testified that he had loaned his vehicle to Valenzuela, and Vavages' young children testified in support of their father's alibi defense.

At the close of the government's case, the district court dismissed the conspiracy count of Vavages' indictment. The jury subsequently convicted Vavages on the remaining count of possession with intent to distribute marijuana, and the court sentenced Vavages to ten years of imprisonment followed by eight years of supervised release.


Vavages first contends that the prosecutor coerced Rose Marie Manuel, Vavages' common-law wife, into refusing to testify in his defense. Without the prosecutor's interference, Vavages suggests, Manuel would have testified that Vavages had lent his car to codefendant Valenzuela and remained at home on the night he was alleged to have participated in the charged drug offense.

It is well established that "substantial government interference with a defense witness's free and unhampered choice to testify amounts to a violation of due process." United States v. Little, 753 F.2d 1420, 1438 (9th Cir.1984). A defendant alleging such interference is required to demonstrate misconduct by a preponderance of the evidence. See United States v. Lord, 711 F.2d 887, 891 n. 3 (9th Cir.1983). Whether substantial government interference occurred is a factual determination to be made by the district court that we review for clear error. See United States v. Baker, 10 F.3d 1374, 1415 (9th Cir.1993); Little, 753 F.2d at 1439.


The alleged misconduct in this case concerns comments made by the prosecutor in Vavages' criminal case to counsel for witness Manuel. When Vavages filed his notice of intention to offer an alibi defense, Manuel's name was included on the list of witnesses he would call. A government agent subsequently interviewed Manuel about Vavages' alibi. Manuel told the agent that she and Vavages were at home at the time of his alleged offense, and Vavages undoubtedly intended to call Manuel to testify in his defense at trial.

Approximately a month and a half after this initial interview, the prosecutor learned that Manuel had herself been arrested earlier the same year in a marijuana transportation case, pled guilty, and agreed to cooperate fully with the government. Notwithstanding Manuel's potential alibi testimony, the prosecutor believed that similarities between Vavages' alleged drug activities and the drug offense for which Manuel had pled guilty would bolster the government's case against Vavages. Accordingly, the prosecutor considered calling Manuel as part of the government's case-in-chief.

Just before Vavages' trial was scheduled to begin, the prosecutor contacted Manuel's attorney about the possibility of Manuel testifying. The basic content of the conversation is not disputed. The prosecutor warned Manuel's attorney that he did not believe Vavages' alibi defense and that if Manuel testified falsely, the government could bring perjury charges against her and withdraw from the plea agreement in Manuel's own criminal case. The prosecutor had a total of three or four face-to-face and telephone exchanges with Manuel's attorney concerning the possibility of Manuel testifying. Neither the prosecutor nor Manuel's attorney suggests that any of the exchanges were unprofessional in tone, and Manuel's attorney admits that he did not feel personally intimidated by the conversations. Nonetheless, the undisputed consequence of the exchanges was that Manuel's attorney advised his client to assert her Fifth Amendment privilege against self-incrimination to avoid a perjury prosecution for what the prosecutor clearly believed would be false alibi testimony. The court recognized Manuel's blanket invocation of the Fifth Amendment, and she did not testify at trial.


Unnecessarily strong admonitions against perjury aimed at discouraging defense witnesses from testifying have been held to deprive a criminal defendant of his Sixth Amendment right to compulsory process for obtaining witnesses in his favor. The seminal case is Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam). In Webb, the trial judge admonished a criminal defendant's only witness, who was himself serving a prison sentence, 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 lie, 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 you 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 you 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.

Id. at 95-96, 93 S.Ct. 351.

Noting that the trial judge "gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury," that the judge "implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury," and that the judge's comments were the apparent cause of the witness' refusal to testify, the Court held that the judge's comments had deprived the criminal defendant of due process under the Fourteenth Amendment. Id. at 97-98, 93 S.Ct. 351. "[I]n 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." Id. at 98, 93 S.Ct. 351.

A number of post-Webb cases reveal that the trial judge is not the only person whose admonitions against perjury can deprive a criminal defendant of his right to compulsory process. In United States v. Morrison, 535 F.2d 223 (3d Cir.1976), for instance, the court held that a criminal defendant in a federal drug prosecution had been deprived of due process where the prosecutor told a potential witness that federal perjury charges were possible if she testified. Id. at 228. Far from simply warning the defense...

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