Metropolitan News-Enterprise


Tuesday, January 8, 2013


Page 1


Ninth Circuit Rejects Witness Intimidation Claim


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction of a man convicted of assaulting his wife on an Indian reservation, rejecting his claim that the prosecution intimidated the victim.

Judge Milan D. Smith Jr., writing for the panel, said that even if prosecutors acted improperly, Jarvis Juan’s due process rights were not violated because there was no showing that the alleged misconduct was the reason the victim changed her testimony.

The charges arose out of an alcohol-fueled celebration of the victim’s birthday on the Gila River Indian Reservation in Arizona on March 2010. Prosecutors presented evidence that Juan and his wife, who was identified only as C.J., each drank several 40-ounce bottles of malt liquor, in addition to consuming some whiskey and cocaine.

According to a taped interview C.J. gave to police in the hospital, an argument broke out over C.J.’s alleged infidelity. The row was interrupted when C.J. left to drive a friend to a nearby motel, but when she returned home, Juan punched her in the head and pulled her out of her car.

He subsequently got into the car, put it in reverse, and dragged her under the vehicle, before exiting the vehicle and punching her two more times before driving off. She was hospitalized overnight.

At trial, C.J. refused to cooperate and testified that she was injured when she accidentally fell behind her husband’s vehicle.

After District Judge James A. Teilborg ruled that the wife’s statement to police was inadmissible, the prosecutor asked that the witness and jury be excused. He then told the judge that the witness was lying and suggested he was “beginning to wonder if [C.J.] needs a lawyer appointed because I believe she’s committed perjury and after looking at jail calls between her and her husband I actually believe she’s committed perjury.”

The next day, after C.J. consulted with a lawyer, the prosecutor recalled her to the stand. She then testified that the defendant hit her with both of his hands and with the car.

Jurors found him guilty of assault and the judge sentenced him to 37 months in prison.

Smith said the prosecutor might have committed misconduct.

The Supreme Court, he explained, has held that “the government may not substantially interfere with the testimony of defense witnesses.” The same principle applies if the government coerces the testimony of its own witnesses, the jurist concluded.

But it was unnecessary to determine, on the facts of Juan’s case, whether there had actually been prosecutorial misconduct.

“For even assuming, arguendo, that the prosecutor’s statements here were inappropriately threatening, Juan’s claim would still fail because Juan can point to no evidence that proves that the allegedly threatening statements—which Juan concedes were directed solely to the district judge—were ever communicated to C.J.,” the judge said.

“Without proof that C.J. ever heard the prosecutor’s remarks, or proof that C.J.’s appointed lawyer relayed those remarks to C.J., Juan simply cannot establish the necessary causal link between the prosecutor’s ‘threats’ and C.J.’s changed testimony,” the judge said. “Because Juan has not adequately shown causation, he cannot meet his burden to demonstrate misconduct by a preponderance of the evidence.”

The judge went on to reject the defense claim that the judge committed plain error at sentencing by announcing the reasons for the sentence immediately after, rather than prior to, stating the length of the term.

While the judge must give the reasons for sentencing choices, the “strict sequencing” argued for by the defense is not required, Smith said.

The case is United States v. Juan, 11-10539.


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