United States v. Arielle Cowser ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30131
Plaintiff-Appellee, D.C. No. 6:19-cr-00006-DWM-3
v.
MEMORANDUM*
ARIELLE ROSE COWSER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted May 4, 2021
Seattle, Washington
Before: BOGGS,** BERZON, and MURGUIA, Circuit Judges.
Arielle Cowser appeals her convictions by a jury of conspiracy to commit
robbery affecting interstate commerce (also called “Hobbs Act robbery”), in viola-
tion of 18 U.S.C. § 1951(a), and of aiding and abetting Hobbs Act robbery, in viola-
tion of 18 U.S.C. §§ 1951(a) and 2. She contends that the district court should not
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, Senior Circuit Judge of the United States Court
of Appeals for the Sixth Circuit, sitting by designation.
have let her codefendant and ex-romantic partner, Kielan Franklin, invoke his Fifth
Amendment privilege against testifying, and she contends that the government sub-
stantially interfered with his decision to testify by threatening him with perjury
charges. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. “[T]he Constitution guarantees criminal defendants ‘a meaningful oppor-
tunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324
(2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). But the “accused’s
right to compulsory process to secure the attendance of a witness does not include
the right to compel the witness to waive his fifth amendment privilege.” United
States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982). That privilege extends to “any
crimes for which [the witness] may still be prosecuted.” Ibid. It even extends to a
crime to which the witness has pleaded guilty if he has not yet been sentenced for it.
See Mitchell v. United States, 526 U.S. 314, 321–26 (1999).
We review de novo whether it was legal error to allow Mr. Franklin to invoke
his Fifth Amendment privilege. United States v. Rubio-Topete, 999 F.2d 1334, 1338
(9th Cir. 1993).
To claim the Fifth Amendment privilege, a claimant need only show that his
“testimony would ‘support a conviction under a federal criminal statute’ or ‘furnish
a link in the chain of evidence needed to prosecute the claimant for a federal crime.’”
United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984) (quoting Hoffman v.
2
United States, 341 U.S. 479, 486 (1951)).1 But a claimant may invoke the privilege
only if there are “‘substantial hazards of self-incrimination’ that are ‘real and appre-
ciable,’ not merely ‘imaginary and unsubstantial.’” Ibid. (quoting United States v.
Neff, 615 F.2d 1235, 1239 (9th Cir. 1980)).
Here, it was proper for Mr. Franklin to invoke the privilege on the grounds
that his prior sworn statements could subject him to a perjury prosecution. Even if
the government could not ultimately prove beyond a reasonable doubt that Mr.
Franklin committed perjury, the facially contradictory statements he had given
would lead to a “real and appreciable” danger of incrimination. And Ms. Cowser’s
offer of proof shows that it was not “imaginary” that she would ask Mr. Franklin
questions implicating those statements.
Mr. Franklin had more to fear than a perjury charge—his sentencing hearing
still loomed. See Mitchell, 526 U.S. at 326–27 (recognizing that “[w]here the sen-
tence has not yet been imposed a defendant may have a legitimate fear of adverse
consequences from further testimony,” such as a more severe sentence). Affirming
one version of events over the other would have been additional evidence that he
had testified falsely at one of his change-of-plea hearings, increasing the likelihood
of an obstruction-of-justice enhancement. And testimony that he had directed his
1
A state crime also suffices. United States v. Balsys, 524 U.S. 666, 671–72 (1998).
3
codefendants in any way would have increased the likelihood of a leadership-role
enhancement. So he had a “real and appreciable” fear of an increased sentence. Ren-
dahl, 746 F.2d at 555 (citation omitted).
For those reasons, Mr. Franklin could properly invoke the privilege.
2. Ms. Cowser’s claim that the district court let Mr. Franklin invoke the privilege
too broadly also fails. True, a person invoking the Fifth Amendment privilege gen-
erally may not issue a “blanket refusal to answer any question” and must instead
invoke it “in response to specific questions propounded by the investigating body.”
United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977). But there is an exception.
If the district court is “in a position to ‘say that any response to all possible questions
would tend to incriminate the witness,’” then it may allow a blanket refusal to answer
those questions. United States v. Tsui, 646 F.2d 365, 367 (9th Cir. 1981).
Here, the district court properly allowed Mr. Franklin to assert a blanket priv-
ilege. The court had already heard a full day’s worth of testimony and was knowl-
edgeable about the case. The court gave Ms. Cowser the opportunity to ask Mr.
Franklin, under oath, any questions she wanted to ask him should he testify before
the jury. After hearing Mr. Franklin’s answers to—and refusals to answer—those
proposed questions, the court then heard argument from Ms. Cowser and the gov-
ernment on whether Mr. Franklin should be compelled to testify. The court, “based
on its knowledge of the case and of the testimony expected from” Mr. Franklin, was
4
therefore well positioned to determine that any of Mr. Franklin’s responses to Ms.
Cowser’s questions would be “in all probability” incriminating. See id. at 367–68.
Thus, Mr. Franklin’s blanket invocation of the privilege was proper.
3. Nor has Ms. Cowser shown that Mr. Franklin’s testimony “would have been
both material and favorable to h[er] defense.” United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982). She wanted him to refute the conspiracy charge by testi-
fying consistently with his statements at his first plea hearing. But had he done so,
the government would have impeached him with his contrary statements from his
second plea hearing. Likewise, had Mr. Franklin testified consistently with his state-
ments from the second plea hearing, then the most Ms. Cowser could have done
would have been to impeach him with his statements from the first plea hearing.
Either way, faced with two contrary statements about the existence of a plan to rob
the victims, the jury would not likely have credited Mr. Franklin’s testimony.
Worse for Ms. Cowser, Mr. Franklin’s statements at the first plea hearing con-
tradicted her theory of the case. He asserted at that hearing that he sent Ms. Cowser
to the victims’ house. But she testified that she went of her own accord to the vic-
tims’ house, and she called two witnesses to buttress her story.
Thus, regardless of how Mr. Franklin testified, he would not have helped Ms.
Cowser’s case, so there was no error in excluding his testimony.2
2
Because there was no error in allowing Mr. Franklin to assert his Fifth Amendment
5
4. Nor did the government substantially interfere with Mr. Franklin’s decision
whether to testify. “Unnecessarily strong admonitions against perjury aimed at dis-
couraging defense witnesses from testifying . . . deprive a criminal defendant of his
Sixth Amendment right to compulsory process for obtaining witnesses in his favor,”
but “the Sixth Amendment is not implicated every time a prosecutor or trial court
offers advice regarding the penalties of perjury.” United States v. Vavages, 151 F.3d
1185, 1188–89 (9th Cir. 1998) (quoting United States v. Davis, 974 F.2d 182, 187
(D.C. Cir. 1992)). Deciding whether there was substantial interference is an “ex-
tremely fact specific” inquiry. Id. at 1190. We look at the totality of the circum-
stances, particularly factors such as “the manner in which the prosecutor or judge
raises the issue, the language of the warnings, and the prosecutor’s or judge’s basis
in the record for believing the witness might lie.” Ibid. If “the substance of what the
prosecutor communicates to the witness is a threat over and above what the record
indicates is necessary, and appropriate,” then there is a “strong” inference that the
prosecution coerced the witness into silence. Ibid. (quoting United States v. Pierce,
62 F.3d 818, 832 (6th Cir. 1995)).
Because Ms. Cowser did not object below to the prosecution’s comment in
the district court, we review her claim for plain error. Fed. R. Crim. P. 52(b); United
privilege, we need not reach the district court’s other reasons for excluding Mr.
Franklin’s testimony.
6
States v. Olano, 507 U.S. 725, 731–32 (1993).
We find none. At the district court’s behest, the government opined why Mr.
Franklin could invoke his privilege—one of the parties would try to get him to say
on the record that he had previously lied under oath. The record amply supported the
government’s comments. And those isolated comments, directed to the court, after
Mr. Franklin had already invoked the privilege, did not obviously or clearly influ-
ence his decision. Moreover, as discussed above, it is unlikely that Mr. Franklin’s
testimony would have been a material advantage to Ms. Cowser.
AFFIRMED.
7