*1 moved accord- were days, then ing three America, fairly on a STATES schedule UNITED predetermined ing to a Plaintiff-Appellee, purposes one of At least regular basis. towas maintaining trailer the distribution prod- transporting the change method Defendant-Appellant. SMITH, Terry Hiland maintained a smaller vehicle. ucts throughout dairy products over the control No. 90-2257. final their and determined journey entire Appeals, Court of pro- products were destination. Circuit. Tenth not held way were any cessed receipt of inventory pending storage or May 1993. reasons, dairy orders. For these actual July Rehearing Denied at the Ponca to rest not come

products did simply delivery City and their trailer movement their interstate

continuation Arkansas, City, Smith, to Ponca Fort

from

Oklahoma. event, Foxwor hold that any crates empty milk transportation of the

thy’s itself, sufficient, exemp support his provisions of the overtime

tion from daily picked The crates were

FLSA

basis, portion of Foxwor significant formed a immediately duties, shipped and were

thy’s plant in processing Oklahoma v. Wichita Thomas We held in

Arkansas. Co., Bottling Coca-Cola — -, denied, Cir.), cert. 121 L.Ed.2d containers, destined pickup empty

regular facilities, employ placed both

for out-of-state exempted interstate commerce

ees provisions of the

them from overtime route drivers’ duties Because the

FLSA on motor vehicle a “substantial effect” power of the subject to the

safety, they were were

Secretary Transportation, and thus controls by the Thomas covered FLSA in this case.

the facts States District judgment of the United District of Oklahoma for the Western

Court AFFIRMED. *2 McDonald,

Louis P. Albuquerque, for de- fendant-appellant. Burnett, Paula Asst. Atty., U.S. Albuquer- (Don

que, Svet, NM Atty., J. U.S. and James Martin, T. Asst. Atty., Albuquerque, NM, brief), on the for plaintiff-appellee. MeKAY, Before Chief Judge, HOLLOWAY, Judge, BELOT,* Circuit District Judge.

HOLLOWAY, Judge. Circuit Defendant-appellant Smith, Terry convict jury ed after a in the District of New Mexico guilty found him dangerous assault with a weapon with bodily harm, intent to do ap peals from the district court’s denial of his post-conviction motion for a new trial on the grounds newly discovered evidence. contends, alia, Smith inter judge’s comments key caused his witness for on the motion to claim her Fifth Amendment privilege and decline to says Smith warning thus violated Texas, rule of Webb v. 34 L.Ed.2d 330 We dis agree and affirm. midnight

Around July an offi- Navajo cer of the Safety Division Public was called to a Shiprock, trailer house in Mexico, investigate New report trailer, disturbance. Arriving at the the offi- vehicle, cer observed a four-wheel-drive white GMC “Jimmy,” speeding away from ensued, During the scene. the chase that occupant Jimmy riding passen- on the ger side of the front seat fired one shot in police the direction of one of the vehicles in * Belot, designation. The Honorable Monti L. United States Dis- Kansas, Judge sitting by trict for the District of the direction of twice and had fired passen- truck struck the pellets The shot

pursuit. Though Scott testified car. police police car. windshield ger side the back seat “ducked down” she was police Jimmy stopped and Eventually, the fired, Supp.R. III the shots were when approxi- one closest nearby, the stopped cars Lloyd was was certain stated she *3 spot- away. Under a yards 30 mately 25 or testimony, while Scott’s not the shooter. standing man see a could light, officers the evidence, provid- by other thus corroborated Jim- beside the Jimmy. The man beside the Terry only positive identification ed the of the the direction my shotgun fired a years 15 old Scott the shooter. was Smith as the standing behind officer, who was nearest shooting, and 16 when of the was at the time his vehicle. side door open driver’s defendant’s trial. she the testified the front hit pellets of the shot Though most vehicle, struck pellets police several of the and his brother were The defendant The officer hand. and one officer’s face the of the At the conclusion separately. tried in the indictment slightly. An wounded was jury acquitted the August the trial charged the defen- Mexico of New District intent murder assault with defendant the that wounded firing the shot with dant charged in dangerous weapon, as use brother, Lloyd officer, charged his indictment, convicted the but one of count the shot Smith, firing the earlier from of assault included offense him of a lesser moving vehicle. weapon to do dangerous with intent awith harm, U.S.C. of 18 bodily trial, that Terry defense was Smith’s At 113(c). the The district court sentenced § that brother, fired the shots Lloyd, had his years’ imprisonment, five to serve defendant govern- of the the officer. Some wounded order and unpublished affirmed gen- evidence, the officers’ primarily ment’s Smith, No. 88- judgment. shooter, pointed to the description of the eral 1990).2 Apr. Cir. the testified that The officers defendant. the defen- been too thin have was shooter brother, and that heavier dant’s much II white, light-colored, a worn gunman had A the defendant to the shirt similar shirt day. the next he was arrested wearing when sentencing, Following the defendant’s re- she which signed two affidavits largely on Scott rested case government’s testimony. of her trial key portions ex-girl- canted testimony the defendant’s affidavits, dated June Scott, pas- In one friend, had been a who Victoria that it was “I never stated claimed: that Scott Jimmy.1 Scott testified senger in told shooting, was shirt, who did the Smith defendant, Terry had wearing a white shooting police were down when men two other duck the truck with exited from doing the us, see who was so I could not said over shot. She the officer was just before B.3 In Brief Appellant’s App. shooting.” stood beside defendant had that consequences of the defen- acknowledged importance obvious collateral 1. The we conclude felon point a convicted testimony. status as At dant's one of Scott’s to its case appeal not moot. is requested locate this continuance to that prosecutor case Vic- can't without “we make her because Supp.R. 4. II toria Scott.” she had affidavit that statement 3.Scott’s shooting Terry Smith did stated” that "never has 2. We have defendant been informed testimony. tri-At directly al, her trial contradicted longer is completed his sentence police end of the at the Scott testified that sponte sua we consider supervision. Thus driver, Smith, chase, stopped the Terry complet has the defendant fact that whether the Smith broth- Jimmy road and on a dirt appeal. We note moots his ed his sentence Ill gotten out. man had another ers and case is "a criminal well established it is happened explain what Supp.R. 93. Asked possibili is no there only if it is shown that moot next, gave account: this she legal consequences will be any ty collateral weapon at that Terry grab a Q. see challenged Did convic imposed on basis York, time? New Sibron v. tion.” 1889, 1899, A. Yes. Given 20 L.Ed.2d affidavit, the same Scott also that’s claimed what says she doing.... I’ve saying she did not recall that the defendant told her penalty about the perjury, wearing night white shirt on the discussed that with her and have told her shooting. affidavit, Id.4 In the other dated very that it’s important that she tell the 30, 1990, agent June Scott claimed an FBI truth. IAnd believe that she has the giving had coerced testimony her into false capacity that, to understand and she in- implicating the App. defendant. C. tended to do that. August filed, On the defendant pursuant to Rule 33 of the Federal Rules of THE COURT: Here’s where I am. Procedure, Criminal a motion a new trial Counsel telling me that going she’s ground newly discovered evidence. recant previous *4 I Supp.R.Doc. 114. Citing Scott’s statements situation, If that’s the then it would recanting the affidavits testimony, her trial seem to me that if she testified at the first general defendant claimed that an FBI trial, says and she now that testimony is agent had coerced Scott identify the de- not correct and recants that testimony, she falsely fendant as the assailant. The motion comes squarely under the perjury statute assigned to the presided who had years. and ten Terry at Smith’s appointed trial. He counsel Scott. Id. Doc. 125. On October II R. 5-7. The then reviewed the evidentiary held an affidavits, and continued colloquy with hearing on the motion with as the first Scott counsel remarking:

witness. [THE got COURT:] We’ve problem, soon As as Scott had pre- a few answered Counsel. liminary questions, interrupted her, asking: ... [PROSECUTOR]: I think that this THE COURT: Just a second now. witness faces considerably more risks and [Counsel], you with comfortable her exposure by making a sworn statement

testifying? under oath in this court proceeding with Yes, [WITNESS’ COUNSEL]: Your regard to perjury.... Honor, I am. I’ve discussed it with her basically and truth, told her to tell the you Q. gun Do recall which he had? A. No. Q. A. No. Did he fire it in the direction of the Q: happened police What directly then? car you? that was in back of A. He A. stood the door Yes. and started shoot-

ing. Id. at 93-95. trial, car, At Scott Q. had testified that earlier in got When he out of the did he raise evening July 10 the defendant gun] had been [the wear to his shoulder? ing "turquoise stripes.” shirt with III Supp.R. A. Yes. 83. Scott testified that later had the defendant and other men had taken her and another wom you you Q. gun? And said saw him fire the an to a area known as remote Table Mesa. At A. Yes. Mesa, testified, Table Smith the defendant had Q. many times? How informant, being accused her of and had A. Twice. struck her. at Id. 77-82. Smith testified that Mesa, group left Table the defendant you you Q. How far were were in the — put on white shirt. Id. at 83-85. time, Jimmy seat right? back at that A. Yes. exhibit, Scott at identified a first Terry Q. How far was when he short-sleeved, yellow piping, white tee shirt with gun? fired the wearing as the shirt the defendant had been away. A. a few Just feet shooting, time at the but then seemed less certain of er, identification. Id. at 85. Howev- Scott, Q. Terry Miss what direction did agreed prosecutor with a that she was gun? Smith fire that that the defendant had worn certain either a (No response.) A. light-colored or a white shirt at the time of the air, Q. He didn't fire it shooting. did he? chase 85-86. having agent] and FBI simply [the time at this ... That affidavit before, I’m not through been this prior sworn evidence that constitutes you. going evi- to believe testimony is false. It However, ... if she perjury. as to dence it going to transfer I don’t know—I’m in this today, she testifies comes here judge.... another that what oath proceeding under court II R. 9-12. prior court previously at the she’s said next discussed judge and counsel false, then it’s automatical- proceeding was judge commented: propriety of recusal. inconsistent ly there is perjury, because me things that bothers guess I one of the § 1623]. testimony [18 U.S.C. sworn here, sitting in es- I’m the most is that does, by testifying here I that she So think so, sence, I, ashamedly maybe am considerably ... expose today, herself her, going to be- prejudging that I’m faces exposure than she risk and I’ve it because heard lieve that she’s the affidavit currently under agent]. FBI I’ve heard And [the all once. this submitted at time. any sense she’s just it doesn’t what make Honor, COUNSEL]: Your [WITNESS’ like here I saying. And it me feel makes my that. I have talked agree herself, lady perjure letting young this am posi- realizes the length_ She client *5 nothing. looking years, ten all for at in_ state that She will tion that she’s Id. at 14. [coerced], truth- she was not felt that she hearing, in this October Later ful, ... and that she felt threatened attorneys noted “for of the defense time, one and testify truthfully at that did not “my of the statute indi- record” that version much that it both- it bothered her so that perjury] penalty [for that the maximum cates ered her in school. judge years,” as the had stated. is five not 10 length with She discussed matter years judge replied, “Five Id. at 16. The family, to come forward and she wants is ... a lot of time.” years. ten Either one consequences to her. regardless of Id. her of those have advised putting that she’s herself position hearing and for some judge The recessed into, to and she wants 10 minutes. He returned and announced bifurcating proceedings on he was Well, that okay. I heard the

THE COURT: judge The motion for a new trial. Smith’s everything through Mr. I’ve been all judge to another for a transferred the motion my problem is Smith has said. And Scott’s determination whether my mind is of judicial problem is that a [of] if judge The stated affidavit, was in fact false. that having read her a set from such judge rejected Scott’s effort to the other before, testify having having heard testimony, then “that would recant her trial testify is that I agent] FBI [the heard the end of the Id. How- motion.” going to believe her. I’m think I’m don’t ever, to judge the other were determine if judge try this.... going to another false, testimony had been that Scott’s trial all, I don’t she understands think [F]irst to to the first the motion was return looking probably she’s —this argument for and decision. sentence, years. And she’s guideline ten guidelines, looking, probably B months. at least 60 for a new hearing

The motion anoth- before resumed on thing in the world for November easiest ... [T]he judge. again called as you er district Scott was prove is that testi- witness, but, preliminary ques- after some day, you’re testifying way one one fied by stating: interrogation prob- tioning, ended the today, equates way another question on the ten “I refuse to answer ably sentence to about —the attorney my my and I assert Fifth thing that advice And the years prison.... is, rights.” Ill The Amendment R. 16. reading your affidavit me bothers you stated that Scott’s affidavits alone were not thoroughly understand the chances trial, sufficient to warrant new and denied you’re taking by getting on that witness appeals motion. Id. at 19-20. Smith stand under oath. may You tell the truth from the denial of the motion for a new trial. do, you if right, you is all but if lie you get can into real trouble. The court defendant contends that you wants to know that. You don’t owe comments at the first on the motion anybody anything and it must be for a new trial and his admonition about freely voluntarily done and with the perjury effectively key drove his witness on thorough understanding you know the stand, the motion from and thus violated taking.” hazard Texas, the rule of Webb v. 409 U.S. 34 L.Ed.2d 330 Smith also 95-96, 409 U.S. at 93 S.Ct. at 351. contends that the first recusal was objected Webb’s counsel to these com- judge, error and that the second who denied ments, arguing exerted such trial, the motion for a new committed other duress that the freely could errors. voluntarily decide whether depriving thus him of his defense Ill coercing his refusing witness into paramount issue before us is whether testify. The Texas trial court overruled the the statements of the trial violated the objection, and defendant’s motion for a mis- Texas, principle applied in Webb v. trial based thereon. The Court of Criminal 34 L.Ed.2d 330 de Appeals rejected a claim of violation of due priving process the defendant of due and his process, although it did not condone the man- right compulsory Sixth Amendment to have ner of the Supreme admonition. The Court obtaining in his witnesses favor. granted certiorari and reversed. The Court *6 In Webb a Texas conviction was reviewed stated that the fact the willing witness was by after its affirmance the Court of Criminal come to court to and refused to do so Appeals of prosecution Texas. After the only intimidating sug- comments there, jury temporari- rested its case the gested that the comments were the cause of recess, ly During excused. the the accused testify. the refusal to The Court said that witness, prior called his who had a judge implied expected that he the wit- criminal record and serving prison a did, ness to lie and assured that him if he he initiative, sentence. On his own prosecuted would be probably convicted judge admonished the witness as follows: perjury. for The Court reversed because of you

“Now have been called down as a infringement process rights; of Webb’s due this case the Defendant. It stating that: duty you is the Court’s to admonish that light great disparity [I]n between you testify, don’t have anything you posture presiding judge and that say can and against you. will be used If circumstances, of a witness in these you take witness stand and lie under unnecessarily strong terms used oath, the personally Court will see that judge could well have exerted such duress your goes grand jury case to the you on the preclude witness’ mind as to him perjury will be indicted for and the likli making voluntary from free a choice you get [sic ] hood is that convicted whether or not to perjury of and that it would be stacked 98, 409 U.S. at 93 S.Ct. you already got, onto what have so that is you got your the matter agree to make judge’s We cannot state- you get If hearing mind on. on the witness stand ments in the instant case at the on lie, probably going it is to mean sever a the motion for amounted to a new years al and at least more time that of Webb. At we note that violation outset going proposition to have to serve. It will also be are “stand for the Webb does not against you penitentiary held when of the conse- merely warning a defendant you’re up parole quences for and the Court wants perjury demands reversal.” 680 679, observed, Harlin, hardly prose 681 a threat for a “[i]t 539 F.2d v. United States denied, 942, Cir.),

(9th potential S.Ct. cutor to advise a witness who is 429 U.S. 97 cert. (1976). contrary, telling respect To the the stories with to a defen 313 50 L.Ed.2d involvement, might court “has the discretion dant’s criminal that he general rule a as a possibility of prosecuted perjury falsely.” about for if he testifies to warn a witness Simmons, Here, incriminating” or herself. United himself F.2d rather 670 (6th Arthur, 215 being threatening, colloquy 949 F.2d States v. between than 1991). (1) Judges prosecutors do largely Cir. counsel and focused Webb-type necessarily perjury commit possible the witness’ awareness advising possibili merely by (2) a witness of judge’s prosecution, and decision prosecution she could face ty that he or evidentiary from the recuse himself from if his or her differs perjury believe on the motion a new We given previously. United he or she has ‘unnecessarily judge “did not use (5th Gloria, 494 F.2d 484-85 strong have exerted such [that terms could] Cir.) (en banc), denied, 419 U.S. 95 cert. preclude on the witness’ mind as to duress 306, 42 L.Ed.2d 267 making voluntary a free and [her] testify.’” or choice whether not to may recognize that a court abuse We (5th Nunn, States v. by warning to a witness and its discretion (en banc) 1976) (quoting a defendant’s constitutional thus violate 353). 98, 93 S.Ct. at by “actively” encouraging a witness rights testify, by badgering a witness Rather, the entire from our examination of Arthur, remain silent. United States judge’s com record we conclude that (6th Cir.1991); see also United range ments were within the of discretion Crawford, 707 F.2d judge to given to a trial warn witness Cir.1983) “[sjubstantial (noting governmental perjury. part As a possible with a defense witness’s decision interference actions, justification for the violates a defendant’s due cognizant that he was faced with a A rights”). admonition to a witness cases, possibility real than some “threatening” Webb if it is and' can violate preparing to in that the witness seemed to be language indicating the employs “coercive testimony in of her give direct contradiction Harlin, expectation perjury.” court’s testimony, making prior trial *7 F.2d at 681. easy charge perjury apparently to estab Simmons, v. lish. As noted in judge giving warning Here the the (D.C.Cir.1982): 670 F.2d 368-69 “Webb previous the trial and the witness’ had heard that a defendant is denied due thus holds particular testimony, and thus had a basis judge, of law when a trial without judge’s comments directed his remarks. any basis in the record to conclude that a that, having to counsel were substance lie, might sponte the witness sua admonishes having affidavit and heard read the witness’ thereby ... only defendant’s witness trial, he previously doubted testifying_” discourages the going judge he was to believe her. The added). (emphasis Here there was a strong position govern the the pointed out disturbing for the basis record perjury prosecution have in a ment would by perjury risk of a concern —the way day, testified one one where the witness prior testimony. trial direct contradiction way today. II R. 11. The and another judge attorney told the she had dis witness’ course, each case must be viewed in Of possibility perjury prosecu cussed the light particular the circumstances and the her client. tion with judge. Here specific comments made Judge was Wald persuaded, we are as considering whether re- In Blackwell, 694 F.2d coercive, then, threatening United States marks were (D.C.Cir.1982), warnings that such the witness seems to have been 1334-35 consider that perjury did not amount danger of possibility that she would be about the aware of Blackwell, both perjury. one court has to violation. prosecuted for As a Webb prosecutor judge and the trial warned wit- This judge held having considered a ness of the on proffer of defense statements purportedly one occasion. warning After the prose- witness, made there was insufficient cutor heard that going witness was evidence to rebut Scott’s trial testimony of waive privilege This August 18, 1988, and the motion for a new discussed with judge. the trial judge trial was denied. questioned then oath, the witness under stat- apparent Thus it is judge ing: recessed October hearing, re- always there are of perjury actions mean- himself, cused and afforded the witness an ing you that if he oath you can opportunity appear before a different be away sent on charge. a new judge where she made the announcement of you

Do understand that? her decision that she would not testify. This resumed on the motion THE occurred on WITNESS: Yes. November gave which the witness THE important COURT: So it is time to consider tire matter and confer with everybody to tell just the truth. want her attorney.5 We are convinced that you to understand what situation is. circumstances as a whole do not amount to a right? All violation of the principle of Webb v. Texas. THE you. WITNESS: Thank THE COURT: Do still wish to take IV the stand testify? There are remaining two claims of error THE WITNESS: Yes. which we will address:

694 F.2d at 1334. The court concluded that judge “conduct prosecutor and the Defendant claims that prej there was just recounted does begin approach udicial error in the recusal of the trial the level of misconduct described in v.Webb and the transfer of the matter to another Texas." Id. at 1335. judge, depriving him process. of due We disagree. Such determinations are reviewed There are other factors consider here. for an abuse of discretion. Rog Hinman The witness Scott did not make the crucial ers, (10th Cir.1987). Un statement invoking her privilege against self- 455(a) der § 28 U.S.C. a judge is incrimination before judge. In- required to disqualify himself any pro “in stead, after stated at the motion ceeding in which his impartiality might rea hearing that he did not think he going sonably questioned.” Here the her, believe he “I’m going announced: noted that he impression had an about judge try another II this.” R. A10. Scott’s which was unfavorable to recess of some ten minutes was held and the defendant, prior based his observance judge announced that another of the trial. He expressed therefore concern motion, hear the *8 and that the proceeding about prejudging the defendant’s motion. In would be bifurcated. Id. at 14. The further circumstances, these his decision to recuse hearing to be days was held several later clearly proper himself was a step to assure actually did not occur until November fairness, and in way an abuse of discre 1990. tion. It hearing was at the before the second judge that the witness Scott was Lastly, called the defendant asserts that the questioned by defense judge, counsel. She then second assigned who was to conduct any refused to answer questions, asserting evidentiary the hearing, committed several rights. Fifth Amendment Ill procedural 16. R. considering errors in motion the argues 5. The defendant here that the comments by attention of the court and all in attendance by judge the by trial were exacerbated the fact hearing. during defense counsel the October 16 that he a made concerning misstatement the hearing the Before resumed on November perjury penalty. persuaded We by are not this counsel had tíme to Scott the cor- advise about noted, point. the As error penalty was called the perjury. to rect new trial. United a deny motion for at the outset the observe trial. We for a new (10th Allen, in this ease was States v. used procedure the 1977).6 ordinarily judge the who unusual, because mo- subsequent a hears trial presided at the denying defen- the Accordingly, the order However, we trial. tion for a new trial is for a new dant’s motion judge trial did the here concluded that AFFIRMED. recusing himself abuse his discretion wheth- hearing to determine evidentiary the BELOT, concurring: Judge, District According- trial. perjured Scott herself er Judge opinion fully second concur I ly, the decision we review separately I write because Holloway but deny motion. judge to Webb distinguishable from this case is believe her Fifth Amendment After Scott invoked Texas, re- important supra, in several testify, judge to and refused privilege spects. denying motion. ruling oral made an First, remarks judge’s offensive judge stated that ruling, the Explaining his during when the proffered made as Webb were accepting the affidavits “even In this presumed counsel], innocent. are insufficient defendant those [defense case, judge’s comments were district testimony as reflected overcome oc- trial which pro a motion new is a formal made at which proceedings, Court “finding defendant had been convict- a judge further made curred ceeding.” The affirmed the this court had probative than ed after testimony is more Thus, did not address Webb subsequent affidavits conviction. subsequent events — appeal: the extent presented R. 19. in this investigator.” III issue private made to a on a judge presiding over ruling from the which memorialized may caution a witness again for new trial in which he motion order in written bench testimony given at to recant her insufficient evidence who is “there was about ruled that Scott’s trial to rebut Ms. the Court before

testimony.” I R.Doc. Second, consistently held court has this newly based on for new trial motions second

Smith contends with disfa regarded evidence by failing hold a discovered “to his discretion abused great caution. granted with- hearing” by failing vor evidentiary complete Youngpeter, 986 F.2d States v. findings of United complete set “provide Cir.1993). newly discovered When disagree Brief at 25. We Appellant’s fact.” recantation, it is the evidence consists was afforded the Smith on both counts. satisfied that duty the trial court evidentiary hearing; how- for an opportunity actually false. ever, challenged earlier indicated who had the witness Bradshaw, States v. testimony, refused United her trial she would recant (10th Cir.1986). judge may just A Further, trial in this case believe jaundiced ifiably a motion with a such adequate view record made cautioned, clearly eye. this court has judge quite As ruling. The basis of his “Recanta testimony given oath at trial affidavits tion of contents decided Indeed, such is upon with favor. witness’ not looked to overcome the were insufficient downright suspi upon generally looked of discre- testimony. find no abuse We Ahern, 612 F.2d cion.” United in his determination tion *9 great granted with Allen, requirements and is general ed favor with we noted 6. caution, being discretion to the sound granted addressed being in a case. criminal a new trial court. 554 F.2d of the trial newly evidence discovered must cumulative; Here, judge's accept it be mate- impeaching or must than understand and we involved; such as were insuffi it must be rial to the issues alone the affidavits conclusion that new 958, acquittal; for a probably produce granting and a new motion justify an cient to which, Mackin, 561 F.2d by with v. denied, evidence States trial. See United trial is warranted 959, (D.C.Cir.), 98 434 discovered diligence, could have been cert. . 961-63 reasonable (1977). 490, regard- 319 produced The motion 54 L.Ed.2d

683 (10th Cir.1980), 509 cert. denied 449 U.S. may tation. It be that he obligation had the 1093, 890, (1981). 101 S.Ct. 66 L.Ed.2d 822 so, do but is not an issue which Thus, the district had an affirmative requires Therefore, decision. I believe the duty evidentiary to conduct judge’s district statements and actions were evaluate both credibility and impact of properly within his discretion and not viola- recantation, Scott’s Page, United States v. tive of Webb. 1476, (10th Cir.), denied, 828 F.2d 1478 cert. 989, 510,

484 U.S. 108 S.Ct. 98 L.Ed.2d 508 McKAY, Chief Judge, dissenting: properly and he could draw on his I respectfully dissent. I recognize While knowledge and gained observations as the that the trial court was with a faced difficult presiding judge original at the trial. United situation, and acted with commendable mo- Johnson, 106, 112, States v. 327 U.S. 66 S.Ct. tives, I conclude that its regard- statements 464, 466, (1946); 90 L.Ed. 562 United States ing Ms. testimony Scott’s went further than 603, (10th Ramsey, Cir.1985), 761 F.2d 604 permitted Texas, under Webb v. 409 U.S. denied, 1082, 851, cert. 106 S.Ct. 88 (1972).1 34 L.Ed.2d 330 L.Ed.2d 892 Third, the district comments can I compared not be content degree with “gratuitous” “unnecessarily strong” Judges legitimate, have a interest in ensur- given admonition Nor Webb. ing that all witnesses are of aware both the they can be taken encouragement as active perjury nature laws and their Fifth Scott testify not to or as badgering her to right against self-incrimination, Amendment Arthur, remain silent. States v. United 949 whether or not the represented. witness is (6th Cir.1991). do Nor See, e.g., Arthur, United States v. 949 F.2d they amount to repeated the coercive and (6th Cir.1991). Nevertheless, there perjury threats about which were condemned is an inherent tension between this interest (but dissent) not without in Anderson v. rights and the of the defendant under Webb. Warden, Maryland Penitentiary, 696 F.2d As the Seventh Circuit has stated in the (4th Cir.1982) (en banc). (rather context prosecutors judges): than Fourth, the unrepre- witness Webb was which may [in Situations defense witnesses Here, sented. which, represented Scott was expose prosecution] themselves to call decisive, while not in and of itself militates upon prosecutors to path. walk a narrow against finding that Scott’s later refusal to hand, On the one cautions that Webb product judicial was the coercion or “[substantial interference improper other conduct judge. district with a defense witness’ free and unham case, In this pered the district pro knew that choice violates due Scott intended Goodwin, to recant her cess.” United States v. 625 F.2d (5th Cir.1980). and that he was faced with a witness who On the other either hand, had committed at the trial or require prosecutors ethical duties who was prepared to do hearing. so at the warn unrepresented of the risk witnesses Thus, the district concern was testimony they not the give are about to product suspicion, of mere may but of against absolute be used them.

certainty of perjurious Jackson, (7th the existence of testi- 935 F.2d 846-47 Cir. mony. 1991) (other case, omitted). Under the circumstances of this citations I believe the district had the discretion to in- judges must walk' the same narrow form Scott of the of her path.2 recan- agree Thus, part with the conclusion in applied prosecutors, IV the Webbto see United majority opinion that Defendant’s other Crawford, claims of error are without 1983), merit. phrased the test as whether governmental there is interference "substantial speaks only judges, testify.”

2. While Webb itself courts decision to a defense witness’s added). addressing have looked *10 (emphasis jointly to inWebb intim- witness Other courts have an by many types idation alyzed different of state actors. conduct and “[t]he whether 684 v. War face, See Anderson not, they expect perjury. sug its on does Because Webb 296, den, Penitentiary, 696 F.2d Maryland distinguishing proper simple test gest a (habeas (en banc) (4th Cir.1982) granted intimidation, 299 I look improper from concern judge “openly and success to where state Webb circuits since of other the decisions key hand, two witnesses fully pressed defendant’s they On the one pattern. discern a denied, 462 testimony”), change their cert. informing the merely have established 2463, 1111, L.Ed.2d 1340 S.Ct. 77 103 Jack U.S. See rights of her error.

witness Morrison, (1983); F.2d 535 (no States v. United son, error where 847 935 F.2d at Cir.1976) (reversal (3d 223, 228 judge and presence of the prosecutor, in the a defense repeatedly threatened prosecutor attorneys, “simply [the presented defense charges if drug and perjury he was the witness witness] fact[]” with the 179, Morris, testified); F.Supp. Berg 483 v. concerning investigation target FBI of an (habeas (E.D.Cal.1980) granted where 183-84 testimony); United subjects of his possible (9th Cir.) of clearly indicated his disbelief 679, Harlin, state 681 539 F.2d v. States threatened the testimony and witness’s (a per of warning mere rev charges parole and Webb; perjury witness with occurs a violation jury not violate does ocation). in do judges prosecutors If and indi is coercive only if the admonition they “can do rights, his on struct a perjury), cert. witness expectation of the court’s cates 362, the witness of to advise 942, no more than denied, 50 429 U.S. himself, Nunn, bring upon presenting may (1976); risks he v. United States 313 L.Ed.2d engen Cir.1976) (no (5th in a manner this advice calculated 958, error F.2d 960 525 decisionmaking informed and uncoerced der .explained the court the trial where Jackson, 935 witness.” part ignorance of on the claimed a witness who laws to testi F.2d at subsequently who declined them and 477, Gloria, 494 F.2d v.

fy); United States v. Sim majority cites United States Cir.) (5th (no error where 485 (D.C.Cir.1982), for the mons, F.2d 365 670 “merely witness] advised prosecutor [the leeway courts have proposition that if his testimo prosecution possibility that the they reason to believe have when prior plea”), from materially differed his ny 680-81; Maj.Op. at lying. See witness 306, 995, denied, 42 S.Ct. 95 cert. Simmons, The dissent of F.2d at 368. 670 267 L.Ed.2d however, Blackmun, clear makes Justice ample may have had hand, Webb judges prosecutors court On the other lying. to believe witness particular choice to reason may not recommend 99, at 354 S.Ct. U.S. at 93 witness, Arthur, 215-16 See 409 949 at F.2d see Nevertheless, (Blackmun, J., dissenting). (district encourage[ “actively ] may court reversed, summarily id. Supreme Court badger[ ] or witness not to 353, permitting 98, silent”; at without at 93 court erred S.Ct remaining the lower into inquiry or on remand witness, argument not in either oral “I think it’s by telling the Justice perjury, as concerning evidence testify.”), or intimidate your best interest 98-99, at 93 suggested. that Bl ackmun threats statements a witness with Webb," in the stan difference There is discernible prosecutor United [violated] 1325, (D.C.Cir.1982), Blackwell, officials. Fre applied different F.2d 1335 to these 694 dards progeny applied and its to such intermingle Webb to cases in quently, citations courts agents, States as FBI state diverse actors prosecutors, other officials in volving judges, 1008, (5th Hammond, Cir. 1012-13 F.2d v. 598 Heller, 152; See, F.2d e.g., 830 the case law. Heller, 1979), v. 830 agents, United IRS States 1361, Risken, 1370-71 788 F.2d v. UnitedStates 1987), (11th prison offi Cir. 154 denied, (8th Cir.), cert. Goodwin, cials, 625 F.2d see United Blackwell, (1986); 694 F.2d L.Ed.2d court, 1980) (directing the trial 702-03 Thus, 1333-34; Hammond, remand, investigate possible due present record determining shows whether prison intimidat resulting officials violation, judicial beyond I look cases a Webb inmate-witnesses), agents a dif ing and even involving prosecutors precedent intimidation to Smith, sovereign, United States ferent F.Supp. government officials. and other 1983) (intimi (S.D.Ohio 1235-36 case). police officer a federal dation state *11 Webb,then, at 353-54. Under a reason apparent the court was attempting to lying believe witness is not relevant Ms. Scott dissuade from testifying. Webb to the issue of action, constitutional permit error. does not such however well- intentioned.

Against this backdrop, the parameters of judges discretion prosecutors of in The majority’s quotation of United States Webb-type situations become more clear. Blackwell, (D.C.Cir.1982), F.2d 1325 judges Both prosecutors have an entirely Maj.Op. 680-81, only underlines the Webb proper ensuring interest in that witnesses present in this case. The trial court fully of rights aware their and of the Blackwell, in as shown quotation, legal consequences of testimony. their merely inquired whether the witness was Where, case, as in potential this aware of rights. At no time did the trial both is young and has a relationship close court in Blackwell suggests its own opinion defendant, with the the court particularly has as to whether the witness testify. should wide ensuring discretion in witness The trial court in this case went beyond well has made a truly decision, informed with full limits, these openly sought to persúade advice from competent counsel. Neverthe- the witness to change her mind. less, the decision remains to the addition, I agree cannot sug- with the witness, and the role of advisor rests with gestion in special concurrence that Webb her counsel. applicable is not in post-conviction this con- Trial placed courts are in a posi- difficult matter, text. As an initial isWebb about the tion when a witness makes a decision to right fundamental to present defendant which, informed, fully while is also behalf, witnesses on his which was enshrined very likely to lead to some of form criminal in our Compulsory Process Clause. I am liability. Despite the natural desire to dis- aware of authority no that stands for the suade witness from a might decision she proposition that a defendant has a lesser bitterly regret future, in the court must compulsory process right in post-conviction attempt to influence her decision. The proceeding. Further, special while the con- court’s role is limited to being a neutral currence is correct in pointing out that a source information —not of advice advo- seeking defendant a new trial based on re- cacy. Its instructions must be calculated testimony canted burden, faces a formidable merely threaten, persuade, inform —not to principle applies to the trial court’s ulti- or coerce. beyond Elaborations that risk mate weighing of the evidence—not to the running afoul of Webb. dimensions of the defendant’s compulsory The record in this case clearly shows that rights. Finally, I agree cannot beyond court went these limits. the fact that the witness was represented by Faced with a young woman who wished to against counsel finding militates a Webb vio- contradict implau- with an lation. Where the represented, witness is story sible of coercion agent, FBI the trial court has less reason to fear that the explicitly court stated that it believed she ignorance witness will act legal perjure (See would herself a lost cause. II Indeed, her testimony. 14) (“[Hjere R. at letting am young this this case the witness’s counsel assured the herself, lady perjure looking years, at ten all court that the witness fully amade in- nothing.”) the court good While acted in formed decision That should have motives, faith and with commendable its de- been the end of the matter. I therefore sire to see Ms. Scott not testify proffered as conclude that the actions of the trial court plain. On statements, face of its it is constituted a facie violation of prima Webb.3 object 3. Defendant’s counsel did not to the suggestion petitioner tion. "The or his court’s colloquy with Ms. Scott at the time it interrupted counsel should have occurred, point other than to out mistaken is, record, object middle of his on this remarks quotation Ordinarily statute. this petitioner’s ground a waiver a basis to require plain to review me error. rights.’’ 409 U.S. at Court, however, Supreme ruled has similarity facts of this case to those contemporaneous there is objec- for a need *12 defense, as well as statements in favor II interview, attorney taped repre- in this in a Webb violation Having found had discussed the matter sented that she causation, stance, i.e. there whether I turn to attorney thoroughly both her and her the chal nexus between plausible is “some family. subsequent refusal tes- While conduct and the ab lenged governmental before a tify both at a later date and testimony.” United States was sence of certain (1st 1299, 1303 Hoffman, these distinc- judge, different I do not view 1987). “had exists because requirement This distinguish The tions as sufficient to Webb. unwilling testify in [de the witness been suggesting contains no evidence record along, judge’s com all behalf fendant’s] intervening factors influenced the wit- other ments, not have been a though wrong, could Further, testify. not to since ness’s decision majority argues causative factor.” judge only partially recused the first district made out because causation is not case, any possible retrial from the himself privi her Fifth Amendment witness invoked testifying be- might found the witness hearing, initial be lege two weeks again. him fore agree. judge. I cannot fore another in Webb cases is The standard causation correct the First Circuit was I believe that question need light one. The conduct violation, a Webb holding that to establish only substantially with the witness’s interfere act or omis- contested there must be “some (1) testify. See United States be attributed to the decision can [which] sion (2) Cir.1983). the loss or erosion sovereign and causes Crawford, 707 F.2d (3) material to the occur, which is both only if Should that there is error (4) to the accused.” Id. favorable case and unwilling “the witness been [had] transcripts prof- and the Based on Hoffman, 1303. I along.” 832 F.2d at all (1), affidavits, can be no issue of fered there that, law, as a therefore believe matter (2), prong focus therefore “plausible there is nexus between chal- judge’s can actions the first district whether the ab- lenged governmental conduct and fairly have caused the witness be said to testimony.” Id. At a mini- [the] sence of testify. not to decide mum, requires there an issue of fact which ease, Webb, the witness was as in this hearing on the a reversal and a remand for a actually on the stand when in court and issue of causation. given. admonition judgment of the dis- I would reverse the stated, Supreme 93 S.Ct. 351. The Court trict court. willing to witness] was [the “The fact that petitioner’s to court to come

behalf, only refusing to do so after lengthy intimidating warning,

strongly suggests comments witness’s] the cause of refusal to [the

were at 353. Conse

testify.” Id. at 93 S.Ct. summarily reversed

quently, the Court with of causation considering the issue fur

out

ther. Id. at ways in several

The facts this case in Webb.

even more clear than begun in court but had prior given She had two sworn actually er, the recusal did not me to reach the same I am satisfied Webbconstrain conclusion Blackwell, hearing, adjournment F.2d at Contra here. until take effect complex given delivered the court slightly were This case is so the admonitions overlapping capacity. court’s decision to of the trial recuse its official its admonitions to Ms. Scott. Howev- itself and