
USCA1 Opinion

	














                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 96-1937

                                    UNITED STATES,

                                      Appellee,

                                          v.

                       BENIGNO SANTIAGO-BECERRIL, a/k/a BENNY,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                         and Lagueux,* Chief District Judge.
                                       ____________________

                                 ____________________

            Jorge L.  Arroyo-Alejandro with whom  Rachel Brill  were on  brief
            __________________________            ____________
        for appellant.
            W. Stephen  Muldrow, Assistant United  States Attorney,  with whom
            ___________________
        Nelson  Perez-Sosa,  Assistant  United States  Attorney,  and  Jose A.
        __________________                                             _______
        Quiles-Espinosa,  Senior Litigation  Counsel, were  on  brief for  the
        _______________
        United States.
                                 ____________________
                                  November 20, 1997
                                 ____________________


                            
        ____________________

        *Of the District of Rhode Island, sitting by designation.















                      CAMPBELL,   Senior  Circuit   Judge.     Defendant-
                                  _______________________

            appellant Benigno Santiago-Becerril ("Santiago") appeals from

            convictions  for the  wrongful taking of  a motor  vehicle by

            force and violence, with a  resulting death, see 18 U.S.C.   
                                                         ___

            2119(3) (Supp. 1997), 2 (1969), and  for the knowing use of a

            firearm in relation to a crime of violence, see  18 U.S.C.   
                                                        ___

            924(c)(1) &  (3) (Supp. 1997), 2 (1969).  He argues on appeal

            that   the  district   court  violated   his  statutory   and

            constitutional  rights  to a  speedy  trial, as  well  as his

            constitutional right to present witnesses in his own defense.

                                          I.
                                          I.

                      Santiago  was arrested on October 20, 1994 pursuant

            to a warrant issued after a criminal complaint had been filed

            against  him  on  the  previous  day.    He  has  since  been

            incarcerated.

                      Criminal complaints  and arrest warrants  were also

            issued on October 20,  1994 against two minors, Antonio  Jose

            Esquilin-Garcia  ("Esquilin")  and Pedro  Antonio  Ramos-Rosa

            ("Ramos"), alleged to  have participated in the  same offense

            as Santiago.  Both were arrested on November 11, 1994.

                      Because  Esquilin  and  Ramos   were  minors,  only

            Santiago was charged in an indictment returned on November 2,

            1994.  At his arraignment  on November 9, 1994, Santiago pled

            not guilty to both counts of the indictment.





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                                          2















                      On  November 22, 1994,  Santiago filed a  motion to

            continue his trial, which had  been scheduled for January 12,

            1995.  As  a reason for  the continuance, Santiago's  counsel

            stated that  he (counsel) would  be on trial  at the time  in

            another case.  The district court granted the  continuance on

            December 1, 1994,  finding that Santiago's interest  in being

            represented by competent counsel  outweighed his interests in

            a speedy  trial and ordering  counsel for Santiago  to notify

            the court when the other trial had ended.

                      On  February 2,  1995, Santiago's  counsel notified

            the district  court that his  other trial was  over, allowing

            the setting  of a  new trial  date.   On March  1, 1995,  the

            district  court ordered  a pretrial  conference  on March  6,

            1995, and set Santiago's trial for March 13, 1995.

                      On  March  10,  1995, the  government  requested  a

            continuance of the March 13 trial date, stating that Esquilin

            and  Ramos  were both  awaiting  a  hearing  on a  motion  to

            transfer to adult status.  If the transfers were allowed, the

            government proposed to try them along with Santiago.  Without

            objection,  the  district  court allowed  the  continuance on

            March 13,  1995.   The court found  the ends of  justice were

            served by continuing  the trial, and that the  ability to try

            together all persons  implicated in this case  outweighed the

            interests in a speedy trial.





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                                          3















                      On  October 10,  1995, the  district court  ordered

            that both Esquilin and Ramos  be transferred to adult status.

            On October 18,  1995, the grand  jury returned a  superseding

            indictment, charging the two transferred minors and  Santiago

            with the  same offenses  charged in  the original  indictment

            against Santiago alone.  

                      On December 4, 1995, Ramos entered a plea of guilty

            as  to  counts  one and  two  of  the  superseding indictment

            pursuant to a Plea and Cooperation Agreement.  On January 22,

            1996, Esquilin did  the same in respect  to count one  of the

            superseding indictment.  Santiago's trial was set for January

            23, 1996.

                      On January  18, 1996,  Santiago filed  a motion  to

            dismiss  the  superseding  indictment for  violation  of  his

            constitutional and statutory  rights to a speedy trial.  Five

            days later, following  argument, the district court  ruled to

            deny Santiago's motion to dismiss.

                      Trial began, as scheduled, on January 23, 1995.  On

            the  fifth day  of trial,  the  defense called  Wanda Caceres

            ("Caceres"),  Santiago's stepmother,  to  the witness  stand.

            Before she  could testify, the court required  the defense to

            make   a  proffer  of   her  expected  testimony.     Counsel

            represented that Caceres would testify about her post-offense

            conversations  with the defendants  and about her  efforts to

            purchase airline tickets for them to travel  to the mainland.



                                         -4-
                                          4















            After  the proffer, the  district court warned  Caceres about

            her right  to refuse to  testify, because of  the possibility

            that she might incriminate herself.  The court also appointed

            an attorney to advise Caceres,  who was unrepresented to that

            point.

                      After Caceres s  lawyer explained  "her rights  and

            the possible or probable consequences of testifying," Caceres

            decided  not to  testify.    Later that  same  day, the  jury

            returned a verdict, finding Santiago guilty on counts one and

            two of the superseding indictment.  

                      On  May  23,  1996,  the  district  court sentenced

            Santiago   to   life   imprisonment   on   count   one   and,

            consecutively, to  sixty months'  imprisonment on count  two.

            Santiago appealed.

                                         II.
                                         II.

            A.   Santiago's  Statutory  and  Constitutional Rights  to  a
                 Santiago's  Statutory  and  Constitutional Rights  to  a
                 Speedy Trial
                 Speedy Trial

                 1.   The Statutory Right
                      ___________________

                      The  Speedy Trial Act ("STA"), 18  U.S.C.   3161 et
                                                                       __

            seq.   (1985),   is  designed   "to  protect   a  defendant's
            ___

            constitutional  right to a  speedy . . . trial, and  to serve

            the public interest in bringing prompt criminal proceedings."

            United States v.  Saltzman, 984  F.2d 1087,  1090 (10th  Cir.
            _____________     ________

            1993) (citing  United States v.  Noone, 913 F.2d 20,  28 (1st
                           _____________     _____

            Cir. 1990)).  The STA provides that the government must bring

            a criminal defendant to trial no more than seventy days after


                                         -5-
                                          5















            the later of the filing date of the information or indictment

            or the  date on  which the  criminal defendant  first appears

            before a judicial officer of the court in which the charge is

            pending.   18  U.S.C.    3161(c)(1) (1985);  see also  United
                                                         ___ ____  ______

            States v.  Torres Lopez, 851  F.2d 520, 525 (1st  Cir. 1988).
            ______     ____________

            In calculating the seventy days the STA excludes certain time

            periods.   See 18  U.S.C.    3161(h)(1)-(9) (1985);  see also
                       ___                                       ___ ____

            United  States v.  Sposito,  106 F.3d  1042,  1043 (1st  Cir.
            ______________     _______

            1997); United  States v. Thurlow,  710 F. Supp. 380,  381 (D.
                   ______________    _______

            Me. 1989).  If a criminal  defendant is not brought to  trial

            within the seventy-day  time limit required by    3161(c)(1),

            as extended  by operation  of    3161(h)(1)-(9), the  penalty

            provisions  of the  STA  mandate  that  "the  information  or

            indictment  shall be dismissed  on motion of  the defendant."

            18 U.S.C.   3162(a)(2) (1985);  see also Sposito, 106 F.3d at
                                            ___ ____ _______

            1043; Thurlow, 710 F. Supp. at 381.
                  _______

                      Santiago  argues that the  district court  erred in

            denying his motion to dismiss the superseding indictment.  He

            says that the delay in his being brought to trial added up to

            twice the number of statutorily allowable days.  In response,

            the government  asserts that  only forty-nine  non-excludable

            days passed before Santiago was brought to trial.  

                      We find no error in the district court's refusal to

            dismiss the superseding  indictment.  This court  reviews the

            disposition  of a  STA issue  for clear  error as  to factual



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                                          6















            findings and de novo as to legal rulings.  See United  States
                         __ ____                       ___ ______________

            v.  Rodriguez,  63 F.3d  1159,  1162  (1st  Cir. 1995).    We
                _________

            conclude  that fewer than seventy non-excludable days went by

            before Santiago was brought to trial.

                      a)   November  4, 1994 to March 1, 1995 (Santiago's
                           ______________________________________________
                           motion for a continuance of trial)
                           __________________________________
                      The original indictment was returned on November 2,

            1994.  Santiago first appeared  before a judicial officer  of

            the district  court on  November 4,  1994.   STA  calculation

            begins with the latter  of these two dates.  See  18 U.S.C.  
                                                         ___

            3161(c)(1) (1985).

                      November  4,  1994  is  itself  excludable  because

            Santiago appeared before the district court on that day.  See
                                                                      ___

            18 U.S.C.    3161(h)(1)  (1985) ("proceedings concerning  the

            defendant").  That day is also excludable for another reason,

            to  wit, the government's  motion to detain  Santiago without

            bail pending the  detention hearing, which the  court granted

            that  same day.    See  18  U.S.C.     3161(h)(1)(F)  (1985).
                               ___

            Section 3161(h)(1)(F) excludes any "delay resulting from  any

            pretrial  motion, from the  filing of the  motion through the

            conclusion of the hearing on, or other prompt disposition of,

            such motion."  Id.  November 9, 1994 is excludable because of
                           ___

            Santiago's  arraignment and  detention hearing  on that  day.

            See 18 U.S.C.   3161(h)(1) (1985).
            ___

                      Santiago contends that the period from November 10,

            1994 up to and including November 21, 1994 is non-excludable.



                                         -7-
                                          7















            The government agrees.  We  therefore find a total of sixteen

            non-excludable days up to this point.

                      On  November  22,  1994,  Santiago  filed a  motion

            notifying the district court of his counsel's  unavailability

            on January  12, 1995, the  scheduled trial  date, because  of

            another trial.   Santiago requested an indefinite continuance

            of the trial as set for January 12, 1995.  The  court granted

            this  motion ten  days later,  on December 1,  1994, ordering

            counsel to  notify the court  when the other trial  was over.

            The parties agree  that the ten days the court took to decide

            the  motion were excludable  from the STA's  seventy-day time

            limit.  See 18 U.S.C.    3161(h)(1)(F) (1985).  They likewise
                    ___

            agree  that December  2,  1994  was  excludable,  a  pretrial

            conference  being  held  on  that  day.    See 18   U.S.C.   
                                                       ___

            3161(h)(1) (1985).

                      Santiago asserts that the six days from December 3,

            1994 to  December 8, 1994 are non-excludable.  The government

            contends  that  the  indefinite  continuance  of  the  trial,

            granted at  defendant's request  on December  1, 1994,  makes

            these days excludable.

                      The STA excludes any period of delay resulting from

            the court's granting of a  continuance if the continuance was

            granted on  the basis  of findings that  the ends  of justice

            served  outweigh the speedy trial  interest.  See 18 U.S.C.  
                                                          ___





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                                          8















            3161(h)(8)(A)  (1985).1  An  ends of justice  continuance was

            granted  here.     Santiago  contends,   however,  that   the

            excludable  time  attributable  to  the  continuance must  be

            limited to the  period of time between January  12, 1995, the

            original  trial date, and February 2,  1995, the date defense

            counsel notified  the court  of his  availability for  trial.

            The government maintains  that the entire three  month period

            of  time starting  on December  1, 1994,  the date  the court

            continued the original  trial date,  and ending  on March  1,

            1995, the day the court set  a new trial date, is  excludable

            from the STA's seventy-day time limit.

                      We  agree  with  the government.    The  "period of

            delay"  resulting from the  continuance began on  December 1,

            1994, when the January 12,  1995, trial date was canceled and

            the  trial put  on hold  until further  order. The  period of

            delay  remained in effect  from then  through March  1, 1995,

                                
            ____________________

            1.   Section 3161(h)(8)(A)  provides, in  pertinent part,  as
            follows:

                      (h)  The  following  periods  of  delay  shall   be
                 excluded in  computing the  time . . . within  which the
                 trial . . . must commence:

                           (8)(A) Any  period of  delay resulting from  a
                 continuance granted by any judge on his own motion or at
                 the request  of the defendant  or his counsel or  at the
                 request of the attorney for the Government, if the judge
                 granted  such continuance on  the basis of  his findings
                 that the  ends of justice  served by taking  such action
                 outweigh  the  best  interest  of  the  public  and  the
                 defendant in a speedy trial.

            18 U.S.C.   3161(h)(8)(A) (1985).  

                                         -9-
                                          9















            when,  after   having  been  earlier  advised   of  counsel's

            availability, the court set a new trial date.

                 There is  no way to  regard the period from  the court's

            December 1 ruling to the original January 12 trial date as if

            no continuance  were then in  effect.  The  continuance ruled

            out all possibility of a trial while it lasted, relieving the

            parties of  the need to prepare  for trial on  January 12, as

            previously scheduled, or at any  time from December 1 until a

            new trial date was set.

                      Contending  that a continuance  of trial  ends when

            the reason for it ends, Santiago argues that the twenty-seven

            day period beginning on February  2, 1995 and ending on March

            1,  1995,  during  which  the  court  was  aware  of  defense

            counsel's availability but had not  yet set a new trial date,

            cannot  be  excludable.   To  exclude  that  period, Santiago

            asserts, citing to United States v. Rush, 738  F.2d 497, 505-
                               _____________    ____

            06  (1st   Cir.  1984),  would  give  rise  to  an  automatic

            additional  period of exclusion after every "ends of justice"

            continuance  between the notice that the event triggering the

            continuance of trial has ended  and the court's order setting

            a  new  trial  date.    Santiago  argues  that  his counsel's

            February 2, 1995 notice of  availability left nothing for the

            district court to do but set a new trial date, a routine act.

                      We  do not accept Santiago's argument.  The "period

            of delay" caused by the ends of  justice continuance included



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                                          10















            the time, following  counsel's notice of readiness,  that the

            judge reasonably required to schedule  a new trial date.  The

            mere   announcement   of  counsel's   availability   did  not

            automatically  terminate   the  continuance  of   the  trial.

            Setting  a new  date required  consideration  of the  court's

            calendar; an available window had to be found.  The court may

            not  have  been  able  to  determine  as  soon  as  counsel s

            availability was known when its other obligations would allow

            the scheduling of a trial.  The  court took less than a month

            to schedule a  new trial date, which was  not an unreasonable

            delay.

                      We  add  that the  twenty-seven  days that  elapsed

            before  a new trial date was set  can be viewed as separately

            excludable  under the  provisions of    3161(h)(1)(F),  which

            excludes the  time  pending  disposition of  a  motion.    By

            notifying  the court of  his availability for  trial, defense

            counsel  may be said to have  impliedly moved for a new trial

            date.  The court acted on the implied motion on March 1, 1995

            by setting a new trial date of March 13, 1995.   Motions that

            do not require a hearing  may toll the seventy-day time limit

            for up to thirty days.   See Henderson v. United States,  476
                                     ___ _________    _____________

            U.S.  321,  29   (1986)  (noting  that  the   phrase  "prompt

            disposition"  in   3161(h)(1)(F) so limits the amount of time

            that can be  excluded).  As  already noted, the  twenty-seven

            days  taken  by  the  court  to  determine  a  new  date  was



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                                          11















            reasonable enough.   We conclude that the entire  period from

            December 1,  1994 through  March 1,  1995 was  excludable for

            purposes of the STA, leaving us still with a total of sixteen

            non-excludable days at this point in time.

                      b)   March   2,  1995  to  October  18,  1995  (The
                           ______________________________________________
                           government's  motion  for   a  continuance  of
                           ______________________________________________
                           trial)
                           ______

                      The new March 13 trial date did not stand for long.

            On  March  10,   1995,  the  government  moved   to  continue

            Santiago's trial in order to allow it to obtain permission to

            try  the two  juveniles, Ramos  and  Esquilin, as  adults, in

            which event they  would be eligible to be  tried jointly with

            Santiago.  Finding that the "ends of justice" would be served

            by continuing  the trial  pending resolution  of Ramos's  and

            Esquilin's  adult  status,  the district  court  allowed  the

            government's motion  on March  13, 1995.   The parties  agree

            that the period of time from March 2, 1995, the day after the

            district court  set the March  13 trial date, until  March 9,

            1995,  the  day before  the  government filed  its  motion to

            continue the new  trial date, was non-excludable.   They also

            agree  that the  days between  March  10, 1995,  the day  the

            government filed its motion to continue the trial, and  March

            13, 1995, the day the district court granted the government's

            motion to continue the trial, were excludable.  See 18 U.S.C.
                                                            ___

              3161(h)(1)(F)  (1985).    The addition  of  the  eight non-





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                                          12















            excludable  days yields  a  new  total  of  twenty-four  non-

            excludable days.

                      c)   March 14, 1995 to October 18, 1995
                           __________________________________

                      The parties disagree sharply over exclusion of  the

            219-day period beginning on March 14, 1995, the day after the

            district court  granted the  government's motion to  continue

            the   trial, until  October 18, 1995,  the day  a superseding

            indictment  against all three  defendants was returned.   The

            March  13  continuance was  open-ended, although  as Santiago

            acknowledges,   that,  in  and  of itself,  did  not make  it

            invalid.   Open-ended continuances are not prohibited per se.
                                                                  ___ __

            See United States v. Spring, 80 F.3d 1450, 1457-58 (10th Cir.
            ___ _____________    ______

            1996); United  States v.  Jones, 56 F.3d  581, 585-86  & n.10
                   ______________     _____

            (5th Cir. 1995); United States  v. Lattany, 982 F.2d 866, 868
                             _____________     _______

            (3d Cir. 1992); Rush, 738 F.2d at 508.  But see United States
                            ____                    ___ ___ _____________

            v. Jordan, 915 F.2d 563,  565-66 (9th Cir. 1990) ("The Speedy
               ______

            Trial  Act   . . . requires   that  an   'ends  of   justice'

            continuance  be specifically limited in time . . . .").  This

            court  has  said, "it  is  generally  preferable  to limit  a

            continuance to a definite period  for the sake of clarity and

            certainty; but at the same time it is inevitable that in some

            cases . . . a court is forced  to order an (h)(8) continuance

            without knowing exactly  how long the reasons  supporting the

            continuance  will remain valid."  Rush, 738  F.2d at 508.  An
                                              ____

            open-ended continuance may, therefore, bring to bear a factor



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                                          13















            of  "reasonableness."  See Lattany, 982 F.2d at 868 ("[O]pen-
                                   ___ _______

            ended  continuances to  serve  the ends  of  justice are  not

            prohibited if  they are  reasonable in  length."); Rush,  738
                                                               ____

            F.2d at 508 ("It may well be that some sort of reasonableness

            limitation  is  appropriate  to  prevent  continuances   from

            delaying  trials  unfairly  and  circumventing the  dismissal

            sanctions in the Speedy Trial Act . . . .").

                      Santiago argues  that, when viewed in  the totality

            of  the circumstances, including the previous delays, the 219

            day delay was  clearly unreasonable.  Much of  that delay, he

            contends, was  attributable to government  foot-dragging and,

            therefore,  lacked an element of defendant s involvement that

            has led  us to exclude  open-ended continuances in  the past.

            See  Lattany, 982 F.2d  at 883 (holding that  the length of a
            ___  _______

            continuance was not unreasonable  because of defendant's part

            in extending the delay).  Santiago maintains  that the docket

            entries  for  the  transfer  proceedings2  are suggestive  of

            governmental bad faith and needless  delay.  He points to the

            postponement  of a  March 21,  1995  evidentiary hearing  for

            Ramos  after the  government said  that it  had not  received

            notice of it.  Santiago contends that this delay, in addition

            to other  questionable delays,  indicate that  the government

            was not acting expeditiously in  spite of knowing that he was


                                
            ____________________

            2.   Many of the records relating to the transfer proceedings
            do not appear in the record before us.

                                         -14-
                                          14















            still awaiting  trial.   And, finally, Santiago  says he  was

            misled into believing that the transfer proceedings would end

            momentarily. 

                      We find  little support for  Santiago's charge that

            the transfer  proceedings  were  protracted  by  governmental

            indifference and impropriety.   Their duration does  not seem

            extreme  in   the  circumstances,  and  the   continuance  of

            Santiago s trial  until it could be determined whether to try

            the  minor   codefendants  with   Santiago  was   reasonable,

            especially  where Santiago raised  no objection at  the time.

            Cf. United  States v. Parker,  404 F.2d 1193, 1196  (9th Cir.
            ___ ______________    ______

            1968)  (noting  the  substantial  public  interest  in  joint

            trials).

                      The two  juveniles'  natural  resistance  to  being

            tried  as adults affords an  obvious explanation for the time

            consumed by the transfer proceedings.  The seriousness of the

            charges  provided good  reason  for  them  to  do  everything

            possible to retain  their juvenile  status.   That the  adult

            classification  issue was not simple is suggested by the fact

            that, although the district judge ultimately transferred both

            minors to adult  status, the magistrate judge  presiding over

            the transfer proceedings recommended the transfer of only one

            of them.   The  limited record that  we have  reflects delays

            arising  from, among other  things, difficulties in arranging

            for  psychological evaluations of  the two juveniles.   At no



                                         -15-
                                          15















            time within this period did Santiago seek either to terminate

            the  continuance of  his trial  or to  expedite the  transfer

            proceedings.

                      We conclude  that the continuance  for the transfer

            proceedings  was   not  unreasonable  or   excessively  long.

            Accordingly,  we  exclude  the period  between  March  14 and

            October   18,  1995,  pursuant  to     3161(h)(8)(A).    This

            exclusion keeps  the STA count at  twenty-four non-excludable

            days at this point in the calculations.

                      c)   October   19,  1995   to   January  23,   1996
                           ______________________________________________
                           (Esquilin's motion for a change of plea)
                           ________________________________________

                      The October 18,  1995 superseding indictment, which

            included  Ramos  and   Esquilin  as  defendants  along   with

            Santiago, did not  restart Santiago's STA's clock  because it

            was  based on  the original  charges.   See United  States v.
                                                    ___ ______________

            Rojas-Contreras,  474  U.S. 231,  240  (1985) (Blackmun,  J.,
            _______________

            concurring);  United States v. Karsseboom, 881 F.2d 604, 606-
                          _____________    __________

            07 (9th Cir. 1989).

                      The  parties  agree  that, with  the  exception  of

            October 25, 1995, the days  between October 19, 1995, the day

            after  the filing of the superseding indictment, and November

            13,  1995, the  day  before the  filing  of the  government's

            motion  as to Ramos  to seal documents,  were non-excludable.

            October 25, 1995  was excludable because it was  the day that

            Santiago was  arraigned  under  the  superseding  indictment.

            See 18  U.S.C.   3161(h)(1) (1985).  Adding these twenty-five
            ___


                                         -16-
                                          16















            non-excludable  days gives  a new  total  of forty-nine  non-

            excludable days.

                      Because the superseding indictment pertained to all

            three, any  defendant's motion resulting  in excludable  time

            tolled the STA clock for his codefendants.  See United States
                                                        ___ _____________

            v. Ortiz,  23 F.3d 21,  27-28 (1st Cir. 1994);  Torres Lopez,
               _____                                        ____________

            851 F.2d at 526 ("A  pretrial motion resulting in  excludable

            time for one defendant also  stops the Speedy Trial clock for

            all codefendants." (citations  omitted)); Rush,  738 F.2d  at
                                                      ____

            503  ("Every circuit court that has considered [  3161(h)(7)]

            has  held in  essence that  'an exclusion  applicable to  one

            defendant   applies   to   all   codefendants.'"   (citations

            omitted)).3   Accordingly, November  14, 1995,  the date  the

            government filed  its motion to  seal documents as  to Ramos;

            November  15, 1995,  the date  Ramos filed  his motion  for a

            change of  plea; and  November 16, 1995,  the date  the court

            granted  the motion  to seal  as to  Ramos and  scheduled his

            change  of plea hearing,  are all excludable  from Santiago's


                                
            ____________________

            3.   Section 3161(h)(7) states, in relevant part, as follows:

                      (h)  The   following  periods  of  delay  shall  be
                 excluded  in computing the  time . . . within  which the
                 trial . . . must commence:

                           (7)  A reasonable  period  of  delay when  the
                      defendant is joined for trial with a codefendant as
                      to  whom the  time for  trial  has not  run and  no
                      motion for severance has been granted."  

            18 U.S.C.   3161(h)(7) (1985).

                                         -17-
                                          17















            STA  computation.    See 18  U.S.C.     3161(h)(1)(F), (h)(7)
                                 ___

            (1985).

                      Santiago  argues  that,   with  the  exception   of

            November 27, 1995, the period of time from November 17, 1995,

            the  day after  the court  acted  on the  two motions,  until

            December  3,  1995, the  day  before Ramos's  change  of plea

            hearing,  is non-excludable.   He concedes that  November 27,

            1995 is excludable  because of the arraignment  and detention

            hearings of Esquilin and Ramos on that date.  See 18 U.S.C.  
                                                          ___

            3161(h)(1)(F), (h)(7) (1985).  The government, however, would

            exclude the entire  period from November 17  through December

            4,  arguing   that  Ramos's   change  of   plea  motion   was

            continuously under advisement  until allowed at a  hearing on

            December 4, 1995.  We agree with the government, as discussed

            below,  and  exclude that  period  of  time  from  the  STA's

            seventy-day time limit.

                      Santiago also disputes any exclusion of  the period

            of time from  December 5, 1995, the day  after Ramos's change

            of plea hearing, through January 17, 1996, the day before the

            filing  of  Santiago's  motion  to  dismiss  the  superseding

            indictment.   Santiago  contends that  Esquilin's motion  for

            change of plea, filed on December 1, 1995, was not excludable

            until at least December 26,  1995, when the court set January

            19, 1996 as  the date for Esquilin's change  of plea hearing.

            This is so, he says,  because Esquilin's motion required  "no



                                         -18-
                                          18















            disposition" until  December 26,  (apparently because  it was

            not yet scheduled for hearing), and because a contrary ruling

            would  allow  district  judges  to  toll  the  STA  clock  by

            intentionally delaying their orders scheduling change of plea

            hearings.   The  short answer  to this  argument is  that the

            exclusion  provided  by      3161(h)(1)(F)  applies   without

            qualification  "from the  filing of  the  motion through  the

            conclusion of  the hearing on . . . such motion," 18 U.S.C.  

            3161(h)(1)(F) (1985); see  United States v. Jenkins,  92 F.3d
                                  ___  _____________    _______

            430, 440  (6th Cir. 1996);  United States v. Mentz,  840 F.2d
                                        _____________    _____

            315, 327 n.25 (6th Cir. 1988).4

                      Santiago also  questions the  excludability of  the

            post-December  26 period  during which  Esquilin's  change of

            plea motion  continued under advisement.   As in the  case of

            Ramos's  similar   motion,  Santiago   would  have   us  deny

            excludability on the ground that  Jenkins does not stand  for
                                              _______

            the proposition that  the entire period from the  filing of a

            motion for  a change of plea until the change of plea hearing

            is   excludable.    The  holding  in  Jenkins,  according  to
                                                  _______

            Santiago, dealt with a motion that did not require a hearing,

                                
            ____________________

            4.   Santiago  points  out  that  the  district   court  also
            excluded the period of time starting on October 18, 1995, the
            filing  date of  the superseding  indictment,  and ending  on
            December 12,  1995, because  of "ongoing  plea negotiations."
            According to Santiago, this exclusion of time is  contrary to
            both the relevant facts and the applicable law.  We need not,
            however, consider the  appropriateness of this theory,  as we
            do not make use of it in our STA calculation and instead rely
            on other grounds for excluding most of this period of time.

                                         -19-
                                          19















            to  wit, a  motion to  use a  jury questionnaire.5   Santiago

            contends that the hearing referred to in both   3161(h)(1)(F)

            and the Jenkins case is  one that is necessary to decide  the
                    _______

            merits of the motion, and that such was not the case here.

                      We  agree with the government that  all of the days

            between the date a codefendant files a motion for a change of

            plea and  the date of the  change of plea  hearing itself are

            excludable from  the STA's  seventy-day time  limit.   See 18
                                                                   ___

            U.S.C.     3161(h)(1)(F), (h)(7)  (1985); accord  Jenkins, 92
                                                      ______  _______

            F.3d at 440; see also Henderson, 476 U.S. at 326-27; Sposito,
                         ___ ____ _________                      _______

            106 F.3d at 1044. 

                      A  change of plea hearing is essential to establish

            the  knowing and voluntary  nature of the  defendant's guilty

            plea, and to determine the sufficiency of its  factual basis.

            Until  these factors are established,  the court may not rule

            definitively on  whether  or not  to  accept the  motion  for

            change of plea.

                      Santiago argues that the district court in  Thurlow
                                                                  _______

            sets  forth a  better reasoned  view  than the  one we  take.

            Citing to    3161(h)(8)(C),  the Thurlow  court ruled  that a
                                             _______


                                
            ____________________

            5.  At  oral argument, Santiago's attorney  acknowledged that
            there is  what he  called "a brief,  passing comment"  in the
            Jenkins  opinion  that goes  into the  question of  whether a
            _______
            change of plea notice is "a motion requiring a hearing" under
            the STA.   Still, he dismissed it  as being "bad law"  and as
            not  having  in  consideration the  rationale  of  cases like
            United States  v. Thurlow,  710 F. Supp.  380 (D.  Me. 1989),
            _____________     _______
            which is more in harmony with the intent behind the STA.

                                         -20-
                                          20















            delay caused by the "general congestion of the courts" is not

            a sufficient basis  for the exclusion of time  from the STA's

            seventy-day time limit.  Thurlow,  710 F. Supp. at 383.   The
                                     _______

            court thus concluded that an  exclusion of time under the STA

            could not be granted for the period of time starting with the

            defendant's  notice and  ending  with  the  court's  hearing,

            because  the delay was  due solely to  the court's scheduling

            requirements.  See id.
                           ___ ___

                      We remain unpersuaded.   A  defendant's request  to

            change  his plea  clearly constitutes  a  pretrial motion,  a

            motion  which automatically  triggers  an exclusion  of time.

            See  18  U.S.C.     3161(h)(1)(F)  (1985).    The  weight  of
            ___

            authority is to this effect.  In Sposito, Jenkins, Henderson,
                                             _______  _______  _________

            and  other cases,  courts  have agreed  that the  entire time

            between the  filing of a  pretrial motion and the  hearing on

            that motion  is excludable  from the  STA's seventy-day  time

            limit.   See, e.g., Henderson,  476 U.S. at  326-27; Sposito,
                     _________  _________                        _______

            106 F.3d at 1044;  Jenkins, 92 F.3d at 440.   Hence, the days
                               _______

            between  December 1, 1995, the date Esquilin filed his motion

            for  change  of plea,  and  January  22,  1996, the  date  of

            Esquilin's actual change of plea hearing, are all excludable.

                      On January 18,  1996, Santiago filed his  motion to

            dismiss  the  superseding  indictment for  lack  of  a speedy







                                         -21-
                                          21















            trial.  The  district court denied the motion  on January 23,

            1996.6    Both   parties  agree  that  these   six  days  are

            excludable.   See 18 U.S.C.   3161(h)(1)(F)  (1985).  January
                          ___

            23,  1996 was the first  day of jury  trial, bringing the STA

            clock  to a  stop  in the  instant  case.   See  18 U.S.C.   
                                                        ___

            3161(c)(1) (1985).  

                      We  conclude  that only  forty-nine  non-excludable

            days ran off  the STA clock before the  commencement of trial

            and  that,  therefore, no  violation of  Santiago's statutory

            right to a speedy trial occurred.

                 2. The Constitutional Right
                    ________________________

                      Santiago  insists  that  the  delay  in  his  being

            brought  to  trial  violated his  constitutional  right  to a

            speedy trial.  We find no merit in this contention.  

                      The   Sixth   Amendment   to   the  United   States

            Constitution  provides,  in pertinent  part,  that  "[i]n all

            criminal prosecutions, the accused shall enjoy the right to a

            speedy and public  trial."  U.S.  Const. amend. VI  (emphasis
            ______

            added).    This  right attaches  upon  arrest  or indictment,

            whichever occurs first.  See  United States v. MacDonald, 456
                                     ___  _____________    _________

            U.S. 1, 6-7  (1981); United States v. Mala, 7 F.3d 1058, 1061
                                 _____________    ____


                                
            ____________________

            6.   During trial,  the district court ruled  that Santiago's
            motion  to dismiss  had  been "untimely",  since it  had been
            filed just  prior to  trial.  We  accept Santiago's  argument
            that untimeliness  would not,  on this  record, constitute  a
            valid independent ground for denying the motion to dismiss.
              

                                         -22-
                                          22















            (1st Cir.  1993); United States  v. Colombo, 852 F.2d  19, 23
                              _____________     _______

            (1st Cir. 1988).   For Sixth Amendment  purposes, Santiago is

            entitled to a computation of  time from October 20, 1994, the

            date of his arrest.

                      That there was no violation of the STA in this case

            would  not  necessarily  preclude  a  court  from  finding  a

            violation of  Santiago's Sixth  Amendment right  to a  speedy

            trial.  See United States v. Koller, 956 F.2d 1408, 1413 (7th
                    ___ _____________    ______

            Cir.  1992).   Section  3173  of the  STA  states that  "[n]o

            provision of  this chapter shall  be interpreted as a  bar to

            any claim of denial of  speedy trial as required by amendment

            VI of the  Constitution."  18 U.S.C.    3173 (1985); see also
                                                                 ___ ____

            United  States v. Mitchell,  723 F.2d  1040,  1049 (1st  Cir.
            ______________    ________

            1983).  "It would be, however, 'an unusual  case in which the

            time  limits of  the  [STA]  have been  met  but the  [S]ixth

            [A]mendment  right  to  speedy  trial  has  been  violated.'"

            Mitchell, 723 F.2d at  1049 (quoting United States v.  Nance,
            ________                             _____________     _____

            666  F.2d 353,  360 (9th Cir.  1982)).  This  court reviews a

            district court's speedy  trial determination under  the Sixth

            Amendment for abuse of discretion.   See Colombo, 852 F.2d at
                                                 ___ _______

            21.

                      In  Barker v. Wingo,  407 U.S. 514,  530-33 (1972),
                          ______    _____

            the Supreme Court  established a four-part balancing  test to

            be used  in determining whether a defendant's Sixth Amendment

            right to a speedy trial has been violated.   See, e.g., Mala,
                                                         _________  ____



                                         -23-
                                          23















            7 F.3d  at 1061.  A court should  consider: (1) the length of

            the  delay;  (2)  the  reason(s)   for  the  delay;  (3)  the

            defendant's assertion of his speedy trial right; and (4)  the

            prejudice to the  defendant caused by the delay.   See, e.g.,
                                                               _________

            id. (citing  to Barker,  407 U.S.  at 530).   "None  of these
            ___             ______

            factors is 'either a necessary or sufficient condition to the

            finding  of  a  deprivation  of the  right  of  speedy trial.

            Rather,  they  are  related factors  and  must  be considered

            together  with such other circumstances as may be relevant.'"

            United States  v. Henson, 945  F.2d 430, 437 (1st  Cir. 1991)
            _____________     ______

            (quoting Barker, 407 U.S. at 533).
                     ______

                      The  first factor,  the length  of  the delay,  was

            identified by the Supreme Court as:

                      to  some extent  a triggering  mechanism.
                      Until  there  is   some  delay  which  is
                      presumptively  prejudicial,  there  is no
                      necessity  for  inquiry  into  the  other
                      factors   that  go   into  the   balance.
                      Nevertheless, because of  the imprecision
                      of the right to speedy trial,  the length
                      of  delay  that   will  provoke  such  an
                      inquiry is necessarily dependent upon the
                      peculiar circumstances of the case.   For
                      example, the delay  that can be tolerated
                      for an ordinary street crime is less than
                      for a serious, complex conspiracy charge.


            Barker,  407 U.S.  at 530-31;  see also  Koller, 956  F.2d at
            ______                         ___ ____  ______

            1413.  The Supreme Court has said that "the lower courts have

            generally   found    postaccusation   delay    'presumptively

            prejudicial' at least as it approaches one year."  Doggett v.
                                                               _______

            United  States, 505  U.S.  647,  652  n.1  (1992)  (citations
            ______________


                                         -24-
                                          24















            omitted); see also  United States v. King, 909  F. Supp. 369,
                      ___ ____  _____________    ____

            372 (E.D. Va.  1995).  We shall assume,  under the foregoing,

            that the fifteen month delay in this case was  "presumptively

            prejudicial" so as to trigger further inquiry as to Santiago,

            see, e.g.,  Koller, 956 F.2d  at 1414 (holding that  an eight
            _________   ______

            and  one-half month  delay  was  enough  to  warrant  further

            inquiry); Colombo, 852 F.2d at 24 (holding that a twenty-four
                      _______

            month  period   was  long   enough  to     be   presumptively

            prejudicial);  King,  909 F.  Supp.  at 372  (holding  that a
                           ____

            thirty-one month delay  was sufficient to trigger  the Barker
                                                                   ______

            test).   Still,  we hold  that the  cumulative effect  of the

            pretrial  delay, viewed  under all the  factors set  forth in

            Barker, falls  far short  of establishing  a Sixth  Amendment
            ______

            violation.

                      As  noted,  the length  of  the delay  is  both the

            trigger for  the Barker  analysis and one  of the  factors in
                             ______

            that  analysis.   See  Colombo, 852  F.2d  at  24.   Once  an
                              ___  _______

            examination of  the  Sixth Amendment claim is  triggered, the

            weight  given in  the analysis  to  the length  of the  delay

            depends upon the  extent to which the delay  exceeds the bare

            minimum considered presumptively  prejudicial.  See  Doggett,
                                                            ___  _______

            505 U.S. at 652; King, 909 F. Supp. at 373.   Santiago waited
                             ____

            over fifteen  months for the  commencement of  trial in  this

            case, a case more complicated than "an ordinary street crime"

            but  less so  than "a  serious,  complex conspiracy  charge."



                                         -25-
                                          25















            Barker, 407 U.S. at 531.   Arguably, therefore, the period of
            ______

            the delay was long enough to tip the scales slightly in favor

            of Santiago's instant claim.

                      The second factor, the reason(s) for the delay, has

            been called,  "the focal inquiry."   United States  v. Sears,
                                                 _____________     ______

            Roebuck &  Co., 877 F.2d  734, 739 (9th Cir.  1989) (citation
            ______________

            omitted).  As with the first factor,  "[h]ere, too, different

            weights  should be assigned  to different reasons."   Barker,
                                                                  ______

            407 U.S. at 531.   Santiago argues that the chief contributor

            to  the  delay was  the  government's  lack  of diligence  in

            advancing the  transfer proceedings, and  that the government

            used this  period of time  to further its case  by debriefing

            minors  Esquilin  and  Ramos, both  of  whom  were eventually

            called  to provide  testimony against  him.   We find  in the

            record  below, however, scant  indication that the  length of

            the transfer proceedings was attributable to the government's

            misconduct or negligence.   See Henson, 945 F.2d  at 437 n.7;
                                        ___ ______

            Colombo, 852 F.2d  at 25.   The rest of  the delay in  trying
            _______

            Santiago   resulted  mainly  from   his  own  motion   for  a

            continuance  of the trial  and his codefendants'  motions for

            changes of  pleas.  Santiago never sought  relief from delays

            occasioned by his codefendants by requesting a severance.  We

            conclude that  the various delays  were each justified  by "a

            valid reason."  Barker, 407 U.S. at 531.
                            ______





                                         -26-
                                          26















                      The third factor, the  defendant's assertion of his

            speedy trial right, "is entitled to strong evidentiary weight

            in determining whether the defendant is being deprived of the

            right."   Barker, 407 U.S.  at 531-32; see also  Colombo, 852
                      ______                       ___ ____  _______

            F.2d   at 26.   The failure to  assert the right,  the Barker
                                                                   ______

            Court noted, "will make it difficult for a defendant to prove

            that he was denied a speedy trial."  Barker, 407 U.S. at 532;
                                                 ______

            see also  Colombo 852 F.2d  at 26.   A defendant  should give
            ___ ____  _______

            some indication, prior  to his  assertion of  a speedy  trial

            violation, that he  wishes to proceed to trial.   See Henson,
                                                              ___ ______

            945 F.2d at  438-39; Sears, Roebuck &  Co., 877 F.2d at  740;
                                 _____________________

            Colombo, 852 F.2d at 26.
            _______

                      Santiago did not demand a  speedy trial at any time

            prior to  his motion to  dismiss, which he  filed immediately

            prior to the commencement of his trial.  See United States v.
                                                     ___ _____________

            Vachon,  869  F.2d  653,  657  (1st  Cir. 1989)  (finding  no
            ______

            violation  of any  constitutional right  in a case  where the

            defendant did not raise the constitutional speedy trial issue

            until  two days  before  trial).   The  record  in this  case

            suggests  that  Santiago  only got  around  to  demanding his

            speedy trial right when "it 'became a possible means by which

            to obtain dismissal of the  charges against [him].'"  Henson,
                                                                  ______

            945 F.2d at  439 (quoting Colombo, 852 F.2d at 26).  Hence in
                                      _______

            respect to the  third factor, Santiago's failure to request a

            speedy trial earlier than he did weighs against him.



                                         -27-
                                          27















                      The fourth, and  final, factor -- the  prejudice to

            the defendant caused  by the delay -- "should  be assessed in

            the  light of  the interests of  defendants which  the speedy

            trial  right  was  designed  to protect.    Th[e]  Court  has

            identified  three such  interests: (i) to  prevent oppressive

            pretrial incarceration;  (ii) to minimize anxiety and concern

            of the accused;  and (iii) to limit the  possibility that the

            defense will be impaired."  Barker, 407 U.S. at 532 (footnote
                                        ______

            omitted);  see also  Koller, 956  F.2d at  1414.   The Barker
                       ___ ____  ______                            ______

            Court  went  on  to  discuss  the  disadvantages  of  lengthy

            pretrial  incarceration for the accused who cannot obtain his

            release.  See Barker,  407 U.S. at  532-33.  We shall  assume
                      ___ ______

            that  many  of  those   disadvantages  were  experienced   by

            Santiago,  who  was  subjected  to  over  fifteen  months  of

            pretrial  imprisonment without  bail.   However, the  fifteen

            months of pretrial  incarceration by itself was  insufficient

            to  establish a  constitutional  level  of  prejudice.    Cf.
                                                                      __

            Barker,  407  U.S. at  534  (finding that  the  prejudice was
            ______

            minimal in a case in which  the defendant spent ten months in

            jail before  trial); Koller,  956 F.2d  at 1414  ("Koller did
                                 ______

            spend the entire eight and  one-half months of delay in jail,

            but  in   Barker  the   Court  found   that  ten   months  of
                      ______

            incarceration  prior to trial was not  sufficient to raise to

            the level of prejudice."  (citation omitted)).  





                                         -28-
                                          28















                      In  respect to  Santiago's anxiety  and concern  in

            awaiting  trial, we  do not  weigh  this heavily,  especially

            where Santiago took  no early action  to expedite his  trial,

            either  by  demanding  an  earlier  trial  or  by  seeking  a

            severance from the minor codefendants.  "While 'this  type of

            prejudice is  not to  be brushed  off lightly,'  considerable

            anxiety  normally  attends  the initiation  and  pendency  of

            criminal  charges;   hence   only   'undue   pressures'   are

            considered."  Henson,  945 F.2d at  438 (citing Colombo,  852
                          ______                            _______

            F.2d   at  25   (stressing  that   "the   standard  here   is

            minimization, not  necessarily  elimination  of  the  natural

            consequences of an indictment")).  

                      "Among the three interests safeguarded by the right

            to  speedy trial as guaranteed under the [S]ixth [A]mendment,

            'the  most serious is  [protection against impairment  of the

            defense] because the  inability of a defendant  adequately to

            prepare his case skews  the fairness of the entire  system.'"

            Barker, 407  U.S. at  532 (citations omitted).   There  is no
            ______

            indication  here that the period of pretrial delay interfered

            in any  way with  Santiago's ability  to present  evidence or

            obtain the testimony of witnesses,  or that it had any impact

            on the  fairness of his trial.  See  Colombo, 852 F.2d at 25-
                                            ___  _______

            26.   Accordingly, this paramount  interest in no  way favors

            Santiago's claim of constitutional impairment.





                                         -29-
                                          29















                      We conclude, applying Barker's balancing test, that
                                            ______

            Santiago's constitutional  right to  a speedy  trial was  not

            violated.

            B.   Santiago's Due Process Right to Present Witnesses in His
                 Santiago's Due Process Right to Present Witnesses in His
                 Own Defense
                 Own Defense

                      Finally,  Santiago   contends  that   the  district

            judge's  strongly  worded  advice  to  defense witness  Wanda

            Caceres  concerning  her  right  not  to  incriminate herself

            exerted  such influence  on her  so  as to  prevent her  from

            freely choosing  whether to testify  or not, in  violation of

            Santiago's due process  right to present witnesses in his own

            defense.   See Washington  v. Texas, 388  U.S. 14,  19 (1967)
                       ___ __________     _____

            ("Just  as  an  accused   has  the  right  to  confront   the

            prosecution's witnesses for the purpose of  challenging their

            testimony, he has  the right to present his  own witnesses to

            establish a defense.  This  right is a fundamental element of

            due process of law.").

                      On January 30, 1996, Santiago called his stepmother

            Wanda Caceres  to the witness  stand.  Before she  could take

            the  stand, however,  the district  court warned  her  of her

            right  to refuse to  testify because of  the possibility that

            she might incriminate herself.  The court stated, inter alia:

                      -- Caceres, I  want to advise you  -- and
                      listen to  me carefully because  this may
                      have  serious  --   I  would  say  severe
                      consequences for  you.   Listen to  this,
                      what I'm going to tell you.




                                         -30-
                                          30















                           If you're going  to testify what Mr.
                      Arroyo said  you would,  then  I have  to
                      warn you  that you will  be incriminating
                      yourself  and you  will be  violating two
                      statutes: One will be accessory after the
                      fact, and I'm going  to read to you.   It
                      says:  Whoever, knowing  that an  offense
                      against  the  U.S.  has  been  committed,
                      receives, relieves,  comforts or  assists
                      the  offender  in   order  to  hinder  or
                      prevent   his   apprehension,   trial  or
                      punishment  is  an  accessory  after  the
                      fact.

                           And listen to this carefully, listen
                      to the penalty.  I'm going to read to you
                      the pertinent  provision.   In this  case
                      the maximum possible penalty is life  for
                      the defendant, life imprisonment, and the
                      . . . statute  says  that whoever  is  an
                      accessory after the  fact exposes himself
                      or herself  as follows: If  the principal
                      is  punishable  by life  imprisonment  or
                      death, the accessory -- that means you --
                      shall  be  imprisoned  not more  than  15
                      years.

                           . . . . 

                           So that's  one of the  offenses that
                      you will be committing if  you testify --
                      if  -- I mean that can be charged against
                      you by incriminating yourself.

                           Second, there's another  offense.  A
                      mis -- there's -- there's a misprision of
                      a felony,  and I'm  going to  read it  to
                      you.   Whoever, having  knowledge of  the
                      actual commission  of a  felony, conceals
                      and does  not  as soon  as possible  make
                      known  the same  to some  judge or  other
                      person  in  civil or  military  authority
                      under  the United  States, shall  be fine
                      [sic] under this title  or imprisoned not
                      more  than three years or both.  It seems
                      to  me that it  is my duty  as a judicial
                      officer to advise you, to warn  you, that
                      if  you  testify  pursuant  to  what  Mr.
                      Arroyo said -- and that's your decision -
                      -  you  will  be  incriminating  yourself


                                         -31-
                                          31















                      under  oath in a  record, and you  may be
                      exposed to 15  years in prison up  to the
                      maximum and  also three  years but  [sic]
                      misprision  of a  felony  which might  be
                      served  concurrently.     But  with  your
                      testimony  on the  record,  that will  be
                      enough  to take  it to  a  grand jury  to
                      obtain an indictment against you, and you
                      will be a  defendant in this court.   And
                      under the sentencing  guidelines you will
                      most probably have to do time, serve time
                      in  jail.   And there  is  no parole,  no
                      probation.

                           . . . .

                           So  I want to warn you again for the
                      last time so that if you do this you will
                      do this knowingly and willfully and after
                      having been  advised about  your --  your
                      right  not   to  be   incriminated  [sic]
                      against yourself,  but of course  that is
                      your decision.  My duty is to advise you,
                      to forewarn you about it.  If you want to
                      talk to your  lawyer, I will give  you an
                      opportunity to talk to him."

                           . . . .

                           But  --  let me  put  on the  record
                      again it is  your own decision.   I'm not
                      coercing you  into not  testifying.   I'm
                      telling you  may  [sic]  testify  if  you
                      wish.   If  you  wish  to testify  that's
                      fine.   You  just  go ahead  and testify.
                      I'm simply  telling you  the consequences
                      that  might ensue,  and  I underline  the
                      word "might," not that they "shall."

                      After  giving this warning,  the court appointed an

            assistant federal public defender to advise Caceres regarding

            her right not to incriminate herself.  Caceres consulted with

            this lawyer and then decided not to testify for Santiago.

                      Santiago insists that, although  the court had wide

            discretion to warn a witness of the constitutional right  not


                                         -32-
                                          32















            to  testify, it went  too far in  this instance.   See United
                                                               ___ ______

            States v. Arthur, 949 F.2d  211, 215-16 (6th Cir. 1991). ("An
            ______    ______

            abuse  of  that  discretion  can  occur,  however,  when  the

            district court actively  encourages a witness not  to testify

            or badgers a witness into remaining silent.") 

                      Santiago argues that Caceres's testimony would have

            supported the  defense theory that  he was not a  knowing and

            willing participant in  the criminal venture, but  rather was

            "merely present"  at the  scene of the  crime.   The witness,

            according   to   Santiago,    was   privy   to   post-offense

            conversations  between the  codefendants,  and was  entrusted

            with the  purchase of airline  tickets for them to  leave the

            island.  Caceres's testimony, Santiago says, would have shown

            that  both Esquilin  and  Ramos had  admitted  that they  had

            participated  in the offense, and had indicated that Santiago

            was not a participant.

                      In  Webb v.  Texas,  409 U.S.  95,  98 (1972)  (per
                          ____     _____

            curiam), the Supreme Court said, respecting a judge's warning

            to a witness not to perjure himself, that: 

                      in 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.





                                         -33-
                                          33















                      Santiago likens the judge's  comments here to those

            in Webb, pointing to  the fact that Caceres had come to court
               ____

            to testify on  the defendant's behalf, and declined  to do so

            only  after the  judge's  lengthy and  allegedly intimidating

            warning.  The district court, Santiago concludes, should have

            put the more  immediate interests of  the defendant on  trial

            and those of the general  public in the fullest disclosure of

            the   relevant  evidence   before  the   protection  of   the

            volunteering witness in this case.

                      It  is  true  that the  court's  admonition  to the

            witness  here was  relatively  detailed and  strongly stated.

            However, the court was careful to emphasize that the  witness

            could testify if she  wished, and we do not believe that what

            was  said came  even close  to exerting  "such duress  on the

            witness's mind  as to preclude  [her] from making a  free and

            voluntary choice whether or not to testify."  Id.
                                                          ___

                      In Webb, the trial judge apparently  suspected that
                         ____

            a prison inmate called  as defendant's sole witness  was bent

            on perjury.   The judge admonished  him that if he  lied, the

            court would "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









                                         -34-
                                          34















            would be stacked on to what you already got."7  Id. at 95-96.
                                                            ___

            No such threat, or threat of any type, was made here.

                      Rather the court sought to advise  this uncounseled

            witness   of  her   constitutional   right  to   avoid  self-

            incrimination, having learned  from defense counsel  that she

            proposed  to  give  testimony of  an  obviously incriminating

            nature.  A  further difference between this case  and Webb is
                                                                  ____

            that,  here, the court  ultimately provided the  witness with

            counsel with whom  she conferred privately before  making her


                                
            ____________________

            7.   The  trial  judge  admonished  the  defense  witness  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 lied,  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 yo 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 yo 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.

            Webb, 409 U.S. at 95-96 (internal quotation marks omitted). 
            ____

                                         -35-
                                          35















            decision whether to testify.  The provision of counsel helped

            assure that Caceres's  decision was made voluntarily,  in her

            own  interest,  rather  than being  the  product  of judicial

            coercion.8   The  court  took pains  here  to emphasize  that

            Caceres could testify if she wished.  The Webb judge's sparse
                                                      ____

            comments  along similar  lines were  weakly  stated and  were

            overshadowed  by the court's  threats to proceed  against the

            witness for perjury if he took the stand.

                      Santiago  also  relies  upon  the  Sixth  Circuit's

            Arthur decision.   Unlike  Webb, Arthur  involved a  judicial
            ______                     ____  ______

            warning  to a  witness  about  Fifth  Amendment  rights.  The

                                
            ____________________

            8.   After  Caceres received  advise  from Assistant  Federal
            Public Defender Carlos  Vazquez, the following  exchange took
            place:

                 "MR.  VAZQUEZ: Your Honor, we have  talked both with Mr.
                 Arroyo and the witness in this case.  We have once again
                 explained to her her rights and the possible or probable
                 consequences of testifying or not testifying.  And after
                 this discussion this  witness has opted not  to continue
                 testifying in this case.

                 THE COURT: She  will not testify?   She hasn't testified
                 at all.

                 MR. VAZQUEZ: Then she will not testify. 

                 THE COURT: Very  well.  Let  me ask  you, did you  heard
                 [sic] counsel, what he said?  

                 WANDA CACERES: Yes.

                 THE COURT: And what is your decision?

                 WANDA CACERES: Not to testify.

                 THE COURT:  Very well.   You're excused.   You  may step
                 down."  

                                         -36-
                                          36















            witness,  however, had  his own  attorney  and stated  to the

            district court,  after being advised  of his rights,  that he

            wanted to testify  in order to clear the  defendant.  Arthur,
                                                                  ______

            949  F.2d  at 214-15.    Instead  of acquiescing,  the  court

            continued to warn the witness of the adverse  consequences of

            testifying, finally saying,  "I think it's  not in your  best

            interest to  testify  because anything  you say  may be  held

            against  you  in  another prosecution  against  you  for bank

            robbery, could and  would be used  against you."  Id.   After
                                                              ___

            that, the witness changed his mind about testifying.  

                      The Sixth Circuit, citing Webb, held that it was an
                                                ____

            abuse of  discretion for  a  judge to  repeatedly inform  the

            counseled  witness,  after  the witness  had  stated  that he

            wanted to testify following an initial warning, of  his right

            to  remain  silent  and  that  to  testify  was  against  his

            interest.  Id. at 216.
                       ___

                      In the  present case,  there was  no repetition  of

            warnings  after  an  informed announcement  of  an  intent to

            testify, nor did  the court keep insisting on  a decision not

            to  testify, as  was done in  Arthur.   To the  contrary, the
                                          ______

            district judge made the following statement:

                           But  I -- let  me put on  the record
                      again it is  your own decision.   I'm not
                      coercing you  into not  testifying.   I'm
                      telling  you may testify if you wish.  If
                      you wish  to  testify that's  fine.   You
                      just go  ahead and  testify.   I'm simply
                      telling you  the consequences  that might



                                         -37-
                                          37















                      ensure, and I underline the word 'might,'
                      not that they 'shall.'

                      We  conclude that Caceres was not "badgered" by the

            court  into declining  to  testify.    Rather,  the  district

            judge's  warnings were  meant to  strengthen  rather than  to

            weaken the voluntariness of Caceres's choice by informing her

            of the  risks inherent in  her proposed testimony and  of her

            constitutional right not to testify.  

                      In  doing this,  the judge might  understandably be

            concerned  lest   the  uncounseled  Caceres   be  manipulated

            unfairly  by  defendant,  to   her  own  great  disadvantage.

            Providing Caceres with access to a public defender before she

            took the stand further  assured that her decision whether  or

            not to  testify would be  an informed  and voluntary one.   A

            judge  is entitled  to make  sure  a witness  understands her

            Fifth Amendment rights.   While different trial  judges might

            handle the  matter differently, we see no  impropriety in the

            court's   conduct,  and  no  duress  precluding  a  free  and

            voluntary  choice.   To  the contrary,  the  court sought  to

            facilitate the  ability of  the witness  to make an  informed

            choice free from coercion by the defendant or anyone else.

                      We conclude  there was no error in the character of

            the warnings given  to Caceres by the district  court in this

            case.   While the judge's  language was forceful, he  made it

            clear that  she was free to  testify and we may  presume that

            her provided counsel confirmed that right.  We conclude  that


                                         -38-
                                          38















            Santiago's  due process right to present witnesses in his own

            defense was not  compromised by Caceres's voluntary  decision

            not to take the stand,  and that the court's handling of  the

            matter was within its discretion.

                      Affirmed.
                      ________











































                                         -39-
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