Tenth Denies Claim that Right to Present Defense was Abrogated by Co-Defendant's Refusal to Testify

U.S. v. Rivas-Macias, -- F.3d --, 2008 WL 3892728 (10th Cir. 8/25/08) - COA rejects claim that right to present a defense at drug conspiracy and possession with intent to distribute trial was violated by co-conspirator's invocation of his 5th privilege. Tho co-conspirator had pled and debriefed, he had not yet been sentenced and faced an authentic risk of further incriminating himself by testifying. The debrief did not waive the 5th Amendment privilege; a witness' testimonial waiver of the privilege is effective only it if occurs in the same proceeding in which a party desires to compel the witness to testify. There was no request below for a trial continuance until after the co-defendant was sentenced and the district court did not commit plain error by not granting one sua sponte.