524 F. App'x 377
9th Cir.2013Background
- Prince was convicted by a jury on five counts of wire fraud related to MJE Invest!, Dawnstar Alliance, and the Leopard Fund; he was sentenced to 84 months’ imprisonment.
- The district court admitted a heavily redacted cease-and-desist order from the Texas State Securities Board; the court found any error harmless given overwhelming evidence.
- Prince sought use immunity for a defense witness, Dr. Lance Lee, who invoked Fifth Amendment privilege outside the jury; the district court denied the request.
- During closing, the government used the phrase “Ponzi schemes” and the court later allowed references to it in certain contexts; no timely defense objection was sustained.
- The district court gave a single misstatement in jury instructions about proving each element beyond a reasonable doubt; the court treated this as not rendering the instructions misleading.
- The district court declined to grant a two-level reduction for acceptance of responsibility after Prince chose to go to trial.
- The district court considered Prince’s status as an attorney as a factor in imposing an upward variance under § 3553(a); several victim-investors testified that his legal status influenced their decisions to invest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of redacted cease-and-desist order | Prince argues the order was improperly admitted | Government contends any error was harmless | Harmless error |
| Use immunity for defense witness | Prince seeks due-process-based immunity for Lee | No right to compel use immunity for witnesses invoking Fifth | No due-process requirement to compel immunity; district court not error |
| References to Ponzi schemes in closing | Defense objected to references to Ponzi schemes | References were allowed or harmless | Not plain error |
| Jury-instruction misstatement about elements | District court misstated burden for elements | Instruction overall not misleading | One misstatement not enough to render instructions misleading |
| Attorney-status as § 3553(a) factor | Status as attorney should not be considered for variance | Court properly considered practitioner status as a factor | Court did not abuse discretion in considering status as a § 3553(a) factor |
Key Cases Cited
- United States v. Romero, 282 F.3d 683 (9th Cir. 2002) (harmless-error review for Rule 404(b) violations)
- United States v. Brutzman, 731 F.2d 1449 (9th Cir. 1984) (absence witness instructions; Fifth Amendment invocation)
- United States v. Charmley, 764 F.2d 675 (9th Cir. 1985) (overruled on other grounds; use immunity considerations)
- United States v. Young, 86 F.3d 944 (9th Cir. 1996) (due-process requirements for immunity in trials)
- United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979) (witness privilege and invoking Fifth Amendment outside jury)
- United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir. 2003) (instruction adequacy; holistic view of instructions)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for trial errors)