UNITED STATES of America, Plaintiff-Appellee, v. David Boyer PRINCE, Defendant-Appellant.
No. 12-10077
United States Court of Appeals, Ninth Circuit
Filed May 20, 2013
Argued and Submitted May 14, 2013.
Andrew Parnes, Law Office of Andrew Parnes, Ketchum, ID, for Defendant-Appellant.
David Boyer Prince, Campbell, CA, pro se.
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, Senior District Judge.*
David Boyer Prince appeals his jury conviction and sentence imposed for five counts of wire fraud. His convictions stem from his involvement with three investment entities: MJE Invest!, Dawnstar Alliance, and the Leopard Fund. He was sentenced to eighty-four months imprisonment. We have jurisdiction pursuant to
1. Prince challenges the admission into evidence of a heavily redacted cease and desist order from the Texas State Securities Board. Even if the district court abused its discretion in admitting the order, any error was harmless in light of the overwhelming evidence against Prince. See United States v. Romero, 282 F.3d 683, 688 (9th Cir.2002) (“If we conclude that a Rule 404(b) violation occurred, we reverse only if the error was not harmless.“).
2. Prince challenges the district court‘s denial of his motion to compel use immunity for a potential defense witness, Dr. Lance Lee. Dr. Lee appeared at Prince‘s trial and, outside the presence of the jury, invoked his Fifth Amendment right against self-incrimination. In general, a defendant is not entitled to compel the government to grant use immunity to potential defense witnesses who invoke their right against self-incrimination. See United States v. Brutzman, 731 F.2d 1449, 1451-52 (9th Cir.1984), overruled on other grounds by United States v. Charmley, 764 F.2d 675, 677 n. 1 (9th Cir.1985). In order to show that due process requires the district court to compel use immunity, a criminal defendant must show that “(1) the testimony was relevant; and (2) the government distorted the judicial fact-finding process by denying immunity.” United States v. Young, 86 F.3d 944, 947 (9th Cir.1996). Prince has failed to show that the government distorted the fact-finding process by denying immunity.
The district court did not err in allowing Dr. Lee to invoke his Fifth Amendment privilege outside of the presence of the jury. Under United States v. Licavoli, 604 F.2d 613, 624 (9th Cir.1979), defendants may not call people as witnesses “for the sole purpose of compelling them to invoke their Fifth Amendment privilege in front of the jury.” Nor did the district court err in refusing to give one of the “missing witness” instructions proposed by Prince. “Where a witness’ unavailability results from an invocation of the privilege against self-incrimination, the witness is unavailable to both parties, and the court‘s refusal to give an absent witness instruction is proper.” Brutzman, 731 F.2d at 1454.
3. Prince challenges the district court‘s failure to strike references to “Ponzi schemes” during the government‘s closing argument and rebuttal, despite the court‘s earlier ruling that the government could not use the phrase “Ponzi scheme” during an expert witness‘s testimony or opening statements. Because the defense failed to object to these references at trial, we review for plain error. These fleeting references, even if they were in error, were not plain error within the meaning of United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
4. The district court, in enumerating the elements of wire fraud, erroneously stated that the defendant had to prove each of the elements of the offense beyond a reasonable doubt. “In reviewing jury instructions, the relevant inquiry is wheth
5. Prince challenges the district court‘s refusal to award a two-level reduction for acceptance of responsibility pursuant to
6. Prince challenges the district court‘s reliance on his status as an attorney as one of the
AFFIRMED.