FILED
NOT FOR PUBLICATION
JUL 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50244
Plaintiff - Appellee, D.C. No. 8:10-cr-00269-AG-1
v.
MEMORANDUM*
CHARLES M. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted July 8, 2016**
Pasadena, California
Before: VANASKIE,*** MURGUIA, and WATFORD, Circuit Judges.
Charles Davis appeals his convictions of wire fraud, mail fraud, and money
laundering under 18 U.S.C. §§ 1341, 1343, 1956, and 1957 in connection with two
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
companies that Davis claimed were going to develop products to combat childhood
obesity and Type II diabetes. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742, and we affirm.
1. The district court did not violate Davis’s constitutional rights by
preventing him from recalling two former company executives during the defense
case. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (“[T]rial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits . . . based on concerns about, among other things, harassment,
prejudice, confusion of the issues, . . . or interrogation that is repetitive or only
marginally relevant.”). Davis had a reasonable opportunity to cross-examine these
two witnesses during the government’s case, and Davis has failed to demonstrate
what admissible testimony they would have been able to provide had the court
allowed him to recall them. Neither of these witnesses could have laid foundation
for the admission of the photos of the company’s inventory, so the district court’s
decision to preclude Davis from recalling them for that reason was not erroneous.
In any event, to the extent that Davis believes that the district court erred by
excluding the inventory photos evidence, such evidence is of minimal relevance to
the fraud charges. The government never argued at trial that Davis had
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misappropriated 100 percent of his companies’ funds, only that he diverted a large
proportion of the investments he received.
2. Davis presents for the first time on appeal a declaration by his court-
appointed paralegal regarding the whereabouts and availability of the warehouse
photos during Davis’s trial, and a declaration by the “Custodian of Records of
CopyPro,” purportedly authenticating the work order for the printing and copying
of the photos.
Federal Rule of Appellate Procedure 10(e)(2), which governs the correction
or modification of the record, allows the court to “correct[]” or “supplement” the
record when “anything material to either party is omitted from or misstated in the
record by error or accident.” However, this circuit has held that Rule 10(e) is not
an appropriate vehicle for expanding the record on appeal with material not
considered by the district court in the first instance. United States v. Bischel, 61
F.3d 1429, 1436 n.7 (9th Cir. 1995). We decline to depart from our usual rule in
this instance because, as noted above, the photos are of little probative value to the
issue of whether Davis defrauded investors. Therefore, Davis’s motion to expand
the record is denied.
3. We also hold that the district court did not abuse its discretion in
accepting an offer of proof in lieu of testimony during the hearing on Davis’s
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motion to dismiss the indictment against him for selective prosecution. The
proffered testimony did not establish that the government had failed to prosecute
any other corporate executives who were similarly situated to Davis, nor that the
government pursued Davis for an impermissible reason. See United States v.
Sutcliffe, 505 F.3d 944, 954 (9th Cir. 2007) (outlining elements of a selective
prosecution claim).
4. Lastly, we affirm Davis’s sentence. The government correctly
determined that all of the investors in Davis’s companies constituted “victims” and
that the amount of loss attributable to Davis’s fraud equaled the total amount of
their investments. It was a reasonably foreseeable consequence of Davis’s fraud
that his companies would fail, and that the investors’ money would be lost. See
U.S. Sentencing Guidelines § 2B1.1(b)(2) & cmt. n.3(A)–(C).
AFFIRMED.
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