FILED
NOT FOR PUBLICATION
FEB 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50059
15-50206
Plaintiff-Appellee,
D.C. No. 2:14-cr-00282-R-2
v.
CHRISTOPHER JAMES BLAUVELT, MEMORANDUM*
AKA Christopher Blauvelt,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50066
Plaintiff-Appellee, D.C. No. 2:14-cr-00282-R-1
v.
DAVID PRITCHARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 14, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.
Following a jury trial, David Pritchard and Christopher Blauvelt appeal their
convictions and sentences for mail fraud, wire fraud, and the sale of unregistered
securities. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, and
vacate and remand in part.
1. The evidence supporting Pritchard’s convictions far exceeds the
quantum that a rational trier of fact would find sufficient to convict. See United
States v. Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011). With respect to
Pritchard’s fraud convictions, the government presented sufficient evidence that he
intended to defraud and knowingly participated in a scheme to defraud. See United
States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per curiam). The evidence
showed Pritchard knew of, and allowed telemarketers to make, material
misrepresentations. The evidence also showed Pritchard made misrepresentations
to, and omitted material facts from, potential and existing investors through phone
conversations, in-person meetings, and investor newsletters.
Concerning the securities violations, the government presented sufficient
evidence to show Pritchard knew the securities were unregistered and willfully
sold them. Pritchard knew of the cease and desist orders, deduced that the company
was selling unregistered securities, agreed to hide the regulatory problems from
investors, and allowed the company to continue selling unregistered securities.
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2. The district court did not abuse its discretion in ruling on Defendants’
requests for continuances. See United States v. Flynt, 756 F.2d 1352, 1358–59 (9th
Cir.), amended by 764 F.2d 675 (9th Cir. 1985).
First, the district court did not abuse its discretion when it granted
Pritchard’s requested continuance only in part. Although Pritchard blames the
volume of discovery for his failure to find exculpatory evidence, the vast majority
of the documents were nearly identical forms, and the allegedly exculpatory
documents were in his own possession. Pritchard also did not carry his burden to
show that a few more weeks would likely have helped the situation, and the
inconvenience that a longer continuance would have imposed on the court and
other parties was significant. Finally, Pritchard fails to show actual prejudice or
demonstrate how any specific documents would be likely to have changed the
result. See United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011).
Second, the district court did not abuse its discretion when it denied
Blauvelt’s request to continue trial for one day. Because the district court ordered
Pritchard to present his defense first, Blauvelt actually had more time before his
presentation than he requested from the district court. Therefore, Blauvelt cannot
show prejudice from the denial, which is fatal to his argument. See id.
3. Defendants argue they were denied a fair trial because of (1) certain
evidentiary rulings, (2) the government’s statements in closing argument, and (3)
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the manner in which the district court conducted the trial. These allegations did not
individually, or in combination, result in an unfair trial.
First, Defendants identify only one objection at trial to the government’s
leading questions. Given our deferential standard of review on such rulings, see
United States v. Archdale, 229 F.3d 861, 865 (9th Cir. 2000), we cannot say on this
record that the district court abused its discretion by allowing these questions. The
district court also did not commit plain error by allowing Walker’s lay opinion
testimony about the film industry, which was based on his understandings and
experiences from working in that industry. See United States v. Simas, 937 F.2d
459, 464 (9th Cir. 1991). Furthermore, we find no reversible error in the district
court’s evidentiary rulings regarding Blauvelt’s (1) connection to Gigapix’s
background check; (2) unpaid taxes; and (3) drinking, drug use, and attending strip
clubs. See United States v. Ramirez, 537 F.3d 1075, 1086–87 (9th Cir. 2008).
Second, reviewing for plain error, the government’s statements in closing
argument did not amount to misconduct and did not prejudice Defendants. There
was ample evidence in the record to support the government’s reasonable inference
that Pritchard knew the Gigapix and OZ3D investments were unlikely to be
profitable. Moreover, to the extent the challenged statements were inaccurate, the
record does not suggest they were anything other than “inadvertent mistakes.” See
United States v. Lloyd, 807 F.3d 1128, 1167–68 (9th Cir. 2015).
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Third, the district court’s conduct during the proceedings did not result in an
unfair trial. None of the challenged circumstances, singly or cumulatively, leave us
with “an abiding impression that the jury perceived an appearance of advocacy or
partiality.” United States v. Marks, 530 F.3d 799, 806 (9th Cir. 2008); see also
United States v. Scott, 642 F.3d 791, 799–800 (9th Cir. 2011) (per curiam).
4. Pritchard has not shown circumstances that justify an exception to our
usual practice of reserving ineffective assistance of counsel claims for collateral
review, after the record has been more fully developed.1 See United States v.
McGowan, 668 F.3d 601, 605–06 (9th Cir. 2012).
5. Because the facts proven at trial fell within the scheme alleged in the
indictment––concentrating on Defendants’ misrepresentations and omissions to
defraud victims or obtain their money––the government’s trial theory did not
constructively amend, or materially vary from, the indictment. See United States v.
Mancuso, 718 F.3d 780, 792 (9th Cir. 2013) (constructive amendment); United
States v. Bhagat, 436 F.3d 1140, 1146–47 (9th Cir. 2006) (material variance).
6. The challenged jury instructions accurately stated the law. The first
correctly instructed that the jury “may consider evidence of . . . a loss in
determining whether the scheme existed.” See Farrell v. United States, 321 F.2d
1
Therefore, Pritchard’s motion to take judicial notice, filed February 8,
2016, is DENIED as moot.
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409, 419 (9th Cir. 1963); United States v. Rasheed, 663 F.2d 843, 850 (9th Cir.
1981). The second accurately instructed that “[a] defendant’s belief in the ultimate
success of a venture, even if that belief is honestly held, is not in itself a defense
and does not justify or excuse knowingly making false or misleading statements or
knowingly concealing material facts.” See United States v. Hickey, 580 F.3d 922,
931 (9th Cir. 2009) (“[E]ven if [the defendant] genuinely believed his investment
scheme would be profitable and would result in gains for his investors, he would
still be guilty of securities fraud and mail fraud if he knowingly lied to investors
about the risks associated with his plan.”).
7. In a mail or wire fraud conviction, the district court must “order
restitution in the amount of the victim’s actual loss,” United States v. Thomsen,
830 F.3d 1049, 1065 (9th Cir. 2016); 18 U.S.C. § 3663A(a)(1)–(2), which the
government must show by a preponderance of the evidence, United States v.
Waknine, 543 F.3d 546, 556 (9th Cir. 2008). The FBI forensic accountant used a
reasonably reliable method of calculating the victims’ actual losses. However, the
district court ordered Pritchard to pay $6 million less than Blauvelt. Blauvelt joined
in Pritchard’s restitution arguments, and the court provided no explanation for this
substantial difference. Therefore, we vacate Pritchard’s and Blauvelt’s restitution
orders and remand for the district court to explain or eliminate the disparity.
AFFIRMED in part, VACATED and REMANDED in part.
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