FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10077
Plaintiff - Appellee, D.C. No. 3:10-cr-00153-CRB-1
v.
MEMORANDUM *
DAVID BOYER PRINCE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 14, 2013
San Francisco, California
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
was sentenced to eighty-four months imprisonment. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
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
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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 (1993).
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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 whether
the instructions as a whole are misleading or inadequate to guide the jury’s
deliberation.” United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003)
(internal quotation omitted). The district court’s one misstatement in Prince’s case
was not sufficient to render the instructions as a whole misleading or inadequate.
5. Prince challenges the district court’s refusal to award a two-level
reduction for acceptance of responsibility pursuant to United States Sentencing
Guidelines § 3E1.1. “When a defendant chooses to put the government to its
burden of proof at trial, a downward adjustment for acceptance of responsibility
should be rare.” United States v. Weiland, 420 F.3d 1062, 1080 (9th Cir. 2005)
(internal quotations marks omitted). The district court did not err in refusing to
award the two-level reduction when Prince went to trial and denied he possessed
the requisite intent to defraud, a key element of wire fraud.
6. Prince challenges the district court’s reliance on his status as an attorney
as one of the 18 U.S.C. § 3553(a) factors to impose an upward sentencing variance,
even though the district court declined to apply the two-level enhancement for
abusing a position of trust as a result of his status as a lawyer. The district court
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did not abuse its discretion in considering Prince’s status as a lawyer as one of the
§ 3553(a) factors, especially because several victim-investors testified that Prince’s
status as an attorney played a role in their decision to invest funds with the Leopard
Fund.
AFFIRMED.
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