                                                                           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                           NOT FOR PUBLICATION                              MAY 20 2013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


                                          2
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).




                                           3
      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


                                            4
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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