                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30059

                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             1:15-cr-00018-EJL-1

MICHAEL SAPP,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                            Submitted October 5, 2017**
                             San Francisco, California

Before: O’SCANNLAIN, PAEZ, and BEA, Circuit Judges.

      Michael Sapp was apprehended by police following a high-speed chase. A

subsequent search of the vehicle Sapp was driving revealed a backpack containing

174 grams of methamphetamine and a handgun. At trial, Sapp argued that his

roommate, Michael Unger, was the owner of both the backpack and the handgun,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and that Unger had left those items in the vehicle without Sapp’s knowledge. The

defense sought to call Unger to support this theory. Sapp’s trial counsel provided

Unger’s attorney and the court with a list of proposed questions for Unger. After

reviewing the questions, and outside the presence of the jury, Unger’s attorney

informed the court that Unger would exercise his right against self-incrimination

under the Fifth Amendment and would refuse to answer all of the questions

provided. Sapp objected to this blanket refusal to self-incriminate, arguing that

Unger should be required to take the stand to assert his Fifth Amendment privilege

to remain silent in front of the jury.

      After hearing from both sides, the district court concluded that Unger could

properly exercise his Fifth Amendment right against self-incrimination by a

blanket refusal outside the presence of the jury. As a result, the district court

determined that Sapp should not be required to take the stand merely to invoke his

Fifth Amendment rights before the jury. Sapp appeals his subsequent conviction

for possession of methamphetamine with the intent to distribute, see 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), and unlawful possession of a firearm, see 18 U.S.C. §

922(g)(1).

      On appeal, Sapp raises a single issue: whether the district court erred by

preventing Sapp from calling Unger to testify before the jury. “We conduct de

novo review of challenges to the invocation of the Fifth Amendment.” Earp v.


                                           2
Cullen, 623 F.3d 1065, 1070 (9th Cir. 2010). Finding no error, we affirm.

      Sapp argues that Unger’s blanket assertion of the Fifth Amendment outside

the presence of the jury was unlawful and contends that Unger should have been

required to take the stand to answer, or refuse to answer, specific questions.

Generally, a Fifth Amendment claim must “be raised in response to specific

questions” and a witness should not be allowed to assert a blanket claim of Fifth

Amendment privilege. United States v. Tsui, 646 F.2d 365, 367 (9th Cir. 1981).

But when the district court is “in a position to say that any response to all possible

questions would tend to incriminate the witness,” it may allow the witness to assert

a blanket Fifth Amendment privilege and refuse to answer any questions. Id.

Additionally, “[i]t is well established that a criminal defendant may not call a

witness if that witness . . . ‘will merely be invoking his Fifth Amendment right not

to testify.’” United States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997)

(quoting United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.1978)).

      Here, the questions presented were aimed at tying Unger to Sapp, the vehicle

Sapp was driving, the backpack, or the handgun. Consequently, the district court

correctly concluded that Unger could properly assert his Fifth Amendment rights




                                           3
with respect to all of the questions presented.1 Once the district court concluded

that Unger could properly assert his Fifth Amendment rights with respect to all of

the proposed questions, it did not err by refusing to allow Sapp to call Unger to the

stand for the sole purpose of invoking the Fifth Amendment before the jury.

Klinger, 128 F.3d at 709.

      AFFIRMED.




      1
             Relying on California v. Byers, Sapp contends that some of the
questions were not incriminating and merely requested identifying information,
such as Unger’s name and address. See 402 U.S. 424, 431–32 (1971). That case is
distinguishable as it involved disclosures required by government regulations
rather than sworn testimony in a criminal trial. Therefore, it was not error to
conclude that Unger could properly assert his Fifth Amendment rights and refuse
to answer any of the proposed questions.

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