                                                                            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                           NOT FOR PUBLICATION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

                                           3
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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