                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 11 2011

                                                                        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. 10-50119

              Plaintiff - Appellee,               D.C. No. 3:08-cr-01092-JAH-1

  v.
                                                  MEMORANDUM *
JAMES FOLSOM, AKA Jim Anderson,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                           Submitted February 8, 2011 **
                              Pasadena, California

Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.

       James Folsom appeals his conviction in federal district court. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.




        *
             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).
1. Pre-Indictment Delay

      The district court did not abuse its discretion in denying Folsom’s motion to

dismiss for pre-indictment delay. The statute of limitations, not due process, is the

usual safeguard against excessive delay between commission of a crime and

indictment. See United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir.

2007). All of the charges against Folsom were filed within the statute of

limitations.

      Further, Folsom fails to show that the loss of Kimberly Bailey’s testimony

prejudiced him. Folsom argues that Bailey would have testified that it was she

who requested that he use an alias when dealing with customers. But given that the

government offered evidence that Folsom continued to use an alias after he was no

longer employed by Bailey, this testimony would have been only marginally useful

to his case. See United States v. Dudden, 65 F.3d 1461, 1466 (9th Cir. 1995). Nor

does Folsom make any arguments that the delay offended “those fundamental

conceptions of justice which lie at the base of our civil and political institutions.”

United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992) (internal quotation

marks omitted).

2. Prosecutorial Misconduct

      There is no indication that Folsom raised the issue of prosecutorial


                                            2
misconduct before the district court; thus, we review only for plain error. United

States v. Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir. 2005).

      Folsom provides no evidence that he requested and was denied access to FBI

reports. The reports appear in the government’s supplemental excerpts of record

along with a discovery log indicating the reports were given to Folsom.

      Folsom submitted a declaration from his trial attorney who claims he was

denied access to the Rife devices seized by the government. But this assertion is

contradicted by (1) numerous letters from the government granting Folsom’s

attorney access to the evidence, and noting that Folsom’s attorney had not availed

himself of the opportunity; (2) a pre-trial hearing transcript in which the

government attorney told the court that Folsom’s attorney had seen the devices,

and Folsom’s attorney did not contradict her; and (3) a letter from Folsom’s

attorney to the government requesting further discovery that, despite an extensive

list of additional requests for evidence, made no mention of Rife devices. Thus,

the district court did not plainly err in not finding any discovery violations.

      Folsom’s claim that the government improperly allowed his co-defendant to

continue selling Rife devices is also without merit. Even accepting Folsom’s

allegation as true, Folsom makes no argument that the government’s misconduct

prejudiced him. See United States v. Wright, 625 F.3d 583, 609-10 (9th Cir. 2010).


                                           3
Folsom’s co-defendant did not testify at Folsom’s trial nor is there any indication

that evidence provided by the co-defendant was used at trial.

3. Bill of Particulars

      The district court did not abuse its discretion in denying Folsom’s motion for

a bill of particulars. “In determining if a bill of particulars should be ordered in a

specific case, a court should consider whether the defendant has been advised

adequately of the charges through the indictment and all other disclosures made by

the government.” United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983).

Folsom’s claim that the government switched theories of liability during trial lacks

merit. The language of the indictment encompassed a “fraud against the

consumer” theory as well as a theory based on fraud against the U.S. Food and

Drug Administration (FDA). The government also explicitly stated during a pre-

trial hearing that it was advancing both theories. Moreover, “[f]ull discovery will

obviate the need for a bill of particulars.” Id. Although Folsom claims the

government withheld certain pieces of evidence from him during discovery, the

record demonstrates otherwise. Folsom cannot credibly claim to have been denied

full discovery.

4. Ineffective Assistance of Counsel

      As a general rule, we do not review ineffective assistance of counsel claims


                                           4
on direct appeal. United States v. Benford, 574 F.3d 1228, 1230 (9th Cir. 2009).

Nonetheless, the parties request that we address the issue. We find that the record

is sufficiently developed to do so. See id. at 1231.

       Folsom argues that he suffered ineffective assistance of counsel when the

government changed its theory of liability from fraud on the FDA to fraud on

consumers, and Folsom’s attorney failed to ask for a continuance and a new trial.

The record indicates that the government’s theory of liability remained consistent

throughout the case. Folsom’s claim that the government did not present the

“fraud on the consumer” theory until after the trial had begun has no evidentiary

basis. Thus, his ineffective assistance of counsel claim, which relies entirely on

prejudice as a result of unfair surprise, fails.

       AFFIRMED.




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