United States v. Alfred Sapse , 628 F. App'x 516 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10592
Plaintiff - Appellee, D.C. No. 2:10-cr-00370-KJD-
GWF-1
v.
ALFRED T. SAPSE, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Submitted November 17, 2015**
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Alfred T. Sapse appeals his conviction for multiple counts of mail and wire
fraud and one count of conspiracy to commit mail and wire fraud. We 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).
In establishing Appellant’s fraudulent intent, the government introduced
evidence that he violated various U.S. Food and Drug Administration (FDA)
regulations. The district court prohibited the defense from introducing evidence
related to the FDA’s politics to rebut the evidence of the regulations violations.
Appellant argues that this decision was in error and violated his right to present a
defense.
Appellant’s co-defendant raised this issue at trial; therefore we review for
abuse of discretion. United States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir.
2012); United States v. Komisaruk, 885 F.2d 490, 492 (9th Cir. 1989). Appellant
failed to establish the connection between the FDA’s politics and the issues in the
case. Therefore, the district court properly excluded this evidence as being
irrelevant. See United States v. Vallejo, 237 F.3d 1008, 1015-17 (9th Cir. 2001).
Appellant also argues that the district court impermissibly permitted the
government to shift the burden of proof to him to demonstrate that he did not
misrepresent his academic credentials. Appellant relied on these credentials as part
of his defense but did not provide documentation corroborating them in response to
a government subpoena. This court reviews de novo whether a district court shifted
the burden of proof to the defendant. United States v. Brobst, 558 F.3d 982, 998
(9th Cir. 2009). The government did not argue that Appellant’s failure to provide
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documentation confirming his credentials required a guilty verdict, and the district
court instructed the jury that Appellant did “not have to prove his innocence or
introduce any evidence at all.” Therefore, the trial court did not impermissibly
permit the government to shift the burden of proof. See United States v. Mares, 940
F.2d 455, 461 (9th Cir. 1991).
Appellant further claims that the district court violated his Fifth Amendment
right against self-incrimination by allowing the government to negatively comment
on his failure to provide documentation confirming his academic credentials in
response to the government subpoena. We review whether the government
improperly commented on a defendant’s Fifth Amendment right to be free of
self-incrimination de novo. United States v. Bushyhead, 270 F.3d 905, 911 (9th
Cir. 2001). Appellant did not invoke his Fifth Amendment right at the time the
subpoena was served, thereby waiving his claim that the government’s
commentary violated that right. See United States v. Unruh, 855 F.2d 1363, 1374
(9th Cir. 1987).
Finally, Appellant argues that the district court erred in adjusting his
sentence for abuse of a position of trust and for obstruction of justice. Appellant
did not object to these upward adjustments at the time of sentencing; therefore we
review the district court’s decision for plain error. United States v. Bonilla-Guizar,
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729 F.3d 1179, 1187 (9th Cir. 2013). Plain error is error that is “so clear-cut [and]
so obvious [that] a competent district judge should be able to avoid it without [the]
benefit of objection.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th
Cir. 2011).
The abuse of a position of trust enhancement applies where a defendant
“abused a position of public or private trust . . . in a manner that significantly
facilitated the commission . . . of the offense.” U.S.S.G. § 3B1.3. The record
adequately supports the district court’s determination that Appellant promoted his
background as a “reputed physician and as a researcher” in committing fraud;
therefore the district court did not plainly err in applying this adjustment.
The obstruction of justice enhancement applies where a defendant
committed perjury or provided materially false statements to a law enforcement
officer during the course of an investigation. U.S.S.G. § 3C1.1 cmts. 4(B), (G). The
record adequately supports the district court’s finding that Appellant perjured
himself by testifying falsely about his educational background and that he made
false statements to law enforcement officials who were investigating him. Thus,
the district court did not commit plain error in applying a sentencing adjustment for
an obstruction of justice.
AFFIRMED.
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