United States v. Mark Spangler , 638 F. App'x 611 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-30042
Plaintiff - Appellee, D.C. No. 2:12-cr-00133-RSM-1
v. MEMORANDUM*
MARK F. SPANGLER,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 10, 2015
Seattle, Washington
Before: MCKEOWN and TALLMAN, Circuit Judges, and LEFKOW,** Senior
District Judge
Mark F. Spangler appeals his convictions for wire fraud (18 U.S.C. § 1343),
money laundering (18 U.S.C. § 1957), and investment-adviser fraud (15 U.S.C. §
80b-17) and argues (1) that the district court violated his Sixth Amendment right to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Joan Humphrey Lefkow, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
confrontation when it cut short his cross-examination of a key government witness;
and (2) that the district court plainly erred in failing to exclude certain remarks
made by the prosecutor during closing argument and rebuttal.1 We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Spangler first argues that the district court violated his Sixth Amendment
right to confrontation when it imposed a time limit on defense counsel’s cross-
examination of William Carleton, Spangler’s former attorney. We reject that
argument because a limitation on cross-examination “does not violate the
Confrontation Clause unless it limits relevant testimony and prejudices the
defendant, and denies the jury sufficient information to appraise the biases and
motivations of the witness.” United States v. Bensimon, 172 F.3d 1121, 1128 (9th
Cir. 1999) (internal citations and quotation marks omitted). Here, the district
court’s ruling neither limited relevant testimony nor prejudiced Spangler, as the
court brought cross-examination to a close only when defense counsel’s
questioning became repetitive and greatly exceeded defense counsel’s time
estimate of one hour. Further, the district court gave counsel timely warnings that
his cross-examination was becoming repetitive, argumentative, and unfocused.
1
We dispose of Spangler’s other arguments in a published opinion filed
contemporaneously with this memorandum.
2
Spangler had fair warning before he was told his examination was complete.
Finally, defense counsel was able to question Carleton about matters of bias such
as his close personal relationship with Spangler and his potential exposure to civil
liability. Accordingly, it cannot be said that the jury lacked “sufficient information
to appraise the biases and motivations” of Carleton. See id. (quoting United States
v. Jenkins, 884 F.2d 433, 436 (9th Cir. 1989)).
Spangler also contends that the district court plainly erred in failing to strike
certain comments made by the prosecutor during closing argument and rebuttal.
We disagree. The prosecutor’s statements that there had been “an awful lot of
smoke blown in this courtroom” and that “[t]he scam [was] being perpetrated in
this courtroom before [the jurors’] very eyes” did not exceed permissible limits, as
“[p]rosecutors have considerable leeway to strike ‘hard blows,’” United States v.
Henderson, 241 F.3d 638, 652 (9th Cir. 2000), and the statements were directed at
defense counsel’s closing argument, not defense counsel personally. Cf. United
States v. Rodrigues, 159 F.3d 439, 451 (9th Cir. 1998) (reversing convictions when
the prosecutor mounted an “unwarranted attack on defense counsel’s integrity”).
Nor did the prosecutor rely on facts not in evidence, because portions of Carleton’s
testimony that were allowed to stand provide a sufficient basis for the prosecutor’s
argument regarding what the private placement memoranda authorized. See United
3
States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (“Prosecutors can argue
reasonable inferences based on the record.” (internal citation omitted)). To the
extent an error occurred, Spangler has not shown that the fairness, integrity, or
public reputation of the judicial proceedings were affected in any way, or that
failure to reverse would result in a miscarriage of justice. See United States v.
Tanh Huu Lam, 251 F.3d 852, 861 (9th Cir. 2001).
Finally, because the district court did not err in its rulings, there can be no
cumulative error. See United States v. Romo-Chavez, 681 F.3d 955, 962 (9th Cir.
2012).
AFFIRMED.
4