and Submitted October 20, 2016 San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 5:12-cr-00410- RMW-1, D.C.
No. 5:12-cr-00410- RMW-2 Ronald M. Whyte, District Judge,
Guzman (argued), Santa Rosa, California, for
Defendant-Appellant Melvin Russell Shields.
Atticus Balogh (argued) and Evan C. Greenberg, Coleman &
Balogh LLP, San Francisco, California, for
Defendant-Appellant Michael Sims.
M. Voigts (argued), Assistant United States Attorney; Barbara
J. Valliere, Chief, Appellate Division; Brian J. Stretch,
United States Attorney; United States Attorney's Office,
San Francisco, California; for Plaintiff-Appellee United
Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit
Judges, and EDWARD R. KORMAN, [*] Senior District Judge.
panel affirmed Melvin Shields's and Michael Sims's
convictions arising from the capitalization and operation of
their real estate development business, which lost millions
of investors' dollars.
panel held that the district court erred by failing to
instruct the jury that it must find a duty to disclose in
order to convict defendants of wire fraud based on any
material omissions, but that this was not reversible plain
error because the instruction was not clearly required by
this court's precedent and the error most likely did not
affect the outcome of the proceedings.
panel rejected the defendants' remaining challenges to
their convictions in a concurrently-filed unpublished
SMITH, Circuit Judge.
Shields and Michael Sims appeal their jury convictions
following a joint trial arising from the capitalization and
operation of their real estate development business, which
lost millions of investors' dollars from 2007 to 2009.
Shields was convicted on 32 counts, including conspiracy,
wire fraud, bank fraud, securities fraud, and making a false
statement to a bank. Sims was convicted on two wire fraud
counts. Defendants challenge their convictions based on
several claimed trial errors, including admission of
prejudicial evidence, failure to sever the joint trial,
ineffective assistance of counsel, inadequate jury
instructions, and denial of the right to be present at a
critical stage. We affirm.
we hold that the district court erred by failing to instruct
the jury that it must find a duty to disclose in order to
convict defendants of wire fraud based on a material