United States of America v. Michael Sapp

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SAPP,
Defendant-Appellant.
No. 16-30059
D.C. No.
1:15-cr-00018-EJL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted October 5, 2017**
San Francisco, California
Before: O’SCANNLAIN, PAEZ, and BEA, Circuit Judges.
Michael Sapp was apprehended by police following a high-speed chase. A
subsequent search of the vehicle Sapp was driving revealed a backpack containing
174 grams of methamphetamine and a handgun. At trial, Sapp argued that his
roommate, Michael Unger, was the owner of both the backpack and the handgun,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and that Unger had left those items in the vehicle without Sapp’s knowledge. The
defense sought to call Unger to support this theory. Sapp’s trial counsel provided
Unger’s attorney and the court with a list of proposed questions for Unger. After
reviewing the questions, and outside the presence of the jury, Unger’s attorney
informed the court that Unger would exercise his right against self-incrimination
under the Fifth Amendment and would refuse to answer all of the questions
provided. Sapp objected to this blanket refusal to self-incriminate, arguing that
Unger should be required to take the stand to assert his Fifth Amendment privilege
to remain silent in front of the jury.
After hearing from both sides, the district court concluded that Unger could
properly exercise his Fifth Amendment right against self-incrimination by a
blanket refusal outside the presence of the jury. As a result, the district court
determined that Sapp should not be required to take the stand merely to invoke his
Fifth Amendment rights before the jury. Sapp appeals his subsequent conviction
for possession of methamphetamine with the intent to distribute, see 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and unlawful possession of a firearm, see 18 U.S.C. §
922(g)(1).
On appeal, Sapp raises a single issue: whether the district court erred by
preventing Sapp from calling Unger to testify before the jury. “We conduct de
novo review of challenges to the invocation of the Fifth Amendment.” Earp v.

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Cullen, 623 F.3d 1065, 1070 (9th Cir. 2010). Finding no error, we affirm.
Sapp argues that Unger’s blanket assertion of the Fifth Amendment outside
the presence of the jury was unlawful and contends that Unger should have been
required to take the stand to answer, or refuse to answer, specific questions.
Generally, a Fifth Amendment claim must “be raised in response to specific
questions” and a witness should not be allowed to assert a blanket claim of Fifth
Amendment privilege. United States v. Tsui, 646 F.2d 365, 367 (9th Cir. 1981).
But when the district court is “in a position to say that any response to all possible
questions would tend to incriminate the witness,” it may allow the witness to assert
a blanket Fifth Amendment privilege and refuse to answer any questions. Id.
Additionally, “[i]t is well established that a criminal defendant may not call a
witness if that witness . . . ‘will merely be invoking his Fifth Amendment right not
to testify.’” United States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997)
(quoting United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.1978)).
Here, the questions presented were aimed at tying Unger to Sapp, the vehicle
Sapp was driving, the backpack, or the handgun. Consequently, the district court
correctly concluded that Unger could properly assert his Fifth Amendment rights

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with respect to all of the questions presented.1 Once the district court concluded
that Unger could properly assert his Fifth Amendment rights with respect to all of
the proposed questions, it did not err by refusing to allow Sapp to call Unger to the
stand for the sole purpose of invoking the Fifth Amendment before the jury.
Klinger, 128 F.3d at 709.
AFFIRMED.
1 Relying on California v. Byers, Sapp contends that some of the
questions were not incriminating and merely requested identifying information,
such as Unger’s name and address. See 402 U.S. 424, 431–32 (1971). That case is
distinguishable as it involved disclosures required by government regulations
rather than sworn testimony in a criminal trial. Therefore, it was not error to
conclude that Unger could properly assert his Fifth Amendment rights and refuse
to answer any of the proposed questions.

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