United States of America v. JAMES FOLSOM, AKA Jim Anderson

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES FOLSOM, AKA Jim Anderson,
Defendant - Appellant.
No. 10-50119
D.C. No. 3:08-cr-01092-JAH-1
MEMORANDUM*
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.
FILED
FEB 11 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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).

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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

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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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