Hawkins

MEMORANDUM *

David Hawkins and Harry Skeins (the “Appellants”) appeal their jury convictions for committing wire fraud twice in violation of 18 U.S.C. §§ 1343 and 2 and for conspiring to commit wire fraud in violation of 18 U.S.C. §§ 1349 and 2. They challenge the fairness of the district court proceedings and request a new trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

In rebuttal, the prosecutor improperly implied that Hawkins’ silence in response to a question from FBI Agent Parks about how Hawkins obtained interi- or photographs of the properties constituted substantive evidence of Hawkins’ guilt. Hawkins’ lawyer did not object to the prosecutor’s statements, so we review for plain error. Fed.R.Crim.P. 52(b). To constitute plain error, “the error must have been prejudicial enough to affect the outcome of the proceedings.” Territory of Guam v. Veloria, 136 F.3d 648, 652 (9th Cir.1998). The government presented substantial evidence of Hawkins’ guilt. We conclude that the prosecutor’s statements did not affect the outcome of the proceedings.

The prosecutor also stated in rebuttal that he did not charge DePaola because he did not have sufficient…