NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50215
Plaintiff - Appellee, D.C. No. 8:09-cr-00213-AG-1
v.
MEMORANDUM*
JOHN ARTHUR WALTHALL,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted June 2, 2014**
Pasadena, California
Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.***
*
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).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
John Arthur Walthall appeals (1) his convictions following a jury trial for
multiple counts of wire fraud, in violation of 18 U.S.C. § 1343, and for failure to
appear, in violation of 18 U.S.C. § 3146(a)(1), (b)(1)(A), and (2) his 168-month
sentence. We affirm.
Because the facts and circumstances of this case are well-known to the
parties, we repeat them only as necessary to explain our decision. We address his
claims in turn.
I
Joinder of counts is proper under Fed. R. Crim. P. 8(a) if the offenses
charged were “connected with or constitute parts of a common scheme or plan.”
See also United States v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007). Here, the
charges of fraud and Walthall’s subsequent attempt to avoid prosecution by flight
were so connected. See United States v. Irvine, 756 F.2d 708, 712 (9th Cir. 1985)
(separate criminal conduct designed to avoid prosecution may properly be joined
with the primary substantive offense). Moreover, evidence of flight is generally
admissible to demonstrate a consciousness of guilt. See United States v. Guerrero,
756 F.2d 1342, 1347 (9th Cir. 1984).
II
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The evidence of Walthall’s guilt of wire fraud was overwhelming to say the
least. His “partnership” claims are pure casuistry and require no elaboration.
III
The district court did not deny Walthall’s requests for expert funds. To
quote his attorney, “all we’re . . . asking for [are] subpoenas. We’re not asking to
pay any doctor.” [G.E.R. 463] Moreover, we discern no prejudice to him from any
of the district court’s rulings in this area.
IV
The district court did not abuse its discretion in denying Walthall’s “theory
of his defense” instruction. The court correctly regarded his proposed instruction
as the equivalent of closing argument. See United States v. Parker, 991 F.2d 1493,
1497 (9th Cir. 1993); United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995).
V
The district court properly denied Walthall’s last minute request for a
substitution of counsel. The court’s findings that there was no total breakdown in
attorney-client communications, and that the purpose for the motion was delay, are
fully supported by the record. See Morris v. Slappy, 461 U.S. 1, 11-15 (1983).
VI
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Given (1) the vulnerability of Walthall’s victims, (2) his outrageous abuse of
their trust as a purported financial advisor and partner, and (3) his massive use of
their money for his personal expenses, Walthall’s sentence, the award of restitution
in the amount of $2,479,000, and a three-year period of supervised release were
eminently reasonable. His apprehension in Nevada under a false name in
possession of ten cell phones with different area codes, multiple weapons including
a “silencer,” and a book entitled How to Be Invisible demonstrate not only that he
is a confirmed criminal, but a dangerous one at that.
AFFIRMED.
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