NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30134
Plaintiff-Appellee, D.C. No.
3:07-cr-00028-RRB-1
v.
MARK J. AVERY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 15, 2018
Anchorage, Alaska
Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.
Mark Avery (“Avery”) appeals his convictions and 160-month sentence for
wire fraud, money laundering, bank fraud, and making false statements to a federally
insured bank. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Avery’s motion for specific performance of his plea agreement was properly
denied.1 That agreement specifically provided for re-prosecution if Avery’s
conviction or sentence were modified or set aside for any reason at any time. Since
the district court vacated Avery’s convictions and sentence, re-prosecution was
allowed. See United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016) (courts generally
enforce the plain language of a plea agreement that is clear and unambiguous on its
face (citing United States v. Jeronimo, 398 F.3d 1149, 1152 (9th Cir. 2005),
overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th Cir.
2007) (en banc))). In any event, Avery breached his plea agreement by recanting
“admissions to having committed the acts that formed the basis for” his conviction.2
United States v. Sandoval-Lopez, 122 F.3d 797, 802 (9th Cir. 1997).
The Indictment was timely since it related back to the earlier Information.3
See United States v. Hickey, 580 F.3d 922, 929 (9th Cir. 2009) (filing of a charging
1
Though this court has not resolved whether the interpretation and
construction of a plea agreement is reviewed for clear error or de novo, see United
States v. Plascencia-Orozco, 852 F.3d 910, 916 (9th Cir. 2017), we affirm under
either standard of review.
2
This necessarily forecloses Avery’s vindictive-prosecution claim. See
United States v. Herrera, 640 F.2d 958, 962 (9th Cir. 1981) (“Neither the breach of
a plea bargain nor the decision to terminate plea negotiations constitutes vindictive
prosecution.”).
3
We review “de novo a district court’s decision not to dismiss an indictment
on statute of limitations grounds.” United States v. Leo Sure Chief, 438 F.3d 920,
2
instrument tolls the statute of limitations as to all charges contained in it (citing
United States v. Clawson, 104 F.3d 250, 250–51 (9th Cir. 1996))). Both allege
violations of the same statute, involve the same fundamental accusations, and rely
on “substantially the same” allegations. United States v. Liu, 731 F.3d 982, 997 (9th
Cir. 2013) (quoting United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990)).
And so, Avery received “notice of the charges against him” and knew that he would
“be called to account for certain activities and should prepare a defense.” Id.
(quoting Pacheco, 912 F.2d at 305).
The jury instructions were proper.4 Although Avery claims entitlement to a
good-faith instruction, the specific-intent instruction sufficed. See United States v.
Green, 745 F.2d 1205, 1209 (9th Cir. 1984) (defendant not entitled to separate good
faith instruction when an adequate instruction on specific intent is given (citing
United States v. Cusino, 694 F.2d 185, 188 (9th Cir. 1982))). Nor was there error in
giving a supplemental deliberate-ignorance instruction; Avery waived any
hypothetical error by helping craft the instruction rather than objecting to it. See
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (an error is waived and
922 (9th Cir. 2006) (citing Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir.
1999)).
4
“We review the formulation of jury instructions for abuse of discretion, but
review de novo whether those instructions correctly state the elements of the offense
and adequately cover the defendant’s theory of the case.” United States v. Liew, 856
F.3d 585, 595–96 (9th Cir. 2017) (citations omitted).
3
unreviewable where defendant has both invited the error and relinquished a known
right).
Sufficient evidence supports the verdict.5 “[V]iewing the evidence in the light
most favorable to the prosecution,” Kaplan, 836 F.3d at 1211–12 (quoting Sullivan,
522 F.3d at 974), Avery fraudulently obtained over $50 million by promising to
purchase long-range aircraft for trust-related purposes. Rather than following
through with that promise, Avery used those funds to pay off personal debts and
purchase a slew of ego toys for his family and friends—expenditures that provided
no benefit to the trust or its beneficiary. Separately, Avery submitted a personal
financial statement to Wells Fargo Bank that characterized assets purchased with
trust-backed funds as his own, yet failed to list the $50 million loan encumbering
those assets as a liability. Given this evidence, “any rational trier of fact could have
found the essential elements of” wire fraud, money laundering, bank fraud, and
making false statements to a bank “beyond a reasonable doubt.” Id. (emphasis in
original) (quoting Sullivan, 522 F.3d at 974).
5
We review “sufficiency of the evidence de novo.” United States v. Kaplan,
836 F.3d 1199, 1211 (9th Cir. 2016) (citing United States v. Sullivan, 522 F.3d 967,
974 (9th Cir. 2008) (per curiam)).
4
Although Avery argues otherwise, the challenged evidentiary rulings did not
constitute an abuse of discretion.6 For instance, Avery’s assertion that the district
court improperly excluded certain testimony as hearsay, misconstrues the facts. In
reality, Avery was allowed to elicit multiple instances of hearsay and only met
objections where duplicative testimony threatened to derail the trial. Likewise, there
was no abuse of discretion in admitting testimony relating to the co-trustees’
reactions to Avery’s fraud as non-hearsay. Such opinion testimony—devoid of any
statement—is not hearsay. See Fed. R. Evid. 801(c) (limiting hearsay to statements
offered “to prove the truth of the matter asserted”); cf. Fed. R. Evid. 803(1) (allowing
statements “describing or explaining an event or condition, made while or
immediately after the declarant perceived it”).
Nor was there an abuse of discretion in denying Avery’s discovery request
regarding Rob Kane’s government informant status.7 To compel discovery in a
criminal case, “[a] defendant must make a threshold showing of materiality, which
requires a presentation of facts which would tend to show that the Government is in
possession of information helpful to the defense.” United States v. Muniz-Jaquez,
6
We review evidentiary rulings for abuse of discretion. United States v.
Hanna, 293 F.3d 1080, 1085 (9th Cir. 2002) (citations omitted).
7
We review discovery rulings for abuse of discretion. United States v.
Alvarez, 358 F.3d 1194, 1210 (9th Cir. 2004) (citing United States v. Michaels, 796
F.2d 1112, 1115–17 (9th Cir. 1986)).
5
718 F.3d 1180, 1183 (9th Cir. 2013) (quoting United States v. Stever, 603 F.3d 747,
752 (9th Cir. 2010)). Avery sought this discovery in hopes of presenting an
entrapment defense, which would have required him to prove, among other things,
that he “was induced to commit the crime by a government agent[.]” United States
v. Cortes, 757 F.3d 850, 858 (9th Cir. 2014) (quoting United States v. Spentz, 653
F.3d 815, 818 (9th Cir. 2011)). Since Avery failed to make that threshold showing,
the district court did not abuse its discretion.
Finally, there was no abuse of discretion in denying Avery’s motion for new
counsel.8 The trial-strategy dispute at issue here is not the type of “extensive,
irreconcilable conflict” warranting new counsel. United States v. Mendez-Sanchez,
563 F.3d 935, 943 (9th Cir. 2009) (quoting United States v. Smith, 282 F.3d 758,
763 (9th Cir. 2002)); see United States v. Reyes-Bosque, 596 F.3d 1017, 1034 (9th
Cir. 2010) (“As we have said before, ‘[l]itigation tactics are decisions generally left
to defense counsel,’ and, without more, may not provide a sufficient basis for
establishing conflict.” (alteration in original) (quoting Smith, 282 F.3d at 763)). And
the finding that Avery’s motion—which promptly followed the denial of a
8
“We review the denial of a motion for substitution of counsel for abuse of
discretion.” United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (citing
United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir. 2000)). We review the
district court’s factual findings for clear error. United States v. Adelzo-Gonzalez,
268 F.3d 772, 777 (9th Cir. 2001) (citing United States v. Wadsworth, 830 F.2d
1500, 1505–06 (9th Cir. 1987)).
6
continuance motion and evinced an effort “to avoid trial and manipulate the
system”—was untimely is not clearly erroneous. Because two of the relevant factors
clearly weigh against substitution, see id. at 1033 (outlining the factors), the district
court did not abuse its discretion.
AFFIRMED.
7