FILED
NOT FOR PUBLICATION MAR 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10018
Plaintiff - Appellee, D.C. No. 1:09-cr-00249-HG-1
v.
MEMORANDUM *
DAVID E. RUSKJER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Argued and Submitted February 12, 2013
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Defendant David Ruskjer appeals his convictions for mail fraud, wire fraud,
structuring financial transactions to avoid reporting requirements, and money
laundering. We affirm.
1. The district court did not abuse its discretion when it excluded Sud’s
testimony and the related documentary evidence. See United States v. Alvarez,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
358 F.3d 1194, 1205 (9th Cir. 2004) ("Evidentiary decisions are . . . reviewed for
abuse of discretion."). The government’s theory was that Defendant induced
people to lend him money through specific, intentional misrepresentations and
failures to disclose. At trial, the prosecution’s theory was that, had there been no
dishonesty, Defendant would have had a "risky" but "[p]erfectly legitimate
business." In those circumstances, evidence that lawyers helped Defendant to
create a substantially similar business in another state at a later time was irrelevant
to the question whether Defendant had intentionally misrepresented the success of
his investments and failed to disclose material facts to the defrauded lenders from
the original business.
2. Because the district court correctly instructed the jury on the intent
required to convict, Defendant was not entitled to an advice-of-counsel instruction.
See United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) ("Our case law is
well settled that a criminal defendant has ‘no right’ to any good faith instruction
when the jury has been adequately instructed with regard to the intent required to
be found guilty of the crime charged, notwithstanding the normal rules governing
‘theory of defense’ requests.").
AFFIRMED.
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