                             NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                        JUN 24 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-30256

             Plaintiff - Appellee,                D.C. No. 3:11-cr-0076-BR-1

   v.
                                                  MEMORANDUM*
DAVID JOHN OVIST,

             Defendant - Appellant.

                     Appeal from the United States District Court
                              for the District of Oregon
                      Anna J. Brown, District Judge, Presiding

                         Argued and Submitted May 6, 2015
                                 Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and CURIEL,** District
Judge.

        David Ovist appeals his convictions for bank fraud and wire fraud in violation

of 18 U.S.C. §§ 1343 and 1344, and the 57 month sentence imposed following his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Gonzalo P. Curiel, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.


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convictions. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and

affirm.

      1. Before trial, Ovist sought to introduce into evidence civil complaints filed

by the Federal Housing Finance Agency, the Securities and Exchange Commission,

and the United States Attorney’s Office for the Southern District of New York

alleging fraud by several of the lenders at issue in this case. We generally review

evidentiary rulings for abuse of discretion. United States v. Lynch, 437 F.3d 902, 913

(9th Cir. 2006) (en banc) (per curiam). However, we review evidentiary rulings that

preclude presentation of a defense de novo. United States v. Ross, 206 F.3d 896,

898–99 (9th Cir. 2000). A statement is admissible against the prosecution as the

statement of a party-opponent when it is published by “the relevant and competent

section of the government.” United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir.

1989). However, not “every publication of every branch of government of the

United States can be treated as a party admission by the United States.” Id.

      The district court properly excluded the civil complaints filed by the three

federal agencies. First, these complaints were not admissions of a party-opponent

under Van Griffin because they were mere allegations; none of these agencies can

state definitively that the fraud occurred or that the underwriting guidelines were not

followed. See 874 F.2d at 638. Second, even if the complaints met the Van Griffin

standard, they were not probative on the issue of the materiality of Ovist’s

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misrepresentations because the complaints merely alleged that the lenders had

loosened their lending standards, not that they had abandoned them completely.

Third, contrary to Ovist’s argument, the district court specifically stated that it

would consider the admissibility of evidence pertaining to widespread fraud by the

lenders on specific evidentiary proffers, but Ovist never made such proffers at trial.

         2. The district court did not preclude Ovist from presenting a defense and

therefore did not abuse its discretion by excluding documents and testimony during

trial, including insurance binders. District courts may exclude relevant evidence

whose “probative value is substantially outweighed by a danger of . . . needlessly

presenting cumulative evidence.” Fed. R. Evid. 403. “Cumulative evidence

replicates other admitted evidence.” United States v. Ives, 609 F.2d 930, 933 (9th

Cir. 1979). The excluded evidence was cumulative because Ovist was allowed to

introduce a significant amount of testimony or documents to support each point that

the cumulative testimony and documents replicated. The district court acted within

its discretion when it excluded other, cumulative evidence.

         3. The district court did not abuse its discretion by giving a deliberate

ignorance instruction. A district court’s decision to give a deliberate ignorance, or

willful blindness, instruction is reviewed for abuse of discretion. United States v.

Ramos-Atondo, 732 F.3d 1113, 1118 (9th Cir. 2013). When deciding whether to give

a deliberate ignorance instruction, “the district court must view the evidence in the

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light most favorable to the party requesting it.” United States v. Heredia, 483 F.3d

913, 922 (9th Cir. 2007) (en banc) (citations omitted). “In deciding whether to give a

willful blindness instruction, in addition to an actual knowledge instruction, the

district court must determine whether the jury could rationally find willful blindness

even though it has rejected the government’s evidence of actual knowledge. If so,

the court may also give a [deliberate ignorance] instruction.” Id.. Viewing the

evidence in the light most favorable to the government, a reasonable jury could find

Ovist knew there was a high probability that the loan applications contained false

representations and that he deliberately acted to avoid learning the truth with regards

to the falsities. Thus, a deliberate ignorance instruction was warranted.

          4. We review sentences for abuse of discretion. Gall v. United States, 552

U.S. 38, 49 (2007); United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en

banc). Procedurally sound sentences are reviewed for substantive reasonableness.

United States v. Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012) (quoting Gall, 552

U.S. at 51). “The touchstone of ‘reasonableness’ is whether the record as a whole

reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” Id. at 1089 (quoting United States v. Tomko, 562 F.3d 558, 568

(3d Cir. 2009) (en banc)). A review of the sentencing transcript shows that the

district court did not abuse its discretion and adequately explained the bases for the

disparity between Ovist’s sentence and those of his co-defendants, including Ovist’s


                                          4
co-defendants’ cooperation, lower number of convictions, acceptance of

responsibility, and smaller role in the fraud. The district court carefully considered

the § 3553(a) factors and was not, as Ovist argues, punishing him for exercising his

right to a jury trial, but rather imposing lower sentences on his co-defendants for

their cooperation and lower number of convictions.

         AFFIRMED.




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