                                                                           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                            NOT FOR PUBLICATION                             MAR 05 2013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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