                           NOT FOR PUBLICATION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




                                         -2-
       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




                                            -3-
      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.




                                         -4-
