                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 24 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50467

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00327-ODW-1

  v.
                                                  MEMORANDUM*
RICHARD A. BAILEY, aka Richard
Allen Bailey, AKA Rick Bailey,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                               Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

       Richard Bailey (“Bailey”) appeals from his convictions for causing the sale

of unregistered securities in violation of 15 U.S.C. §§ 77e and 77x and 18 U.S.C.

§ 2. He contends that the district court abused its discretion in admitting evidence

of securities distributions other than the two that led to the specific unlawful sales


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
in the case and that the jury instructions did not accurately define the word

“willfully.”1 We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      Bailey only takes issue with the court’s admission of Exhibit 39, which

listed earlier transactions. However, it appears that Bailey did not actually object

to the admission of the exhibit. It was not clearly the subject of the government’s

motion in limine and the trial transcript indicates that Bailey had no objection to

admitting the exhibit. But even if Bailey did object, the evidence of other

transactions between Bailey and Owens was “inextricably intertwined” with the

charged transactions and provided critical context about Bailey’s relationship with

Owens, such that Federal Rule of Evidence 404(b) does not apply. United States v.

Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011) (internal quotation marks omitted).

Also, Exhibit 39 was explicitly referenced in deposition testimony admitted by

stipulation. The district court did not abuse its discretion in admitting Exhibit 39.

See id., 660 F.3d at 1132.

      We review de novo whether jury instructions omit or misstate elements of a

statutory crime. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010).




      1
             The parties are familiar with the facts of this case, and we do not
recite them here except as necessary to explain the decision.

                                           2
We have explained that knowledge of illegality is not required for conduct to be

willful within the meaning of 15 U.S.C. § 77x. United States v. English, 92 F.3d

909, 914–16 (9th Cir. 1996). The district court did not err in instructing on

willfulness in this case. Bailey has cited and we have found no subsequent rulings

from the Supreme Court or an en banc panel of our court that are clearly

irreconcilable with English such that we can overrule that case. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). English controls and is fatal

to Bailey’s challenge to the jury instructions.

       As for Bailey’s requested good faith instruction, no good faith instruction is

required where the district court instructs adequately on intent. See United States

v. Shipsey, 363 F.3d 962, 967–68 (9th Cir. 2004). The district court did not abuse

its discretion.

       AFFIRMED.




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