                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 27 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30134

                Plaintiff-Appellee,             D.C. No.
                                                3:07-cr-00028-RRB-1
 v.

MARK J. AVERY,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Ralph R. Beistline, District Judge, Presiding

                      Argued and Submitted August 15, 2018
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.

      Mark Avery (“Avery”) appeals his convictions and 160-month sentence for

wire fraud, money laundering, bank fraud, and making false statements to a federally

insured bank. We have jurisdiction under 28 U.S.C. § 1291 and affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Avery’s motion for specific performance of his plea agreement was properly

denied.1   That agreement specifically provided for re-prosecution if Avery’s

conviction or sentence were modified or set aside for any reason at any time. Since

the district court vacated Avery’s convictions and sentence, re-prosecution was

allowed. See United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016) (courts generally

enforce the plain language of a plea agreement that is clear and unambiguous on its

face (citing United States v. Jeronimo, 398 F.3d 1149, 1152 (9th Cir. 2005),

overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th Cir.

2007) (en banc))). In any event, Avery breached his plea agreement by recanting

“admissions to having committed the acts that formed the basis for” his conviction.2

United States v. Sandoval-Lopez, 122 F.3d 797, 802 (9th Cir. 1997).

      The Indictment was timely since it related back to the earlier Information.3

See United States v. Hickey, 580 F.3d 922, 929 (9th Cir. 2009) (filing of a charging



      1
          Though this court has not resolved whether the interpretation and
construction of a plea agreement is reviewed for clear error or de novo, see United
States v. Plascencia-Orozco, 852 F.3d 910, 916 (9th Cir. 2017), we affirm under
either standard of review.
      2
         This necessarily forecloses Avery’s vindictive-prosecution claim. See
United States v. Herrera, 640 F.2d 958, 962 (9th Cir. 1981) (“Neither the breach of
a plea bargain nor the decision to terminate plea negotiations constitutes vindictive
prosecution.”).
      3
        We review “de novo a district court’s decision not to dismiss an indictment
on statute of limitations grounds.” United States v. Leo Sure Chief, 438 F.3d 920,

                                         2
instrument tolls the statute of limitations as to all charges contained in it (citing

United States v. Clawson, 104 F.3d 250, 250–51 (9th Cir. 1996))). Both allege

violations of the same statute, involve the same fundamental accusations, and rely

on “substantially the same” allegations. United States v. Liu, 731 F.3d 982, 997 (9th

Cir. 2013) (quoting United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990)).

And so, Avery received “notice of the charges against him” and knew that he would

“be called to account for certain activities and should prepare a defense.” Id.

(quoting Pacheco, 912 F.2d at 305).

      The jury instructions were proper.4 Although Avery claims entitlement to a

good-faith instruction, the specific-intent instruction sufficed. See United States v.

Green, 745 F.2d 1205, 1209 (9th Cir. 1984) (defendant not entitled to separate good

faith instruction when an adequate instruction on specific intent is given (citing

United States v. Cusino, 694 F.2d 185, 188 (9th Cir. 1982))). Nor was there error in

giving a supplemental deliberate-ignorance instruction; Avery waived any

hypothetical error by helping craft the instruction rather than objecting to it. See

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (an error is waived and


922 (9th Cir. 2006) (citing Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir.
1999)).
      4
       “We review the formulation of jury instructions for abuse of discretion, but
review de novo whether those instructions correctly state the elements of the offense
and adequately cover the defendant’s theory of the case.” United States v. Liew, 856
F.3d 585, 595–96 (9th Cir. 2017) (citations omitted).

                                          3
unreviewable where defendant has both invited the error and relinquished a known

right).

          Sufficient evidence supports the verdict.5 “[V]iewing the evidence in the light

most favorable to the prosecution,” Kaplan, 836 F.3d at 1211–12 (quoting Sullivan,

522 F.3d at 974), Avery fraudulently obtained over $50 million by promising to

purchase long-range aircraft for trust-related purposes.         Rather than following

through with that promise, Avery used those funds to pay off personal debts and

purchase a slew of ego toys for his family and friends—expenditures that provided

no benefit to the trust or its beneficiary. Separately, Avery submitted a personal

financial statement to Wells Fargo Bank that characterized assets purchased with

trust-backed funds as his own, yet failed to list the $50 million loan encumbering

those assets as a liability. Given this evidence, “any rational trier of fact could have

found the essential elements of” wire fraud, money laundering, bank fraud, and

making false statements to a bank “beyond a reasonable doubt.” Id. (emphasis in

original) (quoting Sullivan, 522 F.3d at 974).




          5
        We review “sufficiency of the evidence de novo.” United States v. Kaplan,
836 F.3d 1199, 1211 (9th Cir. 2016) (citing United States v. Sullivan, 522 F.3d 967,
974 (9th Cir. 2008) (per curiam)).


                                             4
      Although Avery argues otherwise, the challenged evidentiary rulings did not

constitute an abuse of discretion.6 For instance, Avery’s assertion that the district

court improperly excluded certain testimony as hearsay, misconstrues the facts. In

reality, Avery was allowed to elicit multiple instances of hearsay and only met

objections where duplicative testimony threatened to derail the trial. Likewise, there

was no abuse of discretion in admitting testimony relating to the co-trustees’

reactions to Avery’s fraud as non-hearsay. Such opinion testimony—devoid of any

statement—is not hearsay. See Fed. R. Evid. 801(c) (limiting hearsay to statements

offered “to prove the truth of the matter asserted”); cf. Fed. R. Evid. 803(1) (allowing

statements “describing or explaining an event or condition, made while or

immediately after the declarant perceived it”).

      Nor was there an abuse of discretion in denying Avery’s discovery request

regarding Rob Kane’s government informant status.7 To compel discovery in a

criminal case, “[a] defendant must make a threshold showing of materiality, which

requires a presentation of facts which would tend to show that the Government is in

possession of information helpful to the defense.” United States v. Muniz-Jaquez,



      6
       We review evidentiary rulings for abuse of discretion. United States v.
Hanna, 293 F.3d 1080, 1085 (9th Cir. 2002) (citations omitted).
      7
        We review discovery rulings for abuse of discretion. United States v.
Alvarez, 358 F.3d 1194, 1210 (9th Cir. 2004) (citing United States v. Michaels, 796
F.2d 1112, 1115–17 (9th Cir. 1986)).

                                           5
718 F.3d 1180, 1183 (9th Cir. 2013) (quoting United States v. Stever, 603 F.3d 747,

752 (9th Cir. 2010)). Avery sought this discovery in hopes of presenting an

entrapment defense, which would have required him to prove, among other things,

that he “was induced to commit the crime by a government agent[.]” United States

v. Cortes, 757 F.3d 850, 858 (9th Cir. 2014) (quoting United States v. Spentz, 653

F.3d 815, 818 (9th Cir. 2011)). Since Avery failed to make that threshold showing,

the district court did not abuse its discretion.

      Finally, there was no abuse of discretion in denying Avery’s motion for new

counsel.8 The trial-strategy dispute at issue here is not the type of “extensive,

irreconcilable conflict” warranting new counsel. United States v. Mendez-Sanchez,

563 F.3d 935, 943 (9th Cir. 2009) (quoting United States v. Smith, 282 F.3d 758,

763 (9th Cir. 2002)); see United States v. Reyes-Bosque, 596 F.3d 1017, 1034 (9th

Cir. 2010) (“As we have said before, ‘[l]itigation tactics are decisions generally left

to defense counsel,’ and, without more, may not provide a sufficient basis for

establishing conflict.” (alteration in original) (quoting Smith, 282 F.3d at 763)). And

the finding that Avery’s motion—which promptly followed the denial of a



      8
         “We review the denial of a motion for substitution of counsel for abuse of
discretion.” United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (citing
United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir. 2000)). We review the
district court’s factual findings for clear error. United States v. Adelzo-Gonzalez,
268 F.3d 772, 777 (9th Cir. 2001) (citing United States v. Wadsworth, 830 F.2d
1500, 1505–06 (9th Cir. 1987)).

                                            6
continuance motion and evinced an effort “to avoid trial and manipulate the

system”—was untimely is not clearly erroneous. Because two of the relevant factors

clearly weigh against substitution, see id. at 1033 (outlining the factors), the district

court did not abuse its discretion.

      AFFIRMED.




                                           7
