                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 23 2009

                                                                        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. 08-30468
                                       )
      Plaintiff – Appellee,            )      D.C. No. 3:08-CR-00007-JKS
                                       )
      v.                               )      MEMORANDUM *
                                       )
IMAD SALIM HEREIMI,                    )
                                       )
      Defendant – Appellant.           )
                                       )

                   Appeal from the United States District Court
                            for the District of Alaska
                James K. Singleton, Senior District Judge, Presiding

                     Argued and Submitted November 3, 2009
                              Seattle, Washington

Before:      FERNANDEZ, KLEINFELD, and CLIFTON, Circuit Judges.

      Imad Salim Hereimi appeals his conviction for aiding and abetting

deprivation of honest services mail fraud. See 18 U.S.C. §§ 1341, 1346. We

affirm.

      (1) Hereimi first claims that the district court erred when it excluded certain




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prior bad evidence regarding Nezar Maad, the person whom Hereimi was charged

with aiding and abetting. We disagree. The district court rather thought that the

bad acts were too remote in time and too dissimilar to be properly admissible

pursuant to Federal Rule of Evidence 404(b). See United States v. Banks, 514 F.3d

959, 976 (9th Cir. 2008); United States v. Lynch, 437 F.3d 902, 915 (9th Cir.

2006) (en banc). In any event, the district court determined that the probative

value of the evidence in question was substantially outweighed by its tendency

towards unfair prejudice and confusion of the issues. That, it ruled, warranted

exclusion of the evidence pursuant to Federal Rule of Evidence 403. On this

record we cannot say that the district court abused its discretion in so ruling.

United States v. 87.98 Acres of Land More or Less in the County of Merced, 530

F.3d 899, 907 (9th Cir. 2008); Duran v. City of Maywood, 221 F.3d 1127, 1133

(9th Cir. 2000).

      (2) Hereimi also claims that the district court erred when it gave a deliberate

indifference instruction to the jury, but his disagreement is with the propriety of

deliberate indifference instructions in general. His claim is foreclosed. See United

States v. Heredia, 483 F.3d 913, 924 (9th Cir. 2007) (en banc). So, too, is his

suggestion that, even when supported by the evidence, the instruction must be

avoided in some cases — this being one of them. See id. at 922–24; United States


                                           2
v. Henderson, 721 F.2d 276, 278–79 (9th Cir. 1983). The district court did not err.

      AFFIRMED.




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