United States v. Johnson, No. 15-30350 (9th Cir. 2017)
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The Ninth Circuit filed an amended opinion vacating the restitution order, denied defendant's petition for panel rehearing, and on behalf of the court denied his petition for rehearing en banc.
The panel held that the government's decision not to appeal the district court's evidentiary hearing did not bar the panel's review of its appeal from the district court's restitution order under 18 U.S.C. 3742(b)(1). Therefore, in this case, the government was not foreclosed from challenging the district court's limitation on the restitution order and the panel had jurisdiction to review the order. The panel held that, under 18 U.S.C. 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by defendant's scheme, including those harmed by conduct beyond the count of conviction. The panel remanded for the district court to make factual findings to determine whether defendant's activities beyond the BBBS event were sufficiently related to be included for restitution purposes in his overall scheme to defraud.
Court Description: Criminal Law. On a government appeal in a case in which the defendant was convicted of wire fraud, the panel filed an amended opinion vacating the restitution order, denied the defendant’s petition for panel rehearing, and on behalf of the court denied his petition for rehearing en banc. In the amended opinion, the panel wrote that the government’s decision not to appeal a pretrial evidentiary ruling does not bar this court’s review of its appeal from the district court’s restitution order under 18 U.S.C. § 3742(b)(1). The panel held that under 18 U.S.C. § 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by the defendant’s scheme to defraud, including those harmed by conduct beyond the count of conviction, and that the district court’s conclusion to the contrary constituted an abuse of discretion. The panel remanded for the district court to make factual findings to determine whether the defendant’s activities beyond the count of conviction are sufficiently related to be included for restitution purposes in the defendant’s overall scheme to defraud. UNITED STATES V. JOHNSON 3
This opinion or order relates to an opinion or order originally issued on April 21, 2017.
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