United States v. Holden, No. 16-30186 (9th Cir. 2018)
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The Ninth Circuit affirmed defendant's conviction for mail and wire fraud, conspiracy to commit mail and wire fraud, and for money laundering offenses. The panel vacated defendant's sentence and restitution order, remanding for further proceedings. The panel rejected defendant's challenges to the mail and wire fraud jury instructions. The panel held that, assuming without deciding that defendant's argument to the contrary was not foreclosed by precedent, this court's caselaw that "participating" in a scheme to defraud was forbidden by the mail and wire fraud statutes did not amount to the creation of a common-law crime in violation of separation-of-powers principles, and the district court did not err by instructing the jury that it could find defendant guilty for "participating in" a scheme to defraud.
The panel vacated the custodial sentence, holding that the record did not support the district court's imposition of a two-level "organizer" sentencing enhancement under USSG 3B1.1. Finally, the panel held that the written restitution order was internally inconsistent and inconsistent with the district court's oral announcement. Therefore, the panel vacated the restitution order and remanded for the district court to strike the lump-sum payment requirement from the judgment.
Court Description: Criminal Law. The panel affirmed the defendant’s convictions for mail and wire fraud, conspiracy to commit mail and wire fraud, and money laundering offenses; vacated his custodial sentence and restitution order; and remanded for further proceedings. Assuming without deciding that the defendant’s argument to the contrary is not foreclosed by precedent, the panel held that this court’s caselaw that “participating” in a scheme to defraud is forbidden by the mail and wire fraud statutes does not amount to the creation of a common-law crime in violation of separation-of-powers principles, and that the district court therefore did not err by instructing the jury that it could find the defendant guilty for “participating in” a scheme to defraud. The panel vacated the custodial sentence because the record does not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c), and the panel could not say whether the district court would impose the same sentence if it kept the correct Sentencing Guidelines range in mind throughout the process. UNITED STATES V. HOLDEN 3 The panel observed that the district court’s written restitution order – which both required immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration – is internally inconsistent, and inconsistent with the district court’s oral announcement that the defendant lacked the ability to make immediate restitution in full. The panel therefore vacated the restitution order and remanded so that the district court can strike the lump-sum payment requirement from the judgment.
The court issued a subsequent related opinion or order on October 30, 2018.
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