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United States v. Johnson

United States Court of Appeals, Ninth Circuit

April 21, 2017

United States of America, Plaintiff-Appellant,
v.
Donald Mitchell Johnson, AKA Ski Johnson, Defendant-Appellee.

          Argued and Submitted February 7, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Montana, D.C. No. 2:14-cr-00028-DLC-1 Dana L. Christensen, Chief Judge, Presiding

          Chad Spraker (argued), Assistant United States Attorney; Michael W. Cotter, United States Attorney; United States Attorney's Office, Helena, Montana; for Plaintiff-Appellant.

          Michael Donahoe (argued), Senior Litigator; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Helena, Montana; for Defendant-Appellee.

          Before: Richard A. Paez and Consuelo M. Callahan, Circuit Judges, and Morrison C. England, Jr., [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel vacated a restitution order on a government appeal in a case in which the defendant was convicted of wire fraud, and remanded.

         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.

          OPINION

          CALLAHAN, Circuit Judge:

         A jury convicted Donald "Ski" Johnson of wire fraud in violation of 18 U.S.C. § 1343. The district court sentenced Johnson to five years' probation and ordered Johnson to pay $5, 648.58 in restitution. On appeal, the government argues that the district court erred by considering only Johnson's fraudulent conduct that occurred in Montana (the count of conviction) when determining restitution, and thus misinterpreted the Mandatory Victim Restitution Act ("MVRA"). See 18 U.S.C. § 3663A. We vacate the district court's restitution order and remand for determination of whether Johnson's conduct outside of Montana was related to his scheme to defraud.[1]

         BACKGROUND

         In 2011, Johnson, using the alias Larry Toye, promoted a black-tie gala in Seattle, Washington. The event was intended to benefit the American Cancer Society and Johnson's charity, the Jazz For Life Foundation. While on the phone with a promoter, Johnson, acting as Toye, falsely described himself as a Grammy-nominated musician. Johnson also promised the attendance of celebrities such as James Earl Jones and Michael Douglas. Neither Jones nor Douglas had any knowledge of the event, nor were they inclined to attend. The event was eventually cancelled, but, by the time Johnson's fraud was discovered, Johnson's foundation had collected over $13, 000 in ticket sales, $9, 300 of which had been transferred to Johnson's personal account.

         Later in 2011, Johnson-this time under the alias Kevin Wright-contacted the Hospice of Palm Beach County in Florida to inquire about participating in the organization's celebrity golf event. Johnson offered Grammy tickets to be auctioned at the event, with the proceeds split between the hospice and Johnson's foundation. The tickets were auctioned for $12, 000 ($5, 500 of which was sent ...


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