and Submitted June 8, 2018
from the United States District Court for the District of
Oregon No. 3:13-cr-00444-BR-2 Anna J. Brown, District Judge,
C. Hay (argued), Federal Public Defender, Portland, Oregon,
Donnamarie Maddux (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney's Office,
Portland, Oregon; for Plaintiff-Appellee.
Before: Susan P. Graber and Milan D. Smith, Jr., Circuit
Judges, and Edward R. Korman, [*] District Judge.
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.
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.
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.
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.
GRABER, Circuit Judge
convicted Defendant Jack Holden of mail and wire fraud,
conspiracy to commit mail and wire fraud, and several money
laundering offenses. Defendant appeals his convictions for
mail and wire fraud, arguing that the district court
misinstructed the jury on the elements of those crimes.
Defendant also challenges the two-level "organizer"
sentencing enhancement applied by the district court and the
district court's restitution order. We reject
Defendant's arguments concerning the jury instructions,
but we vacate both his custodial sentence and the restitution
order and remand for further proceedings.
AND PROCEDURAL HISTORY
fall of 2007, Defendant and his associate, Lloyd Sharp, met
with a group of investors from the Portland, Oregon, area to
discuss the possibility of investing in a biofuel operation
in Ghana. Defendant and Sharp had known each other
for a long time, but they had reconnected and entered into a
joint venture agreement only recently. The joint venture
agreement provided that Defendant and Sharp would work
together to start refining biofuel in Ghana. Sharp's
company was supposed to invest in the refining operation.
Defendant's company was responsible for getting the
refinery up and running. At the time he signed the joint
venture agreement, Defendant was already engaged in the
biofuel business in Ghana, but he had not done any
large-scale refining; his operations were limited to planting
the jatropha plant,  the seeds of which eventually would be
used to create biofuel.
meetings with the investors, Defendant suggested that the
Ghana biofuel operation was on the verge of going online; all
that was needed was a refinery to start producing fuel.
Defendant and Sharp sought $350, 000 from the investors to
initiate operations at the refinery, and they made specific
representations (based on the joint venture agreement) about
how that $350, 000 would be used. The investors eventually
decided to put their money into the project in early 2008.
Defendant never completed the purchase of the refinery. Much
of the money that he and Sharp received from the investors
was not spent on the Ghana refinery project but was, instead,
used to pay personal expenses or funneled to family members.
and 2009, Defendant began to concentrate his efforts on
various biofuel projects in Chile. Defendant conveyed to
investors-some of whom had already invested in the Ghana
project-that the Chile projects would lead to quick profits
that could then be poured back into the Ghana venture. After
receiving money from the investors, Defendant again failed to
spend the money as he had promised. Defendant's offices
in Chile were shut down in mid-2009.
continued to seek investments for the Ghana project
throughout the next couple of years. He consistently told
investors that he just needed a little more money in order to
get the operation up and running. But Defendant never
purchased the refinery, never launched a ...