Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Holden

United States Court of Appeals, Ninth Circuit

July 26, 2018

United States of America, Plaintiff-Appellee,
v.
Jack Holden, Defendant-Appellant.

          Argued and Submitted June 8, 2018

          Appeal from the United States District Court for the District of Oregon No. 3:13-cr-00444-BR-2 Anna J. Brown, District Judge, Presiding

          Lisa C. Hay (argued), Federal Public Defender, Portland, Oregon, for Defendant-Appellant.

          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.

         SUMMARY [**]

         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.

          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.

          OPINION

          GRABER, Circuit Judge

         A jury 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.[1]

         FACTUAL AND PROCEDURAL HISTORY

         In the 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.[2] 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, [3] the seeds of which eventually would be used to create biofuel.

         At the 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.

         In 2008 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.

         Defendant 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.