USA v. Donald Johnson

Filing

FILED OPINION (RICHARD A. PAEZ, CONSUELO M. CALLAHAN and MORRISON C. ENGLAND, JR.) VACATED; REMANDED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [10405409]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

No. 15-30350
D.C. No.
2:14-cr-00028-DLC-1

v.
DONALD MITCHELL JOHNSON,
AKA Ski Johnson,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted February 7, 2017
Seattle, Washington
Filed April 21, 2017
Before: Richard A. Paez and Consuelo M. Callahan,
Circuit Judges, and Morrison C. England, Jr.,* District
Judge.
Opinion by Judge Callahan

*

The Honorable Morrison C. England, Jr., United States District
Judge for the Eastern District of California, sitting by designation.

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UNITED STATES V. JOHNSON
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.

COUNSEL
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.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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

1

Johnson also filed a cross-appeal of his conviction, United States v.
Johnson, No. 15-30356, arguing insufficiency of the evidence. We
dispose of his appeal in a separate memorandum disposition.

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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 to Johnson’s
foundation), but the tickets were never produced, and the
purchaser did not attend the Grammys.
In May 2012, Johnson called Barb Rooney, Vice
President of the Big Sky Resort in Montana. Johnson, again
using the alias Kevin Wright, identified himself as a
representative of both Sony and Johnson, a Grammynominated musician. In a similar fashion to his encounter
with the Hospice of Palm Beach County, Johnson offered
Grammy tickets to be auctioned off at a fundraiser organized
by Big Brothers and Big Sisters (“BBBS”). The tickets were
auctioned for $6,000. Johnson attempted to collect his share
of the proceeds, but, after BBBS learned of Johnson’s
misrepresentations, it returned the proceeds to the bidder.
Johnson was indicted in 2014 for one count of wire fraud
in violation of 18 U.S.C. § 1343. The indictment alleged
Johnson’s scheme to defraud extended from 2011 to 2014 and
occurred “in the District of Montana and elsewhere.”
However, the indictment specifically identified only a single
Virginia-Montana wire transmission relating to the BBBS
event. Johnson thus moved to limit the government’s trial
evidence to that one event. The government argued in
opposition that evidence of other fraud was admissible to

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prove Johnson’s scheme to defraud. The district court
concluded that evidence of wire fraud not specifically
charged in the indictment was inadmissible as
improper propensity evidence under Federal Rule of
Evidence 404(b)(2).2 Ultimately, the court restricted the
government’s trial evidence to the BBBS event, stating in its
pretrial ruling that “the government will not be permitted to
prove the scheme underlying the Montana fraud by putting on
evidence that Johnson employed the same scheme in another
fraud outside of Montana.”
A jury convicted Johnson, and the government sought
restitution for Johnson’s entire scheme, contending that he
owed over $70,000. The district court considered additional
evidence of Johnson’s scheme for sentencing enhancement
purposes, but it refused to consider evidence beyond the
BBBS event (the count of conviction) for restitution purposes
and limited restitution to $5,648.58. The government
appealed.
DISCUSSION
A. Jurisdiction and Standard of Review
We review de novo Johnson’s contention that we lack
jurisdiction to consider the government’s challenge to the
district court’s restitution order. United States v. Decinces,
2

When the district court invoked Rule 404(b) to exclude evidence of
wire fraud not specifically charged in the indictment, it did not have the
benefit of our opinion in United States v. Loftis, 843 F.3d 1173 (9th Cir.
2016). There, we held that evidence of uncharged transactions to prove
a scheme to defraud was not inadmissable as improper propensity
evidence under Rule 404(b). Because the government did not pursue an
appeal under 18 U.S.C. § 3731, however, the issue is not before us.

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808 F.3d 785, 789 (9th Cir. 2015) (“We have jurisdiction to
determine our own jurisdiction. We review this question de
novo.” (internal citations omitted)).
This court has jurisdiction “of appeals from all final
decisions.” 28 U.S.C. § 1291. “A sentence that imposes an
order of restitution is a final judgment.” 18 U.S.C. § 3664(o);
see also United States v. Brock-Davis, 504 F.3d 991, 993 (9th
Cir. 2007) (finding court had jurisdiction under § 1291 to
review restitution order). We therefore have jurisdiction to
review the government’s appeal from a district court’s
restitution order.
Johnson argues, however, that the government’s challenge
to the restitution order here is instead an attempt at an
impermissible end-run around its failure to appeal the district
court’s pretrial evidentiary ruling, which limited the
government’s trial evidence to fraud relating to the BBBS
event. According to Johnson, the government was required
to appeal immediately, and, by failing to do so, it waived
review of this issue in its entirety.
Although the government could have appealed the district
court’s evidentiary ruling, see United States v. Loftis,
843 F.3d 1173, 1175–76 (9th Cir. 2016), it was not required
to do so. The evidentiary ruling was an interlocutory order,
and “we have never held that failure to appeal an
interlocutory order barred raising the decided issue after entry
of a final judgment.” In re Frontier Props., Inc., 979 F.2d
1358, 1364 (9th Cir. 1992); see Baldwin v. Redwood City,
540 F.2d 1360, 1364 (9th Cir. 1976) (“[A]n interlocutory
appeal is permissive, not mandatory[,]” and, “[w]hen an
appeal is not taken, the interlocutory order merges in the final
judgment and may be challenged in an appeal from that

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judgment.”). The government is therefore not foreclosed
from challenging the district court’s limitation on the
restitution order even though it flows from the same issue as
the district court’s evidentiary ruling. We therefore have
jurisdiction to review the district court’s restitution order, and
we review that order for an abuse of discretion. Brock-Davis,
504 F.3d at 996.
B. Restitution Order
The district court relied on United States v. Hughey,
495 U.S. 411 (1990), in concluding that it could not consider
fraud beyond the BBBS event for the purposes of restitution.
In Hughey, the Supreme Court held that a restitution award
under the 1982 Victim and Witness Protection Act
(“VWPA”) was limited to “the loss caused by the specific
conduct that is the basis of the offense of conviction.”
495 U.S. at 413; 18 U.S.C. § 3579 (1982), amended by,
18 U.S.C. § 3663 (1990)).
In response, Congress amended the VWPA in 1990 to
partly overrule Hughey. See 18 U.S.C. § 3663; see also
United States v. Lawrence, 189 F.3d 838, 846 (9th Cir. 1999)
(“Congress amended the VWPA’s definition of victim to
partially overrule Hughey.”). The current iteration of the
VWPA authorizes restitution for “any victim” of certain
enumerated offenses. 18 U.S.C. § 3663(a)(1)(A). The act
defines a “victim” as “any person directly harmed by the
defendant’s criminal conduct in the course of the scheme,
conspiracy, or pattern.” Id. § 3663(a)(2).
Following the 1990 amendments, we have recognized that
the VWPA allows district courts to order restitution for
crimes involving a scheme to defraud to “include acts of

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related conduct for which the defendant was not convicted.”
Lawrence, 189 F.3d at 846; see also United States v. Rutgard,
116 F.3d 1270, 1294 (9th Cir. 1997) (“After the amendment
[to the VWPA], restitution may be ordered for losses to
persons harmed in the course of the defendant’s scheme even
beyond the counts of conviction.” (emphasis added)). We
have since applied the same approach to the MVRA. See
Brock-Davis, 504 F.3d at 996 (“Because of similarities
between the MVRA and the [VWPA], we may look to cases
decided under the VWPA for guidance in interpreting the
MVRA.”) (internal citations omitted)); United States v. Grice,
319 F.3d 1174, 1177–78 (9th Cir. 2003) (“The MVRA’s
definition of victim is identical [to the VWPA’s], and we
interpret it as we have the definition under the VWPA.”
(internal citations omitted)). Wire fraud involves a scheme to
defraud. See 18 U.S.C. § 1343.3 Accordingly, under the
MVRA, “restitution may be ordered for all persons directly
harmed by the entire scheme” and “is thus not confined to
harm caused by the particular offenses for which [the
defendant] was convicted.” United States v. Booth, 309 F.3d
566, 576 (9th Cir. 2002).
3

The wire fraud statute in part states:
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises, transmits or causes to be
transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the
purposes of executing such scheme or artifice, shall be
fined under this title or imprisoned not more than 20
years, or both.

18 U.S.C. § 1343.

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Here, the district court, believing it was bound by
Hughey, only considered loss related to Johnson’s fraudulent
conduct while organizing the BBBS event. Specifically, prior
to the start of witness testimony at the sentencing hearing, the
district court concluded that it could not award restitution
beyond the count of conviction “under the law, the law of this
case, and the law under the United States Supreme Court
decision of [United States v. Hughey].”4 This constituted an
abuse of discretion. See Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990) (“A district court would necessarily
abuse its discretion if it based its ruling on an erroneous view
of the law . . . .”). Under 18 U.S.C. § 3663A and Ninth
Circuit precedent, the district court could properly order
restitution for all victims harmed by Johnson’s scheme,
including those harmed by conduct beyond the count of
conviction. Accordingly, we vacate the district court’s
restitution order and remand for the court to make factual
findings to determine whether Johnson’s activities beyond the
BBBS event are sufficiently related to be included for
restitution purposes in Johnson’s overall scheme to defraud.5

4

It appears that the relevant Ninth Circuit precedent recognizing
abrogation of this holding of Hughey was not brought to the district
court’s attention.
5

The government contends that Johnson’s scheme to defraud should
be defined broadly to include his misrepresentations as a Grammynominated musician with a charitable purpose. We do not decide this
issue, but note that much of Johnson’s conduct may be sufficiently related
to his scheme to be included in a restitution order. Our cases have
embraced a broad definition of scheme to defraud. See, e.g., United States
v. Morse, 785 F.2d 771, 774 (9th Cir. 1986) (recognizing that, in the mail
fraud context, the Ninth Circuit “takes a broad view of a single scheme”);
see also United States v. Shipsey, 363 F.3d 962, 971 n.10 (9th Cir. 2004)
(“It is well settled that cases construing the mail fraud and wire fraud
statutes are applicable to either.”).

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The restitution order is VACATED, and the issue is
REMANDED to the district court.