United States v. Holden

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. View "United States v. Holden" on Justia Law