NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10306
Plaintiff-Appellee, D.C. No. 2:14-cr-00169-GEB-5 v.
JASVIR KAUR, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-10307
Plaintiff-Appellee, D.C. No. v. 2:14-cr-00169-GEB-3
HARJIT JOHAL,
Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted October 10, 2018**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: MURGUIA and FRIEDLAND, Circuit Judges, and HINKLE, *** District Judge.
Harjit Kaur Johal and Jasvir Kaur challenge their convictions under 18
U.S.C. § 1623 for making false declarations to a grand jury during its investigation
of a large-scale unemployment and disability insurance fraud scheme orchestrated
by Mohammad Riaz “Ray” Khan and Mohammad Shabaz Khan. We affirm.
First, we reject Kaur’s and Johal’s argument that the district court erred in
denying their motion to sever because they were improperly joined. Joinder was
proper under Fed. R. Crim. P. 8(b) because, although Kaur and Johal were charged
with separate counts of offering false testimony to the grand jury, the indictment
stemmed from the same larger investigation and the false testimony related to the
same aspects of the alleged fraudulent scheme. The charges against each
defendant arose “out of the same series of acts or transactions,” United States v.
Martin, 567 F.2d 849, 853 (9th Cir. 1977), and a substantial number of the facts
the Government needed to prove at trial were overlapping, United States v.
Vasquez–Velasco, 15 F.3d 833, 844 (9th Cir. 1994). Moreover, even if they were
improperly joined, reversal is not required because improper joinder is subject to
*** The Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation.
2 harmless error review. United States v. Lane, 474 U.S. 438, 449 (1986). Kaur and
Johal have failed to show any possible prejudice.
Second, Kaur and Johal argue that the district court improperly admitted
evidence under Federal Rule of Evidence 404(b) that Johal participated in earlier
fraud schemes organized by the Khan brothers. Even assuming the Government is
incorrect that these prior acts fall outside the parameters of Rule 404(b) because
they are inextricably intertwined with the charged offense, the evidence was
properly admitted under Rule 404(b)(2) for the purpose of showing lack of mistake
and a common plan or scheme. See, e.g., United States v. Mehrmanesh, 689 F.2d
822, 830 (9th Cir. 1982). Kaur and Johal’s arguments that the evidence should
have been excluded under the materiality and sufficiency of the evidence prongs of
the test in United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002), are
unavailing. Nor did the court plainly err in failing to exclude the evidence under
Federal Rule of Evidence 403. See United States v. Plunk, 153 F.3d 1011, 1019
n.7 (9th Cir. 1998). Moreover, even without the challenged evidence, the evidence
against Kaur and Johal was overwhelming, so any error in the admission was
harmless.
Third, the district court did not err in denying Kaur’s and Johal’s motion for
a judgment of acquittal, or, in the alternative, motion for a new trial. There was
sufficient evidence of every element of the crime, including materiality of the false
3 statements. Whether Kaur and Johal actually picked peaches and whether they
purchased pay stubs from Ray Khan were questions capable of influencing the
grand jury investigation and therefore were material. See United States v.
Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). And the questions posed to Kaur
and Johal were not so ambiguous that their answers could be considered “literally
true.” See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985); United States
v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003). Finally, the Government
presented sufficient evidence to support a jury finding that Kaur purchased pay
stubs, even if the testimony of certain trial witnesses identifying her could be
called into question. United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir.
1980) (because “there was overwhelming independent evidence against the
defendants . . . . any error in admitting the in-court identification testimony was
harmless beyond a reasonable doubt”).
Fourth, Johal should not prevail on her claim of ineffective assistance of
counsel based on her attorney’s failure to object to potential hearsay. Her
argument fails both prongs of the two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 688-96 (1984). Johal did not overcome the “strong
presumption,” United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994), that
counsel’s decision not to renew a hearsay objection for the third time fell outside
the wide range of professionally competent assistance. Nor is there any evidence
4 that the failure to object in any way prejudiced Johal.
Finally, Kaur’s challenges to her sentence lack merit. The Sentencing
Guidelines permit a three-level increase for “substantial interference with the
administration of justice” if the defendant’s perjury caused “the unnecessary
expenditure of substantial governmental or court resources.” U.S. Sentencing
Guidelines Manual § 2J1.3 cmt. n.1 (U.S. Sentencing Comm’n 2016). Although
the underlying expenses associated with prosecuting Kaur for perjury cannot be
included in this calculation, United States v. Duran, 41 F.3d 540, 546 (9th Cir.
1994), the district court found1 that the Government expended other resources as a
result of Kaur’s perjury.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10306
Plaintiff-Appellee, D.C. No. 2:14-cr-00169-GEB-5 v.
JASVIR KAUR, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-10307
Plaintiff-Appellee, D.C. No. v. 2:14-cr-00169-GEB-3
HARJIT JOHAL,
Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted October 10, 2018**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: MURGUIA and FRIEDLAND, Circuit Judges, and HINKLE, *** District Judge.
Harjit Kaur Johal and Jasvir Kaur challenge their convictions under 18
U.S.C. § 1623 for making false declarations to a grand jury during its investigation
of a large-scale unemployment and disability insurance fraud scheme orchestrated
by Mohammad Riaz “Ray” Khan and Mohammad Shabaz Khan. We affirm.
First, we reject Kaur’s and Johal’s argument that the district court erred in
denying their motion to sever because they were improperly joined. Joinder was
proper under Fed. R. Crim. P. 8(b) because, although Kaur and Johal were charged
with separate counts of offering false testimony to the grand jury, the indictment
stemmed from the same larger investigation and the false testimony related to the
same aspects of the alleged fraudulent scheme. The charges against each
defendant arose “out of the same series of acts or transactions,” United States v.
Martin, 567 F.2d 849, 853 (9th Cir. 1977), and a substantial number of the facts
the Government needed to prove at trial were overlapping, United States v.
Vasquez–Velasco, 15 F.3d 833, 844 (9th Cir. 1994). Moreover, even if they were
improperly joined, reversal is not required because improper joinder is subject to
*** The Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation.
2 harmless error review. United States v. Lane, 474 U.S. 438, 449 (1986). Kaur and
Johal have failed to show any possible prejudice.
Second, Kaur and Johal argue that the district court improperly admitted
evidence under Federal Rule of Evidence 404(b) that Johal participated in earlier
fraud schemes organized by the Khan brothers. Even assuming the Government is
incorrect that these prior acts fall outside the parameters of Rule 404(b) because
they are inextricably intertwined with the charged offense, the evidence was
properly admitted under Rule 404(b)(2) for the purpose of showing lack of mistake
and a common plan or scheme. See, e.g., United States v. Mehrmanesh, 689 F.2d
822, 830 (9th Cir. 1982). Kaur and Johal’s arguments that the evidence should
have been excluded under the materiality and sufficiency of the evidence prongs of
the test in United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002), are
unavailing. Nor did the court plainly err in failing to exclude the evidence under
Federal Rule of Evidence 403. See United States v. Plunk, 153 F.3d 1011, 1019
n.7 (9th Cir. 1998). Moreover, even without the challenged evidence, the evidence
against Kaur and Johal was overwhelming, so any error in the admission was
harmless.
Third, the district court did not err in denying Kaur’s and Johal’s motion for
a judgment of acquittal, or, in the alternative, motion for a new trial. There was
sufficient evidence of every element of the crime, including materiality of the false
3 statements. Whether Kaur and Johal actually picked peaches and whether they
purchased pay stubs from Ray Khan were questions capable of influencing the
grand jury investigation and therefore were material. See United States v.
Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). And the questions posed to Kaur
and Johal were not so ambiguous that their answers could be considered “literally
true.” See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985); United States
v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003). Finally, the Government
presented sufficient evidence to support a jury finding that Kaur purchased pay
stubs, even if the testimony of certain trial witnesses identifying her could be
called into question. United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir.
1980) (because “there was overwhelming independent evidence against the
defendants . . . . any error in admitting the in-court identification testimony was
harmless beyond a reasonable doubt”).
Fourth, Johal should not prevail on her claim of ineffective assistance of
counsel based on her attorney’s failure to object to potential hearsay. Her
argument fails both prongs of the two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 688-96 (1984). Johal did not overcome the “strong
presumption,” United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994), that
counsel’s decision not to renew a hearsay objection for the third time fell outside
the wide range of professionally competent assistance. Nor is there any evidence
4 that the failure to object in any way prejudiced Johal.
Finally, Kaur’s challenges to her sentence lack merit. The Sentencing
Guidelines permit a three-level increase for “substantial interference with the
administration of justice” if the defendant’s perjury caused “the unnecessary
expenditure of substantial governmental or court resources.” U.S. Sentencing
Guidelines Manual § 2J1.3 cmt. n.1 (U.S. Sentencing Comm’n 2016). Although
the underlying expenses associated with prosecuting Kaur for perjury cannot be
included in this calculation, United States v. Duran, 41 F.3d 540, 546 (9th Cir.
1994), the district court found1 that the Government expended other resources as a
result of Kaur’s perjury. In light of the Government’s representation that it called
additional witnesses before the grand jury as a result of Kaur’s perjury, and in light
of evidence that it called Kaur to testify again after she was offered immunity, this
determination was not clearly erroneous. Nor did Kaur meet her burden of
demonstrating any improper prosecutorial conduct, let alone that this is an
“extreme and unusual case” involving “outrageous governmental conduct” that
1 We note that the Government was quite vague in its explanation of exactly what additional resources it expended as a result of Kaur’s false testimony, especially given the size of the investigation and in light of the fact that multiple other witnesses also committed perjury during the investigation. But the district court made the finding that further resources were expended as a result of Kaur’s perjury, and we review that fact-finding only for clear error. United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007). Kaur did not object in the district court that a more specific fact-finding was necessary to support application of the enhancement, nor has she made such an argument on appeal.
5 rises to the level of sentencing manipulation. United States v. Boykin, 785 F.3d
1352, 1360 (9th Cir. 2015).
AFFIRMED.