United States v. Solomon Jalloh

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2019
• Docket: 17-50411
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50411

Plaintiff-Appellee, D.C. No. 8:15-cr-00129-CJC-1 v.

SOLOMON JALLOH, AKA Sulaiman MEMORANDUM* Jalloh, AKA Suliman Jalloh,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted December 9, 2019** Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,*** District Judge.

Solomon Jalloh challenges his convictions on eight counts of wire fraud, his

* 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). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Page 2 of 4

87-month sentence, and the district court’s order of $2.1 million in restitution.

Finding no error, we affirm.

1. Count 8 was properly joined with the first seven counts. All eight counts

are clearly of the “same or similar character,” as they shared the same evidence, the

same modus operandi, and the same statutory offense. United States v. Jawara,

474 F.3d 565, 578 (9th Cir. 2007) (quoting Fed. R. Crim. Proc. 8(a)). Although

there is a temporal gap between the activity charged in the first seven counts and

the conduct charged in the eighth, all eight counts took place within the time frame

alleged in the indictment and proved at trial. There was no error, much less plain

error, in joining the charges.

2. Jalloh waived his contention that the district court abused its discretion in

failing to sever the special sentencing allegation from the remaining charges. “It is

well-settled that the motion to sever must be renewed at the close of evidence or it

is waived.” United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008) (internal

quotation marks omitted). Jalloh failed to renew his pretrial motion, thus waiving

this claim. Even if not waived, the claim lacks merit. The district court did not

abuse its discretion in concluding that the sentencing allegation was inextricably

linked to Count 8. The same evidence required to prove Count 8 would be

required to prove that Jalloh committed “an offense” for purposes of 18 U.S.C.

§ 3147, making a second trial wasteful and duplicative. Page 3 of 4

3. The district court did not abuse its discretion in permitting testimony

from two victims not specifically mentioned in the indictment. When an

indictment alleges a general scheme, “evidence of uncharged transactions is not

evidence of ‘other’ crimes or acts under Rule 404(b), because it is evidence of part

of the crime charged in the indictment—the overall scheme to defraud.” United

States v. Loftis, 843 F.3d 1173, 1176 (9th Cir. 2016). The indictment alleged “a

scheme to defraud investors . . . by means of materially false and fraudulent

pretenses.” The victims who testified at trial were defrauded by that very scheme.

Their testimony was therefore direct evidence of Jalloh’s crime.

Nor did Federal Rule of Evidence 403 bar the admission of the testimony.

Although Jalloh highlights the portions of the witnesses’ testimony describing the

harm the loss had caused them, the majority of the testimony was dry and factual.

One emotional remark by each witness does not outweigh the highly probative

value of their testimony as a whole.

4. The district court correctly imposed sentence enhancements for ten or

more victims and for losses exceeding $1.5 million. Jalloh’s challenges to these

enhancements fail to account for the fact that, when prescribing sentences for

scheme-based crimes, the Sentencing Guidelines explicitly require consideration of

all acts “that were part of the same course of conduct or common scheme or plan

as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United States v. Page 4 of 4

Fine, 975 F.2d 596, 600 (9th Cir. 1992) (en banc) (“[C]onduct which was part of

the scheme is counted, even though the defendant was not convicted of crimes

based upon the related conduct.”). Over the four-year period charged in the

indictment, Jalloh defrauded many more victims than just the undercover officer,

and the district court permissibly included them in its calculations. Based on the

evidence provided by the government (the factual accuracy of which Jalloh does

not challenge), the district court did not clearly err in determining that the scheme

resulted in a loss of more than $1.5 million to 21 victims.

5. Jalloh’s restitution argument fails for the same reason. The Mandatory

Victims Restitution Act requires that restitution be made to anyone “harmed by the

defendant’s criminal conduct in the course of the scheme.” 18 U.S.C.

§ 3663A(a)(2). As already established, Jalloh defrauded the victims not named in

the indictment as part of the scheme charged. The very same false documents,

phone numbers, and promises alleged in the indictment induced these other victims

to invest their money with Jalloh. Their losses thus “flow[ed] directly from the

specific conduct that is the basis of the offense of conviction.” United States v.

May, 706 F.3d 1209, 1214 (9th Cir. 2016) (internal quotation marks omitted).

AFFIRMED.