                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 26 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 12-50372

               Plaintiff - Appellee,             D.C. No. 5:09-cr-00089-VAP-2

   v.
                                                 MEMORANDUM*
 DAVID LINCOLN JOHNSON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                        Argued and Submitted May 12, 2014
                               Pasadena, California

Before: NOONAN, WARDLAW, and FISHER, Circuit Judges.

        David Lincoln Johnson appeals his convictions and sentence for mail fraud.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in

part.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The district court did not abuse its discretion in denying Johnson’s

request to introduce evidence of his co-defendant’s prior acts. The evidence that

purported to show Christiano Hashimoto’s prior misrepresentations was prohibited

propensity evidence under Federal Rule of Evidence 404(b). See United States v.

Lukashov, 694 F.3d 1107, 1117-18 (9th Cir. 2012). Even if the evidence had been

admissible, it was not relevant. See Fed. R. Evid. 401. Hashimoto’s past activities

with other companies and his apparent misrepresentations regarding their

valuations were not relevant to assessing the veracity of the witnesses here, who

testified to the misrepresentations they were told by Johnson.

      Additionally, the district court did not abuse its discretion in alternatively

holding that Johnson’s proffered evidence of Hashimoto’s prior acts should be

excluded under Federal Rule of Evidence 403. Presenting evidence of

Hashimoto’s prior acts would have been time consuming and may have potentially

confused the jury. See United States v. Bussell, 414 F.3d 1048, 1059 (9th Cir.

2005). And, if the prior acts had been admitted, Johnson and the government

would have battled over whether they involved misrepresentations made by

Hashimoto without the issuers’ knowledge. Cf. id. Furthermore, evidence

establishing that Hashimoto was a liar was of minimal probative value because the

jury already had evidence establishing that fact. See United States v. Wiggan, 700


                                           2
F.3d 1204, 1213 (9th Cir. 2012) (“[A] decision regarding probative value must be

influenced by the availability of other sources of evidence on the point in

question.”).

      2.       The district court did not err in denying Johnson’s motion for a new

trial based on alleged Brady violations. Although the government failed to timely

disclose Catherine Lipscomb’s presentence report (“PSR”), Gerald Gorton’s

presentence report, and the IRS’s criminal investigation report regarding Gorton,

some of the materials were already available to Johnson before trial and the failure

to disclose the remaining materials did not prejudice him. See United States v.

Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013). Lipscomb’s mental health condition

was already available to Johnson in her change of plea transcript, which Johnson’s

counsel had, in fact, ordered before his trial began. Furthermore, even if

Lipscomb’s PSR contained evidence that was not previously available to Johnson,

there is not a reasonable probability that had that evidence been disclosed, the

result of Johnson’s trial would have been different. See United States v. Kohring,

637 F.3d 895, 902 (9th Cir. 2011). Many other witnesses testified about Johnson’s

misleading statements regarding the fraudulent scheme, and use of the mails in

furtherance of that scheme.




                                           3
      Similarly, the undisclosed materials regarding Gorton were either previously

available to Johnson or not material. First, because Gorton’s cardiovascular health

information was self-reported and unverified, its probative value was questionable.

Further, the examples of memory loss that Gorton’s PSR described were careless

mistakes, such as forgetting to pay a bill. The PSR did not state that Gorton

experienced forms of long-term memory loss that might affect his ability to recall

discussions, observations, or experiences related to Financial Solutions. Second,

Gorton’s refusal to cooperate with Financial Solutions’ receiver is immaterial to

Johnson’s conviction. Third, the IRS report’s statement that Hashimoto said the

empennage contract was worth $100 million is cumulative. Other witnesses

offered various accounts of Johnson or Hashimoto misrepresenting the value of the

empennage contract. Lastly, Gorton’s criminal and litigation histories were either

immaterial or inadmissible. See Fed. R. Evid. 401, 403. Gorton was not a central

witness and even if the undisclosed evidence had been used to impeach him, it

would not have been material to Johnson’s guilt or innocence. See Sedaghaty, 728

F.3d at 899. “Weighed as a whole, the evidence characterized as Brady material by

the Defendant[]—all of which is marginal, ambiguous, cumulative, inadmissible,

unreliable, inculpatory, irrelevant, or of negligible probative worth—falls far short




                                          4
of undermining our confidence in the verdict[].” United States v. Sarno, 73 F.3d

1470, 1506 (9th Cir. 1995).

      3.     The district court did not abuse its discretion by sentencing Johnson to

a longer term of incarceration than of his co-defendants Hashimoto and Lipscomb.

Unlike Hashimoto and Lipscomb, Johnson did not accept responsibility by

pleading guilty and cooperating with the government. See United States v.

Laurienti, 731 F.3d 967, 976 (9th Cir. 2013); see also United States v. Whitecotton,

142 F.3d 1194, 1200 (9th Cir. 1998) (“Disparity in sentences between

codefendants is not sufficient ground to attack a proper guidelines sentence.”).

Furthermore, while analyzing the 18 U.S.C. § 3553(a) factors, the district court

concluded that Johnson played a pivotal role in the fraudulent scheme by providing

the facade of a government contract that convinced many unsophisticated and

vulnerable victims to invest.

      4.     The district court did not plainly err in ordering Johnson to pay over

$17 million in restitution. Because we have previously held that Apprendi v. New

Jersey, 530 U.S. 466 (2000), does not apply to restitution, see United States v.

Green, 722 F.3d 1146, 1149 (9th Cir. 2013), the government was not required to

prove to a jury the amount of restitution beyond a reasonable doubt.




                                          5
      5.     We reverse and vacate Johnson’s convictions for mail fraud related to

investor Robert Thompson because they are not supported by sufficient evidence.

Counts two, six, and nine of the amended indictment accused Johnson of

committing mail fraud by mailing three executed promissory notes to Thompson.

The promissory notes were plainly part of the fraudulent scheme. They

misrepresented Gentech Fabrication’s interest in the empennage contract, and were

used to fraudulently collect victims’ money. However, when viewing the evidence

in the light most favorable to the government, no rational juror could have found

beyond a reasonable doubt that Thompson’s promissory notes were mailed. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because Thompson did not testify,

the only evidence from which the jury could infer that Thompson’s promissory

notes were mailed was Lipscomb’s testimony describing Financial Solutions’

routine practices, other investors’ testimony that they received their notes in the

mail, and Wendy Mazariegos’ testimony that she “[s]ometimes” mailed the notes,

but “[u]sually” had someone else do the mailing.

      Although direct proof of mailing is not required, see United States v.

Brackenridge, 590 F.2d 810, 811 (9th Cir. 1979) (per curiam), a mere probability

that Thompson’s notes were mailed is insufficient to sustain Johnson’s convictions,

see United States v. Lo, 231 F.3d 471, 476-77 (9th Cir. 2000) (reversing a mail


                                           6
fraud conviction because “as the chain of inferences based on usual practices gets

longer, the probability that nothing went wrong in administering those practices

lessens”). First, Lipscomb’s testimony was equivocal. Although Financial

Solutions’ procedure was to mail the notes, they were “[s]ometimes” hand-

delivered. Indeed, at least two witnesses testified that some, if not the majority, of

their notes were hand-delivered.1 “Evidence of routine custom and practice can be

sufficient to support the inference that something is mailed,” United States v.

Green, 745 F.2d 1205, 1208 (9th Cir. 1984) (emphasis added), but it is not always

sufficient, see, e.g., Lo, 231 F.3d at 476-77. When, as here, the evidence includes a

general practice of mailing, numerous exceptions to that practice, and no direct

proof that the letters underlying the contested counts were actually mailed, no

reasonable juror, even when viewing the evidence in the light most favorable to the

government, could conclude beyond a reasonable doubt that the underlying letters

were mailed. Cf. United States v. Miller, 676 F.2d 359, 362 (9th Cir. 1982)

(holding that evidence of mailing was sufficient even though some letters were


      1
          From the transcript of the district court’s ruling on Johnson’s Rule 29
motion, it appears that Steve Denham was investor Thompson’s sales agent. If this
is true, there was even more reason to doubt that Thompson’s notes were mailed,
for Denham testified that he hand-delivered the “majority” of his client’s notes.
Because there is insufficient evidence to support Johnson’s convictions even
without establishing Denham’s relationship to Thompson, we need not decide
whether evidence of that connection is properly before us.
                                           7
hand-delivered because the general practice, from which there were exceptions,

was that hand-delivered letters were marked “delivered,” and the letter underlying

the mail fraud count was not marked “delivered”). We therefore reverse the

convictions as to counts two, six, and nine.

        6.   To “preserve the appearance of justice,” we remand with direction that

the case be reassigned to a different district court judge for resentencing. See

United States v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012). Because we reverse

the mail fraud counts on arguments that the district court judge summarily

dismissed, “we conclude that remand to a different judge would preserve the

appearance of justice in light of the district court judge’s ‘potential bias’ against”

resentencing Johnson absent the three reversed counts. See United States v.

Quach, 302 F.3d 1096, 1103-04 (9th Cir. 2002). We do not decide that the district

court is actually biased against Johnson; indeed we doubt that she is. However,

given that the district court judge both presided over the underlying trial and

imposed the sentence, it may be difficult to “unring the bell” when sentencing

anew.

        AFFIRMED in part, REVERSED and VACATED in part, and

REMANDED to a different district court judge for resentencing.




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