                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JUN 19 2015

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

UNITED STATES OF AMERICA,                        No. 12-50213

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01013-SJO-2

  v.
                                                 MEMORANDUM*
TARYN JOHNSTON,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50286

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01013-SJO-1

  v.

FRANK EUGENE JOHNSTON,

              Defendant - Appellant.


                   Appeals from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                      Argued and Submitted February 2, 2015
                               Pasadena California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, KLEINFELD, and NGUYEN, Circuit Judges.


      A husband and wife, Frank and Taryn Johnston, were convicted on 27

different counts. Frank Johnston was charged with wire fraud in Counts 1–22,

with theft of government property in Count 23, with obstruction of justice in Count

26, and with making false statements in Count 27. Taryn Johnston was charged in

Counts 24 and 25 with making false statements. Defendants were tried together in

the same trial on Counts 1–23 and Counts 24 and 25 and found guilty on all counts.

Frank Johnston was tried in a separate trial on Counts 26 and 27 and found guilty.

Defendants appeal all of their convictions. We have jurisdiction, 28 U.S.C. §

1291, and we affirm.



      We address defendants’s challenges to the sufficiency of the evidence

underlying their convictions, considering whether “after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United

States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). First, regarding Counts 1–23,

Frank Johnston contends that any misrepresentations he made regarding Taryn



                                           2
Johnston’s work hours were immaterial because Taryn Johnston was a salaried

employee whose compensation did not depend on how many hours she worked or

logged in her timesheets. We reject this argument for two reasons. First, from

2002 to 2004, Frank Johnston approved time and attendance reports for Taryn

Johnston that resulted in Taryn Johnston receiving substantial overtime and

holiday premium pay. Second, the jury could have rationally concluded that Frank

Johnston’s role in Taryn Johnston’s failure to request leave during times when she

was attending to personal matters deprived the government of the leave hours

themselves, which have monetary value and can be cashed out upon an employee’s

resignation.



      Next, regarding these same counts, Frank Johnston argues that there was

insufficient evidence that he had the specific intent to defraud the government

because his actions were intended to facilitate his wife working from home to care

for their seriously ill son. This argument fails because Frank Johnston’s reasons or

motivations for his actions are distinct from the question of whether he acted with

the requisite intent to “deceive or cheat” the government. See, e.g., United States

v. Crandall, 525 F.3d 907, 911–12 (9th Cir. 2008).




                                          3
      We likewise conclude that the evidence is sufficient to sustain Taryn

Johnston’s conviction, on Count 24, of making a false statement to investigators.1

When asked if she worked all the hours on her time-and-attendance sheets,

Johnston answered yes. However, Johnston did not work those hours. Indeed, the

jury heard evidence that she accepted outside employment and attended to personal

matters during her normal workday, and completed only four significant projects

from 2002 to 2008. She argues that she was allowed to record those hours as

worked even if she did not actually do work because she was ready, willing, and

able to work. However, a reasonable jury could have still found that Johnston lied

to investigators because her argument fails to explain the extensive overtime hours

she claimed. Finally, Johnston was not available to work while at frequent

doctor’s appointments or while performing work for another organization, and yet

she still claimed to have worked during those times.




      1
         Taryn Johnston’s due process arguments regarding the circumstances of
the interview with Special Agent Gowins are waived because they were not raised
in her opening brief. See, e.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Moreover, these arguments lack merit because Johnston was advised of her
right to consult an attorney prior to the interview, and was advised that lying in the
interview could result in criminal prosecution.

                                           4
      We likewise reject Taryn Johnston’s argument that Special Agent Gowins’s

question on this subject was too vague to form the basis for a prosecution for a

violation of 18 U.S.C. § 1001. The jury could have rationally concluded that

Johnston understood the question as being directed at the totality of her time and

attendance reports since the date of the 2001 memorandum from John McAllister.

See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985). The evidence is

sufficient to sustain Taryn Johnston’s conviction on Count 24.



      In Count 25, Taryn Johnston was convicted of making another false

statement to investigators. When asked if she had shared the login information to

her work email account with a co-worker, she answered no. She acknowledges

that this statement was false but argues that she recanted it by calling investigators

later that day to correct it.2 Johnston’s contention is foreclosed by United States v.

Salas Camacho, 859 F.2d 788, 791–92 (9th Cir. 1988) (holding that correction of

false statement to customs inspector did not render earlier false statement

immaterial because correction did not occur until it became clear that customs

inspector had become suspicious of the initial false statement). Here, Johnston’s

      2
        It should be noted that the Ninth Circuit has not resolved the issue of
whether there exists a “recantation” defense to prosecutions for violations of 18
U.S.C. § 1001. The cases cited by Johnston pertain to a defense to perjury charges.

                                           5
attempted correction of her false statement is insufficient under Salas-Camacho

because it did not occur until several hours after she gave the statement and signed

a written affidavit attesting to its truthfulness, and after she learned that Special

Agent Gowins already possessed information contradicting her initial statement.



      Finally, Frank Johnston argues that the district court abused its discretion in

not dismissing Counts 26 and 27 on due process grounds or, alternatively, pursuant

to its inherent supervisory powers. Reviewing de novo, United States v. Barrera-

Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991), the district court did not err in

denying Johnston’s motion to dismiss on due process grounds. We reach this

conclusion because the district court did not clearly err in finding that the

prosecutors were unaware of Special Agent Cormier’s and Harris’s false grand jury

testimony prior to the commencement of trial and the attachment of jeopardy.

United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000); United States v.

Basurto, 497 F.2d 781, 785 (9th Cir. 1974).



      We likewise conclude, on abuse of discretion review, see United States v.

Struckman, 611 F.3d 560, 574–75 (9th Cir. 2010), that the district court properly

denied Johnston’s motion to dismiss the indictment under its supervisory powers.


                                            6
The district court found there was no prosecutorial misconduct with regards to

Special Agents Harris’s and Cormier’s likely false trial testimony. The district

court’s finding was not clearly erroneous and justified its denial of Johnston’s

motion to dismiss on this ground. See, e.g., United States v. Chapman, 524 F.3d

1073, 1085 (9th Cir. 2008) (noting that dismissal of indictment is only permitted in

cases of flagrant prosecutorial misconduct). Moreover, the government disavowed

any reliance on the testimony of Special Agents Harris or Cormier, and made the

jury aware of the problems with their testimony. The government’s actions

constituted adequate “lesser remedial action” as compared to a dismissal of the

indictment. See id. at 1087. Finally, the government’s grant of immunity to

Special Agent Harris was not misconduct justifying dismissal of the indictment,

but rather was a reasonable way of ensuring that the jury became fully aware of the

facts surrounding the drafting of the letter to the United States Attorney in Florida.



      AFFIRMED.




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