                           NOT FOR PUBLICATION                              FILED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,

                Defendant-Appellant.

                   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.




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