                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              DEC 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30359

              Plaintiff-Appellee,                D.C. No. 3:12-cr-00485-SI-1

 v.
                                                 MEMORANDUM*
JON MICHAEL HARDER,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted June 5, 2017
                                Portland, Oregon

Before: TASHIMA, GOULD and RAWLINSON, Circuit Judges.

      Appellant Jon Michael Harder appeals his sentence for mail fraud and

money laundering imposed pursuant to a guilty plea agreement. The plea

agreement provided for the district court to hold an evidentiary hearing to




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
determine the scope of the scheme to defraud and other issues related to relevant

conduct for sentencing purposes only.

      Harder now contends that the district court’s finding of intent to defraud all

investors was clearly erroneous because the evidence did not establish that the

scheme to defraud extended beyond the counts of conviction. Harder also argues

that the district court’s reading of investor emails was a violation of his due

process rights, unduly prejudicing the factfinding process, and that the

government’s solicitation of the letters undermined the integrity of his plea

agreement with Harder.

      Harder’s contentions of clear error are not borne out by the record. The

district court judge held an extensive evidentiary hearing before reaching its

conclusion regarding the scope of Harder’s scheme to defraud. Considerable

testimony was presented to the district court contradicting the testimony of in-

house counsel seeking to exonerate Harder, including that Harder continued to

comingle intercompany funds despite assurances to investors that no such activity

would transpire.

      Harder also asserts that the trial judge improperly discounted Harder’s

testimony that he instructed employees to “do it right.” However, the trial judge

heard from an employee and an investigator that Harder’s “sales pitch” assured


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potential investors of the financial solvency of Harder’s company and the integrity

of each investment, despite being aware of the substantial risk of default. Because

the district court’s findings of fact as to Harder’s intent to defraud are plausible and

supported by reasonable inferences drawn from the record, its factual findings were

not clearly erroneous. See United States v. Kaplan, 839 F.3d 795, 804 (9th Cir.

2016) (reviewing findings of fact for clear error).

      Harder has failed to demonstrate that his sentence was unfairly prejudiced by

the trial court’s perusal of investor emails. “To prevail on a due process claim,

[Harder] must demonstrate that his sentence was based on false or unreliable

information. . . .” United States v. Reyes, 772 F.3d 1152, 1159 (9th Cir. 2014)

(citation and internal quotation marks omitted). “A sentencing judge may

appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of

information he may consider, or the source from which it may come. . . ” United

States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (citations omitted). Nothing in

the district court’s conclusions relies on the investors’ emails, as opposed to the

ample testimony presented during the evidentiary hearing. Harder has thus failed

to demonstrate any due process violation. See United States v. Vanderwerfhorst,

576 F.3d 929, 936 (9th Cir. 2009) (rejecting a due process claim where defendant

failed to show trial court’s reliance on false information).


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      Finally, there was nothing improper about the prosecutor soliciting letters

from the victims. Under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. §

3771, “crime victims have the right to be reasonably heard at any public

proceeding in the district court involving release, plea, sentencing, or any parole

proceeding.” United States v. Burkholder, 590 F.3d 1071, 1074 (9th Cir. 2010)

(citation, internal quotation marks and alterations omitted). The CVRA also

provides victims “[t]he reasonable right to confer with the attorney for the

Government in the case.” 18 U.S.C. § 3771(5).

      AFFIRMED.




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