                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           SEP 02 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No.    15-30204

              Plaintiff-Appellee,               D.C. No. 4:14-cr-00057-BMM-2

 v.
                                                MEMORANDUM*
JOHN GRIMSON LYON,

              Defendant-Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Brian M. Morris, District Judge, Presiding

                           Submitted August 29, 2016**
                              Seattle, Washington

Before: HAWKINS, and McKEOWN, Circuit Judges, and EZRA,*** District
Judge.




         *
             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 David A. Ezra, United States Senior District Judge for the
Western District of Texas, sitting by designation.
      Defendant-Appellant John Grimson Lyon appeals his jury trial convictions for

wire fraud, in violation of 18 U.S.C. § 1343; false claims, in violation of 18 U.S.C.

§ 287; and theft of government property, in violation of 18 U.S.C. § 641. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s denial of

a motion to dismiss the indictment for failure to state an offense, United States v.

Blixt, 548 F.3d 882, 886 (9th Cir. 2008), for multiplicity, United States v. Brooks, 610

F.3d 1186, 1194 (9th Cir. 2010), and for improper venue, United States v. Sullivan,

797 F.3d 623, 631 (9th Cir. 2015). We also review de novo the district court’s denial

of a motion for acquittal where, as here, the defendant properly preserved his

challenge to the sufficiency of the evidence. United States v. Pelisamen, 641 F.3d

399, 409 n.6 (9th Cir. 2011). We review for abuse of discretion the district court’s

decision to give a Jewell instruction, United States v. Heredia, 483 F.3d 913, 922 (9th

Cir. 2007) (en banc), and its decision to deny a motion for a new trial, United States

v. Bhagat, 436 F.3d 1140, 1145 (9th Cir. 2006). We affirm.

1.    The district court did not err in denying Lyon’s motion to dismiss the

indictment for failure to state an offense. The indictment adequately alleges that Lyon

knew his subordinate Denny was submitting false timesheets. The indictment did not

need to allege that Lyon obtained a financial benefit in order to allege wire fraud, false

claims, or theft of government property. See United States v. Jinian, 725 F.3d 954,


                                            2
960 (9th Cir. 2013) (“The elements of wire fraud are: (1) the existence of a scheme

to defraud; (2) the use of wire, radio, or television to further the scheme; and (3) a

specific intent to defraud.”); 18 U.S.C. § 287 (false claims statute penalizes anyone

who “makes or presents” a false claim, no requirement of receiving any benefit); id.

§ 641 (penalizing anyone who “embezzles, steals, purloins, or knowingly converts to

his use or the use of another . . . any . . . money, or thing of value of the United States

or of any department or agency thereof . . . .”) (emphasis added).

2.     The district court did not err in denying Lyon’s motion to dismiss the

indictment for multiplicity.     The government may, consistent with the Double

Jeopardy Clause, charge violations of multiple statutes based on a single act, so long

as each count requires the government to prove an additional fact that the others do

not. Brooks, 610 F.3d at 1194. “The elements of the offenses are determinative, even

if there is a substantial overlap in their proof.” Id. (internal quotation marks omitted).

Here, wire fraud, false claims, and theft of government property each have at least one

element the others do not. Wire fraud requires the use of a wire, which the other two

crimes do not. See Jinian, 725 F.3d at 960. False claims requires submitting a

demand for government money or property, see United States v. Jackson, 845 F.2d

880, 883 (9th Cir. 1988), which the other two crimes do not. Theft of government




                                            3
property under 18 U.S.C. § 641 requires taking government property for one’s own

use or the use of another, which the other two crimes do not.

3.    Nor did the district court err in denying Lyon’s motion to dismiss the false

claims count for improper venue. The indictment adequately alleges that the false

claim was made and presented in Montana.

4.    There was no abuse of discretion in giving a Jewell instruction or denying

Lyon’s motion for a new trial, which was based solely on the alleged error in giving

the Jewell instruction. Evidence supported a finding that Lyon was aware of a high

probability that Denny was not actually working all of the hours he claimed he was

working, and that Lyon deliberately failed to investigate despite signs that Denny was

working so little that no one else in the office could get in contact with him. A Jewell

instruction need not include an instruction that the defendant’s motive for failing to

investigate was to give himself a defense should he be apprehended. Heredia, 483

F.3d at 919-20. Lyon’s statutory interpretation argument is unpersuasive in light of

this court’s prior applications of Jewell’s deliberate ignorance standard to the crimes

of which Lyon was convicted. See United States v. Erickson, 75 F.3d 470, 481 (9th

Cir. 1996) (false claims); United States v. Henderson, 721 F.2d 276, 277-79 (9th Cir.

1983) (theft of government property); see also United States v. McDonald, 576 F.2d

1350, 1358 (9th Cir. 1978) (mail fraud); Jinian, 725 F.3d at 960 n.2 (“[T]he wire fraud


                                           4
statute is read in light of the case law on mail fraud.”) (internal quotation marks

omitted).

5.    Nor was there error in the district court's denial of Lyon’s motion for acquittal.

Reading the evidence in the light most favorable to the prosecution, there was

sufficient evidence for a rational jury to find beyond a reasonable doubt that Lyon

either knew or was deliberately ignorant of the falsity of Denny’s claimed hours.

      AFFIRMED.




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