                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 11 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50477

                Plaintiff-Appellee,             D.C. No.
                                                2:13-CR-00674-CAS-2
 v.

ROBERT JACKSON,                                 MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                       for the Central District of California
               Christina A. Snyder, Senior District Judge, Presiding

                    Argued and Submitted November 13, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and AMON,** District Judge.

      On August 22, 2016, a jury found Defendant-Appellant Robert Jackson guilty

of four counts of submitting false or fictitious claims to the Defense Finance and

Accounting Service in violation of 18 U.S.C. § 287 and one count of conspiracy to

do the same in violation of 18 U.S.C. § 286. At trial, the Government offered


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
evidence that Bladimir Flores—an administrative staff sergeant within Jackson’s

United States Marine Corp unit—submitted fabricated travel reimbursement

requests on Jackson’s behalf and that, in return, Jackson paid kickbacks to Flores.

Jackson now brings a number of challenges to his conviction and to the restitution

order subsequently entered against him. For the reasons stated below, Jackson’s

conviction is AFFIRMED but the order of restitution is VACATED AND

REMANDED for further proceedings consistent with this disposition.

      1. First, Jackson brings four challenges to the jury instructions, none of which

require reversal:

      a. Jackson’s argument that the district court’s § 286 conspiracy charge did

not adequately inform the jury that he “entered into an agreement with another to

defraud the United States,” Appellant’s Brief at 24, fails because the court

specifically charged that the jury must find that “there was an agreement between

two or more persons to obtain or aid in obtaining the payment of false or fictitious

claims” and that “the defendant knowingly became a member of the conspiracy with

an intent to advance the conspiracy,” Appellant’s Excerpts of Record at 79. This

instruction mirrored Ninth Circuit Model Criminal Jury Instructions 8.20 and 8.21,

which have been cited favorably by this Circuit. See United States v. White Eagle,

721 F.3d 1108, 1113 (9th Cir. 2013).




                                          2
      b. The district court did not err by failing to instruct the jury that it could only

convict on the § 287 false claims charges if they found that Jackson acted “willfully”

or with “intent to defraud.” When the Government proceeds on the theory that a

defendant submitted “false or fictitious” rather than “fraudulent” claims, the

Government needs to prove only knowledge. United States v. Milton, 602 F.2d 231,

233 (9th Cir. 1979) (“[T]he government only ha[s] to prove that the statement was

known to be untrue at the time [the defendant] made it.”).

      c. Jackson’s argument that the district court erred by failing to instruct on a

“good faith” defense is unpersuasive for a similar reason. “[T]he failure to give an

instruction on a ‘good faith’ defense is not fatal so long as the court clearly instructed

the jury” on the necessary intent element. United States v. Dorotich, 900 F.2d 192,

193 (9th Cir. 1990) (quoting United States v. Solomon, 825 F.2d 1292, 1297 (9th

Cir. 1987)). Here, the district court properly instructed on the knowledge element.

      d. Finally, the district court did not err by instructing that the knowledge

element could be satisfied if the jury found that Jackson acted with “deliberate

indifference” to whether false claims were being submitted on his behalf. The

evidence presented supported the conclusion that Jackson knew that he was

receiving unusually large travel reimbursements and did nothing to investigate their

legality. Cf. United States v. Walter-Eze, 869 F.3d 891, 910 (9th Cir. 2017). It is of

no moment that the evidence also supported a finding of actual knowledge. When


                                            3
the evidence could support the conclusion that a defendant acted with actual

knowledge or deliberate indifference, instruction on both theories is proper. United

States v. Heredia, 483 F.3d 913, 922–23 (9th Cir. 2007) (en banc).

      2. Jackson also challenges the Government’s decision—made shortly before

trial—to proceed on the theory that Jackson submitted “false and fictitious” claims

rather than “false, fictitious, or fraudulent” claims. He argues that this decision

constituted an improper “constructive amendment” of the indictment and “variance”

from the facts charged therein. But “constructive amendment only applies to the

broadening, rather than the narrowing, of indictments.” United States v. Wilbur, 674

F.3d 1160, 1178 (9th Cir. 2012). Here, the Government proceeded to trial on fewer

theories than charged in the indictment.        Further, it is permissible for the

Government to prove facts at variance with those charged in the indictment “so long

as the variance does not alter the behavior for which the defendant can be convicted.”

United States v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006) (quoting United States

v. Garcia-Paz, 282 F.3d 1212, 1216 (9th Cir. 2002)) (internal alterations omitted).

Here, the Government’s proof at trial relied on the same travel reimbursements

charged in the indictment. Accordingly, Jackson’s constructive amendment and

variance challenges are meritless.




                                          4
        3. Jackson brings two challenges to the exclusion and inclusion of evidence

at trial.

        a. Jackson argues that the district court violated his right to present a defense

by excluding five lay witnesses who would have testified about Jackson’s mental

function following a brain injury he sustained in Iraq. But precluding this evidence

did not violate Jackson’s constitutional rights. Jackson was able to present the

substance of his defense through the testimony of his rehabilitation physician and an

expert clinical psychologist. Cf. United States v. Spangler, 810 F.3d 702, 708 (9th

Cir. 2016); United States v. Waters, 627 F.3d 345, 354 (9th Cir. 2010).

        b. Jackson’s argument that the expert rebuttal testimony of Dr. Cohen was

impermissible fares no better. Dr. Cohen testified to his opinion that Jackson could

form the requisite mens rea to support a conviction. As the district court held, this

was proper because:

        The clear implication of [Jackson’s expert’s] testimony, although she
        did not offer her own direct opinions as to Jackson’s mental capacity,
        was that Jackson’s undisputed [mental conditions] could have caused
        him to have a diminished capacity. Accordingly, Cohen was properly
        permitted to offer testimony to show that Jackson did not actually have
        such diminished capacity . . . .

Government’s Excerpts of Record at 84.

        4. Jackson’s final challenge concerns the restitution ordered against him at

sentencing. His challenge is largely procedural. He argues that the district court




                                            5
was obligated to resolve his challenges to the Probation Department’s restitution

recommendation through explicit, on-the-record findings.

      The Mandatory Victim Restitution Act “recognizes that specific findings of

fact are necessary at times and contemplates that the district court will set forth an

explanation of its reasoning, supported by the record, when a dispute arises as to the

proper amount of restitution.” United States v. Waknine, 543 F.3d 546, 556 (9th Cir.

2008). Here, Jackson raised a dispute about Probation’s restitution calculation. He

argued that Probation improperly relied upon acquitted conduct in calculating

restitution, that his restitution should be offset by reimbursements to which he was

legitimately entitled, and that a preponderance of the evidence did not support

finding that many of the claims were in fact false. The district court did not resolve

any of these objections on the record. Instead, the court “ordered that the defendant

shall pay restitution in the amount of $115,754.60” without further discussion.

Government’s Excerpts of Record at 26. Without expressing an opinion on the

merits of Jackson’s challenges to the calculation, Jackson’s order of restitution is

vacated and remanded for an “explanation of its reasoning, supported by the record.”

Waknine, 543 F.3d at 556.

      For the foregoing reasons, Jackson’s conviction is AFFIRMED, and his order

of restitution is VACATED AND REMANDED for further proceedings.




                                          6
