United States v. Solomon Jalloh ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50411
Plaintiff-Appellee, D.C. No.
8:15-cr-00129-CJC-1
v.
SOLOMON JALLOH, AKA Sulaiman MEMORANDUM*
Jalloh, AKA Suliman Jalloh,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted December 9, 2019**
Pasadena, California
Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,*** District
Judge.
Solomon Jalloh challenges his convictions on eight counts of wire fraud, his
*
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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Page 2 of 4
87-month sentence, and the district court’s order of $2.1 million in restitution.
Finding no error, we affirm.
1. Count 8 was properly joined with the first seven counts. All eight counts
are clearly of the “same or similar character,” as they shared the same evidence, the
same modus operandi, and the same statutory offense. United States v. Jawara,
474 F.3d 565, 578 (9th Cir. 2007) (quoting Fed. R. Crim. Proc. 8(a)). Although
there is a temporal gap between the activity charged in the first seven counts and
the conduct charged in the eighth, all eight counts took place within the time frame
alleged in the indictment and proved at trial. There was no error, much less plain
error, in joining the charges.
2. Jalloh waived his contention that the district court abused its discretion in
failing to sever the special sentencing allegation from the remaining charges. “It is
well-settled that the motion to sever must be renewed at the close of evidence or it
is waived.” United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008) (internal
quotation marks omitted). Jalloh failed to renew his pretrial motion, thus waiving
this claim. Even if not waived, the claim lacks merit. The district court did not
abuse its discretion in concluding that the sentencing allegation was inextricably
linked to Count 8. The same evidence required to prove Count 8 would be
required to prove that Jalloh committed “an offense” for purposes of 18 U.S.C.
§ 3147, making a second trial wasteful and duplicative.
Page 3 of 4
3. The district court did not abuse its discretion in permitting testimony
from two victims not specifically mentioned in the indictment. When an
indictment alleges a general scheme, “evidence of uncharged transactions is not
evidence of ‘other’ crimes or acts under Rule 404(b), because it is evidence of part
of the crime charged in the indictment—the overall scheme to defraud.” United
States v. Loftis, 843 F.3d 1173, 1176 (9th Cir. 2016). The indictment alleged “a
scheme to defraud investors . . . by means of materially false and fraudulent
pretenses.” The victims who testified at trial were defrauded by that very scheme.
Their testimony was therefore direct evidence of Jalloh’s crime.
Nor did Federal Rule of Evidence 403 bar the admission of the testimony.
Although Jalloh highlights the portions of the witnesses’ testimony describing the
harm the loss had caused them, the majority of the testimony was dry and factual.
One emotional remark by each witness does not outweigh the highly probative
value of their testimony as a whole.
4. The district court correctly imposed sentence enhancements for ten or
more victims and for losses exceeding $1.5 million. Jalloh’s challenges to these
enhancements fail to account for the fact that, when prescribing sentences for
scheme-based crimes, the Sentencing Guidelines explicitly require consideration of
all acts “that were part of the same course of conduct or common scheme or plan
as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United States v.
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Fine, 975 F.2d 596, 600 (9th Cir. 1992) (en banc) (“[C]onduct which was part of
the scheme is counted, even though the defendant was not convicted of crimes
based upon the related conduct.”). Over the four-year period charged in the
indictment, Jalloh defrauded many more victims than just the undercover officer,
and the district court permissibly included them in its calculations. Based on the
evidence provided by the government (the factual accuracy of which Jalloh does
not challenge), the district court did not clearly err in determining that the scheme
resulted in a loss of more than $1.5 million to 21 victims.
5. Jalloh’s restitution argument fails for the same reason. The Mandatory
Victims Restitution Act requires that restitution be made to anyone “harmed by the
defendant’s criminal conduct in the course of the scheme.” 18 U.S.C.
§ 3663A(a)(2). As already established, Jalloh defrauded the victims not named in
the indictment as part of the scheme charged. The very same false documents,
phone numbers, and promises alleged in the indictment induced these other victims
to invest their money with Jalloh. Their losses thus “flow[ed] directly from the
specific conduct that is the basis of the offense of conviction.” United States v.
May, 706 F.3d 1209, 1214 (9th Cir. 2016) (internal quotation marks omitted).
AFFIRMED.