United States v. Jack Holden ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30186
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-00444-BR-2
JACK HOLDEN, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 8, 2018
Portland, Oregon
Filed July 26, 2018
Amended October 30, 2018
Before: Susan P. Graber and Milan D. Smith, Jr., Circuit
Judges, and Edward R. Korman,* District Judge.
Order;
Opinion by Judge Graber
*
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2 UNITED STATES V. HOLDEN
SUMMARY**
Criminal Law
The panel amended an opinion filed July 26, 2018, and
denied a petition for rehearing, in a case in which the panel
affirmed the defendant’s convictions for mail and wire fraud,
conspiracy to commit mail and wire fraud, and money
laundering; vacated his custodial sentence and the restitution
portion of the judgment; and remanded for further
proceedings.
Assuming without deciding that the defendant’s argument
to the contrary is not foreclosed by precedent, the panel held
that this court’s caselaw that “participating” in a scheme to
defraud is forbidden by the mail and wire fraud statutes does
not amount to the creation of a common-law crime in
violation of separation-of-powers principles, and that the
district court therefore did not err by instructing the jury that
it could find the defendant guilty for “participating in” a
scheme to defraud.
The panel vacated the custodial sentence because the
record does not support the district court’s conclusion that the
defendant exercised sufficient control or organizational
authority over his co-conspirator to qualify for a two-level
“organizer” enhancement under U.S.S.G. § 3B1.1(c), and the
panel could not say whether the district court would impose
the same sentence if it kept the correct Sentencing Guidelines
range in mind throughout the process.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HOLDEN 3
The panel observed that the restitution portion of the
judgment – which both required immediate restitution in full
and set a mandatory, unconditional schedule of payments
during the period of incarceration – is internally inconsistent,
and inconsistent with the district court’s oral announcement
that the defendant lacked the ability to make immediate
restitution in full. The panel therefore vacated the restitution
schedule and remanded so that the district court can strike the
lump-sum payment requirement from the judgment.
COUNSEL
Lisa C. Hay (argued), Federal Public Defender, Portland,
Oregon, for Defendant-Appellant.
Donnamarie Maddux (argued), Assistant United States
Attorney; Kelly A. Zusman, Appellate Chief; Billy J.
Williams, United States Attorney; United States Attorney’s
Office, Portland, Oregon; for Plaintiff-Appellee.
ORDER
The opinion filed July 26, 2018, and published at
897 F.3d 1057, is amended by the opinion filed concurrently
with this order.
With these amendments, Appellee’s petition for rehearing
is DENIED. No further petitions for rehearing or rehearing
en banc may be filed.
4 UNITED STATES V. HOLDEN
OPINION
GRABER, Circuit Judge:
A jury convicted Defendant Jack Holden of mail and wire
fraud, conspiracy to commit mail and wire fraud, and several
money laundering offenses. Defendant appeals his
convictions for mail and wire fraud, arguing that the district
court misinstructed the jury on the elements of those crimes.
Defendant also challenges the two-level “organizer”
sentencing enhancement applied by the district court and the
district court’s restitution schedule. We reject Defendant’s
arguments concerning the jury instructions, but we vacate
both his custodial sentence and the restitution portion of the
judgment and remand for further proceedings.1
FACTUAL AND PROCEDURAL HISTORY
In the fall of 2007, Defendant and his associate, Lloyd
Sharp, met with a group of investors from the Portland,
Oregon, area to discuss the possibility of investing in a
biofuel operation in Ghana.2 Defendant and Sharp had known
each other for a long time, but they had reconnected and
entered into a joint venture agreement only recently. The
joint venture agreement provided that Defendant and Sharp
would work together to start refining biofuel in Ghana.
1
In this opinion, we address only the separation-of-powers challenge
to the mail and wire fraud instructions, the challenge to the “organizer”
sentencing enhancement, and the challenge to the restitution schedule.
We address all remaining issues in a memorandum disposition filed
July 26, 2018.
2
Lloyd Sharp presented himself to the investors as “Kevin Thomas.”
UNITED STATES V. HOLDEN 5
Sharp’s company was supposed to invest in the refining
operation. Defendant’s company was responsible for getting
the refinery up and running. At the time he signed the joint
venture agreement, Defendant was already engaged in the
biofuel business in Ghana, but he had not done any large-
scale refining; his operations were limited to planting the
jatropha plant,3 the seeds of which eventually would be used
to create biofuel.
At the meetings with the investors, Defendant suggested
that the Ghana biofuel operation was on the verge of going
online; all that was needed was a refinery to start producing
fuel. Defendant and Sharp sought $350,000 from the
investors to initiate operations at the refinery, and they made
specific representations (based on the joint venture
agreement) about how that $350,000 would be used. The
investors eventually decided to put their money into the
project in early 2008. Defendant never completed the
purchase of the refinery. Much of the money that he and
Sharp received from the investors was not spent on the Ghana
refinery project but was, instead, used to pay personal
expenses or funneled to family members.
In 2008 and 2009, Defendant began to concentrate his
efforts on various biofuel projects in Chile. Defendant
conveyed to investors—some of whom had already invested
in the Ghana project—that the Chile projects would lead to
3
The jatropha plant is “a big bush that can grow into a small tree. . . .
[I]nside [its fruit] pods are several black seeds, each one about twice the
size of a coffee bean. Crush those seeds, and you get oil.” Dan Charles,
How a Biofuel Dream Called Jatropha Came Crashing Down, NPR.org
(Aug. 21, 2012), https://www.npr.org/sections/thesalt/2012/08/22/1593
91553/how-a-biofuel-dream-called-jatropha-came-crashing-down.
6 UNITED STATES V. HOLDEN
quick profits that could then be poured back into the Ghana
venture. After receiving money from the investors,
Defendant again failed to spend the money as he had
promised. Defendant’s offices in Chile were shut down in
mid-2009.
Defendant continued to seek investments for the Ghana
project throughout the next couple of years. He consistently
told investors that he just needed a little more money in order
to get the operation up and running. But Defendant never
purchased the refinery, never launched a full-scale biofuel
operation in Ghana, and never earned any profits for his
investors.
In September 2013, Defendant and Sharp were indicted
on one count of conspiracy to commit mail and wire fraud,
six counts of wire fraud, three counts of mail fraud, six counts
of money laundering, and one count of conspiracy to commit
money laundering. Sharp pleaded guilty. Defendant went to
trial and was convicted on all counts for which he was
indicted except for one mail fraud count, which was
dismissed at the Government’s request. He was sentenced to
87 months in prison, ordered to pay more than $1.4 million in
restitution, and ordered to forfeit more than $1.4 million. He
timely appeals.
DISCUSSION
A. Mail and Wire Fraud Instructions
Defendant challenges the mail and wire fraud jury
instructions given by the district court. We review de novo
whether a jury instruction correctly stated the elements of a
crime. United States v. Kilbride, 584 F.3d 1240, 1247 (9th
UNITED STATES V. HOLDEN 7
Cir. 2009). At bottom, though, Defendant’s beef is not with
the instructions, which accurately reflected our caselaw, but
with our circuit’s longstanding construction of the mail and
wire fraud statutes. Defendant argues that our
“interpretations” of those statutes are not interpretations at all,
but instead amount to judicially created crimes in violation of
separation-of-powers principles. We review de novo such
constitutional issues. United States v. Kuchinski, 469 F.3d
853, 857 (9th Cir. 2006).
The mail fraud instruction4 given by the district court
reads as follows:
In order for the Defendant to be found guilty
of [mail fraud], the government must prove
each of the following elements beyond a
reasonable doubt:
First, the Defendant knowingly
participated in, devised or intended to devise
a scheme or plan to defraud, or a scheme or
plan for obtaining money or property by
means of false or fraudulent statements,
representations, promises, or omissions of
material facts, or the Defendant knowingly
aided and abetted Lloyd Sharp in doing so;
Second, the statements, representations, or
promises made or facts omitted as part of the
scheme were material; that is, they had a
natural tendency to influence, or were capable
4
The wire fraud instruction was substantially the same as the mail
fraud instruction.
8 UNITED STATES V. HOLDEN
of influencing, a person to part with money or
property;
Third, the Defendant acted with the intent
to defraud; that is, the intent to deceive or to
cheat; and
Fourth, the Defendant used, or caused to
be used, the mails to carry out an essential
part of the scheme, or the Defendant
knowingly aided and abetted Lloyd Sharp in
doing so . . . .
Under our longstanding precedent, “anyone who
knowingly and intentionally participates in the execution of
[a] fraudulent scheme comes within the prohibition of the
mail and wire fraud statutes regardless of whether the
defendant devised the scheme.” United States v. Manion,
339 F.3d 1153, 1156 (9th Cir. 2003) (per curiam) (emphasis
added) (internal quotation marks and brackets omitted). But,
as Defendant correctly points out, the mail and wire fraud
statutes, by their terms, punish only those who “devise[] or
intend[] to devise any scheme or artifice to defraud”; the
word “participate” does not appear in the statutes. 18 U.S.C.
§§ 1341, 1343. According to Defendant, by reading the mail
and wire fraud statutes to prohibit “participation in” schemes
to defraud, we have essentially created new crimes, thus
violating separation-of-powers principles. See, e.g., United
States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490
(2001) (stating that, “under our constitutional system, . . .
federal crimes are defined by statute rather than by common
law”).
UNITED STATES V. HOLDEN 9
Assuming, without deciding, that Defendant’s argument
is not foreclosed by precedent, we reject the argument on its
merits. “[C]riminal laws are for courts . . . to construe,”
Abramski v. United States, 134 S. Ct. 2259, 2274 (2014), and
we do not usurp the role of Congress simply by construing a
criminal statute broadly. Separation-of-powers principles
may inform how we interpret a statute and may even prevent
us from reading an unwritten defense into a statute. See
United States v. Lanier, 520 U.S. 259, 265 n.5, 266 (1997)
(discussing how separation-of-powers principles form part of
the theoretical underpinning of the “fair warning”
requirement, which itself underlies the void-for-vagueness
doctrine and the rule of lenity); Oakland Cannabis Buyers’
Coop., 532 U.S. at 490 (“[I]t is an open question whether
federal courts ever have authority to recognize a necessity
defense not provided by statute.”). But so long as we are
engaged in interpretation—that is, an effort to “giv[e] effect
to the will of the Legislature; or, in other words, to the will of
the law,” Osborn v. Bank of United States, 22 U.S. (9 Wheat.)
738, 866 (1824)—we do not infringe on Congress’ exclusive
power to make conduct criminal. See Nw. Airlines, Inc. v.
Transp. Workers Union, 451 U.S. 77, 97 (1981) (“[T]he
authority to construe a statute is fundamentally different from
the authority to fashion a new rule or to provide a new
remedy which Congress has decided not to adopt.”).
“Of course, the line separating statutory interpretation and
judicial lawmaking is not always clear and sharp.” Anspec
Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1245 (6th Cir.
1991). Here, though, we clearly have interpreted the mail
and wire fraud statutes to criminalize “participating in”
schemes to defraud. In Nemec v. United States, 178 F.2d 656,
661 (9th Cir. 1949), we endorsed the Sixth Circuit’s view
that, “[i]f one’s intent is to defraud when he joins a dishonest
10 UNITED STATES V. HOLDEN
[mail fraud] scheme, he becomes a part of the scheme,
although he may know nothing but his own share in the
aggregate wrongdoing,” Blue v. United States, 138 F.2d 351,
358–60 (6th Cir. 1943) (emphasis added).5 That view rests
on the idea that “the substance of an offense under [the mail
fraud statute] is the prosecution of a fraudulent purpose,
toward the execution or fulfillment whereof the mail is used,”
so that all those who work toward that fraudulent
purpose—who actively “participate in” the scheme—should
be held liable. Schwartzberg v. United States, 241 F. 348,
352 (2d Cir. 1917). As one court noted more than a century
ago, a “joint scheme to defraud with acts to effectuate it has
the features of a conspiracy,” Blanton v. United States, 213 F.
320, 325 (8th Cir. 1914), and, as in a conspiracy, “[a]ll with
criminal intent who join themselves even slightly to the
principal scheme are subject to [liability], although they were
not parties to the scheme at its inception,”6 Blue, 138 F.2d at
359. Whatever the merits of that interpretation, it is
undoubtedly an interpretation of the mail fraud statute: an
attempt to “giv[e] effect to the will of the Legislature.”
Osborn, 22 U.S. (9 Wheat.) at 866.
5
That view was shared by other circuits at the time. See
Schwartzberg v. United States, 241 F. 348, 352 (2d Cir. 1917) (“[A]ll who
with criminal intent join themselves even slightly to the principal schemer
are subject to the [mail fraud] statute, although they may know nothing but
their own share in the aggregate wrongdoing.”); Alexander v. United
States, 95 F.2d 873, 880–81 (8th Cir. 1938) (same).
6
We have often noted the similarities between conspiracies and joint
schemes to defraud. See, e.g., United States v. Lothian, 976 F.2d 1257,
1262 (9th Cir. 1992) (“Mail and wire fraud share as a common first
element the existence of a scheme to defraud, which, when more than one
person is involved, is analogous to a conspiracy.”).
UNITED STATES V. HOLDEN 11
In short, our caselaw holding that “participating in” a
scheme to defraud is forbidden by the mail and wire fraud
statutes does not amount to the creation of a common-law
crime in violation of separation-of-powers principles. The
district court therefore did not err by instructing the jury that
it could find Defendant guilty for “participating in” a scheme
to defraud.7 We therefore affirm Defendant’s mail and wire
fraud convictions.8
B. “Organizer” Enhancement
Defendant next argues that the district court erred by
applying a two-level “organizer” sentencing enhancement
under § 3B1.1 of the Sentencing Guidelines. We review de
novo the district court’s construction of the Sentencing
Guidelines, but any factual findings that underlie an
enhancement are reviewed for clear error. United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.) (en banc), cert.
denied, 138 S. Ct. 229 (2017). We review for abuse of
discretion the district court’s determination as to “whether the
specific constellation of facts at issue meets the governing
legal standard” set out in the Guidelines. Id. at 1171. “It is
not necessary that the district court make specific findings of
fact to justify the imposition of the role enhancement. There
must, however, be evidence in the record that would support”
7
To the extent that Defendant argues that he was denied due process
because he was punished for committing acts that are not prohibited by
statute, his argument necessarily fails, because “participating in” a scheme
to defraud is prohibited by the mail and wire fraud statutes as we have
interpreted them.
8
We address—and reject—Defendant’s remaining challenges to his
mail and wire fraud convictions in a concurrently filed memorandum
disposition.
12 UNITED STATES V. HOLDEN
the imposition of the enhancement. United States v. Whitney,
673 F.3d 965, 975 (9th Cir. 2012) (citation omitted).
The Guidelines allow for a two-level “organizer”
enhancement “[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity” involving
fewer than five “participants,” provided that the criminal
activity was not “extensive.” U.S.S.G. § 3B1.1(c) (2015). “A
‘participant’ is a person who is criminally responsible for the
commission of the offense, but need not have been convicted.
A person who is not criminally responsible for the
commission of the offense . . . is not a participant.” Id. cmt.
n.1. In order to impose the enhancement, there must be a
“showing that the defendant had control over other[]”
participants or “organiz[ed] other[] [participants] for the
purpose of carrying out” the charged crimes. Whitney,
673 F.3d at 975 (internal quotation marks omitted). A
defendant “organizes” other participants if he has “the
necessary influence and ability to coordinate the[ir] behavior
. . . so as to achieve the desired criminal result[s].” United
States v. Doe, 778 F.3d 814, 826 (9th Cir. 2015); see also
United States v. Avila, 95 F.3d 887, 890 (9th Cir. 1996)
(stating that “some degree of control or organizational
authority over others is required” in order for a § 3B1.1
enhancement to be proper (internal quotation marks
omitted)). Mere facilitation of criminal activity is not
sufficient to support the enhancement. Doe, 778 F.3d at 825.
Nor is it sufficient for a defendant to have organized property
or activities—the defendant must have organized
participants. Id. at 824 n.4.
At the sentencing hearing, the district court found that
Defendant and Sharp were “pretty much comparable in their
responsibility” and that “they were . . . co-equal.” The court
UNITED STATES V. HOLDEN 13
then rejected the Government’s argument that Defendant
should receive a four-level enhancement under § 3B1.1(a) as
“an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” But
the court found that Defendant “was certainly an organizer,
he with Sharp,” and that he should thus receive a two-level
enhancement under § 3B1.1(c) because he and Sharp
“organized [the scheme] together.”
For the organizer enhancement to be proper, there must be
evidence in the record to support the conclusion that
Defendant exercised control over Sharp or was able to
influence Sharp, who was the only other “participant.”9 As
the district court noted, the record demonstrates that
Defendant and Sharp were “co-equal” conspirators—neither
was “in charge” of the other. Furthermore, the joint venture
agreement between Defendant and Sharp specified that their
9
At oral argument, the Government suggested that the two-level
enhancement could be upheld on the theory that Defendant “coordinated
the activities of the many . . . non-criminal participants in this case.” But
only those who “are criminally responsible for the commission of the
offense” qualify as “participants”; unwitting facilitators of an offense,
even if they are “participants” in the usual sense of the word, do not count.
See United States v. Melvin, 91 F.3d 1218, 1225–26, 1226 n.5 (9th Cir.
1996) (holding that the defendant’s former girlfriend was a “participant”
in his scheme to defraud because she “was aware that the scheme was
fictitious” and helped to further the scheme); see also United States v.
Brodie, 524 F.3d 259, 271 (D.C. Cir. 2008) (“A person is ‘criminally
responsible’ under § 3B1.1 only if he commits all of the elements of a
statutory crime with the requisite mens rea.” (internal quotation marks and
brackets omitted)). To the extent that the Government is now arguing that
the enhancement is proper because Defendant “organized” some culpable
“participants” besides Sharp, that argument is both unsupported by the
record and inconsistent with the Government’s position in the district
court that “there w[ere] two . . . knowing participants” in Defendant’s
scheme.
14 UNITED STATES V. HOLDEN
respective companies would split the profits from the Ghana
refinery project evenly. Given those facts, the Sentencing
Guidelines suggest that the “organizer” enhancement does not
apply. See U.S.S.G. § 3B1.1 cmt. background (“Th[e]
adjustment [of § 3B1.1] is included primarily because of
concerns about relative responsibility. . . . [I]t is also likely
that persons who exercise a supervisory or managerial role in
the commission of an offense tend to profit more from it
. . . .”); see also United States v. Egge, 223 F.3d 1128, 1133
(9th Cir. 2000) (“Section 3B1.1 attempts to apportion relative
responsibility where an offense involves multiple participants
. . . .” (emphasis added)).
The Government argues that the two-level enhancement
is proper nonetheless because Defendant gave Sharp
“instructions for sending investors’ funds to accounts
[Defendant] controlled in Ghana.” We think that act is best
characterized as “facilitation” rather than “organization.”
Compare Whitney, 673 F.3d at 969, 975–76 (holding that an
organizer enhancement was not warranted where the
defendant merely “supplied [a co-conspirator] with tax forms
and information on filing false returns”), with Doe, 778 F.3d
at 826 (upholding an organizer enhancement where the
defendant “put the [drug] deal[s] together by negotiating the
type, quantity, and price of drugs for each transaction, and
then ensured the drugs, money, and participants arrived when
and where needed”). Defendant did not exercise control or
“organizational authority” over Sharp by telling him how to
go about depositing money in an account any more than if he
had given Sharp directions to his house. Indeed, if Defendant
“organized” Sharp by telling him how to go about making
deposits, then it would follow that nearly every co-
conspirator in a limited conspiracy of equals would be an
“organizer” of his or her comrades, and the enhancement of
UNITED STATES V. HOLDEN 15
§ 3B1.1(c) would be all but automatic for all conspirators in
such cases. Such a result is inconsistent with the main
purpose of the “organizer” enhancement, which is to
“apportion relative responsibility where an offense involves
multiple participants.” Egge, 223 F.3d at 1133 (emphasis
added).
The record does not support the conclusion that
Defendant exercised sufficient control or organizational
authority over Sharp to qualify for the two-level enhancement
of § 3B1.1.(c).10 Because “we cannot say whether the district
court would impose the same sentence if it kept the correct
Guidelines range in mind throughout the process,” we vacate
Defendant’s 87-month prison sentence and remand for
resentencing. United States v. Flores, 725 F.3d 1028, 1042
(9th Cir. 2013).
C. Restitution
The district court ordered Defendant to pay more than
$1.4 million in restitution to the victims of his crimes. The
written judgment specifies that the entire amount of
restitution is “due immediately” in a “[l]ump sum payment,”
but it also sets out a schedule of small payments that
Defendant must make during his period of incarceration.
During the sentencing hearing, the court found that Defendant
lacked the ability to make full restitution immediately and
that, “[n]o matter how long [Defendant] spends . . . in prison,
. . . the victims will not be made whole.” Defendant argues
that the district court erred by ordering immediate restitution
10
We need not decide whether the district court misinterpreted
§ 3B1.1(c) or, alternatively, interpreted § 3B1.1(c) correctly but
misapplied it to the facts in the record. Either way, the court erred.
16 UNITED STATES V. HOLDEN
in full in light of its finding that he lacked the funds to make
such restitution. We review for abuse of discretion a
restitution schedule. United States v. Inouye, 821 F.3d 1152,
1156 (9th Cir. 2016) (per curiam). A district court
necessarily abuses its discretion in setting a restitution
schedule if it makes a legal error. Id.; see also United States
v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010) (“We
review de novo the legality of a restitution order . . . .”
(internal quotation marks omitted)).
When a district court orders a defendant to pay restitution
under 18 U.S.C. § 3664, it must “specify in the restitution
order the manner in which, and the schedule according to
which, the restitution is to be paid, in consideration of . . . the
financial resources and other assets of the defendant.” Id.
§ 3664(f)(2)(A). In order to meet its obligation under § 3664,
a court must “consider” a defendant’s financial resources.
Ward v. Chavez, 678 F.3d 1042, 1049–50 (9th Cir. 2012). If
the court determines that the defendant is unable to make
immediate restitution, the court “must set a repayment
schedule in the judgment of conviction.” Id. at 1050.
At first blush, the restitution portion of the judgment
appears internally inconsistent: it orders Defendant to pay
full restitution immediately and orders him to make payments
while incarcerated. According to the Government, though,
the order is not internally inconsistent, because the payment
schedule portion of the order is conditional—it kicks in only
if Defendant cannot make full immediate restitution. By
ordering full immediate restitution even in the face of
evidence that such restitution is impossible, argues the
Government, the district court helps to ensure that the
Government can seek restitution up to the full amount if
UNITED STATES V. HOLDEN 17
Defendant’s financial circumstances should change in the
future.
We cannot construe the written restitution schedule in the
manner urged by the Government. First, the schedule of
payments during incarceration is not phrased in conditional
terms—the order simply directs Defendant to pay a certain
amount of restitution while incarcerated. Second, the district
court found that Defendant lacked the ability to make
immediate restitution in full, so it already had found the
supposed “condition” that would trigger the payment
schedule to be satisfied. Finally, we doubt that an order
setting a “conditional” payment schedule during the period of
incarceration would be consistent with the statutory scheme.
The relevant statutory provisions can be read to suggest that
requiring a single lump-sum payment of immediate restitution
in full and setting a payment schedule are mutually exclusive
orders. See United States v. Martinez, 812 F.3d 1200, 1205
(10th Cir. 2015) (“[Section 3572(d)(1)] implies that full
payment is due immediately only if the district court does not
provide for installment payments.”); 18 U.S.C.
§ 3664(f)(3)(A) (“A restitution order may direct the defendant
to make a single, lump-sum payment, partial payments at
specified intervals, in-kind payments, or a combination of
payments at specified intervals and in-kind payments.”). For
those reasons, we read the district court’s judgment as both
requiring immediate restitution in full and setting a
mandatory, unconditional schedule of payments during the
period of incarceration.
So construed, the restitution schedule is internally
inconsistent. But that inconsistency does not require us to
seek clarification from the district court. Again, the district
court orally announced that Defendant lacked the ability to
18 UNITED STATES V. HOLDEN
make immediate restitution in full. The written restitution
schedule, insofar as it purports to order immediate restitution,
is inconsistent with that finding. In this situation, we
construe the written judgment to conform to the court’s oral
ruling. United States v. Jones, 696 F.3d 932, 938 (9th Cir.
2012). We therefore vacate the restitution schedule and
remand so that the district court can strike the lump-sum
payment requirement from the judgment. Id.
The Government’s concern with this result appears to be
two-fold. First, the Government argues that the lump-sum
requirement is necessary “to have an enforceable judgment
for the full amount of the debt owed.” That concern is not
well taken because the total amount of restitution ordered by
the court is set out in a different portion of the judgment, not
in the payment schedule. The judgment contains a required
“Amount of Restitution Ordered” of $1,410,760.00; the
judgment also provides that Defendant “shall pay the
following total criminal monetary penalties,” including
restitution in the amount of $1,410,760.00. (Emphasis
added.) That total amount and that portion of the judgment
are not at issue; only the details of the payment schedule are.
Second, the Government asserts that a schedule that does
not require immediate restitution in full prevents the
Government or a victim from recouping unexpected windfalls
the defendant receives, such as a bequest. But the judgment
separately provides “that resources received from any source,
including inheritance, settlement, or any other judgment, shall
be applied to any restitution or fine still owed, pursuant to
18 [U.S.C.] § 3664(n).” Moreover, 18 U.S.C. §§ 3572(d)(3)
and 3664(k) provide mechanisms by which the Government
or a victim may seek to modify a restitution schedule if a
UNITED STATES V. HOLDEN 19
defendant acquires assets that change the defendant’s
financial circumstances.
Defendant’s convictions and the forfeiture order
AFFIRMED; Defendant’s custodial sentence and the
restitution schedule VACATED; case REMANDED for
further proceedings.