United States v. Taryn Johnston

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50213
Plaintiff - Appellee, D.C. No. 2:10-cr-01013-SJO-2
v.
MEMORANDUM*
TARYN JOHNSTON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50286
Plaintiff - Appellee, D.C. No. 2:10-cr-01013-SJO-1
v.
FRANK EUGENE JOHNSTON,
Defendant - Appellant.
Appeals from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 2, 2015
Pasadena California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, KLEINFELD, and NGUYEN, Circuit Judges.
A husband and wife, Frank and Taryn Johnston, were convicted on 27
different counts. Frank Johnston was charged with wire fraud in Counts 1–22,
with theft of government property in Count 23, with obstruction of justice in Count
26, and with making false statements in Count 27. Taryn Johnston was charged in
Counts 24 and 25 with making false statements. Defendants were tried together in
the same trial on Counts 1–23 and Counts 24 and 25 and found guilty on all counts.
Frank Johnston was tried in a separate trial on Counts 26 and 27 and found guilty.
Defendants appeal all of their convictions. We have jurisdiction, 28 U.S.C. §
1291, and we affirm.
We address defendants’s challenges to the sufficiency of the evidence
underlying their convictions, considering whether “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). First, regarding Counts 1–23,
Frank Johnston contends that any misrepresentations he made regarding Taryn
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Johnston’s work hours were immaterial because Taryn Johnston was a salaried
employee whose compensation did not depend on how many hours she worked or
logged in her timesheets. We reject this argument for two reasons. First, from
2002 to 2004, Frank Johnston approved time and attendance reports for Taryn
Johnston that resulted in Taryn Johnston receiving substantial overtime and
holiday premium pay. Second, the jury could have rationally concluded that Frank
Johnston’s role in Taryn Johnston’s failure to request leave during times when she
was attending to personal matters deprived the government of the leave hours
themselves, which have monetary value and can be cashed out upon an employee’s
resignation.
Next, regarding these same counts, Frank Johnston argues that there was
insufficient evidence that he had the specific intent to defraud the government
because his actions were intended to facilitate his wife working from home to care
for their seriously ill son. This argument fails because Frank Johnston’s reasons or
motivations for his actions are distinct from the question of whether he acted with
the requisite intent to “deceive or cheat” the government. See, e.g., United States
v. Crandall, 525 F.3d 907, 911–12 (9th Cir. 2008).
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We likewise conclude that the evidence is sufficient to sustain Taryn
Johnston’s conviction, on Count 24, of making a false statement to investigators.1
When asked if she worked all the hours on her time-and-attendance sheets,
Johnston answered yes. However, Johnston did not work those hours. Indeed, the
jury heard evidence that she accepted outside employment and attended to personal
matters during her normal workday, and completed only four significant projects
from 2002 to 2008. She argues that she was allowed to record those hours as
worked even if she did not actually do work because she was ready, willing, and
able to work. However, a reasonable jury could have still found that Johnston lied
to investigators because her argument fails to explain the extensive overtime hours
she claimed. Finally, Johnston was not available to work while at frequent
doctor’s appointments or while performing work for another organization, and yet
she still claimed to have worked during those times.
1
Taryn Johnston’s due process arguments regarding the circumstances of
the interview with Special Agent Gowins are waived because they were not raised
in her opening brief. See, e.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999). Moreover, these arguments lack merit because Johnston was advised of her
right to consult an attorney prior to the interview, and was advised that lying in the
interview could result in criminal prosecution.
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We likewise reject Taryn Johnston’s argument that Special Agent Gowins’s
question on this subject was too vague to form the basis for a prosecution for a
violation of 18 U.S.C. § 1001. The jury could have rationally concluded that
Johnston understood the question as being directed at the totality of her time and
attendance reports since the date of the 2001 memorandum from John McAllister.
See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985). The evidence is
sufficient to sustain Taryn Johnston’s conviction on Count 24.
In Count 25, Taryn Johnston was convicted of making another false
statement to investigators. When asked if she had shared the login information to
her work email account with a co-worker, she answered no. She acknowledges
that this statement was false but argues that she recanted it by calling investigators
later that day to correct it.2 Johnston’s contention is foreclosed by United States v.
Salas Camacho, 859 F.2d 788, 791–92 (9th Cir. 1988) (holding that correction of
false statement to customs inspector did not render earlier false statement
immaterial because correction did not occur until it became clear that customs
inspector had become suspicious of the initial false statement). Here, Johnston’s
2
It should be noted that the Ninth Circuit has not resolved the issue of
whether there exists a “recantation” defense to prosecutions for violations of 18
U.S.C. § 1001. The cases cited by Johnston pertain to a defense to perjury charges.
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attempted correction of her false statement is insufficient under Salas-Camacho
because it did not occur until several hours after she gave the statement and signed
a written affidavit attesting to its truthfulness, and after she learned that Special
Agent Gowins already possessed information contradicting her initial statement.
Finally, Frank Johnston argues that the district court abused its discretion in
not dismissing Counts 26 and 27 on due process grounds or, alternatively, pursuant
to its inherent supervisory powers. Reviewing de novo, United States v. Barrera-
Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991), the district court did not err in
denying Johnston’s motion to dismiss on due process grounds. We reach this
conclusion because the district court did not clearly err in finding that the
prosecutors were unaware of Special Agent Cormier’s and Harris’s false grand jury
testimony prior to the commencement of trial and the attachment of jeopardy.
United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000); United States v.
Basurto, 497 F.2d 781, 785 (9th Cir. 1974).
We likewise conclude, on abuse of discretion review, see United States v.
Struckman, 611 F.3d 560, 574–75 (9th Cir. 2010), that the district court properly
denied Johnston’s motion to dismiss the indictment under its supervisory powers.
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The district court found there was no prosecutorial misconduct with regards to
Special Agents Harris’s and Cormier’s likely false trial testimony. The district
court’s finding was not clearly erroneous and justified its denial of Johnston’s
motion to dismiss on this ground. See, e.g., United States v. Chapman, 524 F.3d
1073, 1085 (9th Cir. 2008) (noting that dismissal of indictment is only permitted in
cases of flagrant prosecutorial misconduct). Moreover, the government disavowed
any reliance on the testimony of Special Agents Harris or Cormier, and made the
jury aware of the problems with their testimony. The government’s actions
constituted adequate “lesser remedial action” as compared to a dismissal of the
indictment. See id. at 1087. Finally, the government’s grant of immunity to
Special Agent Harris was not misconduct justifying dismissal of the indictment,
but rather was a reasonable way of ensuring that the jury became fully aware of the
facts surrounding the drafting of the letter to the United States Attorney in Florida.
AFFIRMED.
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