United States v. Stacy Johnson

FILED
NOT FOR PUBLICATION JUN 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10464
Plaintiff - Appellee, D.C. No. 2:10-cr-00190-GMN-
RJJ-1
v.
STACY JOHNSON, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted June 10, 2013
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District
Judge.**
Stacy Johnson appeals her conviction and sentence for embezzlement in
violation of 29 U.S.C. § 501(c) and for falsification of financial records required to
be kept by a labor union ("Union") in violation of 29 U.S.C. § 439(c). Because the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
factual and procedural background is familiar to the parties, we do not recount it
here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
vacate and remand in part.
A. Trial Issues
Johnson first contends that there was insufficient evidence to support the
jury's verdict. We find that the evidence presented at trial, viewed in the light most
favorable to the prosecution, was more than sufficient to permit a rational trier of
fact to find the essential elements of the charged offenses beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Morales,
108 F.3d 1031, 1036-37 (9th Cir. 1997).
Johnson next challenges the district court's decision to allow the government
to impeach its own witness, Gennero Joseph (Johnson's ex-husband), through the
testimony of another witness, Alan Weiss, one of the investigators who
interviewed Joseph before trial. We review the district court's evidentiary ruling
for an abuse of discretion, and we reverse only if we find that an erroneous
evidentiary ruling "more likely than not affected the verdict." United States v.
Pang, 362 F.3d 1187, 1191-92 (9th Cir. 2004). Here, even if Weiss's testimony
should have been excluded, Johnson has failed to show that the verdict was "more
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likely than not affected" by the admitted testimony. We thus conclude that any
error did not prejudice Johnson.
B. Sentencing Issues
Johnson challenges the district court's decision to increase her offense level
by six points for uncharged acts of embezzlement that—according to her—were
not relevant conduct under the Guidelines. We review for clear error a district
court's determination that conduct extraneous to an offense of conviction is
"relevant conduct" within the meaning of the Guidelines. United States v. Hahn,
960 F.2d 903, 907 (9th Cir. 1992). Because the evidence in this case established
that both charged and uncharged acts of embezzlement were part of an ongoing
series of similar offenses committed regularly using the same modus operandi, the
district court did not clearly err in finding that the uncharged acts of embezzlement
constituted relevant conduct for purposes of sentencing.
Johnson also challenges the district court's decision to add two points to her
offense level under § 2B1.1(10)(C) of the Guidelines, which section directs the
district court to increase a defendant's offense level by two levels if the offense
involved "sophisticated means." We review the district court's factual
determination that Johnson's offense involved "sophisticated means" for clear
error, United States v. Aragbaye, 234 F.3d 1101, 1107 (9th Cir. 2000), and we find
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that the district court did not clearly err given the evidence demonstrating that
Johnson concealed her offenses by manipulating the Union's computer software to
create fraudulent receipts, by running fraudulent cashier's audit reports, and by
using a special security code to "doctor" the member records of each victim. See
United States v. Jennings, 711 F.3d 1144, 1145 (9th Cir. 2013) (noting that
"[c]onduct need not involve highly complex schemes or exhibit exceptional
brilliance to justify a sophisticated means enhancement").
Finally, Johnson maintains that the district court's restitution order was
beyond its legal authority. Although Johnson did not object to the restitution order
at sentencing, the government concedes that the district court plainly erred by
including—in the judgment—a requirement that Johnson pay restitution totaling
$53,500.00 (for losses attributable to both charged and uncharged acts of
embezzlement). The district court presumably relied upon the authority cited in
the Presentence Report, namely, the Mandatory Victims' Restitution Act
("MVRA"), 18 U.S.C. § 3663A (providing that district courts are required to order
restitution when sentencing defendants convicted of certain crimes under Titles 18
and 21). The MVRA does not, however, authorize a district court to order
restitution when sentencing a defendant, like Johnson, convicted of offenses under
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Title 29. Because the district court lacked legal authority to order restitution as
part of Johnson's sentence, the restitution order must be vacated.
CONVICTION AFFIRMED; SENTENCE OF RESTITUTION VACATED;
CASE REMANDED.
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