FILED
NOT FOR PUBLICATION
AUG 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10441
Plaintiff - Appellee, D.C. No. 2:11-cr-00054-TLN-1
v.
MEMORANDUM*
CHRISTOPHER JACKSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
1. The government introduced sufficient evidence at trial to prove beyond a
reasonable doubt that Christopher Jackson committed wire fraud in violation of 18
U.S.C. § 1343. Viewing the evidence in the light most favorable to the
government, a reasonable jury could conclude that Jackson participated in a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 4
scheme to defraud, used wire transfers in furtherance of the scheme, and
specifically intended to defraud his victims. See United States v. Jinian, 725 F.3d
954, 960 (9th Cir. 2013). Jackson misrepresented to investors that the money they
loaned would be used to fund “no-risk” real estate development projects when in
actuality Jackson used the money they loaned to pay for Jackson’s personal
expenses and to pay Genesis’ earlier investors. We reject Jackson’s argument that
the government had an obligation to establish that funds equal to the amount
investors gave Jackson were not invested in KOA and Sycamore through other
investment clubs. Though tracing of particular amounts may have been
immaterial, there was no evidence raising a serious question whether amounts
roughly equal to the money loaned were invested in real estate.
The district court did not abuse its discretion in holding that the Romo plea
agreement was inadmissible on relevance grounds because Romo’s theft from
Sycamore does not bear on whether Jackson defrauded investors.
The government’s case-in-chief relied solely upon Jackson’s
misrepresentations to investors, so there was neither a constructive amendment of
the superseding indictment nor a constructive variance. See United States v.
Adamson, 291 F.3d 606, 614–15 (9th Cir. 2002). The evidence presented at trial
did not differ from the misrepresentation theory alleged in the superseding
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indictment. The government did not alter the crime charged in the superseding
indictment such that “it was impossible to know whether the grand jury would
have indicted for the crime actually proved.” Id. at 615.
2. The district court properly applied the preponderance-of-the-evidence
standard at sentencing. The district court increased Jackson’s offense level based
primarily on the amount of loss, the number of victims involved, and an adjustment
for role in the offense. Because these enhancements were based entirely on the
extent of the offense, the district court did not have to use a heightened standard of
proof at sentencing. United States v. Armstead, 552 F.3d 769, 777 (9th Cir. 2008).
3. The record does not support Jackson’s argument that the district court
subjected him to a longer prison sentence because he exercised his right to stand
trial. The district court made the statement, “You went to trial, you gambled, you
took a chance, and you lost,” to explain why there was no unwarranted disparity
between Jackson’s sentence and the sentence of his co-defendant Michael Bolden,
who pleaded guilty pursuant to a plea agreement that capped his sentencing
exposure to the statutory maximum of 20 years. The district court never suggested
at sentencing that it believed Jackson’s decision to go to trial resulted in a waste of
the court’s time and resources. See United States v. Medina-Cervantes, 690 F.2d
715, 716–17 (9th Cir. 1982).
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4. The district court did not clearly err at sentencing by imposing a 2-level
enhancement for obstruction of justice. A district court must make the following
factual findings when imposing an obstruction enhancement based on the
defendant’s having committed perjury at trial: “(1) that the defendant gave false
testimony under oath (2) concerning a material matter (3) with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). The
district court here made the requisite findings. The court stated that Jackson’s false
testimony concerned a material matter because it concerned an element of the wire
fraud offense: whether he lied to investors. Once the district court decided to
impose the enhancement for obstruction of justice, the government informed the
court that it had to make the finding that the “highlighted testimony was knowingly
false, material and under oath.” The court responded, “The Court will make that
finding.” The record makes clear that the district court made the requisite findings
for an obstruction of justice enhancement.
AFFIRMED.