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United States v. Johnson

United States District Court, D. Montana, Butte Division

August 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD MITCHELL JOHNSON aka Ski Johnson,, Defendant. Victim Name Loss Misrepresentation(s) Citation

          ORDER

          Dana L. Christensen, Chief Judge

         On May 16, 2018, the Court held a hearing regarding restitution owed by Donald MitchellJohnson ("Johnson"). (Doc. 155.) Johnson was originally sentenced by this Court on November 13, 2015, and the Court ordered restitution in the amount of $5, 648.58. (Doc. 113.) The Government appealed the Court's restitution order on November 25, 2015. (Doc. 117.) The Ninth Circuit vacated the restitution order and remanded the issue for reconsideration. (United States v. Johnson, 875 F.3d 422, 423 (9th Cir. 2017), cert, denied, 138 S.Ct. 703 (2018); Doc. 137.) The Court makes the following findings regarding restitution.

         LEGAL STANDARD

         "A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments." See 18 U.S.C. § 3664(f)(3)(B). The Mandatory Victims Restitution Act of 1998 ("MVRA"), 18 U.S.C. § 3663A et seq. requires restitution for a fairly broad set of federal crimes, including fraud. See 18 U.S.C. § 3663A(a)(1), (c). Such an order under the MVRA is limited to four categories of expenses:

(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense-
(2) in the case of an offense resulting in bodily injury to a victim-
(3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services; and
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

See 18 U.S.C. § 3663A(b)(1)-(4). The only subsection applicable here is 18 U.S.C. § 3663A(b)(1). Under this prong, the Government must establish that the claimed victims were ". . . directly harmed by the defendant's criminal conduct in the course of the scheme" See 18 U.S.C. § 3663A(a)(2); United States v. Kennedy, 643 F.3d 1251, 1261-63 (9th Cir. 2011) (what constitutes proximate cause under MVRA tends to avoid imposing liability on defendants whose conduct is too remote or tangential to a victims' specific losses).

         The current iteration of the MVRA authorizes restitution for "any victim" of certain enumerated offenses. 18 U.S.C. § 3663(a)(1)(A). The act defines a "victim" as "any personal directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." Id. § 3663(a)(2). Here, the Court must order restitution for all victims harmed by Johnson's scheme, including those harmed by conduct beyond the count of conviction, so long as those additional victims are sufficiently related to Johnson's overall scheme to defraud. Johnson, 875 F.3d at 426.

         DISCUSSION

         Johnson devised a four-year scheme to defraud victims throughout the United States under the pretense that he was a Grammy-nominated musician seeking to raise money for charity. In total, from 2011 to 2014, Johnson contacted 16 organizations, businesses, or individuals under the alias Kevin Wright or Mr. Wright, Richard Simms, or Larry Toye. In each case, Johnson falsely represented that he was a Grammy-nominated musician. Johnson would secure an invitation to a golf tournament, usually involving celebrities. In some instances Johnson also offered to split proceeds from the sale of Grammy tickets between the organization and his fraudulent charity, Jazz for Life. On a number of occasions Johnson also falsely claimed he worked for Sony or represented Queen Latifah. Johnson also received individual donations to Jazz for Life, and then spent those donations in his personal capacity.

         The Government contends that Johnson should be ordered to pay an additional $68, 917.12 in restitution, on top of the $5, 648.58 in restitution already ordered at sentencing. (Doc. 153 at 8.) Johnson contends that he is not liable for any additional restitution because the Government has not made an adequate showing that the losses listed by the Government directly resulted from Johnson's conduct. (Doc. 154.)

         Under Rule 404(b), the scheme to defraud is much broader than the charged conduct. United States v. Loftis, 843 F.3d 1173, 1177 (9th Cir. 2016) ("The uncharged transactions, therefore, are part of the charged offense-the fraudulent scheme as a whole-not "other" crimes or "other" acts evidence."). To assess whether the evidence supports a single scheme, a court may consider the following factors: "(1) the nature of the scheme; (2) the identity of the participants; (3) the quality, frequency and duration of each conspirator's transactions; and (4) the commonality of time and goals." United States v. Morse,785 F.2d 771, 11 A-15 (9th Cir. 1986). The Ninth Circuit found in ...


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