United States v. Jon Harder , 705 F. App'x 643 ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30359
Plaintiff-Appellee, D.C. No. 3:12-cr-00485-SI-1
v.
MEMORANDUM*
JON MICHAEL HARDER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted June 5, 2017
Portland, Oregon
Before: TASHIMA, GOULD and RAWLINSON, Circuit Judges.
Appellant Jon Michael Harder appeals his sentence for mail fraud and
money laundering imposed pursuant to a guilty plea agreement. The plea
agreement provided for the district court to hold an evidentiary hearing to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
determine the scope of the scheme to defraud and other issues related to relevant
conduct for sentencing purposes only.
Harder now contends that the district court’s finding of intent to defraud all
investors was clearly erroneous because the evidence did not establish that the
scheme to defraud extended beyond the counts of conviction. Harder also argues
that the district court’s reading of investor emails was a violation of his due
process rights, unduly prejudicing the factfinding process, and that the
government’s solicitation of the letters undermined the integrity of his plea
agreement with Harder.
Harder’s contentions of clear error are not borne out by the record. The
district court judge held an extensive evidentiary hearing before reaching its
conclusion regarding the scope of Harder’s scheme to defraud. Considerable
testimony was presented to the district court contradicting the testimony of in-
house counsel seeking to exonerate Harder, including that Harder continued to
comingle intercompany funds despite assurances to investors that no such activity
would transpire.
Harder also asserts that the trial judge improperly discounted Harder’s
testimony that he instructed employees to “do it right.” However, the trial judge
heard from an employee and an investigator that Harder’s “sales pitch” assured
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potential investors of the financial solvency of Harder’s company and the integrity
of each investment, despite being aware of the substantial risk of default. Because
the district court’s findings of fact as to Harder’s intent to defraud are plausible and
supported by reasonable inferences drawn from the record, its factual findings were
not clearly erroneous. See United States v. Kaplan, 839 F.3d 795, 804 (9th Cir.
2016) (reviewing findings of fact for clear error).
Harder has failed to demonstrate that his sentence was unfairly prejudiced by
the trial court’s perusal of investor emails. “To prevail on a due process claim,
[Harder] must demonstrate that his sentence was based on false or unreliable
information. . . .” United States v. Reyes, 772 F.3d 1152, 1159 (9th Cir. 2014)
(citation and internal quotation marks omitted). “A sentencing judge may
appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of
information he may consider, or the source from which it may come. . . ” United
States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (citations omitted). Nothing in
the district court’s conclusions relies on the investors’ emails, as opposed to the
ample testimony presented during the evidentiary hearing. Harder has thus failed
to demonstrate any due process violation. See United States v. Vanderwerfhorst,
576 F.3d 929, 936 (9th Cir. 2009) (rejecting a due process claim where defendant
failed to show trial court’s reliance on false information).
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Finally, there was nothing improper about the prosecutor soliciting letters
from the victims. Under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. §
3771, “crime victims have the right to be reasonably heard at any public
proceeding in the district court involving release, plea, sentencing, or any parole
proceeding.” United States v. Burkholder, 590 F.3d 1071, 1074 (9th Cir. 2010)
(citation, internal quotation marks and alterations omitted). The CVRA also
provides victims “[t]he reasonable right to confer with the attorney for the
Government in the case.” 18 U.S.C. § 3771(5).
AFFIRMED.
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