If You Do the Crime You Must Do the Time

Guilty Of Disability Fraud

?Insurance criminals today define the Yiddish word “Chutzpah!” Their unmitigated gall to challenge a conviction for fraud is without bound. They appeal and waste the time of courts of appeal. More often than not the attempt fails, even in the very liberal Ninth Circuit Court of Appeal.

In United States Of America v. Jasvir Kaur, United States Of America, v. Harjit Johal, No. 17-10306, No. 17-10307, United States Court Of Appeals For The Ninth Circuit (October 17, 2018) Harjit Kaur Johal and Jasvir Kaur challenge their convictions under 18 U.S.C. § 1623 for making false declarations to a grand jury during its investigation of a large-scale unemployment and disability insurance fraud scheme orchestrated by Mohammad Riaz “Ray” Khan and Mohammad Shabaz Khan.

DISCUSSION

The defendants argued that the joinder where they were both tried together was improper. The Ninth Circuit concluded that joinder was proper under Fed. R. Crim. P. 8(b) because, although Kaur and Johal were charged with separate counts of offering false testimony to the grand jury, the indictment stemmed from the same larger investigation and the false testimony related to the same aspects of the alleged fraudulent scheme.

The charges against each defendant arose out of the same series of acts or transactions and a substantial number of the facts the Government needed to prove at trial were overlapping. Moreover, even if they were improperly joined, reversal is not required because improper joinder is subject to harmless error review. Kaur and Johal have failed to show any possible prejudice.

Kaur and Johal argued that the district court improperly admitted evidence under Federal Rule of Evidence 404(b) that Johal participated in earlier fraud schemes organized by the Khan brothers. Even assuming the Government is incorrect that these prior acts fall outside the parameters of Rule 404(b) because they are inextricably intertwined with the charged offense, the evidence was properly admitted under Rule 404(b)(2) for the purpose of showing lack of mistake and a common plan or scheme. The court did not plainly err in failing to exclude the evidence under Federal Rule of Evidence 403. Moreover, even without the challenged evidence, the evidence against Kaur and Johal was overwhelming, so any error in the admission was harmless.

Whether Kaur and Johal actually picked peaches and whether they purchased pay stubs from Ray Khan were questions capable of influencing the grand jury investigation and therefore were material. And the questions posed to Kaur and Johal were not so ambiguous that their answers could be considered “literally true.”

Finally, the Government presented sufficient evidence to support a jury finding that Kaur purchased pay stubs, even if the testimony of certain trial witnesses identifying her could be called into question. Because there was overwhelming independent evidence against the defendants any error in admitting the in-court identification testimony was harmless beyond a reasonable doubt.

The Sentencing Guidelines permit a three-level increase for substantial interference with the administration of justice if the defendant’s perjury caused the unnecessary expenditure of substantial governmental or court resources. Although the underlying expenses associated with prosecuting Kaur for perjury cannot be included in this calculation the district court found that the Government expended other resources as a result of Kaur’s perjury.

In light of the Government’s representation that it called additional witnesses before the grand jury as a result of Kaur’s perjury, and in light of evidence that it called Kaur to testify again after she was offered immunity, this determination was not clearly erroneous.

ZALMA OPINION

When people lie to a grand jury and are caught in the lie the government has no choice but to charge and convict them of perjury. The opinion made it clear that the crime was obvious and proved beyond a reasonable doubt. If there was any justice the two would have accepted the sentence and served their time. Rather, exercising unmitigated gall, they appealed.