NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JASVIR KAUR, 

Defendant-Appellant.

No. 17-10306 

D.C. No. 

2:14-cr-00169-GEB-5 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

HARJIT JOHAL, 

Defendant-Appellant.

No. 17-10307 

D.C. No. 

2:14-cr-00169-GEB-3 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., Senior District Judge, Presiding

Submitted October 10, 2018**

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 17 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

San Francisco, California

Before: MURGUIA and FRIEDLAND, Circuit Judges, and HINKLE,*** District 

Judge.

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. We affirm.

First, we reject Kaur’s and Johal’s argument that the district court erred in 

denying their motion to sever because they were improperly joined. 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,” United States v. 

Martin, 567 F.2d 849, 853 (9th Cir. 1977), and a substantial number of the facts 

the Government needed to prove at trial were overlapping, United States v. 

Vasquez–Velasco, 15 F.3d 833, 844 (9th Cir. 1994). Moreover, even if they were 

improperly joined, reversal is not required because improper joinder is subject to 

 

*** The Honorable Robert L. Hinkle, United States District Judge for the 

Northern District of Florida, sitting by designation.
3 

harmless error review. United States v. Lane, 474 U.S. 438, 449 (1986). Kaur and 

Johal have failed to show any possible prejudice.

Second, Kaur and Johal argue 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. See, e.g., United States v. Mehrmanesh, 689 F.2d 

822, 830 (9th Cir. 1982). Kaur and Johal’s arguments that the evidence should 

have been excluded under the materiality and sufficiency of the evidence prongs of 

the test in United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002), are 

unavailing. Nor did the court plainly err in failing to exclude the evidence under 

Federal Rule of Evidence 403. See United States v. Plunk, 153 F.3d 1011, 1019 

n.7 (9th Cir. 1998). Moreover, even without the challenged evidence, the evidence

against Kaur and Johal was overwhelming, so any error in the admission was

harmless.

Third, the district court did not err in denying Kaur’s and Johal’s motion for 

a judgment of acquittal, or, in the alternative, motion for a new trial. There was 

sufficient evidence of every element of the crime, including materiality of the false 
4 

statements. 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. See United States v. 

Peterson, 538 F.3d 1064, 1072 (9th Cir. 2008). And the questions posed to Kaur 

and Johal were not so ambiguous that their answers could be considered “literally 

true.” See United States v. Sainz, 772 F.2d 559, 562 (9th Cir. 1985); United States

v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003). 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. United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 

1980) (because “there was overwhelming independent evidence against the 

defendants . . . . any error in admitting the in-court identification testimony was 

harmless beyond a reasonable doubt”).

Fourth, Johal should not prevail on her claim of ineffective assistance of 

counsel based on her attorney’s failure to object to potential hearsay. Her 

argument fails both prongs of the two-part test articulated in Strickland v. 

Washington, 466 U.S. 668, 688-96 (1984). Johal did not overcome the “strong 

presumption,” United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994), that 

counsel’s decision not to renew a hearsay objection for the third time fell outside 

the wide range of professionally competent assistance. Nor is there any evidence 
5 

that the failure to object in any way prejudiced Johal.

Finally, Kaur’s challenges to her sentence lack merit. 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.” U.S. Sentencing 

Guidelines Manual § 2J1.3 cmt. n.1 (U.S. Sentencing Comm’n 2016). Although 

the underlying expenses associated with prosecuting Kaur for perjury cannot be 

included in this calculation, United States v. Duran, 41 F.3d 540, 546 (9th Cir. 

1994), the district court found1that 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. Nor did Kaur meet her burden of 

demonstrating any improper prosecutorial conduct, let alone that this is an 

“extreme and unusual case” involving “outrageous governmental conduct” that 

 

1 We note that the Government was quite vague in its explanation of exactly what 

additional resources it expended as a result of Kaur’s false testimony, especially 

given the size of the investigation and in light of the fact that multiple other 

witnesses also committed perjury during the investigation. But the district court 

made the finding that further resources were expended as a result of Kaur’s 

perjury, and we review that fact-finding only for clear error. United States v. Holt, 

510 F.3d 1007, 1010 (9th Cir. 2007). Kaur did not object in the district court that a 

more specific fact-finding was necessary to support application of the

enhancement, nor has she made such an argument on appeal.
6 

rises to the level of sentencing manipulation. United States v. Boykin, 785 F.3d 

1352, 1360 (9th Cir. 2015).

AFFIRMED.