NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2 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

b y Mohammad Riaz “Ray” Khan and Mohammad Shabaz Khan

. We affirm.

First, w e reject Kaur ’s and Johal ’s argu ment that the district court erred in
denying their motion to sever because they were improperly joined. J oinder 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, 84 4 (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 Fed eral R ule 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 ine xtricably intertwined with the charged offense, the evidence was
properly admitted under Rule 40 4(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 su fficiency 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 , 1 53 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 false4

statements

. Whether Kaur and Johal actually picked pea ches 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

an d 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 w as 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 b ased on her attorney’s failure to object to potential hearsay. Her
argument fails both prongs of the two

- part test articulated in S trickland v.
Washington , 466 U.S. 668
, 688

- 96 (1984). Johal did not overcome the “strong
presumption,” United States v. Pal omba , 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 evidence5

that the failure to object in any way preju diced 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 o f substantial government al or court resources

. ” U.S. S entencing

G uidelines 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 found 1 that the G overnment expended other resources as a
result of Kaur’s perjury. In light of the Government’s representation that it call ed
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, l et alone that this is an
“extreme and unusual case” involving “outrageous government al conduct” that

1 We note that t he 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 resul t 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.