1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JAVED ASEFI, AKA Joey, 

Defendant-Appellant.

No. 18-50070 

D.C. No. 

8:16-cr-00113-JLS-10 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Josephine L. Staton, District Judge, Presiding

Argued and Submitted September 10, 2019 

Pasadena, California

Before: WARDLAW, BENNETT, and MILLER, Circuit Judges.

Javed Asefi appeals his conviction and 24-month sentence for RICO 

conspiracy, bribery, making false statements in a citizenship application, and 

criminal contempt. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Asefi first argues that the district court erred in denying his motion to 

dismiss Count 1 of the indictment, the RICO conspiracy charge. “We review the 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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denial of a motion to dismiss an indictment for facial invalidity or insufficiency de 

novo.” United States v. Frega, 179 F.3d 793, 805 n.10 (9th Cir. 1999). Like the 

district court, we are “bound by the four corners of the indictment, must accept the 

truth of the allegations in the indictment, and cannot consider evidence that does 

not appear on the face of the indictment.” United States v. Kelly, 874 F.3d 1037, 

1047 (9th Cir. 2017). 

Asefi argues that the indictment is insufficient for failing to allege that the 

activities of the RICO enterprise (here, the Orange County Superior Court) 

“substantially affect” interstate commerce. This is incorrect. “Because RICO is 

aimed at activities which, in the aggregate, substantially affect interstate 

commerce, ‘all that is required to establish federal jurisdiction in a RICO 

prosecution is a showing that the individual predicate racketeering acts have a de 

minimis impact on interstate commerce.’” Frega, 179 F.3d at 800 (quoting United 

States v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir. 1997)).

The indictment alleged that the Superior Court, which “constituted an 

enterprise as that term is defined” by RICO, “was engaged in, and its activities 

affected, interstate commerce.” That allegation, which tracks the jurisdictional 

language of the RICO statute (18 U.S.C. § 1962(c)), and the truth of which we 

“must accept,” Kelly, 874 F.3d at 1047, satisfies the government’s pleading 
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burden, the RICO statute, and the Commerce Clause. The district court did not err 

in failing to dismiss Count 1. 

2. Asefi next contends that Count 4 (making false statements in a 

naturalization proceeding) was improperly joined with the RICO and bribery 

charges. He also claims that even if Count 4 were properly joined under Rule 8 of 

the Federal Rules of Criminal Procedure, the district court erred in denying his 

Rule 14 motion to sever Count 4. “We review misjoinder under Rule 8(a) de novo 

and refusal to sever under Rule 14 for abuse of discretion.” United States v. Prigge, 

830 F.3d 1094, 1098 (9th Cir. 2016).

“It is well settled that the motion to sever ‘must be renewed at the close of 

evidence or it is waived.’” United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir. 

2004) (quoting United States v. Restrepo, 930 F.2d 705, 711 (9th Cir. 1991)). An 

exception to this rule exists where “a renewal at the close of all evidence would 

constitute an unnecessary formality.” United States v. Felix-Gutierrez, 940 F.2d 

1200, 1208 (9th Cir. 1991). Asefi did not renew his motion to sever at trial and has 

not shown renewal was an unnecessary formality. Because Asefi did not renew his 

motion for severance at trial, the district court had no reason to believe the 

prejudice cited by Asefi prior to trial manifested during trial. See United States v. 

Kaplan, 554 F.2d 958, 966 (9th Cir. 1977). Thus, Asefi has waived his severance 

claim.
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As for joinder, proof of Asefi’s involvement in the courthouse bribery 

scheme (and later lies to the FBI) would support a conviction on Count 4. Because 

“the same facts must be adduced to prove each of the joined offenses,” United 

States v. Portac, Inc., 869 F.2d 1288, 1294 (9th Cir. 1989), joinder was proper 

here. Asefi did not raise his claim for retroactive misjoinder below, and thus 

waived it.

3. Asefi next argues that Count 4 was duplicitous because it lumped 

many false statements together under the same charge and therefore permitted the 

jury to convict without unanimously finding that Asefi made any one false 

statement. We review this issue de novo. United States v. Martin, 4 F.3d 757, 759 

(9th Cir. 1993). We are guided by the “presumption against construing penal 

statutes so as to lead to multiple punishment.” United States v. UCO Oil Co., 546 

F.2d 833, 837 (9th Cir. 1976). 

Count 4 alleged a violation of 18 U.S.C. § 1015(a), which prohibits 

“knowingly mak[ing] any false statement under oath, in any case, proceeding, or 

matter relating to, or under, or by virtue of any law of the United States relating to 

naturalization, citizenship, or registry of aliens.” Given the presumption, and the 

statute’s repeated use of the word “any,” we conclude that multiple false 

statements in a single naturalization document simply constitute “multiple ways of 

committing the same offense.” United States v. Arreola, 467 F.3d 1153, 1161 (9th 
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Cir. 2006); see also United States v. McCormick, 72 F.3d 1404, 1409 (9th Cir.

1995) (no error in failing to give a specific unanimity instruction on an indictment 

that charged multiple false statements in a single passport application). 

4. Asefi makes three challenges to the jury instructions on the RICO 

conspiracy count: (1) the jury should have been instructed that to convict, it must 

find that he “agreed personally to facilitate the activities of the enterprise”; (2) the 

jury should not have been given a “deliberate ignorance” instruction; and (3) the 

jury should have received a multiple conspiracies instruction.

First, to the extent that Asefi argues that the district court misstated the 

elements of a RICO charge in its jury instructions, we review that issue de novo. 

See United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989). The jury was 

properly instructed on the elements of a RICO offense. The instructions required 

the government to prove that Asefi “joined an agreement knowing of its objective 

to participate” in the enterprise, and prove that Asefi agreed to “facilitate . . . a 

scheme which . . . constitutes a RICO violation” where another was employed by 

or associated with the enterprise and participated in the management of the 

enterprise. The instructions thus properly instructed the jury that to convict, they 

had to find that Asefi was “aware of the essential nature and scope of the enterprise 

and intended to participate in it.” United States v. Fernandez, 388 F.3d 1199, 1230 

(9th Cir. 2004) (internal quotations and citations omitted). 
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Second, regardless of whether plain error or de novo review applies, Asefi 

has not shown that the district court erred in giving a deliberate ignorance 

instruction (also known as a “Jewell” instruction for United States v. Jewell, 532 

F.2d 697, 702 (9th Cir. 1976)). We have repeatedly held that a Jewell instruction is 

proper in specific-intent cases (including conspiracy cases). See United States v. 

Ramos-Atondo, 732 F.3d 1113, 1120 (9th Cir. 2013) (rejecting appellants’ 

argument that “it is impossible to conspire to be deliberately ignorant” and holding 

that “the Jewell standard eliminates the need to establish such positive knowledge 

to obtain a conspiracy conviction”);

1 United States v. Heredia, 483 F.3d 913, 922 

& n.13 (9th Cir. 2007) (en banc) (approving of Jewell instruction in possessionwith-intent-to-distribute prosecution, and observing that “willful blindness is 

tantamount to knowledge”); United States v. Nosal, 844 F.3d 1024, 1039–40 (9th 

Cir. 2016) (approving Jewell instruction in aiding-and-abetting case). Asefi’s 

defense invited the deliberate ignorance instruction here, and the district court did 

not err in instructing the jury. 

1 Asefi does not argue on appeal that the factual predicate for the Jewell

instruction was lacking. Nor could he plausibly do so. The thrust of Asefi’s defense 

to the RICO conspiracy charge was that he believed (even though one of the fixed 

tickets was his) that he was passing payments and information on to a lawyer who 

legitimately resolved the tickets, and that he did not ask questions about how the 

tickets were being dismissed.
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Third, the district court did not err by refusing to give a multiple 

conspiracies instruction, regardless of the standard of review applied, see United 

States v. Job, 871 F.3d 852, 867 (9th Cir. 2017). Because Asefi stood trial alone, 

no multiple conspiracies instruction was required. See United States v. Chen 

Chiang Lui, 631 F.3d 993, 1000 (9th Cir. 2011).

5. Finally, Asefi argues that cumulative error requires reversal. But 

because we find no individual error, there was no cumulative error. See United 

States v. Franklin, 321 F.3d 1231, 1241 n.4 (9th Cir. 2003) (“Because no 

individual errors underlying [Franklin’s] convictions have been demonstrated, no 

cumulative error exists.”).

AFFIRMED.