United States of America v. ALLEN RAYMOND JOHNSON, AKA Seal B

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN RAYMOND JOHNSON, AKA
Seal B,
Defendant - Appellant.
No. 13-56635
D.C. Nos. 8:10-cv-01641-JVS
8:05-cr-00036-JVS-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted December 10, 2014
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
In 2005, Allen Johnson pleaded guilty to six counts of honest services wire
fraud, in violation of 18 U.S.C. §§ 1343 and 1346, and conspiracy to launder the
FILED
DEC 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 4 --

proceeds of the honest services wire fraud, in violation of 18 U.S.C. § 1956(h).1
He appealed, but only as to the district court’s restitution order. See United States
v. Johnson, 338 F. App’x 561, 562 (9th Cir. 2009) (affirming restitution order). In
2010, Johnson filed a motion to vacate his sentence under 28 U.S.C. § 2255,
arguing that the conduct to which he pleaded guilty no longer constitutes honest
services fraud based on the Supreme Court’s decision in Skilling v. United States,
561 U.S. 358 (2010). The district court determined that Johnson’s Skilling claim
was procedurally defaulted and denied the motion. We have jurisdiction under 28
U.S.C. § 1291 and 2253, and we affirm.
Johnson maintains that resolution of this appeal turns on whether he is
“actually innocent” of honest services wire fraud. See Bousley v. United States,
523 U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be raised in habeas only if the
1 The parties are familiar with the facts of the conviction, so we will not
recount them here.
2

-- 2 of 4 --

defendant can first demonstrate either cause and actual prejudice, or that he is
actually innocent.” (citations and internal quotation marks omitted)).2
In Skilling, the Supreme Court limited the scope of the honest services fraud
statute, 18 U.S.C. § 1346, to “bribery and kickback schemes.” 561 U.S. at 404–09.
There is no question that Johnson pleaded guilty to depriving a lender of its right to
honest services by participating in a kickback scheme. Nonetheless, Johnson
contends that he did not commit honest services fraud because he paid, as opposed
to received, the kickbacks. But nothing in Skilling suggests the Supreme Court
intended to draw a distinction between a fiduciary who deprives a victim of the
right to honest services by receiving a bribe or kickback and a fiduciary who does
the same by paying a bribe or kickback.3
Johnson points to a sentence in Skilling where the Supreme Court described
the core honest services fraud offense as involving “fraudulent schemes to deprive
2 In his briefing, Johnson argued that his Skilling claim is not subject to
the procedural default bar because it implicates the district court’s subject matter
jurisdiction. But even if Johnson were correct that a claim that an indictment fails
to charge a valid federal offense is jurisdictional, in this case we have jurisdiction
and Johnson is not entitled to relief because the indictment states and Johnson
pleaded guilty to a valid honest services fraud offense.
3 Also, we observe that Johnson’s conduct may be characterized as
receiving a bribe in the form of referrals, particularly since the net result of the
scheme was that Johnson received a portion of the closing fees without actually
conducting the closings.
3

-- 3 of 4 --

another of honest services through bribes or kickbacks supplied by a third party
who had not been deceived.” Id. at 404. He overlooks that elsewhere the Court
described the core offense much more broadly, to include “offenders who, in
violation of a fiduciary duty, participated in bribery or kickback schemes.” Id. at
407 (emphasis added); see also id. at 413 (“A criminal defendant who participated
in a bribery or kickback scheme, in short, cannot tenably complain about
prosecution under § 1346 on vagueness grounds.” (emphasis added)). Because
Johnson pleaded guilty to participating in a kickback scheme in violation of his
fiduciary duty, he is not actually innocent of honest services fraud.
AFFIRMED.
4

-- 4 of 4 --