If You Do the Crime You Must Do the Time: Guilty Of Disability Fraud.

• Author: Zalma, Barry
• Position: [ON MY RADAR]

* 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 OJ 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. [section] 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...