CALLAHAN, Circuit Judge:
A jury convicted Donald "Ski" Johnson of wire fraud in violation of 18 U.S.C. § 1343. The district court sentenced Johnson to five years' probation and ordered Johnson to pay $5,648.58 in restitution. On appeal, the government argues that the district court erred by considering only Johnson's fraudulent conduct that occurred in Montana (the count of conviction) when determining restitution, and thus misinterpreted the Mandatory Victim Restitution Act ("MVRA"). See 18 U.S.C. § 3663A. We vacate the district court's restitution order and remand for determination of whether Johnson's conduct outside of Montana was related to his scheme to defraud.
In 2011, Johnson, using the alias Larry Toye, promoted a black-tie gala in Seattle, Washington. The event was intended to benefit the American Cancer Society and Johnson's charity, the Jazz For Life Foundation. While on the phone with a promoter, Johnson, acting as Toye, falsely described himself as a Grammy-nominated musician. Johnson also promised the attendance of celebrities such as James Earl Jones and Michael Douglas. Neither Jones nor Douglas had any knowledge of the event, nor were they inclined to attend.
Later in 2011, Johnson — this time under the alias Kevin Wright — contacted the Hospice of Palm Beach County in Florida to inquire about participating in the organization's celebrity golf event. Johnson offered Grammy tickets to be auctioned at the event, with the proceeds split between the hospice and Johnson's foundation. The tickets were auctioned for $12,000 ($5,500 of which was sent to Johnson's foundation), but the tickets were never produced, and the purchaser did not attend the Grammys.
In May 2012, Johnson called Barb Rooney, Vice President of the Big Sky Resort in Montana. Johnson, again using the alias Kevin Wright, identified himself as a representative of both Sony and Johnson, a Grammy-nominated musician. In a similar fashion to his encounter with the Hospice of Palm Beach County, Johnson offered Grammy tickets to be auctioned off at a fundraiser organized by Big Brothers and Big Sisters ("BBBS"). The tickets were auctioned for $6,000. Johnson attempted to collect his share of the proceeds, but, after BBBS learned of Johnson's misrepresentations, it returned the proceeds to the bidder.
Johnson was indicted in 2014 for one count of wire fraud in violation of 18 U.S.C. § 1343. The indictment alleged Johnson's scheme to defraud extended from 2011 to 2014 and occurred "in the District of Montana and elsewhere." However, the indictment specifically identified only a single Virginia-Montana wire transmission relating to the BBBS event. Johnson thus moved to limit the government's trial evidence to that one event. The government argued in opposition that evidence of other fraud was admissible to prove Johnson's scheme to defraud. The district court concluded that evidence of wire fraud not specifically charged in the indictment was inadmissible as improper propensity evidence under Federal Rule of Evidence 404(b)(2).
A jury convicted Johnson, and the government sought restitution for Johnson's entire scheme, contending that he owed over $70,000. The district court considered additional evidence of Johnson's scheme for sentencing enhancement purposes, but it refused to consider evidence beyond the BBBS event (the count of conviction) for restitution purposes and limited restitution to $5,648.58. The government appealed.
We review de novo Johnson's contention that we lack jurisdiction to consider the government's challenge to the district court's restitution order. United States v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015) ("We have jurisdiction to determine our own jurisdiction. We review this
This court has jurisdiction "of appeals from all final decisions." 28 U.S.C. § 1291. "A sentence that imposes an order of restitution is a final judgment." 18 U.S.C. § 3664(o); see also United States v. Brock-Davis, 504 F.3d 991, 993 (9th Cir. 2007) (finding court had jurisdiction under § 1291 to review restitution order). We therefore have jurisdiction to review the government's appeal from a district court's restitution order.
Johnson argues, however, that the government's challenge to the restitution order here is instead an attempt at an impermissible end-run around its failure to appeal the district court's pretrial evidentiary ruling, which limited the government's trial evidence to fraud relating to the BBBS event. According to Johnson, the government was required to appeal immediately, and, by failing to do so, it waived review of this issue in its entirety.
Although the government could have appealed the district court's evidentiary ruling, see United States v. Loftis, 843 F.3d 1173, 1175-76 (9th Cir. 2016), it was not required to do so. The evidentiary ruling was an interlocutory order, and "we have never held that failure to appeal an interlocutory order barred raising the decided issue after entry of a final judgment." In re Frontier Props., Inc., 979 F.2d 1358, 1364 (9th Cir. 1992); see Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976) ("[A]n interlocutory appeal is permissive, not mandatory[,]" and, "[w]hen an appeal is not taken, the interlocutory order merges in the final judgment and may be challenged in an appeal from that judgment."). The government is therefore not foreclosed from challenging the district court's limitation on the restitution order even though it flows from the same issue as the district court's evidentiary ruling. We therefore have jurisdiction to review the district court's restitution order, and we review that order for an abuse of discretion. Brock-Davis, 504 F.3d at 996.
The district court relied on United States v. Hughey, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), in concluding that it could not consider fraud beyond the BBBS event for the purposes of restitution. In Hughey, the Supreme Court held that a restitution award under the 1982 Victim and Witness Protection Act ("VWPA") was limited to "the loss caused by the specific conduct that is the basis of the offense of conviction." 495 U.S. at 413, 110 S.Ct. 1979; 18 U.S.C. § 3579 (1982), amended by, 18 U.S.C. § 3663 (1990)).
In response, Congress amended the VWPA in 1990 to partly overrule Hughey. See 18 U.S.C. § 3663; see also United States v. Lawrence, 189 F.3d 838, 846 (9th Cir. 1999) ("Congress amended the VWPA's definition of victim to partially overrule Hughey."). The current iteration of the VWPA authorizes restitution for "any victim" of certain enumerated offenses. 18 U.S.C. § 3663(a)(1)(A). The act defines a "victim" as "any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." Id. § 3663(a)(2).
Following the 1990 amendments, we have recognized that the VWPA allows district courts to order restitution for crimes involving a scheme to defraud to "include acts of related conduct for which the defendant was not convicted." Lawrence, 189 F.3d at 846; see also United States v. Rutgard, 116 F.3d 1270, 1294 (9th Cir. 1997) ("After the amendment [to the VWPA], restitution may be ordered for losses to persons harmed in the course of the defendant's scheme even beyond the counts of conviction." (emphasis added)). We have since applied the same approach
Here, the district court, believing it was bound by Hughey, only considered loss related to Johnson's fraudulent conduct while organizing the BBBS event. Specifically, prior to the start of witness testimony at the sentencing hearing, the district court concluded that it could not award restitution beyond the count of conviction "under the law, the law of this case, and the law under the United States Supreme Court decision of [United States v. Hughey]."
The restitution order is
18 U.S.C. § 1343.