United States v. Jon Harder
705 F. App'x 643
| 9th Cir. | 2017Background
- Jon Michael Harder pleaded guilty to mail fraud and money laundering; plea agreement allowed a district-court evidentiary hearing to determine the scope of the fraud for sentencing.
- At sentencing the court held an extensive evidentiary hearing on whether Harder’s scheme to defraud extended beyond the charged counts and whether he intended to defraud all investors.
- Testimony at the hearing contradicted in-house counsel’s exculpatory statements and showed continued commingling of intercompany funds despite investor assurances.
- Witnesses described Harder’s sales pitch assuring investors of solvency and investment integrity while he knew of substantial default risk; an employee and investigator disputed Harder’s claim that he instructed staff to “do it right.”
- The district judge reviewed investor emails and victim letters submitted by the prosecutor; Harder argued this violated due process and that solicitation of letters breached his plea agreement.
- The Ninth Circuit affirmed, holding the findings as to intent were not clearly erroneous, the emails did not render sentencing false or unreliable, and soliciting victim letters was proper under the CVRA.
Issues
| Issue | Harder’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Scope of scheme to defraud at sentencing | Court erred in finding intent to defraud all investors; evidence doesn’t extend beyond charged counts | Evidentiary hearing testimony supports broader scheme and intent to defraud investors | Affirmed — district court’s finding not clearly erroneous |
| Credibility of Harder’s exculpatory testimony | Court improperly discounted Harder’s testimony that he told employees to “do it right” | Witnesses contradicted Harder; reasonable inferences support fraud intent | Affirmed — judge’s credibility findings permissible |
| Use of investor emails at sentencing (due process) | Reading emails prejudiced factfinding and relied on unreliable info, violating due process | Sentencing inquiry may consider broad sources; judge relied on hearing testimony, not emails | Affirmed — no due process violation; defendant failed to show reliance on false info |
| Prosecutor soliciting victim letters | Solicitation undermined plea agreement and fairness of sentencing | CVRA permits victims to be heard and to confer with government counsel; solicitation proper | Affirmed — solicitation lawful under CVRA |
Key Cases Cited
- United States v. Kaplan, 839 F.3d 795 (9th Cir. 2016) (standard of review for factual findings: clear error)
- United States v. Reyes, 772 F.3d 1152 (9th Cir. 2014) (due process claim requires showing sentence based on false or unreliable information)
- United States v. Fitch, 659 F.3d 788 (9th Cir. 2011) (sentencing judges may consider broad kinds and sources of information)
- United States v. Vanderwerfhorst, 576 F.3d 929 (9th Cir. 2009) (rejecting due process claim where defendant failed to show court relied on false information)
- United States v. Burkholder, 590 F.3d 1071 (9th Cir. 2010) (Crime Victims’ Rights Act guarantees victims the right to be reasonably heard at plea and sentencing proceedings)