GRABER, Circuit Judge:
The opinion filed July 26, 2018, and published at 897 F.3d 1057, is amended by the opinion filed concurrently with this order.
With these amendments, Appellee's petition for rehearing is
A jury convicted Defendant Jack Holden of mail and wire fraud, conspiracy to commit mail and wire fraud, and several money laundering offenses. Defendant appeals his convictions for mail and wire fraud, arguing that the district court misinstructed the jury on the elements of those crimes. Defendant also challenges the two-level "organizer" sentencing enhancement applied by the district court and the district court's restitution schedule. We reject Defendant's arguments concerning the jury instructions, but we vacate both his custodial sentence and the restitution portion of the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
In the fall of 2007, Defendant and his associate, Lloyd Sharp, met with a group of investors from the Portland, Oregon, area to discuss the possibility of investing in a biofuel operation in Ghana.
At the meetings with the investors, Defendant suggested that the Ghana biofuel operation was on the verge of going online; all that was needed was a refinery to start producing fuel. Defendant and Sharp sought $350,000 from the investors to initiate operations at the refinery, and they made specific representations (based on the joint venture agreement) about how that $350,000 would be used. The investors eventually decided to put their money into the project in early 2008. Defendant never completed the purchase of the refinery. Much of the money that he and Sharp received from the investors was not spent on the Ghana refinery project but was, instead, used to pay personal expenses or funneled to family members.
Defendant continued to seek investments for the Ghana project throughout the next couple of years. He consistently told investors that he just needed a little more money in order to get the operation up and running. But Defendant never purchased the refinery, never launched a full-scale biofuel operation in Ghana, and never earned any profits for his investors.
In September 2013, Defendant and Sharp were indicted on one count of conspiracy to commit mail and wire fraud, six counts of wire fraud, three counts of mail fraud, six counts of money laundering, and one count of conspiracy to commit money laundering. Sharp pleaded guilty. Defendant went to trial and was convicted on all counts for which he was indicted except for one mail fraud count, which was dismissed at the Government's request. He was sentenced to 87 months in prison, ordered to pay more than $1.4 million in restitution, and ordered to forfeit more than $1.4 million. He timely appeals.
A. Mail and Wire Fraud Instructions
Defendant challenges the mail and wire fraud jury instructions given by the district court. We review de novo whether a jury instruction correctly stated the elements of a crime. United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir. 2009). At bottom, though, Defendant's beef is not with the instructions, which accurately reflected our caselaw, but with our circuit's longstanding construction of the mail and wire fraud statutes. Defendant argues that our "interpretations" of those statutes are not interpretations at all, but instead amount to judicially created crimes in violation of separation-of-powers principles. We review de novo such constitutional issues. United States v. Kuchinski, 469 F.3d 853, 857 (9th Cir. 2006).
The mail fraud instruction
Assuming, without deciding, that Defendant's argument is not foreclosed by precedent, we reject the argument on its merits. "[C]riminal laws are for courts ... to construe," Abramski v. United States, 573 U.S. 169, 134 S.Ct. 2259, 2274, 189 L.Ed.2d 262 (2014), and we do not usurp the role of Congress simply by construing a criminal statute broadly. Separation-of-powers principles may inform how we interpret a statute and may even prevent us from reading an unwritten defense into a statute. See United States v. Lanier, 520 U.S. 259, 265 n.5, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (discussing how separation-of-powers principles form part of the theoretical underpinning of the "fair warning" requirement, which itself underlies the void-for-vagueness doctrine and the rule of lenity); Oakland Cannabis Buyers' Coop., 532 U.S. at 490, 121 S.Ct. 1711 ("[I]t is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute."). But so long as we are engaged in interpretation — that is, an effort to "giv[e] effect to the will of the Legislature; or, in other words, to the will of the law," Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866, 6 S.Ct. 204 (1824) — we do not infringe on Congress' exclusive power to make conduct criminal. See Nw. Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 97, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) ("[T]he authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt.").
"Of course, the line separating statutory interpretation and judicial lawmaking is not always clear and sharp." Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1245 (6th Cir. 1991). Here, though, we clearly have interpreted the mail and wire fraud statutes to criminalize "participating in" schemes to defraud. In Nemec v. United States, 178 F.2d 656, 661 (9th Cir. 1949), we endorsed the Sixth Circuit's view that, "[i]f one's intent is to defraud when he joins a dishonest [mail fraud] scheme, he becomes a part of the scheme, although he may know nothing but his own share in the aggregate wrongdoing," Blue v. United States, 138 F.2d 351, 358-60 (6th Cir. 1943) (emphasis added).
In short, our caselaw holding that "participating in" a scheme to defraud is forbidden by the mail and wire fraud statutes does not amount to the creation of a common-law crime in violation of separation-of-powers principles. The district court therefore did not err by instructing the jury that it could find Defendant guilty for "participating in" a scheme to defraud.
B. "Organizer" Enhancement
Defendant next argues that the district court erred by applying a two-level "organizer" sentencing enhancement under § 3B1.1 of the Sentencing Guidelines. We review de novo the district court's construction of the Sentencing Guidelines, but any factual findings that underlie an enhancement are reviewed for clear error. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.) (en banc), cert. denied, ___ U.S. ___, 138 S.Ct. 229, 199 L.Ed.2d 149 (2017). We review for abuse of discretion the district court's determination as to "whether the specific constellation of facts at issue meets the governing legal standard" set out in the Guidelines. Id. at 1171. "It is not necessary that the district court make specific findings of fact to justify the imposition of the role enhancement. There must, however, be evidence in the record that would support" the imposition of the enhancement. United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (citation omitted).
The Guidelines allow for a two-level "organizer" enhancement "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity" involving fewer than five "participants," provided that the criminal activity was not "extensive." U.S.S.G. § 3B1.1(c) (2015). "A `participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible
At the sentencing hearing, the district court found that Defendant and Sharp were "pretty much comparable in their responsibility" and that "they were ... co-equal." The court then rejected the Government's argument that Defendant should receive a four-level enhancement under § 3B1.1(a) as "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." But the court found that Defendant "was certainly an organizer, he with Sharp," and that he should thus receive a two-level enhancement under § 3B1.1(c) because he and Sharp "organized [the scheme] together."
For the organizer enhancement to be proper, there must be evidence in the record to support the conclusion that Defendant exercised control over Sharp or was able to influence Sharp, who was the only other "participant."
The Government argues that the two-level enhancement is proper nonetheless because Defendant gave Sharp "instructions for sending investors' funds to accounts [Defendant] controlled in Ghana." We think that act is best characterized as "facilitation" rather than "organization." Compare Whitney, 673 F.3d at 969, 975-76 (holding that an organizer enhancement was not warranted where the defendant merely "supplied [a co-conspirator] with tax forms and information on filing false returns"), with Doe, 778 F.3d at 826 (upholding an organizer enhancement where the defendant "put the [drug] deal[s] together by negotiating the type, quantity, and price of drugs for each transaction, and then ensured the drugs, money, and participants arrived when and where needed"). Defendant did not exercise control or "organizational authority" over Sharp by telling him how to go about depositing money in an account any more than if he had given Sharp directions to his house. Indeed, if Defendant "organized" Sharp by telling him how to go about making deposits, then it would follow that nearly every co-conspirator in a limited conspiracy of equals would be an "organizer" of his or her comrades, and the enhancement of § 3B1.1(c) would be all but automatic for all conspirators in such cases. Such a result is inconsistent with the main purpose of the "organizer" enhancement, which is to "apportion relative responsibility where an offense involves multiple participants." Egge, 223 F.3d at 1133 (emphasis added).
The record does not support the conclusion that Defendant exercised sufficient control or organizational authority over Sharp to qualify for the two-level enhancement of § 3B1.1.(c).
The district court ordered Defendant to pay more than $1.4 million in restitution to the victims of his crimes. The written judgment specifies that the entire amount of restitution is "due immediately" in a "[l]ump sum payment," but it also sets out a schedule of small payments that Defendant must make during his period of incarceration. During the sentencing hearing, the court found that Defendant lacked the ability to make full restitution immediately and that, "[n]o matter how long [Defendant] spends ... in prison, ... the victims will not be made whole." Defendant argues that the district court erred by ordering immediate restitution in full in light of its finding that he lacked the funds to make such restitution. We review for abuse of discretion a restitution schedule. United States v. Inouye, 821 F.3d 1152, 1156 (9th Cir. 2016) (per curiam). A district court necessarily abuses its discretion in setting a restitution schedule if it makes a legal error. Id.; see also United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010) ("We review de novo the legality of a restitution order ...." (internal quotation marks omitted)).
When a district court orders a defendant to pay restitution under 18 U.S.C. § 3664, it must "specify in the restitution
At first blush, the restitution portion of the judgment appears internally inconsistent: it orders Defendant to pay full restitution immediately and orders him to make payments while incarcerated. According to the Government, though, the order is not internally inconsistent, because the payment schedule portion of the order is conditional — it kicks in only if Defendant cannot make full immediate restitution. By ordering full immediate restitution even in the face of evidence that such restitution is impossible, argues the Government, the district court helps to ensure that the Government can seek restitution up to the full amount if Defendant's financial circumstances should change in the future.
We cannot construe the written restitution schedule in the manner urged by the Government. First, the schedule of payments during incarceration is not phrased in conditional terms — the order simply directs Defendant to pay a certain amount of restitution while incarcerated. Second, the district court found that Defendant lacked the ability to make immediate restitution in full, so it already had found the supposed "condition" that would trigger the payment schedule to be satisfied. Finally, we doubt that an order setting a "conditional" payment schedule during the period of incarceration would be consistent with the statutory scheme. The relevant statutory provisions can be read to suggest that requiring a single lump-sum payment of immediate restitution in full and setting a payment schedule are mutually exclusive orders. See United States v. Martinez, 812 F.3d 1200, 1205 (10th Cir. 2015) ("[Section 3572(d)(1)] implies that full payment is due immediately only if the district court does not provide for installment payments."); 18 U.S.C. § 3664(f)(3)(A) ("A restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments."). For those reasons, we read the district court's judgment as both requiring immediate restitution in full and setting a mandatory, unconditional schedule of payments during the period of incarceration.
So construed, the restitution schedule is internally inconsistent. But that inconsistency does not require us to seek clarification from the district court. Again, the district court orally announced that Defendant lacked the ability to make immediate restitution in full. The written restitution schedule, insofar as it purports to order immediate restitution, is inconsistent with that finding. In this situation, we construe the written judgment to conform to the court's oral ruling. United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012). We therefore vacate the restitution schedule and remand so that the district court can strike the lump-sum payment requirement from the judgment. Id.
The Government's concern with this result appears to be two-fold. First, the Government argues that the lump-sum requirement is necessary "to have an enforceable judgment for the full amount of the debt owed." That concern is not well taken because the total amount of restitution ordered by the court is set out in a
Second, the Government asserts that a schedule that does not require immediate restitution in full prevents the Government or a victim from recouping unexpected windfalls the defendant receives, such as a bequest. But the judgment separately provides "that resources received from any source, including inheritance, settlement, or any other judgment, shall be applied to any restitution or fine still owed, pursuant to 18 [U.S.C.] § 3664(n)." Moreover, 18 U.S.C. §§ 3572(d)(3) and 3664(k) provide mechanisms by which the Government or a victim may seek to modify a restitution schedule if a defendant acquires assets that change the defendant's financial circumstances.
Defendant's convictions and the forfeiture order