United States District Court, N.D. California
ORDER GRANTING JERRY HARRIS'S MOTION TO CORRECT
AMENDED JUDGMENT; DIRECTIONS TO GOVERNMENT; DIRECTIONS TO
M. CHESNEY, UNITED STATES DISTRICT JUDGE
indictment filed September 18, 2012, defendant James B.
Catledge ("Catledge") was charged with one count of
conspiracy to commit mail fraud, as well as three counts of
mail fraud. The charges arose from an alleged scheme to
defraud investors in Sun Village Juan Dolio, Inc. ("Juan
Dolio), a corporation that sold interests in a resort in the
Dominican Republic. (See Indictment ¶¶
2, 2018, Catledge, pursuant to a Plea Agreement under Federal
Rule of Criminal Procedure 11(c)(1)(C), pleaded guilty to
Count 2, one of the mail fraud charges (see Plea
Agreement, filed May 2, 2018, ¶ 1), and agreed to
imposition of a sentence that could "include
imprisonment of up to but no more than 60 months"
(see id. ¶ 8); with respect to restitution,
Catledge "agreed to a judgment imposing full restitution
for all losses caused by all the schemes or offenses with
which [he] was charged in this case, " in an amount no
greater than $91, 000, 000 (see id. ¶ 10.) On
December 12, 2018, the Court accepted the Plea Agreement,
sentenced Catledge to a term of 60 months, and deferred
determination of the amount of restitution. On January 10,
2019, the Clerk of Court entered the judgment.
hearing conducted February 27, 2019, the Court ordered
restitution to be paid to all "Juan Dolio
investors" who had submitted claims of loss.
(See Transcript of Proceedings, February 27, 2019,
91:9 - 92:2.) Given the exceptionally large number of
claimants, the Court, in lieu of reading each of those names
and losses into the record, was provided a list that, as
represented by the government, "incorporated everyone
who ha[d] made claims for Juan Dolio." (See id.
91:14-15.) On May 15, 2019, the Clerk of Court entered an
Amended Judgment, along with a "Restitution
Schedule" listing the claimants to whom Catledge was
ordered to pay restitution in the total amount of $32, 737,
before the Court is a letter, filed July 19, 2019, from Jerry
Harris ("Harris"), an investor in Juan Dolio, in
which Harris points out he is not listed in the Amended
Judgment as a person entitled to restitution. The government
and Catledge have filed separate responses to the letter, to
which Harris has replied. Having read and considered the
parties' respective written submissions, the Court rules
Court construes Harris's letter as a motion to correct
the Amended Judgment to reflect an award of restitution in
his favor. Under Rule 36 of the Federal Rules of Criminal
Procedure, a court may correct "clerical mistakes"
in a judgment, see United States v. Penna, 319 F.3d
509, 513 (9th Cir. 2003), to "conform" the terms of
the judgment to that "which the record indicates was
intended, " see United States v. Kaye, 739 F.2d
488, 490 (9th Cir. 1984); see also United States v.
Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015)
(directing district court to amend judgment "to conform
with the oral pronouncement of the sentence").
forth above, the Court accepted the parties' Plea
Agreement, under which the agreed-upon sentence was to
include restitution for all victims of the Juan Dolio scheme
who had submitted claims of loss. There is no dispute that
Harris is a victim of the Juan Dolio scheme and that he
submitted in timely fashion a claim in which he stated he
invested $182, 812.50, his only return thereon being $11,
984.38. (See Doc. Nos. 301, 355; see also
United States' Response, filed August 9, 2019, at
1:22-23). Under such circumstances, the Court finds the
inadvertent omission of Harris's name and loss from the
schedule attached to the Amended Judgment constitutes a
clerical error under Rule 36, and, consequently, finds it
appropriate to correct the Amended Judgment to conform to the
Court's oral pronouncement that all Juan Dolio investors
who submitted a claim are entitled to restitution.
Harris's motion is hereby GRANTED.
government is hereby DIRECTED to file, no later than
September 30, 2019, a corrected restitution schedule that
includes Harris's name and net loss in the amount of
$170, 828.12. Upon receipt of such corrected
schedule, the Clerk is hereby DIRECTED to file a Second
Amended Judgment with the corrected schedule attached
IS SO ORDERED.
Although Harris seeks an award in the
amount of his initial investment, the proper sum awarded is
his initial investment less the amounts distributed to him.
See United States v. Van Alstyne, 584 F.3d 803, 807,
819 (9th Cir. 2009) (holding restitution for victims of
"Ponzi scheme" properly calculated by subtracting
from amounts initially invested all ...