Petition for Writ of Certiorari — Johnny Ho, Petitioner v. United States

Supreme Court briefJul 24, 2024

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APPENDIX

• Appendix A - District Court judgment imposed on October 11, 2022 and

entered on October 24, 2022

• Appendix B - Sixth Circuit Court of Appeals opinion affirming the

District Court judgment dated March 4, 2024

• Appendix C - Sixth Circuit Court of Appeals judgment affirming the

District Court dated March 4, 2024

• Appendix D - Sixth Circuit Court of Appeals order denying petition for

rehearing en banc dated April 25, 2024

APPENDIX A

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.336 Filed 10/24/22 Page 1 of 8

UNITED STATES DISTRICT COURT

Eastern District of Michigan

UNITED STATES OF AMERICA

Johnny Ho

JUDGMENT IN A CRIMINAL CASE

Case Number: 0645 2:22CR20021 (1)

USM Number: 85830-509

Mitchell T. Foster

Defendant’s Attorney

THE DEFENDANT:

☐ pleaded guilty to count(s)

pleaded nolo contendere to count(s) which was

☐ accepted by the court

was found guilty on count(s) after a plea of not

☒ guilty

1, 2, 3, 4, and 5 of the Indictment

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

18 U.S.C. § 1349, Conspiracy to Commit Wire Fraud

18 U.S.C. § 1343, Wire Fraud

18 U.S.C. § 1957(a), Money Laundering

Offense Ended

8/27/2020

5/15/2020

8/14/2020

6/8/2020

8/4/2020

Count

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

☐ The defendant has been found not guilty on count(s)

☐ Count(s) ☐ is ☐ are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

10/11/2022

Date of Imposition of Judgment

s/Nancy G. Edmunds

Signature of Judge

The Honorable Nancy G. Edmunds

United States District Judge

Name and Title of Judge

October 24, 2022

Date

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.337 Filed 10/24/22 Page 2 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 2 of 8

Johnny Ho

0645 2:22CR20021 (1)

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:

12 months and one day, per count, concurrent to each count. The defendant will remain on bond and under Pretrial Services

supervision pending the resolution of the appeal case which will be filed in the Sixth Circuit Court of Appeals.

While in custody, the defendant shall participate in the Inmate Financial Responsibility Program (IFRP). The Court is aware of the

requirements of the IFRP and approves the payment schedules of this program and hereby orders the defendant’s compliance.

The Court waives the imposition of the costs of incarceration due to the defendant’s lack of financial resources.

☒ The court makes the following recommendations to the Bureau of Prisons:

The defendant will remain on bond and under Pretrial Services supervision pending the resolution of the appeal case

which will be filed in the Sixth Circuit Court of Appeals.

☐ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐

a.m.

☐

p.m.

☐ as notified by the United States Marshal.

☒ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on

☒ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at, with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.338 Filed 10/24/22 Page 3 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 3 of 8

Johnny Ho

0645 2:22CR20021 (1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of two years, per count, concurrent to each

count.

The Court waives the imposition of the costs of incarceration due to the defendant’s lack of financial resources.

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of

release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☒ The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

☒ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence

of restitution. (check if applicable)

You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

☒

☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et

☐

seq.)

as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you

reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

You must participate in an approved program for domestic violence. (check if applicable)

The defendant must comply with the standard conditions that have been adopted by this court as well as with any

additional conditions on the attached page.

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.339 Filed 10/24/22 Page 4 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 4 of 8

Johnny Ho

0645 2:22CR20021 (1)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from

the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer

to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that

was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or

tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a

written copy of this judgment containing these conditions. I understand additional information regarding these

conditions is available at the www.uscourts.gov.

Defendant’s Signature

Date

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.340 Filed 10/24/22 Page 5 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 5 of 8

Johnny Ho

0645 2:22CR20021 (1)

SPECIAL CONDITIONS OF SUPERVISION

You must provide the probation officer with access to any requested financial information and authorize the

release of any financial information. The probation office may share financial information with the U.S.

Attorney's Office.

You must not incur new credit charges or open additional lines of credit without the approval of the probation

officer.

You must make monthly installment payments on any remaining balance of the special assessment or

restitution at a rate and schedule recommended by the probation department and approved by the Court. You

must also notify the court of any changes in economic circumstances that might affect the ability to pay this

financial penalty.

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.341 Filed 10/24/22 Page 6 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 6 of 8

Johnny Ho

0645 2:22CR20021 (1)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

JVTA Assessment*

Fine

Assessment

TOTALS

$500

None

Waived

Restitution

$343,700

☐ The determination of restitution is deferred until An Amended Judgment in a Criminal Case (AO245C) will be entered after

☒

such determination.

The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18 U.S.C.

§ 3664(i), all nonfederal victims must be paid before the United States is paid.

SBA/DFC

721 19th Street

3rd Floor, Room 301

Denver, CO 80202

$343,700.00

Additionally, the defendant will be credited for any amount recovered by the government, including through forfeiture on this

case.

☐ Restitution amount ordered pursuant to plea agreement $

☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

☒

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☒ the interest requirement is waived for the

☐ fine

☒ restitution

☐ the interest requirement for the

☐ fine

☐ restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.342 Filed 10/24/22 Page 7 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 7 of 8

Johnny Ho

0645 2:22CR20021 (1)

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

☒ Lump sum payments of $500 due immediately.

☐ not later than

☒ in accordance

, or

☐

E, or

☒

F below; or

☐

D, or

☐ Payment to begin immediately (may be combined with

☐ Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of

☐

F below); or

(e.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or

☐ Payment in equal (e.g., weekly, monthly, quarterly) installments of $ over a period of

(e.g., months or years), to commence (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or

☐ Payment during the term of supervised release will commence within (e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time;

☒ Special instructions regarding the payment of criminal monetary penalties:

You must make monthly installment payments on any remaining balance of the special assessment, fine, or restitution at

a rate and schedule recommended by the probation department and approved by the Court. You must also notify the court

of any changes in economic circumstances that might affect the ability to pay this financial penalty.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

☒ Joint and Several

Restitution is joint and several with the following co-defendants and/or related cases, in the amount specified below:

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate.

Antonio George, Docket No. 21-CR-20613-01. Joint and Several Amount $343,700.00

☒ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same

loss that gave rise to defendant's restitution obligation.

☐ The defendant shall pay the cost of prosecution.

☐ The defendant shall pay the following court cost(s):

☒ The defendant shall forfeit the defendant’s interest in the following property to the United States:

Pursuant to 18 U.S.C. 982(a)(2)(A), 18 U.S. C. 981(A)(1)(c) together with 28 U.S.C. 2461(c) and The

Preliminary Order of Forfeiture entered by the Court, which is incorporated herein by this reference, a

forfeiture money judgment in the amount of $149,900.00 shall be entered against the defendant in favor of

the United States.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

Case 2:22-cr-20021-NGE-KGA ECF No. 50, PageID.343 Filed 10/24/22 Page 8 of 8

AO 245B (Rev. 09/18) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Johnny Ho

0645 2:22CR20021 (1)

Judgment -- Page 8 of 8

APPENDIX B

Case: 22-1968

Document: 44-1

Filed: 03/04/2024

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Kelly L. Stephens

Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: March 04, 2024

Mr. Mitchell T. Foster

P.O. Box 798

Milford, MI 48381

Mr. John Benton Hurst

Office of the U.S. Attorney

400 E. Ninth Street

Suite 5510

Kansas City, MO 64106

Mr. Jeremy Raymond Sanders

U.S. Department of Justice

Criminal Division

1400 New York Avenue, N.W.

Washington, DC 20005

Re: Case No. 22-1968, USA v. Johnny Ho

Originating Case No. : 2:22-cr-20021-1

Dear Counsel,

The Court issued the enclosed opinion today in this case.

Enclosed are the court’s unpublished opinion and judgment, entered in conformity with Rule

36, Federal Rules of Appellate Procedure.

Sincerely yours,

s/Cathryn Lovely

Opinions Deputy

cc: Ms. Kinikia D. Essix

Enclosures

Mandate to issue

(1 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 1

(2 of 17)

NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0094n.06

No. 22-1968

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JOHNNY HO,

Defendant-Appellant.

FILED

Mar 04, 2024

KELLY L. STEPHENS, Clerk

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

OPINION

Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. A jury convicted Johnny Ho of wire-fraud conspiracy,

wire fraud, and money laundering. During jury selection, rather than requiring each member to

verbally answer each inquiry, the magistrate judge posed questions to the venire as a group and

asked them to raise their hands if they had a response. At trial, the district court excluded testimony

by Ho’s private investigator as inadmissible hearsay. Ho argues that the magistrate judge’s voir

dire and district court’s evidentiary ruling violated his Sixth Amendment right to a fair trial.

Because the magistrate judge did not abuse her discretion and any evidentiary error by the district

court was harmless, we AFFIRM Ho’s conviction.

A. Government-Issued Loans During the COVID-19 Pandemic

In the early days of the COVID-19 pandemic, Congress passed the Coronavirus Aid,

Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020).

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 2

No. 22-1968, United States v. Ho

Section 1102 of the Act added a new product, the “Paycheck Protection Program” (PPP), to the

loan program of the U.S. Small Business Administration (SBA). PPP loans, funded by the SBA

but administered by banks, were available until May 2021 to businesses with no more than 500

employees. Businesses that hired only independent contractors were not eligible to receive a PPP

loan. The program required applicants to submit information about their business income and

expenses, including payroll, with supporting documentation. These supporting documents could

either be payroll records or IRS Forms 940 or 941, which respectively document annual and

quarterly payroll expenses. The SBA mandated that PPP funds be used to retain workers and

maintain payroll, and to make mortgage, lease, and utility payments. Borrowers had to certify that

they understood the program rules, and those that followed the rules were eligible for loan

forgiveness.

The SBA also administers the Economic Injury Disaster Loan (EIDL) program, which

provides 30-year, low-interest loans up to $2 million to small businesses that experience

substantial economic injury from a disaster and are unable to obtain credit elsewhere. 15 U.S.C.

§ 636(b)(2). Only businesses with 500 or fewer employees qualify for the loan, and applicants

must have a credit score of at least 570. EIDL proceeds must be used for normal expenses, such

as fixed debts, payroll, and utilities, that cannot be paid due to the disaster’s economic impact. The

CARES Act authorized the SBA Administrator to waive the requirements that EIDL borrowers be

unable to obtain credit elsewhere and provide a personal guarantee on loans less than $200,000.

CARES Act § 1110(c). The SBA permitted businesses to collect both PPP and EIDL loans but

mandated that they could not use the proceeds for the same purposes.

-2-

(3 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 3

No. 22-1968, United States v. Ho

B. Ho’s Loan Applications

Johnny Ho owned Diva Nails & Spa in Northville, Michigan. In April 2020, after the salon

closed because of the pandemic, Ho made two PPP loan applications on behalf of Diva Nails to

JPMorgan Chase. The first, submitted April 11, asserted that the business had eight employees

and monthly payroll expenses of $20,000. The second, submitted April 23, listed ten employees

and monthly payroll expenses of $50,000. Both were denied because they did not include

supporting documents. Ho then met with his next-door neighbor, Antonio George, who owned

several businesses, including a logistics and transportation business called ATX. George had

successfully obtained a PPP loan for ATX, so Ho asked for his assistance with the Diva Nails

application. George agreed, and instructed Ho to open an account for Diva Nails at Citizens Bank.

That is where George’s and Ho’s stories diverge. By George’s account, in exchange for

10% of the loan proceeds, he agreed to falsify Diva Nails’s application by including IRS forms

completed with ATX’s payroll expenses. George testified that they planned for Ho to disburse the

loan proceeds to George as payroll to feign compliance with the program requirements and secure

loan forgiveness. George would keep 10% then wire the remainder back. [

Ho, on the other hand, testified that he provided George with Diva Nails’s 2019 tax returns

and Citizens Bank information, requesting that George “do [the PPP loan application] right.”

R. 60, PageID 1071.

According to Ho, George independently prepared the tax forms and

submitted the loan application without Ho’s knowledge of its false contents. Ho did not deny that

he opened an account with Paychex, a payroll service, and distributed payroll to several companies

owned by or associated with George. But he maintained that he paid George for real work, such

as removing ventilation systems and shipping packages. And he did so through payroll because

that is what George requested.

-3-

(4 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 4

No. 22-1968, United States v. Ho

Regardless, Ho certified that the information in the Diva Nails PPP loan application and its

supporting documents was truthful. Consistent with George’s testimony, the application included

tax forms identical to those submitted by ATX: both companies reported that they had

42 employees and quarterly payroll expenses of $153,302.50. And, in contrast to the first two

Diva Nails applications, the third reported average monthly payroll expenses of $90,414Citizens

Bank received the application on May 12, 2020, and disbursed $193,700 to the Diva Nails account

six days later. Ho distributed $16,500 to eleven entities associated with George via Paychex on

June 8. But Citizens Bank froze Diva Nails’s PPP funds soon after, and no more disbursements

were made.

With the PPP funds frozen, Ho again approached George for help. George explained to

Ho that, of all his companies, only SFX Transportation, Inc. had not filed an EIDL loan application.

They agreed that Ho would file the EIDL application for SFX and, in return, George and his

business partner (the majority owner of SFX) would get 10% of the funds. Ho opened an account

under SFX’s name at JPMorgan Chase, listing himself as signatory. George provided Ho with the

information necessary to complete the application. Because Ho did not have the requisite credit

score for an EIDL loan, he enlisted his brother-in-law, Luan Pham, to cosign the application and

falsely reported that Pham owned SFX.

The EIDL application was approved and $149,900 was deposited to the SFX account on

August 4, 2020. That same day, Ho disbursed the funds to four of George’s businesses through

cashier’s checks. George returned a portion of that money to accounts controlled by Ho. At trial,

Ho admitted that he was not affiliated with SFX but, nevertheless, the company’s EIDL application

contained his information , and he opened the Chase account, wrote the checks to George, and

-4-

(5 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 5

No. 22-1968, United States v. Ho

received money back from George. Ho explained that he thought this was “just a loan [he] would

have to pay back.”

C. Ho’s Criminal Proceedings

Ho was indicted in January 2022 on one count of conspiracy to commit wire fraud, in

violation of 18 U.S.C. § 1349; two counts of wire fraud, in violation of 18 U.S.C. § 1343; and two

counts of money laundering, in violation of 18 U.S.C. § 1957. George was also indicted and

pleaded guilty to wire-fraud conspiracy and aiding and assisting the filing of false tax returns in

2021. George’s wire-fraud-conspiracy charge related to the submission of 29 fraudulent PPP and

EIDL loan applications totaling over $4 million. His tax-fraud charge related to returns George

prepared on behalf of several clients to inflate their reported business expenses and reduce their

tax liability. At Ho’s trial, he was one of the government’s key witnesses.

1. Voir Dire

With Ho’s consent, a magistrate judge conducted voir dire. Following a detailed survey in

which the venire members provided demographic information, the magistrate judge instructed that

she would ask them questions collectively. If they had a response to one of her questions, they

were to raise their hands. The magistrate judge then asked a series of questions and, when a

prospective juror had a response, he or she raised a hand and the magistrate judge asked followup questions. After a series of questions elicited no responses from the venire, Ho’s counsel

requested that each prospective juror be required to verbally respond with a “yes” or “no.” The

magistrate judge declined, determining that, based on the venire members’ responses thus far, they

understood their obligation to raise a hand if they had a response to her questions.

-5-

(6 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 6

No. 22-1968, United States v. Ho

2. Evidentiary Rulings

Ho’s primary defense strategy at trial was to portray George as a liar who, unbeknownst to

Ho, included false information on the PPP loan application. The weekend before trial was set to

begin, Ho filed a proposed witness list including the tax clients whom George aided and assisted

in filing falsified returns, as well as the IRS special agents who worked the case. The government

then filed a motion in limine to preclude Ho from calling those witnesses, arguing that such

evidence was extrinsic and beyond the scope of permissible impeachment allowed by Federal Rule

of Evidence 609. Ho responded that the tax clients and IRS agents would “show that George

submitted fraudulent expenses on [] the tax payers [sic] returns, unbeknownst to the tax payers,”

which “shows a pattern of George acting on his own to make more money available for himself,

and the people that he is working for, without these other people knowing about it.” R.26, PageID

90.

The parties discussed the motion in limine with the district court before trial began. The

government explained that the tax clients’ and IRS agents’ testimonies would be improper extrinsic

evidence because the only extrinsic evidence that can be used to impeach a witness’s credibility is

his criminal conviction. Moreover, any testimony by those witnesses about George’s statements

would be inadmissible hearsay. If Ho wanted to ask George about the tax clients’ statements or

other extrinsic evidence, he could do so on cross-examination––as the government intended to ask

him about the tax-fraud conviction––but he could not submit that evidence to the jury.

The district court concluded that extrinsic evidence of a witness’s prior acts of

untruthfulness was admissible “if it goes to the impeachment of the witness, to his reputation for

truthfulness.” R.56, PageID 478. It ruled that the tax clients could testify that they were not aware

that George had falsified their returns because that “[went] to part of the conviction for which Mr.

-6-

(7 of 17)

Case: 22-1968

Document: 44-2

Filed: 03/04/2024

Page: 7

No. 22-1968, United States v. Ho

George has already pled guilty” and “to his reputation for . . . truthfulness.”1 Id. at 479. The court

ruled that the IRS agents, however, could not testify about the statements the tax clients made

because that would be hearsay.

When Ho called the tax clients to the stand, each asserted his or her Fifth Amendment right

against self-incrimination and became unavailable under Federal Rule of Evidence 804(a)(1).

Before that. Ho had requested that he instead be allowed to call his private investigator, Desiree

Edwards, to testify as to the statements the tax clients made to her. Or, alternatively, he requested

that he be allowed to call the IRS agents who interviewed the tax clients (and whom the court had

earlier determined could not testify). As a third option, Ho asked to submit as evidence the

memoranda prepared by the IRS agents summarizing their interviews with the tax clients.

The district court ruled that Edwards could not testify but admitted the IRS memoranda.

The court explained that Edwards’s testimony would lack the indicia of reliability and truthfulness

required by Rule 804 because it was “one step further removed from the actual statement[s] of the

witness[es]” than the IRS memoranda, which “are the actual statements of the witness rather than

the investigator’s interpretation in a subsequent questioning.” R.60, PageID 1034. The court

added that Edwards’s testimony was less reliable than the memoranda because she faced no

liability for the tax clients’ actions. In contrast, because the tax clients faced potential liability for

their statements to the IRS agents, the court determined the IRS memoranda were admissible

hearsay as statements against interest.

There is an error in the court transcript. It presents this statement as being made by Ho’s counsel,

Mr. Foster, rather than the court. The statement was clearly made by the court because it contains

an evidentiary ruling: “So with respect to the taxpayers, I’m going to let them testify. With respect

to the IRS agents, I agree with you, that’s hearsay and they can’t testify.” R. 56, PageID 479.

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The IRS memoranda contain summaries by the investigators of what the tax clients told

them, with few direct quotes from the tax clients.2 When asked by Ho’s counsel why the

memoranda were admissible but not the investigator’s testimony, the court stated that “there is a

rule against extraneous evidence on matters that are not central to the case,” and the reliability of

witnesses “generally may not be proved by . . . extraneous evidence.” Id., PageID 1035. The court

did not explain why the tax clients’ testimony and the memoranda, but not the investigator’s

testimony, passed this test.

II.

A. Voir Dire Process by the Magistrate Judge

On appeal, Ho first contends that the magistrate judge’s voir dire process violated his Sixth

Amendment right to a fair trial by an impartial jury because she did not require each prospective

juror to verbally answer “yes” or “no” to each question posed to the group, preventing Ho from

effectively exercising his peremptory challenges. The district court, including a magistrate judge

acting by the court’s authority, has a great deal of discretion in impaneling an impartial jury, and

we will not disturb exercises of that discretion absent a clear showing that it has been abused. See

Fed. R. Crim. P. 24; United States v. Tsarnaev, 595 U.S. 302, 313 (2022); United States v.

Martinez, 981 F.2d 867, 870 (6th Cir. 1992).

To illustrate, paragraph 12 of the first memorandum reads, “[The tax client] initially stated

George returns the returns line-by-line and stated nothing seemed out of the ordinary. [The tax

client] later corrected himself, stating George did not review the Schedule C business returns with

him.” App. R.34, pp. 4. In Ho’s proffer describing what his private investigator would testify to

regarding her conversation with the same tax client, he wrote: “[The tax client] said he didn’t

realize the information listed on his Schedule C document was fraudulent until the federal agents

informed him during the Zoom interview. [The tax client] said he went back to review the

documents himself and saw George had listed a business owned by him and his wife that didn’t

exist. He said he never would’ve noticed it if the agents hadn’t brought it to his attention.” R.31,

PageID 158–59.

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The Sixth Amendment guarantees an accused the right to be tried by an impartial jury.

U.S. Const. amend. VI. Voir dire supports this guarantee by eliciting responses from prospective

jurors that allow the court to disqualify potentially biased jurors and allow the parties to effectively

exercise their peremptory challenges. See Rosales-Lopez v. United States, 451 U.S. 182, 188

(1981). Peremptory challenges are guaranteed by statute, not the Constitution. Fed. R. Crim. P.

24(b); United States v. Martinez-Salazar, 528 U.S. 304, 311–12 (2000). Nevertheless, a judge

cannot conduct voir dire “in a manner that unduly impairs the defendant’s ability to exercise his

peremptory challenges.” Martinez, 981 F.2d at 870. Put differently, the court’s questions should

uncover the prospective jurors’ relevant biases. See id. at 870–71; United States v. Guzman, 450

F.3d 627, 632 (6th Cir. 2006).

That said, the court retains broad discretion on what questions it will ask and how it will

ask them. It must pose questions submitted by counsel only if it deems them appropriate, Fed. R.

Crim. P. 24(a), and can choose to voir dire the prospective jurors as a group or individually.

Guzman, 450 F.3d at 632–33 (explaining that “conducting the process before the entire panel can

actually lead to more open and thorough voir dire” because witnessing other potential jurors’

answers may cause venire members “to be more candid,” id. at 633). It is also up to the court

whether it, and not the parties, will examine the prospective jurors. Fed. R. Crim. P. 24(a); see

United States v. Farris, 733 F. App’x 237, 241 (6th Cir. 2018).

Ho contends that it was impossible to effectively exercise his peremptory challenges

because the majority of the venire did not provide answers to the magistrate judge’s questions. His

challenge rests on the premise that the prospective jurors’ silence in response to the magistrate

judge’s questions constituted non-answers. But impaneled jurors are presumed to be impartial,

and they are presumed to follow the trial court’s jury instructions. Guzman, 450 F.3d at 629. Here,

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after the venire was sworn in and each member provided demographic information, the magistrate

judge instructed:

[T]here’s a whole series of other questions that I’m going to ask to you collectively.

If you have a comment or want to add something or want to respond to this -- any

of these questions, I ask that you raise your hand and we’ll pass the microphone to

you. Okay?

R. 55, PageID 432.

It is clear that the prospective jurors understood their obligation to raise a hand if they had

something to say in response to the judge’s questions. Indeed, in response to the court’s second

question––whether the jurors had any involvement with PPP loans––two jurors raised their hands

to indicate a response. The magistrate judge asked follow-up questions to elicit details on their

involvement and dismissed one juror based on his answers. Over the course of voir dire, many of

the jurors raised their hands to respond to questions, some several times, and the magistrate judge

asked clarifying questions.3

Importantly, neither party objected to the magistrate judge’s proposed method after she

explained how she planned to conduct the voir dire. Indeed, Ho did not object to the magistrate

judge’s method until a string of eight questions went without any juror raising a hand to indicate

R. 55, PageID 441–43 (five jurors responding that they had experience in a lawsuit as a juror,

plaintiff, defendant or a witness); id., PageID 444–47 (six jurors responding that they or a family

member had a connection with a government agency); id., PageID 447–50 (two jurors responding

that they, a family member, or close friend had been the victim of a crime or a witness in a criminal

case); id., PageID 448–49 (two jurors responding that they had health problems which would cause

a difficultly in sitting as a juror); id., PageID 453–54 (one juror agreeing that the burden is on the

government to prove a defendant’s guilt or innocence beyond a reasonable doubt); id., PageID

458–60 (four jurors responding that they, a family member or a close friend had worked for a bank,

lender, loan processor, or other financial institution); id., PageID 460–62 (seven jurors responding

that they, a family member or a close friend owned a small business); id., PageID 463–64 (three

jurors responding that they been a victim of or otherwise affected by what they believed to be

fraud).

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a response. His counsel asked that each juror be made to answer the court’s questions with a verbal

“yes” or “no,” because “given the opportunity not to speak,” the jurors could “avoid answering the

question.” Id., PageID 451–52. The court overruled the objection and noted that “all of [the jurors

did] not hesitate to raise their hand to any question that [the court] had posed,” which suggested

that they had listened to her instructions and were abiding by their oath.4 Id., PageID 452.

Ho claims that the magistrate judge’s process deprived him of the information necessary

to exercise his peremptory challenges. Yet he fails to specify what that necessary information was.

The magistrate judge adequately covered the topics that were likely to come up in trial: she asked

whether any of the jurors knew Ho or key witnesses, whether they were familiar with the PPP and

EIDL programs, whether they had suffered financial fraud, whether they could judge a lawenforcement agent’s credibility the same as any other witness’s, and so on. Beyond a bare assertion

that the jurors’ silence constituted non-answers, Ho offers nothing to dispel the presumption––or

disprove the evidence––that the venire understood the magistrate judge’s instruction to raise a

hand if they had an affirmative response to her questions. Finally, Ho does not even allege that

after the exercise of his supposedly ill-informed peremptory challenges, he learned that any

empaneled juror was impartial or caused him to suffer an unfair trial.

B. Evidentiary Ruling by the District Court

Ho next contends that the district court violated his Sixth Amendment right to a fair trial

when it refused to admit the hearsay testimony from his private investigator about tax fraud aided

and assisted by George. We review the district court’s evidentiary rulings for abuse of discretion.

The government suggests that, to the extent Ho challenges the magistrate judge’s finding that the

jurors answered her questions, we should review that finding for clear error. Because Ho’s

challenge is to the magistrate judge’s overall process, not the specific finding following his

objection during voir dire, we review for abuse of discretion. Regardless, Ho’s argument fails

under that less stringent standard.

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Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378 (6th Cir. 2009). And if the district court

abused its discretion, we will not reverse harmless evidentiary errors. Cooley v. Carmike Cinemas,

Inc., 25 F.3d 1325, 1330 (6th Cir. 1994). In other words, if “substantially equivalent evidence of

the same facts was admitted,” and “the absence of the evidence had no effect on the final result of

the trial,” then any error is considered harmless. In re Air Crash Disaster, 86 F.3d 498, 526 (6th

Cir. 1996) (cleaned up). Because any evidentiary error committed by the district court here was

harmless, we affirm Ho’s conviction.

As explained above, Ho sought to introduce testimony from George’s tax clients that,

although they swore the contents of their tax returns were true, George had falsified the contents

without their knowledge. When the tax clients became unavailable, Ho asked that Edwards, his

private investigator, be allowed to testify as to what the tax clients told her under the statementagainst-interest hearsay exception. See Fed. R. Evid. 804(b)(3)(A). The district court did not

allow Ho to call Edwards for that purpose but did admit into evidence memoranda documenting

the tax clients’ statements to IRS investigators. The court explained that Edwards’s testimony was

extrinsic evidence and “one step further removed from the actual statement[s] of the witness[es]”

than the memoranda. R.60, PageID 1034.

Ho believes that the district court’s decision to admit the memoranda, but not Edwards’s

testimony, was an abuse of discretion for two reasons: first, because he was unable to directly

contradict George’s testimony that the tax clients had knowledge of the tax-fraud scheme, and

second, because the ruling limited his ability to advance the defense that George acted alone in

submitting the fraudulent loan applications. Regardless of whether the district court’s reasons for

distinguishing between Edwards’s testimony and the memoranda were incorrect, any evidentiary

error made as a result was harmless because, even if the jury had heard Edwards’s testimony, it

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would not have made a difference given the overwhelming evidence that Ho was complicit in the

fraudulent filings.

1. Conspiracy to commit wire fraud and wire fraud

Conspiracy to commit wire fraud requires the government to prove that “two or more

persons conspired, or agreed, to commit the crime of [wire fraud]” and “that the defendant

knowingly and voluntarily joined the conspiracy.” United States v. Rogers, 769 F.3d 372, 377

(6th Cir. 2014) (quoting Sixth Circuit Pattern Criminal Jury Instruction 3.01A); see 18 U.S.C.

§ 1349. Wire fraud itself consists of three elements: (1) willful participation in a scheme to

defraud, (2) the use of interstate wire communication “in furtherance of the scheme,” and (3) intent

“to deprive a victim of money or property.” See United States v. Faulkenberry, 614 F.3d 573,

580–81 (6th Cir. 2010); 18 U.S.C. § 1343.

The jury had ample reason to conclude that Ho willfully participated in a scheme to defraud

and intended to deprive the government of money. Ho testified that he is an experienced

businessman, owned two successful nail salons, and had experience applying for business

financing. He also testified that he had successfully applied for car and home loans and knew that

it was important to include accurate information on loan applications. Nevertheless, at trial he

admitted that he knew the information in the SFX EIDL loan application was false when he signed

it, certifying that its contents were true.

Ho did not admit that he falsified Diva Nails’s PPP loan applications. But he agreed that,

within 31 days, he submitted––and certified as true––three separate PPP loan applications with

wildly different employee headcounts and monthly payroll expenses. As noted, the first reported

eight employees and monthly payroll of $20,000. The second, submitted twelve days after the

first, ten employees and a monthly payroll of $50,000. The best explanation he could give for that

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discrepancy was that he hired two additional employees––in the middle of the pandemic, while his

business was closed. And minutes later, Ho said that he had no payroll expenses at the time. On

the third application, which Ho submitted with George’s assistance, the number of employees

jumped to 42 and the monthly payroll to $90,414. Ho admitted these numbers were false but

disclaimed knowledge of the inaccuracies at the time it was submitted. In the context of the first

two applications, and considering the evidence that Ho sent some of the PPP proceeds to George’s

businesses through Paychex, it is highly unlikely that the excluded evidence—which involved false

tax returns not fraudulent loan applications—would have swayed the jury to a not-guilty verdict.

2. Money laundering

Money laundering in violation of 18 U.S.C. § 1957 requires the government to prove five

elements: that (1) the defendant “engaged in a monetary transaction” in the United States;

(2) knowing “that the transaction involved criminally derived property”; (3) “the property was

greater than $10,000”; (4) the property derived from specified unlawful activity, which includes

wire fraud; and (5) the transaction occurred in the United States. United States v. Rayborn, 491

F.3d 513, 517 (6th Cir. 2007); see 18 U.S.C. § 1957.

Even if the jury heard Edwards’s testimony that the tax clients were unaware that George

falsified their returns, it still had plenty of evidence to conclude that Ho laundered money. The

government presented proof that Ho intentionally funneled the proceeds of the PPP and EIDL

loans to George. For the PPP loan, Ho opened an account at Citizens Bank to receive the proceeds

and an account with Paychex to distribute them to George’s business as “payroll.” He submitted

to Paychex the necessary paperwork to pay eleven entities associated with George. Once the PPP

proceeds hit the Citizens Bank account, Ho sent $16,500 to Paychex, which was then distributed

to the George-associated entities in $1,500 increments.

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For the EIDL loan, Ho admitted to opening a bank account for SFX, despite having no

affiliation with the company. He also stated that, on the same day he received the proceeds of the

EIDL loan, he disbursed the entire amount to four George-associated entities in cashier’s checks.

Ho explained he did this only because George told him to, but the cashier’s checks were labeled

as payments for domestic transports, retail space, storage equipment, and lighting supplies.

Finally, Ho admitted that George returned a portion of the funds––$15,000 to an account under

Ho’s name opened just one day prior and $14,650 to Diva Nails’s bank account. All told, there

was overwhelming evidence that Ho knew the proceeds from the PPP and EIDL loans were the

result of unlawful activity and carried out financial transactions with that knowledge.

III.

For the reasons set forth above, we AFFIRM Ho’s conviction.

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APPENDIX C

Case: 22-1968

Document: 44-3

Filed: 03/04/2024

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-1968

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FILED

Mar 04, 2024

KELLY L. STEPHENS, Clerk

JOHNNY HO,

Defendant - Appellant.

Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

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APPENDIX D

Case: 22-1968

Document: 46-1

Filed: 04/25/2024

Page: 1

No. 22-1968

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JOHNNY HO,

Defendant-Appellant.

)

ORDER

BEFORE: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court.* No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

Judge Davis recused herself from participation in this ruling.

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Case: 22-1968

Document: 46-2

Filed: 04/25/2024

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Kelly L. Stephens

Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: April 25, 2024

Mr. Mitchell T. Foster

Law Office

P.O. Box 798

Milford, MI 48381

Re: Case No. 22-1968, USA v. Johnny Ho

Originating Case No.: 2:22-cr-20021-1

Dear Mr. Foster,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Beverly L. Harris

En Banc Coordinator

Direct Dial No. 513-564-7077

cc: Mr. John Benton Hurst

Mr. Jeremy Raymond Sanders

Enclosure

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.