Note: the two cases (and two wins) were both from the Arizona FPD Office.

1. US v. Fuentes-Galvez, No. 18-10150 (8-10-20)(Sessions w/Fletcher & R. Nelson). The 9th reversed and remanded a conviction and sentence for egregious errors in the change of plea. The defendant plead guilty to illegal reentry, 8 USC 1326. The 9th considered the Rule 11 change of plea hearing and colloquy truncated, incomplete, and meeting plain error standards. The magistrate judge failed to adhere to the requirements of Rules 11(b)(1)(D), (E), (G), (M) and Fed R Crim P 11(b)(2). The magistrate judge omitted standard Rule 11 inquiries while combining others. The court critically failed to ask about the defendant’s competency or understanding, whether the plea was knowingly and voluntarily given, whether he was under the acre of a physician or taking medications, or whether he understood his attorney or was satisfied with counsel. The court did not discuss the guidelines, clearly inform the defendant of certain constitutional rights, or that counsel could be with him at trial. The court further did not address whether his plea resulted from force or threats. The magistrate court accepted the plea and recommended to the court to accept it. The court accepted the plea but rejected the agreement for guideline errors. The district court then rejected a revised plea. The defendant then pled without an agreement. The district court did not engage in a colloquy about the plea to the charge. The court sentenced him to 42 months, a sentence a year longer than top of the guidelines range.

The 9th found the change of plea lapses prejudicial. The 9th found violations with Rule 11; it questions the voluntariness (as the district court accepted the straight up plea). The defendant had little schooling, a history of mental health disorders, including PTSD, depression, and anxiety. He also had medical physical ailments. There was a reasonable probability that the errors affected his decision to plead guilty. The 9th rejected the government’s arguments that the court did ask if the plea was voluntary and the defendant said “yes;” the court could evaluate the defendant’s demeanor; and the defendant could have consulted with counsel. For the 9th, the errors were too much to have confidence that the plea was voluntary.

One of our appellate lawyers (Ryan Moore) with Lee Tucker (the winning advocate) raise this question as to the interplay between the rules and voluntariness: What extent does the opinion create an exception, or at least wiggle room, where the Rule 11 error was an inadequate colloquy, as to whether the plea was knowing and voluntary, to the usually insurmountable hurdle under the third plain-error prong in United States v. Dominguez Benitez, 542 U.S. 74 (2004), that “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea”? Now, if a plea was even potentially not knowing and voluntary (due, e.g., to relatively unremarkable medical or language factors), an inadequate colloquy alone satisfies that burden. See op. (“Fuentes-Galvez showed that there was a reasonable probability that the error may have affected his decision to plead. See United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005). Under the totality of the circumstances, the lower court’s failure to make further inquiries created a significant enough risk of overlooking potential involuntariness to meet this burden.”)

Congrats to Lee Tucker, AFPD, D. Ariz (Tucson).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/10/18-10150.pdf

2. US v. Oriho, No. 19-10291 (8-10-20)(Tallman w/Siler & Hunsaker). The defendant was charged with fraud; the monies allegedly sent to banks in Africa. Can the Court order the defendant to repatriate the funds “out of Africa” to preserve the funds for potential forfeiture. (We are talking about $7,287,000). The 9th vacates the order to repatriate as violating the Fifth Amendment right against self-incrimination and remands for an evidentiary hearing.

The defendant is alleged to have committed healthcare fraud in an extensive indictment. The indictment specifically alleges two transfers to two banks in Uganda and Kenya, totaling $760,000. The government though says it can prove that $2,400,000 was wired to Africa since 2016.  Trust us, says the government, we can trace it. And order the defendant to contact the banks, and any other banks in Africa to return (repatriate) the funds. The government said that it wouldn’t divulge how the funds were returned to the jury. The court granted the order. The defendant took an interlocutory appeal.

The 9th held (1) that interlocutory was appropriate; and (2) that the court’s order was overbroad and the government’s limited immunity and assurances too narrow.  By forcing the defendant to repatriate the funds, basically under a restraining order, the government was violating the 5th Amendment right against self-incrimination. The order would force the defendant to identify and demonstrate his control over untold funds squirreled in bank accounts unknown to the government. The court, the 9th concluded, failed to apply the proper “foregone conclusion” test; that is, the government already knew where the funds were, amounts, dates and places.

Looking at the 5th Amendment, in this first impression context, the 9th held that the protections extended to the repatriation for forfeiture.   In Fisher v. US, 425 US 391 (1976), the Supreme Court set forth a four part test to see if the 5th was implicated: (1) compulsion is involved; (2) a statement is being communicated; (3) the statement relies on the truthfulness of the defendant; and (4) the statement carries a risk of self-incrimination. Examining each in its turn, the 9th concludes that the 5th’s privilege is invoked.

This contrasts with Doe v. US, where the Court upheld a consent directive to banks. The distinction is that the consent directive there was hypothetical, and it rested upon the government to find the banks. In contrast here, repatriating the funds points the way to the banks where other evidence may be found; and where links in chains can be forged.

Congrats to Dan Kaplan, AFPD, D. Ariz (Phoenix) for the appellate win (the “first impression” was a good first impression); and Zack Cain, AFPD, Phoenix, for setting the issue, framing it, and extensively briefing it as a 5th Amendment violation. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/10/19-10291.pdf