Two criminal decisions from the 9th Circuit today.
First, in United States v. Fuentes-Galvez, --- F.3d ---, No. 18-10150 (9th Cir. 2020), the Court vacated the defendant's conviction for illegal reentry in light of the magistrate judge’s egregious failure to comply with Fed. R. Crim. P. 11(b)(2)’s requirements of establishing that the defendant’s plea was voluntary.
Specifically, "the magistrate judge did not engage in direct inquiries regarding force, threats, or promises, nor did he address competence to enter the plea."
"By failing to confirm that he was competent and intelligent to enter the plea at the time of the hearing, the court did not ensure that his plea was knowing and voluntary."
"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. Finally, the district court’s plain error was sufficiently serious to impinge on the fairness, integrity or public reputation of judicial proceedings.' The voluntariness of a guilty plea is a constitutional requirement under the Due Process Clause of the 5th Amendment."
"In this case, the district court’s plain error prevented the court from creating a record that establishes voluntariness as required by the Due Process Clause and Rule 11. We reverse and remand the conviction."
Second, in United States v. Oriho, --- F.3d ---, No. 19-10291 (9th Cir. 2020), the Court vacated the district court's repatriation-of-funds order on Fifth Amendment grounds.
"Alexander Oriho, who was indicted on healthcare fraud and money laundering charges, challenges a pre-trial repatriation order entered by the district court as a violation of his Fifth Amendment privilege against self-incrimination."
"To preserve funds for potential forfeiture, the order requires Oriho to repatriate any proceeds of the fraudulent scheme that he may have transferred to any African bank during a three-year period[.]"
The Court "conclude[d] that the challenged order compels Oriho to incriminate himself by personally identifying, and demonstrating his control over, untold amounts of money located in places the government may not presently know about. We also conclude that the district court failed to apply the proper “foregone conclusion” exception test, relieving the government of its obligation to prove its prior knowledge of the incriminating information that may be implicitly communicated by repatriation. The order thereby allows the government to shirk its responsibility to discover its own evidence. The government’s narrow promise of limited use immunity is insufficient to counterbalance these harms."
"We vacate and remand with instructions to conduct an evidentiary hearing designed to elicit from the government evidence supporting a more limited repatriation order. If the evidence satisfies the proper foregone conclusion test, the district court will also need to ascertain whether the government must offer broader immunity to sufficiently protect Oriho’s Fifth Amendment privilege by ordering strict compliance with 18 U.S.C. §§ 6001–03."
Of note, the Court asserted interlocutory jurisdiction under 28 U.S.C. § 1292(a)(1), which applies to appeals arising from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions.”
In rejecting the government's arguments, the Court explained: "We are unpersuaded by the government’s inapt case citations when caselaw teaches that the Fifth Amendment inquiry is unique to each situation and “often depends on the facts and circumstances of the particular case.” Because the facts at bar involve potential communications implicit in the act of transferring funds, the most analogous caselaw relates to information disclosed through the 'act of production[.]'"
"As discussed above, the repatriation order may force Oriho to incriminate himself by revealing the location of bank accounts and potentially numerous other transfers of criminally derived funds that are presently unknown to the government. The government could improperly use that information to support the current charges, bring additional charges, or even to file a new indictment against Oriho for violating other criminal provisions of state or federal law that he might reveal in complying with the repatriation order."
"Only full use immunity would override any compelled violation of the self-incrimination privilege."
The Court also found the district court clearly erred in its application of the foregone conclusion exception, "which allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel."
"The foregone conclusion exception was
improperly applied, and the government’s limited use
immunity promise is insufficient to alleviate the order’s
harms to Oriho’s constitutional rights. We must therefore
vacate the district court’s order."
