United States v. Alexander Oriho d/b/a Rhino’s Med. Trans, LLC (9th Cir. August 2020)

The Federal Docket

Fifth Amendment – A district court’s repatriation order is reviewed de novo for alleged violations of a defendant’s Fifth Amendment privilege against self-incrimination.

Forgone Conclusion Exception – A district court’s application of the foregone conclusion exception is reviewed for clear error.

Limited Use Immunity – The government’s use of “pocket immunity” rather than full immunity was not sufficient to overcome infringement of the defendant’s self-incrimination rights.

Alexander Oriho owned a non-emergency medical transportation company and was indicted on 43 counts of health care fraud, identity theft, and money laundering.  The indictment alleged he billed false transport claims amounting to over $7.2M and transferred proceeds to two banks in Kenya and Uganda.  Detailed bank transactions in the indictment identified $760,000 of actual transfers and the motion for repatriation referenced $2.4M in wire transfers.

The Court reviewed de novo Oriho’s challenge to the repatriation motion as a non-testimonial communication protected by the self-incrimination privilege.  The Court held that the act of production implicated Oriho’s privilege in communicating pre-trial transfer of funds for forfeiture because the order was compulsory, demands for transfer information from any bank is a communication, requesting unnamed bank accounts relied on Oriho’s truth-telling, and revealing transfers unknown to the government posed a real threat of incrimination.

The Court reviewed for clear error the district court’s use of the forgone conclusion exception to circumvent the self-incrimination privilege.  The Court held that the district court relied on transfer amounts listed in the indictment and government motion without supporting evidence of transfer.   The government could not independently verify the transfers existed or that they were in Oriho’s control, so the district court’s application of the foregone conclusion was clear error.  The Court vacated the repatriation order and remanded for an evidentiary hearing since any compelled amount greater than $760,000 violated Oriho’s self-incrimination privilege.

The Court also reviewed exchange of privilege for immunity and held that the government’s informal promise of immunity in their case-in-chief did not sufficiently override the order’s harm to Oriho’s constitutional rights.   The district court repatriation order was vacated.

Appeal from the District of Arizona

Opinion by Tallman, joined by Siler and Hunsaker

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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