United States v. Waknine ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50521
v.  D.C. No.
HAI WAKNINE, CR-04-00373-R
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-50713
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00373-R-1
HAI WAKNINE,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
March 3, 2008—Pasadena, California
Filed September 10, 2008
Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Ikuta
12551
12556 UNITED STATES v. WAKNINE
COUNSEL
Ronald Richards, Beverly Hills, California, David Kenner,
Encino, California, for the defendant-appellant.
George S. Cardona, United States Attorney, Thomas P.
O’Brien, Assistant United States Attorney, Chief, Criminal
Division, Patrick W. McLaughlin, Assistant United States
Attorney, Los Angeles, California, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Hai Waknine appeals his sentence of 121 months of impris-
onment and $646,000 in restitution payments imposed by the
district court after he pleaded guilty to one count of racketeer
influenced and corrupt organizations (“RICO”) conspiracy, in
violation of 18 U.S.C. § 1962(d), for laundering proceeds by
embezzling from the Tel Aviv Trade Bank and brokering
loans through extortion. He argues that (1) the government
violated the plea agreement by not orally recommending at
the sentencing hearing a 108-month prison term pursuant to
the plea agreement, (2) the district court violated Rule 32 of
the Federal Rules of Criminal Procedure by not giving the
government an opportunity to speak at the sentencing hearing,
(3) the district court committed procedural error by not con-
sidering the 18 U.S.C. § 3553(a) factors before imposing his
sentence, and (4) the district court erred in its restitution cal-
culation. Waknine also asks us to remand this case to a differ-
ent district judge. We have jurisdiction under 28 U.S.C.
§ 1291. We conclude that there was plain error in the sentenc-
ing, and we therefore vacate the sentence, and remand with
instructions for the district court properly to calculate the
United States Sentencing Guidelines range, to discuss the 18
U.S.C. § 3553(a) factors in rendering sentence, and to comply
UNITED STATES v. WAKNINE 12557
with Rule 32 of the Federal Rules of Criminal Procedure by
permitting each party to be heard before announcing the sen-
tence. We also vacate the district court’s restitution order, and
remand for recalculation and explanation of restitution pay-
ments. Finally, we reject Waknine’s request for a new sen-
tencing judge.
I
On December 7, 2004, Waknine was indicted on 46 counts,
charging him, among other things, with participation in a
RICO conspiracy in violation of 18 U.S.C. § 1962(d). Wak-
nine at first pleaded not guilty and his case went to trial. On
June 13, 2006, after five days of trial, Waknine entered a
guilty plea to one count of RICO conspiracy, pursuant to a
plea agreement. The plea agreement included a sentencing
agreement that explicitly said, “At the time of sentencing, the
government agrees to recommend that defendant be sentenced
to a 108-month term of imprisonment.”
The Presentence Investigation Report (“PSR”) calculated a
total offense level of 31 and Waknine’s criminal history cate-
gory at II. The PSR therefore recommended a United States
Sentencing Guidelines (“Guidelines”) range of 121 to 151
months of imprisonment. The PSR also stated that Waknine
and the government agreed that he should receive a sentence
of 108 months of imprisonment.
On September 7, 2006, Waknine filed his specific objec-
tions to the PSR. Among his objections, Waknine argued that
the district court should lower his criminal history category
from II to I. Waknine argued that several of his predicate con-
victions were not properly considered for purposes of his
criminal history score because they were committed outside
the applicable time period and because there was no evidence
that he waived his right to counsel. See U.S.S.G. § 4A1.2(e).
Also on September 7, 2006, four days before the sentencing
hearing, the government filed its sentencing memorandum
12558 UNITED STATES v. WAKNINE
and explicitly recommended that the district court impose a
108-month term of imprisonment. At the sentencing hearing
on September 11, 2006, the district court invited Waknine’s
counsel to make a statement on the record and permitted
Waknine to allocute. However, without permitting the gov-
ernment any opportunity to speak before imposing sentence,
the district court pronounced Waknine’s sentence of 121
months of imprisonment. Soon thereafter, the government
sought clarification from the district court, reminding the dis-
trict court that it had recommended a 108-month term of
imprisonment in its sentencing memorandum and inquiring as
to how the court arrived at the 121-month sentence. The dis-
trict court responded, “It would be on a criminal history cate-
gory I, 121 months, which is the mid of the range.”
In a subsequent hearing on December 11, 2006, the district
court considered the restitution claims submitted by the gov-
ernment. The government requested that Waknine pay restitu-
tion to victims Eliyahu Hadad and Viken Keuylian. In May
2002, Hadad, a real estate investor in Miami, received loans
from Waknine and his co-conspirators. In April 2003, Wak-
nine and his co-conspirators met with Hadad in Florida,
threatened physical injury to Hadad if he failed to repay the
loan, and brought him to Waknine’s lawyer who drafted and
executed a mortgage note obligating Hadad to pay $336,000
if the debt was paid by September 25, 2003, and $500,000 if
the debt was paid after that date. Because of the inconsisten-
cies in Hadad’s testimony and his statements in his victim loss
summary, and the conflicting testimony of cooperating wit-
nesses, the government could not discern the actual amount
loaned to Hadad.1 Therefore, the government requested that
Hadad receive $131,000 in restitution: $100,000 in attorneys’
fees, $25,000 in interest on a mortgage taken out by Hadad to
repay the loan he received from Waknine and his co-
conspirators, and $6000 in travel costs incurred from partici-
1
The government could only estimate that the total amount loaned to
Hadad fell somewhere between $250,000 and $595,000.
UNITED STATES v. WAKNINE 12559
pating in Waknine’s investigation and prosecution. At the res-
titution hearing, the district court ordered Waknine to pay
Hadad $371,000 in restitution. To arrive at this number, the
district court added the $131,000 requested by the govern-
ment to the difference the district court calculated between the
amount of money the district court determined Hadad repaid
to the co-conspirators, $580,000, and the amount he was
loaned, which the district court determined was $345,000.
The district court provided no explanation for how it arrived
at these figures.
Keuylian, the owner of a Lamborghini dealership in Bev-
erly Hills, became involved with Waknine and his co-
conspirators after he told Waknine he was looking for inves-
tors to provide funds for the purchase of high-end vehicles.
Keuylian planned to purchase vehicles in Europe, convert
them to United States specifications, and split the profits with
the investors at the time of the sale. On behalf of the co-
conspirators, Waknine wired $450,000 to Keuylian. In March
2003, Waknine and his co-conspirators visited Keuylian at his
car dealership to demand immediate repayment of the loan.
Waknine later left several threatening voicemail messages on
Keuylian’s cell phone, once threatening to take $2 million
from Keuylian if he failed to repay the loan. Keuylian spent
money providing and repairing vehicles for Waknine and his
co-conspirators, including providing Waknine with a
$175,000 Ferrari 360. Finally, Keuylian transferred $698,000
to Waknine’s attorney’s client trust account to pay off his
debt. The government requested that Waknine pay restitution
to Keuylian in the amount of $275,000: $250,000 in attor-
neys’ fees and $25,000 in investigator’s fees. At the restitu-
tion hearing, the district court ordered Waknine to pay
Keuylian $275,000 in restitution.
Waknine timely filed a notice of appeal, challenging his
sentence and the district court’s restitution order.
12560 UNITED STATES v. WAKNINE
II
Waknine challenges his 121-month sentence on three
grounds. Waknine did not raise these objections to his sen-
tence before the district court, and thus we review each claim
for plain error. See United States v. Ameline, 409 F.3d 1073,
1078 (9th Cir. 2005) (en banc). “Plain error is ‘(1) error, (2)
that is plain, and (3) that affects substantial rights.’ ” Id.(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
If these three conditions are met, we may then exercise our
discretion to grant relief if the error “seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings.”
Id. (quoting Cotton, 535 U.S. at 631); see also United States
v. Olano, 507 U.S. 725, 732 (1993).
A
Waknine contends that the government violated the plea
agreement because it did not recommend at the sentencing
hearing, before the district court imposed the 121-month sen-
tence, that the district court sentence Waknine to 108 months
of imprisonment.2
[1] “In interpreting plea agreements, the government is to
be held to the literal terms of the agreement, and ordinarily
must bear responsibility for any lack of clarity.” United States
v. Baker, 25 F.3d 1452, 1458 (9th Cir. 1994) (internal quota-
tion marks omitted). “To decide whether a plea agreement has
been breached, this court considers what the defendant rea-
sonably understood when he pled guilty.” United States v.
Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988).
Waknine’s claim centers on the construction and applica-
2
At the sentencing hearing, Waknine did not claim that the government
breached the plea agreement. Thus, Waknine did not preserve this issue
for appeal and we review the claim for plain error. United States v. Can-
nel, 517 F.3d 1172, 1175-76 (9th Cir. 2008).
UNITED STATES v. WAKNINE 12561
tion of the following term of the plea agreement: “At the time
of sentencing, the government agrees to recommend that
defendant be sentenced to a 108-month term of imprison-
ment.” Notably, four days before the sentencing hearing, the
government filed a sentencing memorandum in which it
expressly recommended “that defendant Hai Waknine be sen-
tenced to nine years imprisonment.” If this written recommen-
dation satisfies the contractual obligation, as the government
argues, then there was no breach. Waknine argues, to the con-
trary, that the plea agreement required that the government
recommend a 108-month sentence at the sentencing hearing,
before the district court imposed a sentence. If we adopt Wak-
nine’s interpretation of the plea agreement, then there was a
breach because at the sentencing hearing the district court
announced Waknine’s sentence without first hearing from the
government. The district court only heard from the govern-
ment after it imposed Waknine’s sentence, at which time the
government reminded the district court that it “had recom-
mended a nine-year sentence in this case.”
[2] Waknine argues that the pre-hearing sentencing memo-
randum and the post-sentencing recommendation at the hear-
ing were insufficient to satisfy the government’s obligation
under the plea agreement to recommend “at the time of sen-
tencing” a 108-month prison term. He asserts that the plea
agreement required the government orally to recommend the
108-month prison term at the sentencing hearing before the
district court sentenced Waknine. The government, on the
other hand, contends that it fulfilled its obligations under the
plea agreement by recommending a nine-year (108-month)
prison term in its sentencing position memorandum, and by
reminding the district court of that recommendation post-
sentencing. This issue of contract interpretation on the plea
agreement turns on whether the phrase “at the time of sen-
tencing” refers to the sentencing hearing alone, or whether it
also includes the days preceding the hearing, during which
parties file sentencing position memoranda.
12562 UNITED STATES v. WAKNINE
[3] Ordinarily, we construe an ambiguity in a plea agree-
ment in favor of the defendant. See United States v. Clark,
218 F.3d 1092, 1095 (9th Cir. 2000). Here, however, Wak-
nine did not preserve his claim of alleged plea agreement
breach in the district court. Both Waknine and the government
present plausible constructions of the disputed phrase—“at
the time of sentencing.” We conclude that the phrase in the
plea agreement is ambiguous. It follows that the alleged error
is neither clear nor obvious, and hence does not qualify as
plain error. See Olano, 507 U.S. at 734. We hold that the gov-
ernment’s alleged error does not permit relief under the “plain
error” standard.
Moreover, there is no prejudice, no showing that substantial
rights were violated, so Waknine’s theory also fails on the
third prong of plain error review. See Ameline, 409 F.3d at
1078 (“He must establish ‘that the probability of a different
result is sufficient to undermine confidence in the outcome of
the proceeding.’ ” (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). Because the district court
was advised of the government’s position in the sentencing
memorandum and almost immediately after the announced
sentence, Waknine has not met his burden of showing that the
government’s voicing of its known position at the hearing
before sentence was announced would have led the district
court to reach a different conclusion.
B
[4] Waknine also argues for the first time on appeal that the
district court violated Rule 32(i)(4)(A)(iii) of the Federal
Rules of Criminal Procedure by not giving the government an
opportunity to speak before imposing a sentence. Rule 32, in
pertinent part, provides that before imposing sentence the
court must “provide an attorney for the government an oppor-
tunity to speak equivalent to that of the defendant’s attorney.”
Fed. R. Crim. P. 32(i)(4)(A)(iii); see also United States v.
Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) (“The par-
UNITED STATES v. WAKNINE 12563
ties must be given a chance to argue for a sentence they
believe is appropriate.”).
[5] As we see it, the district court disregarded the express
command of Rule 32 when it announced Waknine’s sentence
before the government had spoken at the hearing. Possibly
this might be viewed as inconsequential if we considered the
government’s sentencing memorandum to be a statement at
the time of the hearing. However, the plain language of Rule
32 appears to contemplate that the government, like the defen-
dant, will have an opportunity for a speaking role at the sen-
tencing hearing before the district court has made a decision
on the sentence. This is what we consider to be the normal
reading of Rule 32, which here establishes what the court
must do before imposing sentence and which provides that the
opportunity of the government to speak shall be “equivalent
to that of the defendant’s attorney.” Thus, it cannot make
sense under this rule to have the defendant speak and then the
court announce its sentence without letting the government
speak responsively. The district court, therefore, plainly erred
when it permitted Waknine and his counsel to speak but did
not give the government an opportunity to speak before
imposing a sentence of 121 months of imprisonment. See
Ameline, 409 F.3d at 1078.
However, under the third prong of plain error review, we
must examine whether the district court’s error affected Wak-
nine’s substantial rights. Id.; see also United States v. Dall-
man, ___ F.3d ___, No. 05-30349, 2008 WL 2736010, at *5-
6 (9th Cir. July 15, 2008). Waknine “bears the burden of per-
suading us that his substantial rights were affected.” Ameline,
409 F.3d at 1078. He must establish that the probability of a
different sentence “ ‘is sufficient to undermine confidence in
the outcome of the proceeding.’ ” Id. (quoting Dominguez
Benitez, 542 U.S. at 83).
[6] Where a district court denies a defendant the opportu-
nity to allocute before sentencing, we have found nonharm-
12564 UNITED STATES v. WAKNINE
less error that affected the defendant’s substantial rights. See
United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir. 1993).
Waknine does not allege such an error, however, because the
district court gave Waknine an opportunity to speak at the
sentencing hearing, and Waknine used that opportunity to
request a lenient sentence. Instead, Waknine argues that his
rights were affected when the district court did not give the
government an opportunity to speak before sentencing. Wak-
nine fails to persuade us. The government recommended a
108-month prison term in the sentencing memorandum it sub-
mitted to the district court four days before the sentencing
hearing and referred the district court to that recommendation
shortly after the district court imposed Waknine’s 121-month
sentence. Moreover, the district court’s reference to criminal
history category I supports the inference that the court had
familiarized itself with the parties’ filings.3 Given that the
108-month recommendation was before the district court in
the government’s sentencing memorandum and was brought
to the district court’s attention shortly after the announced
sentence, Waknine has not demonstrated that the govern-
ment’s oral recommendation at the hearing before sentencing
would have changed the district court’s conclusion as to the
appropriate prison term. Reviewing for plain error, we hold
that the district court’s Rule 32(i)(4) error is not grounds for
vacating the sentence.
C
[7] Finally, Waknine argues that the district court erred by
not considering the 18 U.S.C. § 3553(a) (“§ 3553(a)”) sen-
3
To the extent that Waknine is contending that the district court violated
Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure, we conclude
that the district court did not plainly err by resolving Waknine’s factual
objection to his criminal history category after the imposition of sentence.
Given that the district court resolved this factual dispute in Waknine’s
favor (by applying a criminal history category I instead of criminal history
category II), any error did not affect Waknine’s substantial rights. See
Ameline, 409 F.3d at 1078.
UNITED STATES v. WAKNINE 12565
tencing factors before imposing a sentence of 121 months of
imprisonment.4 In light of Gall v. United States, ___ U.S. ___,
128 S. Ct. 586, 596-97 (2007), the district court plainly erred
by not considering any of the § 3553(a) sentencing factors.
See Ameline, 409 F.3d at 1078 (noting that “[a]n error is plain
if it is contrary to the law at the time of appeal” (internal quo-
tation marks omitted)). The district court’s error here was
patent insofar as the district court gave no reasons in reference
to the § 3553(a) factors before imposing the sentence. We
note that the district court, on the government’s query after
sentencing, said that it was sentencing at the mid-point of the
Guidelines range, viewing the criminal history as I, so the dis-
trict court’s basic reasoning is known to us. However, there
was no contemporaneous announcement of the calculated
Guidelines range or satisfaction of the requirement that the
sentence be reconciled for reasonableness in light of the
§ 3553(a) factors. This leaves us with an uncertain application
of the plain error standard. It is clear that the district court’s
approach to sentencing in this case was plain error, as the
Supreme Court in Gall has made clear that the Guidelines
should be calculated as a starting point and that the district
court should consider the § 3553(a) factors in reaching a rea-
sonable sentence, viewing the Guidelines range as discretion-
ary. Gall, ___ U.S. at ___, 128 S. Ct. at 596-97; see also
Carty, 520 F.3d at 991. However, in this case, the district
court sentenced Waknine in 2006 before having the benefit of
both the Supreme Court’s decision in Gall and our follow-on
decision in Carty. From that standpoint, a sensible argument
can be made that we should vacate and remand for the district
court to resentence in the light of those precedents. That
would surely be correct if there had been objection to the sen-
tencing procedure, but the answer is not entirely clear on plain
error review.
4
Under our precedent in United States v. Knows His Gun, 438 F.3d 913(9th Cir. 2006), cert. denied, 547 U.S. 1214 (2006), where a defendant
does not object at sentencing to the district court’s failure to sufficiently
address and apply the § 3553(a) factors, we review such a claim on appeal
for plain error. Id. at 918.
12566 UNITED STATES v. WAKNINE
[8] Although we see plain error, the issue remains as to
whether Waknine has demonstrated a reasonable probability
that he would have received a different sentence if the district
court had expressly considered the § 3553(a) factors. See
Ameline, 409 F.3d at 1078 (“He must establish ‘that the prob-
ability of a different result is sufficient to undermine confi-
dence in the outcome of the proceeding.’ ” (quoting
Dominguez Benitez, 542 U.S. at 83)); see also Olano, 507
U.S. at 734 (“It is the defendant rather than the Government
who bears the burden of persuasion with respect to preju-
dice.”). Although it is a close question whether Waknine can
satisfy the third prong of the plain error test, we conclude that
the district court’s total failure to announce its calculated
Guidelines range to the parties and to consider expressly the
§ 3553(a) factors is such a serious departure from established
procedures that we will not reject the appeal because of the
prejudice prong of plain error review. When combined with
the district court’s violation of Rule 32, the district court’s
complete failure to abide by the required sentencing proce-
dures is sufficient to support the inference “that the error must
have affected the outcome of the district court proceedings.”
Cotton, 535 U.S. at 632 (internal quotation marks omitted).
Given the flagrant nature of the district court’s error, which
in our judgment “seriously affect[s] the . . . public reputation
of judicial proceedings,” Johnson v. United States, 520 U.S.
461, 467 (1997) (internal quotation marks omitted) (alteration
in original), we exercise our discretion to notice the forfeited
error, vacate Waknine’s sentence, and remand for resentenc-
ing. We trust that at resentencing, the district court, being
fully advised, will announce the correctly-calculated Guide-
lines range, will discuss the § 3553(a) factors that render a
sentence reasonable, and will be certain to let the parties
speak, as required by Rule 32, before announcing a sentence.
III
Waknine also challenges the district court’s restitution
order on three grounds. Waknine raised these issues before
UNITED STATES v. WAKNINE 12567
the district court, and so the “restitution order is reviewed for
an abuse of discretion, provided it is within the bounds of the
statutory framework. Factual findings supporting an order of
restitution are reviewed for clear error. The legality of an
order of restitution is reviewed de novo.” United States v.
Gordon, 393 F.3d 1044, 1051 (9th Cir. 2004) (quoting United
States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998)).
[9] The Mandatory Victims Restitution Act (“MVRA”)
requires mandatory restitution for crimes of violence and
property offenses. 18 U.S.C. § 3663A. Because Waknine
pleaded guilty to a RICO offense, which is characterized as
a violent offense under 18 U.S.C. § 16, he must pay restitu-
tion to any person “directly and proximately harmed as a
result of the commission of [the] offense.” 18 U.S.C.
§ 3663A(a)(2). The district court ordered that Waknine pay
restitution to Eliyahu Hadad in the amount of $371,000 and
Viken Keuylian in the amount of $275,000. Waknine chal-
lenges this order by arguing that (1) the district court erred in
its restitution calculation by utilizing figures not advocated by
the government nor supported by the facts in evidence; (2) the
government failed to establish by a preponderance of the evi-
dence the restitution claimants’ entitlement to the amounts
awarded; and (3) the district court improperly awarded the
restitution claimants travel expenses and investigation costs.
We conclude that the district court erred in calculating the
amount Waknine owed in restitution, that the government did
not establish by a preponderance of the evidence the amount
of restitution owed, and that the government did not demon-
strate by a preponderance of the evidence that the investiga-
tion costs incurred by the victims were a direct result of
Waknine’s RICO offense conduct.
A
[10] First, Waknine argues that the district court erred in
calculating the amount of restitution Waknine was required to
pay to Hadad. We agree. At the restitution hearing, while
12568 UNITED STATES v. WAKNINE
attempting to determine the amount of money Hadad lost on
his loan with Waknine, the district court stated, “It should be
the difference between $345,000 that he got and 580 that he
had to pay back. The difference is 240,000 . . .” The differ-
ence between $580,000 and $345,000 is $235,000. The dis-
trict court thus clearly erred by including an additional $5000
in Waknine’s restitution order.
B
Next, Waknine argues that the government failed to estab-
lish by a preponderance of the evidence the restitution claim-
ants’ entitlement to the amounts awarded by the district court.
After reviewing the record, we conclude that the district court
gave an inadequate explanation as to how it determined
Hadad’s award amount and insufficient reasoning as to why
it accepted the nonitemized victim affidavits without requir-
ing evidence or proof that all costs incurred were directly
related to Waknine’s convictions. See United States v. Menza,
137 F.3d 533, 538 (7th Cir. 1998).
[11] Under 18 U.S.C. § 3664 (“§ 3664”), a dispute as to the
proper amount of restitution must be resolved by the district
court by a preponderance of the evidence. 18 U.S.C.
§ 3664(e); see also United States v. Clayton, 108 F.3d 1114,
1118 (9th Cir. 1997). The government bears the burden of
proving that a person or entity is a victim for purposes of res-
titution, Baker, 25 F.3d at 1455, and of proving the amount
of the loss, 18 U.S.C. § 3664(e). The district court is not
required to make explicit findings to justify its restitution
order, but “may refer any issue arising in connection with a
proposed order of restitution to a magistrate judge or special
master for proposed findings of fact.” 18 U.S.C. § 3664(d)(6).
We conclude that § 3664 recognizes that specific findings of
fact are necessary at times and contemplates that the district
court will set forth an explanation of its reasoning, supported
by the record, when a dispute arises as to the proper amount
of restitution. See Menza, 137 F.3d at 538.
UNITED STATES v. WAKNINE 12569
Because the government could not ascertain the amount of
money Hadad lost to the RICO conspiracy, it only requested
that the district court award $131,000 in restitution to Hadad
—$100,000 in attorneys’ fees, $25,000 of interest on a mort-
gage taken out by Hadad to pay off the loan that was the sub-
ject of Waknine’s offense conduct, and $6000 in travel costs
to participate in the investigation and prosecution of Waknine.
In his victim loss summary, Hadad claimed that he had bor-
rowed $250,000 from the conspirators and that he had been
forced to repay $580,000. However, at Waknine’s trial
(before Waknine pleaded guilty), Hadad testified that he had
paid Waknine $591,000 based upon his earlier receipt of a
$325,000 loan. Cooperating conspirator Atia testified at Wak-
nine’s trial that Hadad received $450,000, while cooperating
conspirator Benharosh testified that Hadad received a total of
$595,000. As a result of the conflicting testimony, the govern-
ment concluded that the amount of money Waknine loaned to
Hadad “remain[ed] unclear, falling somewhere between
$250,000 and $595,000,” and did not request restitution for
the amount Hadad paid the conspirators.
[12] Nevertheless, the district court ordered that Waknine
pay $371,000 in restitution to Hadad. To arrive at $371,000,
the district court added the $131,000 in non-loan losses
requested by the government at the restitution hearing to the
difference it concluded existed between the loan Hadad
received from the conspirators, $345,000, and the amount of
money he paid back to the conspirators, $580,000.5 The dis-
trict court did not explain how it arrived at these loan figures.
No combination of figures supplied by Hadad or the other
witnesses in this case could combine to total $345,000. In the
absence of an explanation of the award by the district court,
and because of the conflicting testimony regarding the amount
5
As we discussed in part III.A, the district court clearly erred in calcu-
lating the total amount of restitution, and the total amount of restitution
based on the district court’s stated numbers should have been $366,000,
not $371,000. See supra at pt. III.A.
12570 UNITED STATES v. WAKNINE
of the original loan and Hadad’s own inconsistent statements
regarding the amount he repaid the conspirators, we are
unable to determine if the district court abused its discretion
in awarding restitution to Hadad in the amount of $371,000.
On remand, the district court must provide an explanation of
any restitution awarded to Hadad for the losses he incurred as
a result of his loan with the conspirators.
[13] With regard to Hadad’s request for $25,000 for the
interest he had to pay to take a second mortgage on his house,
Hadad’s $100,000 in attorneys’ fees, Hadad’s $6000 in travel
costs, Keuylian’s $250,000 in attorneys’ fees, and Keuylian’s
$25,000 in investigator’s fees, the only items of evidence pro-
vided by the government to support these restitution claims
were the loss summaries prepared by each victim and submit-
ted to the court. The summaries only listed the loss claimed,
e.g., “Joe Cavallo—Attorney at Law,” and the amount of the
loss, e.g., “$250,000.” These loss summaries did not contain
itemized lists indicating, for example, the time spent by the
attorney, the activities engaged in by the attorney, and the
attorney’s credentials and billable rate. Nor did the govern-
ment present supporting documentation to prove by a prepon-
derance of the evidence that Hadad had taken out a second
mortgage on his house, or that he had traveled to Los Angeles
from Miami and incurred $6000 in travel expenses.
[14] In light of “the remedial purposes underlying the
MVRA,” our precedent grants “district courts a degree of
flexibility in accounting for a victim’s complete losses.” See
Gordon, 393 F.3d at 1053. Despite this flexibility, § 3664
minimally requires that facts be established by a preponder-
ance of the evidence, and “the district court [may] utilize only
evidence that possesses ‘sufficient indicia of reliability to sup-
port its probable accuracy.’ ” United States v. Garcia-
Sanchez, 189 F.3d 1143, 1148-49 (9th Cir. 1999) (vacating a
sentence and remanding, holding that “the district court had
. . . an independent obligation to ensure that the sentence was
supported by sufficient, reliable evidence”); see also United
UNITED STATES v. WAKNINE 12571
States v. Brock-Davis, 504 F.3d 991, 1002 (9th Cir. 2007)
(“[T]he government must provide the district court with more
than just . . . general invoices . . . ostensibly identifying the
amount of their losses.” (quoting Menza, 137 F.3d at 539)).
Here, in light of Waknine’s challenge to the victim affidavits,
the government offered insufficient evidence to prove that it
is more likely than not that the victims lost the amounts listed
in their loss summaries. At the restitution hearing, Waknine
argued that Hadad and Keuylian incurred a portion of their
attorneys’ fees and investigation costs due to their suspected
involvement in the conspiracy. Although the government con-
cedes that Hadad initially had been a target of the RICO con-
spiracy investigation, the district court awarded restitution of
the attorneys’ fees and investigation costs without requiring
the government to present additional evidence, beyond the
victim loss summaries, detailing the legal and investigative
services received by Hadad and Keuylian. We hold that in this
case the district court erred by relying exclusively on the one-
page loss summaries provided by the victims and in not
requiring more detailed explanations of the losses each victim
suffered.
[15] The dissent characterizes our holding today as con-
cluding that victim affidavits in general provide insufficient
indicia of reliability to support a restitution order. To the con-
trary, victim affidavits will generally provide sufficient, reli-
able evidence to support a restitution order. In this case,
however, the affidavits were too summary and too conclusory
to be sufficiently reliable in the face of Waknine’s objections.
It is unreasonable to expect a defendant to be able to counter
evidence provided by the victim concerning attorneys’ fees.
Rather, it is the responsibility of the government, aided by the
victim, to provide adequate reliable evidence. See 18 U.S.C.
§ 3664(d)(6). And, it is the responsibility of the district court
to resolve a dispute as to the proper amount of restitution by
a preponderance of the evidence, or to refer the issue to a
magistrate judge for proposed findings of fact. See id.§ 3664(d)(6) & (e). A sufficiently detailed affidavit doubtless
12572 UNITED STATES v. WAKNINE
would suffice in most cases, but we remain of the view that
what was done here was too conclusory. Because the district
court did not ensure that the restitution order was supported
by sufficient, reliable evidence, on remand the district court
may only award restitution for attorneys’ fees, investigation
costs, travel expenses, and mortgage payments if the govern-
ment provides sufficiently detailed evidence that Hadad and
Keuylian incurred those costs as a direct result of Waknine’s
RICO offense conduct.
C
Finally, Waknine contends that the district court improperly
awarded to the restitution claimants their travel expenses and
investigation costs. He argues that the attorneys’ fees incurred
by Hadad and Keuylian, the investigator’s fees incurred by
Keuylian, and the travel expenses incurred by Hadad are too
indirectly related to the offense conduct to be reimbursed
under 18 U.S.C. § 3663A (“§ 3663A”).
With regard to Hadad’s travel expenses, the plain language
of 18 U.S.C. § 3663A(b)(4) directs the sentencing court to
include in the restitution order reimbursement for “transporta-
tion, and other expenses incurred [by the victim] during par-
ticipation in the investigation or prosecution of the offense or
attendance at proceedings related to the offense.” If, on
remand, the government proves by a preponderance of the
evidence that Hadad incurred $6000 in travel expenses to
assist in the investigation and prosecution of Waknine, then
the district court may award restitution in that amount to
Hadad.
As to the attorneys’ fees and investigation costs,
“[g]enerally, investigation costs—including attorneys’ fees—
incurred by private parties as a ‘direct and foreseeable result’
of the defendant’s wrongful conduct ‘may be recoverable.’ ”
Gordon, 393 F.3d at 1057 (quoting United States v. Phillips,
367 F.3d 846, 863 (9th Cir. 2004)). We have affirmed restitu-
UNITED STATES v. WAKNINE 12573
tion orders for attorneys’ fees where the fees “were directly,
not tangentially, related to” the offense conduct. United States
v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004) (affirming
restitution order for insurance company’s attorneys’ fees in a
civil action to rescind the insurance contract where defendant
attempted to collect on an insurance policy after illegally
sinking the insured boat and was later indicted for perjury
committed in the civil suit); see also United States v. Cum-
mings, 281 F.3d 1046, 1052-53 (9th Cir. 2002) (affirming res-
titution order of attorneys’ fees incurred by wife’s attempt in
separate civil proceedings to regain custody of her children
because the fees were “a direct and foreseeable result” and
“[t]here would have been no need to engage in civil proceed-
ings to recover the children if [husband] had not unlawfully
taken them to Germany”).
In Gordon, where an employee of Cisco embezzled mil-
lions of dollars in cash and stocks, we held that the district
court “reasonably concluded that Cisco’s investigation costs,
including attorneys’ fees, were necessarily incurred by Cisco
in aid of the proceedings.” 393 F.3d at 1057 (explaining that
Cisco had to respond to five grand jury subpoenas and a num-
ber of government requests that required it to analyze vast
amounts of documentation, including every item regarding its
investments in more than 60 companies that were Gordon’s
possible targets). However, there are differences between the
investigation costs incurred by Cisco in Gordon and the
investigation costs incurred by the victims here. Unlike the
attorneys’ fees in Gordon, which were incurred exclusively
from the document review required to track the fraud, see id.,the attorneys’ fees incurred by Hadad and Keuylian were in
part, if not entirely, incurred to protect themselves from prosecu-
tion.6 In Gordon, the complex investigation required to
6
Hadad first hired an attorney because he was initially a suspect in the
government’s investigation. Because of the lack of information provided
by Keuylian in his request for restitution, it is unclear when he first hired
an attorney and why.
12574 UNITED STATES v. WAKNINE
uncover the extent of Gordon’s fraud was documented in
detail and thoroughly reviewed by the district court. Id. Here,
no evidence was presented by the government to demonstrate
that it was reasonably necessary for Hadad or Keuylian to
incur attorneys’ and investigator’s fees to participate in the
investigation or prosecution of the offense.
[16] The lack of detailed documentation to support the res-
titution claims of Hadad and Keuylian prevented the district
court from thoroughly reviewing the alleged losses and deter-
mining whether they were “necessarily incurred . . . in aid of
the proceedings.” See Gordon, 393 F.3d at 1057 (concluding
that the “district court carefully analyzed Cisco’s [restitution]
requests” because the district court reduced the loss amount
based on its determination that the evidence “does not support
fully the extraordinary expense associated with Cisco’s
attempt to recover data from Defendant’s laptop computer”).
Without more detailed evidence as to the type of attorneys’
and investigator’s fees incurred and the extent that these fees
were incurred to aid in the prosecution of Waknine, we cannot
determine whether the district court abused its discretion in
awarding restitution based on those costs under § 3663A. On
remand, the district court may only award restitution of travel
expenses and investigation costs, including attorneys’ fees, if
the government provides sufficiently detailed evidence to
demonstrate by a preponderance of the evidence that these
costs were incurred by Hadad and Keuylian in aid of Wak-
nine’s investigation or prosecution, and that such expenses
and costs were reasonably necessary.
IV
Finally, complaining about the sentencing errors, Waknine
requests that his case be remanded to a different judge. Wak-
nine further alleges that “[t]here is a generalized pattern of
cowering by attorneys who appear” before Judge Real and a
general pattern of parties afraid to advocate in Judge Real’s
courtroom. By contrast, Waknine does not allege that Judge
UNITED STATES v. WAKNINE 12575
Real exhibited any bias for or against either of the parties in
this case.
We stand by our general rule: “Absent unusual circum-
stances, resentencing is to be done by the original sentencing
judge.” United States v. Sharp, 941 F.2d 811, 817 (9th Cir.
1991), superseded in part on other grounds, 18 U.S.C.
§ 3663, as recognized in United States v. Jackson, 982 F.2d
1279, 1282 n.1 (9th Cir. 1992). When there are no allegations
of bias, we consider the following factors in deciding whether
“unusual circumstances” exist such that remand to a different
judge is appropriate:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously-
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
The first two factors are of equal importance, and a
finding of either one would support remand to a dif-
ferent judge.
United States v. Working, 287 F.3d 801, 809 (9th Cir. 2002)
(citations and internal quotation marks omitted).
[17] The district court’s procedural errors in other cases do
not demonstrate that in this particular case it will have “sub-
stantial difficulty in putting out of [its] . . . mind previously-
expressed views or findings determined [by us] to be errone-
ous.” See id. at 809-10. Moreover, Waknine’s contention that
attorneys “cower” before Judge Real is not supported by the
record in this case. We note that neither Waknine’s attorney
nor the government’s attorney faltered in the least bit in their
arguments or retreated from their positions at the sentencing
12576 UNITED STATES v. WAKNINE
and restitution hearings. We are confident that in future pro-
ceedings counsel will not hesitate to advocate before the dis-
trict court. We reject Waknine’s request for a change of judge,
and remand this case for further consideration and proceed-
ings consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED;
RESTITUTION ORDER VACATED; REMANDED.
IKUTA, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that Waknine’s sentence should
be vacated and the case should be remanded for resentencing.
I further concur in the majority’s decision not to reassign this
case to a different judge on remand. On the restitution issue,
I agree with the majority that the district court clearly erred
in its factual analysis of the loan amounts submitted as part
of Hadad’s restitution claim, which resulted in the district
court’s order that Waknine pay $371,000 in restitution to
Hadad. I agree with the majority that Hadad’s restitution
award should therefore be vacated. However, I must respect-
fully dissent from the remainder of the majority’s restitution
analysis in Section III of its opinion. Most critically, I cannot
agree that “the district court erred by relying exclusively on
the one-page loss summaries provided by the victims and in
not requiring more detailed explanations of the losses each
victim suffered.” Maj. op. at 12571. There is no support for
this proposition, either in the statutory framework that gov-
erns restitution or in our case law, and there is no basis for
vacating the district court’s factual finding in this case.
“A restitution order is reviewed for an abuse of discretion,
provided that it is within the bounds of the statutory frame-
work. Factual findings supporting an order of restitution are
reviewed for clear error. The legality of an order of restitution
UNITED STATES v. WAKNINE 12577
is reviewed de novo.” United States v. Marks, 530 F.3d 799,
811 (9th Cir. 2008) (internal quotation marks omitted). “A
finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948); see also United States v. Crook, 9 F.3d
1422, 1427 (9th Cir. 1993). Under this deferential standard,
“this court will not reverse if the district court’s findings are
plausible in light of the record viewed in its entirety . . . even
if it is convinced it would have found differently.” Katie A.,
ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1155 (9th
Cir. 2007) (alteration in original) (internal quotation marks
omitted).
The Mandatory Victims Restitution Act (“MVRA”), sets
forth procedures for issuing restitution orders in 18 U.S.C.
§ 3664. See United States v. Moreland, 509 F.3d 1201, 1222-
23 (9th Cir. 2007). Among other things, the MVRA directs
the court to order the probation officer to prepare a report
including “information sufficient for the court to exercise its
discretion in fashioning a restitution order.” 18 U.S.C.
§ 3664(a). In collecting this information, the probation officer
must “provide notice to all identified victims of . . . the oppor-
tunity of the victim to file with the probation officer a sepa-
rate affidavit relating to the amount of the victim’s losses
subject to restitution.” 18 U.S.C. § 3664(d)(2)(A)(vi). Section
3664(d)(2)(B) further directs the probation officer to “provide
the victim with an affidavit form to submit pursuant to sub-
paragraph (A)(vi).”
The structure of Section 3664 makes clear that the court
may use the completed victim affidavit in determining a vic-
tim’s losses. This is consistent with our precedents, which
allow courts to consider and weigh the evidentiary value of
witness affidavits, signed under penalty of perjury. See, e.g.,
Fed. R. Civ. P. 56(e)(1) (first-party affidavits can serve as
competent evidence to support or oppose a summary judg-
12578 UNITED STATES v. WAKNINE
ment motion); Williams v. Boeing Co., 517 F.3d 1120, 1128
(9th Cir. 2008) (“On a summary judgment motion challenging
standing a plaintiff may not rest on mere allegations, but must
set forth by affidavit or other evidence specific facts that dem-
onstrate standing.” (internal quotation marks omitted)).
Indeed, the Fifth Circuit, addressing this issue against the
backdrop of the pre-MVRA version of § 3664, held that vic-
tims’ affidavits are a sufficient factual basis upon which to
rest a restitution decision. See United States v. Rochester, 898
F.2d 971, 982 (5th Cir. 1990) (holding that an affidavit estab-
lishing the victim’s loss was “sufficient to satisfy the . . .
requirement for a factual basis”).
Moreover, the Sentencing Guidelines contemplate that the
district court will rely on witness affidavits in order to resolve
factual disputes that arise as part of sentencing proceedings.
Section 6A1.3(a) states:
When any factor important to the sentencing deter-
mination is reasonably in dispute, the parties shall be
given an adequate opportunity to present information
to the court regarding that factor. In resolving any
dispute concerning a factor important to the sentenc-
ing determination, the court may consider relevant
information without regard to its admissibility under
the rules of evidence applicable at trial, provided that
the information has sufficient indicia of reliability to
support its probable accuracy.
The commentary notes to § 6A1.3 clarify that “[w]ritten state-
ments of counsel or affidavits of witnesses may be adequate
under many circumstances.” See also United States v. Ibanez,
924 F.2d 427, 430 (2d Cir. 1991) (noting that under the com-
mentary to section 6A1.3, witness affidavits may be sufficient
to resolve factual disputes). “Any dispute as to the proper
amount or type of restitution shall be resolved by the court by
the preponderance of the evidence.” 18 U.S.C. § 3664(e).
UNITED STATES v. WAKNINE 12579
There is nothing in this framework that requires victims to
provide a detailed itemization of their losses. There is also
nothing in the governing law that requires victims to submit
corroborating evidence of their claims. To the contrary, as a
general rule we have expressly rejected the argument that
§ 6A1.3 “impose[s] any ‘corroboration’ requirement” on par-
ties submitting evidence to resolve factual disputes at sentenc-
ing. United States v. Alonso, 48 F.3d 1536, 1546 (9th Cir.
1995). In short, because the MVRA, the Guidelines, and our
case law permit a district court to rely on a victim’s affidavit,
and because the governing law creates no detailed itemization
or corroboration requirement, the district court’s reliance on
the victims’ affidavits in fashioning its restitution order was
clearly “within the bounds of the statutory framework.”
Marks, 530 F.3d at 811 (internal quotation marks omitted).
Nor is there any basis for holding that the district court’s
restitution order was clearly erroneous. Here, both Hadad and
Keuylian submitted form affidavits which they signed under
penalty of perjury. Waknine did not submit any evidence con-
tradicting the restitution amounts he now challenges on
appeal, but merely made unsupported arguments to the district
court. The district court made a factual finding as to the
amount of restitution based on these victim affidavits.
Because the relevant portions of the victim affidavits are
uncontradicted evidence of loss, the district court’s determina-
tion was based on a preponderance of the evidence. More-
over, the majority has not identified any evidence in the
record that would allow it to conclude that the district court
erred in calculating the amount of the restitution order, for
example, by failing to consider contrary evidence or miscal-
culating the amount of loss.1
1
For purposes of this analysis, I set aside the subcomponent of Hadad’s
affidavit that dealt with the amounts he was loaned and forced to repay.
As I note above, I agree with the majority that the district court’s analysis
of this question was clearly erroneous.
12580 UNITED STATES v. WAKNINE
Instead, the majority seems to harbor doubts about the vic-
tims’ honesty and care in preparing the affidavits. See maj.
op. at 12570-72 (holding that the victim affidavits were insuf-
ficient because they were not adequately detailed, were uncor-
roborated, and could have included non-reimbursable costs).
Because of these suspicions, the majority declares that the
affidavits are unreliable, and thus that the district court erred
in using them to formulate the restitution order. The majority
considers the absence of contrary evidence in the record to be
inconsequential, because “[i]t is unreasonable to expect a
defendant to be able to counter evidence provided by the vic-
tim concerning attorneys’ fees.” Maj. op. at 12571. But in
fact, the MVRA and Guidelines address this very concern by
providing procedural mechanisms for developing disputed
facts. Waknine could have tested the victims’ credibility and
the reliability of their claims of loss by requesting an evidenti-
ary hearing. See 18 U.S.C. § 3664(d)(4) (allowing the district
court to receive additional documentation or hear testimony to
resolve factual issues arising as part of the restitution analy-
sis); United States v. Gordon, 393 F.3d 1044, 1049-50 (9th
Cir. 2004) (district court conducted an evidentiary hearing to
resolve disputed restitution issues); see also U.S.S.G. § 6A1.3
cmt. (evidentiary hearings may be held to resolve disputed
factual issues at sentencing). Indeed, when the evidentiary
basis of a district court’s sentencing decision is of question-
able reliability, it may be error for a district court to decline
a defendant’s request for an evidentiary hearing. See United
States v. Jiminez Martinez, 83 F.3d 488, 494-95 (1st Cir.
1996).
But here, Waknine did not request an evidentiary hearing
on the reliability of the affidavits submitted by Hadad and
Keuylian. Because the defendants could have developed evi-
dence that would contradict the victim affidavits and failed to
do so, it is difficult to discern how the majority could arrive
at a “definite and firm conviction that a mistake has been
committed.” United States Gypsum Co., 333 U.S. at 395. Had
the majority been reviewing the victim affidavits in the first
UNITED STATES v. WAKNINE 12581
instance, it might well have reached a different result than the
district court and rejected the affidavits as insufficiently credi-
ble. Of course, that is not an appropriate basis for reversing
the district court’s decision in this context. See Katie A., 481
F.3d at 1155.
In reaching its conclusion, the majority principally relies on
United States v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir.
1999). This case does not support the majority’s position.
Although Garcia-Sanchez held that “in establishing the facts
. . . underlying a sentence, the district court [must] utilize only
evidence that possesses sufficient indicia of reliability to sup-
port its probable accuracy,” id. at 1148 (internal quotation
marks omitted), we based this holding on § 6A1.3(a) of the
Sentencing Guidelines. As noted above, the commentary
notes to § 6A1.3 specify that written affidavits “may be ade-
quate under many circumstances.” Thus, Garcia-Sanchez
does not stand for the proposition that affidavits must meet
some heightened standard of specificity in order to have “suf-
ficient indicia of reliability” for purposes of sentencing and
restitution proceedings.
Moreover, the facts of Garcia-Sanchez are considerably
different from those in the present case. Garcia-Sanchez con-
cerned a district court’s formulation of a sentence for a defen-
dant convicted of conspiracy to sell cocaine, not the
formulation of a restitution order. We determined that, for
purposes of sentencing, “[t]he district court’s estimate of the
conspiracy’s weekly sales was not based on reliable evidence”
because it was “supported only by unexplained conclusions
drawn from unrevealed out-of-court statements.” Garcia-
Sanchez, 189 F.3d at 1148. Here, in contrast, the district
court’s restitution decision was supported by sworn affidavits
from persons who had first-hand knowledge of the loss, i.e.,
the victims.
Nor does United States v. Brock-Davis, 504 F.3d 991 (9th
Cir. 2007), support the majority’s position. In Brock-Davis,
12582 UNITED STATES v. WAKNINE
we were presented with the question whether factual discrep-
ancies in the record required us to vacate the district court’s
restitution order. Id. at 1001-02. We declined to do so, noting
that “although the government must provide the district court
with more than just . . . general invoices . . . ostensibly identi-
fying the amount of their losses, the government’s burden of
proof has been met,” because the victim “made an overall
statement of his final request’s accuracy that Brock-Davis
fails to discredit.” Id. at 1002 (ellipses in original) (internal
citation and quotation marks omitted). Brock-Davis is thus
inapposite here, because the government submitted more than
just “general invoices.” Rather, the government submitted
affidavits from the victims, which included declarations under
penalty of perjury that the contents of the affidavits were true
and correct. Moreover, as in Brock-Davis, Waknine did not
introduce any evidence to discredit the accuracy of the final
request for restitution submitted by the victim. Id. Thus, to the
extent that Brock-Davis does apply in the present context, it
weighs in favor of a conclusion that the district court’s restitu-
tion decision should be partly upheld.
In sum, the majority creates a new and more onerous
requirement for victim affidavits than is required by the
MVRA, the Guidelines, or our case law. The rule promises to
create new procedural hurdles for victims seeking restitution,
a result the MVRA was designed in large part to avert. See
Moreland, 509 F.3d at 1222-23. Given that the governing law
clearly contemplates that affidavits may be competent evi-
dence to resolve factual disputes at sentencing, I see no basis
for holding that the district court abused its discretion in rely-
ing on the victims’ affidavits to formulate a restitution order
in this case. Therefore, I respectfully dissent in part from Sec-
tion III of the majority opinion.