United States v. Alexander Oriho ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10291
Plaintiff-Appellee,
D.C. No.
v. 2:19-cr-00667-
DJH-1
ALEXANDER ORIHO, DBA Rhino’s
Med. Trans, LLC,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted July 13, 2020
San Francisco, California
Filed August 10, 2020
Before: Eugene E. Siler, * Richard C. Tallman, and
Danielle J. Hunsaker, Circuit Judges.
Opinion by Judge Tallman
*
The Honorable Eugene E. Siler, Senior United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. ORIHO
SUMMARY **
Criminal Law
The panel vacated the district court’s order requiring the
defendant, who was indicted on healthcare fraud and money
laundering charges, to repatriate any proceeds of the
fraudulent scheme that he may have transferred to an African
bank during a three-year period, up to $7,287,000, in order
to preserve funds for potential forfeiture.
The panel determined that it had jurisdiction under
28 U.S.C. § 1292(a)(1) to review the interlocutory order,
which was issued under the authority of 21 U.S.C. § 853.
The panel held that, as currently written, the repatriation
order violates the defendant’s Fifth Amendment privilege
against self-incrimination. The panel concluded (1) that the
order compels the defendant 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; (2) that the district court
failed to apply the proper “forgone conclusion” exception
test, relieving the government of its obligation to prove its
prior knowledge of the incriminating information that may
be implicitly communicated, thereby allowing the
government to shirk its responsibility to discover its own
evidence; and (3) that the government’s narrow promise of
limited use immunity is insufficient to counterbalance these
harms.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ORIHO 3
The panel remanded with instructions to conduct an
evidentiary hearing designed to elicit from the government
evidence supporting a more limited repatriation order. The
panel instructed that 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 the defendant’s Fifth
Amendment privilege by ordering strict compliance with
18 U.S.C. §§ 6001–03.
COUNSEL
Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Rachel Cristina Hernandez (argued) and Mark J. Wenker,
Assistant United States Attorneys; Krissa M. Lanham,
Appellate Chief; Michael Bailey, United States Attorney;
United States Attorney’s Office, Phoenix, Arizona; for
Plaintiff-Appellee.
4 UNITED STATES V. ORIHO
OPINION
TALLMAN, Circuit Judge:
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, up to $7,287,000, despite the indictment
alleging that he transferred only $760,000 to two specific
banks in Uganda and Kenya. The district court reasoned that
no compelled self-incrimination would result from the order,
and even if such a risk existed, it was obviated by the
government’s claims that it already knew Oriho had
transferred some of the money to Africa. The order also
rested on a promise from the government that it “will not
introduce evidence that [Oriho] repatriated funds from
Africa in its case-in-chief.”
The district court was presented with difficult issues of
first impression, but we conclude 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
UNITED STATES V. ORIHO 5
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.
I
In June 2019, the government filed a 43-count
indictment against Oriho, charging him with healthcare
fraud, identity theft, and unlawful transfers of the proceeds
of those activities to Kenya and Uganda. The charges stem
from Oriho’s ownership of a company called Rhino Med.
Trans, LLC, which has been in operation since 2012. Rhino
Med. is approved to receive government funds from the
Arizona Health Care Cost Containment System (AHCCCS),
Arizona’s Medicaid program administrator, for non-
emergency medical transportation services for indigent
residents.
The indictment alleges that Oriho began billing
AHCCCS for “thousands of false transport claims that never
occurred or were inflated and fabricated to augment his
reimbursements.” Evidence against Oriho includes multiple
submissions with identical odometer readings and billing
information, and records of invalid transport addresses. The
indictment reflects the government’s belief that Oriho
submitted around 105,000 false claims between January 1,
2016, and the return of the indictment on June 5, 2019, which
generated approximately $7,287,000 in fraudulent payments
from AHCCCS to Oriho.
6 UNITED STATES V. ORIHO
The first thirty counts of the indictment allege fraudulent
healthcare reimbursement submissions. The following six
counts charge use of the healthcare identification numbers of
others. But this interlocutory appeal chiefly relates to the
final group of charges, excerpted below. Counts 37–43
allege seven transfers of “criminally derived” funds from
Bank of America account #X1850, to KCB and Stanbic bank
accounts in Uganda and Kenya, in violation of 18 U.S.C.
§ 1957 (money laundering).
It is not detailed in the indictment, but the government stated
in its motion filed with the district court in support of the
repatriation order that it believes Oriho owns Bank of
America account #X1850, while five of the receiving
accounts also belong to him personally and two belong to
“Rhino’s Investments Group Limited, an entity the
government believes [Oriho] owns or controls.” The
transfers alleged in these counts total $760,000.
Only a few weeks after filing the indictment, the
government moved under the Comprehensive Forfeiture
Act, 21 U.S.C. § 853(e), for a district court order requiring
Oriho to repatriate any funds currently in Africa and deposit
them with the United States Marshals Service as the
custodian, to ensure their availability for criminal forfeiture
UNITED STATES V. ORIHO 7
if Oriho is found guilty. Though only the seven wire
transfers from Counts 37–43 were included in the
indictment, the government’s motion broadly states, without
a supporting declaration or further citation to accounts or
locations, that “based on what the government currently
knows, defendant wired approximately $2,400,000 to Africa
since January 1, 2016.” Oriho opposed the motion on the
basis that it would violate his Fifth Amendment privilege
against self-incrimination because the requested repatriation
order “would be compelling [Oriho] to engage in monetary
transactions, authenticate certain evidence, and produce an
evidentiary trail that the Government could use in its efforts
to convict [him].”
The district court granted the motion for repatriation of
up to $7,287,000, reasoning that there would be no
testimonial self-incrimination because the government was
already aware that Oriho had transferred approximately
$2,400,000 to African countries, so it would not gain any
new information as a result of the order. Addressing any
lingering Fifth Amendment concerns, the court noted that it
intends to hold the government to its assurance that it “will
not introduce evidence that [Oriho] repatriated funds from
Africa in its case-in-chief.” Oriho filed a motion for
reconsideration, making essentially the same Fifth
Amendment argument and asking for broader immunization
from the government against use of information gained from
the repatriation “for any purpose in any prosecution” against
him, which the district court also denied. This appeal
followed. 1
1
The case is currently proceeding in district court with trial set for
February 16, 2021. Oriho moved to stay the repatriation order pending
appeal, but the motion was denied. Our motions panel likewise denied
8 UNITED STATES V. ORIHO
II
We conduct de novo review of jurisdictional questions,
United States v. Romero-Ochoa, 554 F.3d 833, 835 (9th Cir.
2009), and “potential violations of the Fifth Amendment,”
United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir. 2018).
In deciding whether the district court properly deemed the
existence of documents a “foregone conclusion” for Fifth
Amendment purposes, we review for clear error. United
States v. Bright, 596 F.3d 683, 690 (9th Cir. 2010).
A
We have jurisdiction under 28 U.S.C. § 1292(a)(1) over
appeals arising from interlocutory orders “granting,
continuing, modifying, refusing or dissolving injunctions.”
The statute has also been interpreted to cover interlocutory
orders that have the “practical effect” of an injunction,
meaning they are “directed to a party, enforceable by
contempt, and designed to accord some or all of the relief
sought by a complaint.” United States v. Samueli, 582 F.3d
988, 993 (9th Cir. 2009). And in United States v. Roth, we
held that a “pre-trial order restraining assets” for forfeiture
under 21 U.S.C. § 853 was appealable because “such an
order is a preliminary injunction for procedural purposes and
therefore appealable as a preliminary injunction under
[§] 1292(a)(1).” 912 F.2d 1131, 1133 (9th Cir. 1990).
The order on appeal here was issued under the authority
of 21 U.S.C. § 853, the same forfeiture statute and section
invoked in Roth. In particular, the repatriation order cites
the subsection that allows the court to “enter a restraining
his emergency motion for a stay pending appeal. The district court
docket does not reflect that any funds have been repatriated, however.
UNITED STATES V. ORIHO 9
order or injunction . . . or take any other action to preserve
the availability of property” for forfeiture. Id. at § 853(e)(1).
This record straightforwardly establishes that the
repatriation order is a “pre-trial order restraining assets,”
appealable under § 1292(a)(1). Roth, 912 F.2d at 1133.
And, although the repatriation order was not specifically
styled as a restraining order or injunction, it clearly has that
“practical effect.” See Samueli, 582 F.3d at 993. The
mandatory order is directed to Oriho, enforceable by
contempt, and ensures the government’s ability to reclaim
unlawfully obtained funds after conviction by requiring
Oriho to deposit them with the custodian designated to
manage assets under forfeiture. Jurisdiction under
§ 1292(a)(1) is therefore proper.
B
Because we have jurisdiction we address the merits of
the case: whether the repatriation order violates Oriho’s Fifth
Amendment privilege against self-incrimination. The Fifth
Amendment states, in relevant part, that no person “shall be
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Oriho invokes this
constitutional protection to argue that the district court
wrongly concluded both that the repatriation order involves
no risk of self-incrimination, and that any compelled
statements are essentially a foregone conclusion that will not
add anything to the government’s case. Oriho contends that
the order is too broad, and that the government’s promise,
relied upon by the court—not to use evidence of the
repatriation in its case-in-chief—is not sufficient to fully
protect his Fifth Amendment rights. The applicability of the
self-incrimination privilege to an order for repatriation
issued under the forfeiture statute is a question of first
impression among the circuits.
10 UNITED STATES V. ORIHO
We conclude that, as currently written, the repatriation
order violates Oriho’s Fifth Amendment self-incrimination
privilege. The district court’s application of the foregone
conclusion exception was too broad, and the government’s
limited immunity promise is too narrow. The order cannot
stand in its present form.
1
We first approach whether the self-incrimination
privilege is implicated here. The Fifth Amendment privilege
against self-incrimination “applies only when the accused is
compelled to make a Testimonial Communication that is
incriminating.” Fisher v. United States, 425 U.S. 391, 408
(1976). But the communication need not be express or oral.
“[T]he act of production itself may implicitly communicate
statements of fact,” because, for example, “[b]y producing
documents in compliance with a subpoena, the witness
would admit that the papers existed, were in his possession
or control, and were authentic.” United States v. Hubbell,
530 U.S. 27, 36 (2000) (quotation marks omitted). And
“[t]he privilege afforded not only extends to answers that
would in themselves support a conviction . . . but likewise
embraces those which would furnish a link in the chain of
evidence needed to prosecute the claimant.” Hoffman v.
United States, 341 U.S. 479, 486 (1951). At bottom, it is the
“extortion of information from the accused; the attempt to
force him to disclose the contents of his own mind, that
implicates the Self-Incrimination Clause.” Doe v. United
States, 487 U.S. 201, 211 (1988) (citations and internal
quotation marks omitted).
The novel issue presented is whether these principles
extend to protect information that might be communicated
by the pre-trial transfer of funds for forfeiture. The district
court’s order under 21 U.S.C. § 853(e) is not part of the pre-
UNITED STATES V. ORIHO 11
trial criminal discovery process, 2 but Oriho argues that
repatriation of the funds in question will nonetheless reveal
information that the government could use against him in
this or future criminal prosecutions. Part of Oriho’s concern
stems from the fact that, as a pretrial detainee, he will be
forced to effectuate the transfer of funds under jail
surveillance. And the transfer itself may generate a paper
trail of records like those often sought in discovery. See Doe,
487 U.S. at 203, 206–07 (analyzing self-incrimination
privilege in the context of defendant’s compulsion to sign a
consent form for production of his bank account documents
from foreign banks).
The government admits that discovery-like records
“might be generated if Oriho repatriates funds from Africa.”
Yet it still argues that Oriho’s concerns about self-
incrimination are “mere speculation”—a contention
supported only by citation to a case where the party asserting
the privilege “flatly refused to justify his fear of criminal
2
Some of the government’s arguments suggest that because
forfeiture is not a tool of discovery, it does not have the same Fifth
Amendment implications. To the contrary, the Supreme Court and the
circuit courts have broadly applied the privilege outside the formal
discovery context. See United States v. Balsys, 524 U.S. 666, 672 (1998)
(the self-incrimination privilege “can be asserted in any proceeding”
(citation omitted)); Maness v. Meyers, 419 U.S. 449, 461 (1975) (“This
Court has always broadly construed its [Fifth Amendment self-
incrimination] protection to assure that an individual is not compelled to
produce evidence which later may be used against him as an accused in
a criminal action.”); cf. United States v. Antelope, 395 F.3d 1128, 1135
(9th Cir. 2005) (holding that self-incrimination privilege was implicated
by defendant’s required participation in sexual abuse treatment program
after conviction); Bramble v. Richardson, 498 F.2d 968, 973 (10th Cir.
1974) (stating that even civil forfeiture proceedings “will not be
permitted to provide an avenue through which the fundamental rights of
protection against . . . self-incrimination can be frustrated”).
12 UNITED STATES V. ORIHO
prosecution.” McCoy v. C.I.R., 696 F.2d 1234, 1236 (9th
Cir. 1983). Oriho, in contrast, stands indicted in a major
healthcare fraud case and has gone to great lengths to brief
us and the district court on his specific Fifth Amendment
concerns.
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.” Doe,
487 U.S. at 214–15. 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 in the
Supreme Court’s opinion in Fisher v. United States. See
425 U.S. at 409–15. The Court outlined four facets of an
implicit communication that together support invocation of
the self-incrimination privilege. We ask whether:
(1) compulsion is involved; (2) a statement is being
communicated; (3) the statement relies on the truth-telling of
the defendant; and (4) the statement carries the risk of
incrimination. Id. 3 We consider each in turn.
First, is compulsion involved? Id. at 409–10. The Fisher
Court answered yes, by virtue of the defendant’s receipt of a
subpoena, id. at 410, and the same is true here. Oriho is
under a compulsory court order to repatriate the funds at
3
In Antelope, we set out only a two-part test for the self-
incrimination privilege, which covered the incrimination and
compulsion elements of Fisher. See 395 F.3d at 1134. But that case
involved verbal statements that the government sought from the
defendant, and therefore the two remaining elements of Fisher were
inherently met. See id. at 1131–32; see also id. at 1134 (framing the self-
incrimination test around “the testimony desired”). We cannot assume
away those elements in the case of implicit communications.
UNITED STATES V. ORIHO 13
issue and he can be held in contempt with no credit for time
served against any criminal sentence he may receive
following conviction on the underlying indictment if he fails
to comply. See 21 U.S.C. § 853(e)(4)(B). The order is
directed at him personally, and the repatriation would not be
undertaken willingly.
Second, is a statement being communicated? Fisher,
425 U.S. at 410. Fisher again said “yes” based on the act of
producing evidence in response to a subpoena, which “has
communicative aspects of its own” because it may “tacitly
concede[] the existence of the papers demanded and their
possession or control by the [defendant].” Id. We agree with
Oriho that the same principle applies here. The transfers
named in the indictment only refer to two different banks in
two African countries, yet the repatriation order demands the
transfer of funds from any bank in any African country. This
may provide information about other bank accounts of which
the government is not yet aware, forcing Oriho to “disclose
the contents of his own mind” regarding what accounts he
has access to and control over in order to effectuate the
transfer. Doe, 487 U.S. at 211 (quoting Curcio v. United
States, 354 U.S. 118, 128 (1957)).
Even solely with regard to the funds listed in the
indictment under Counts 37–43, repatriation further implies
Oriho’s “possession or control” over allegedly unlawfully
obtained money. See Fisher, 425 U.S. at 410. Those
transfers are charged under 18 U.S.C. § 1957, which requires
the government to prove Oriho had control over the funds
received from the fraudulent claims and then transferred in
interstate or foreign commerce to convict him. See In re
Brown, 953 F.3d 617, 623 (9th Cir. 2020) (“Courts have held
that to show that a defendant ‘obtained’ proceeds [of
criminally derived property under § 1957], there must be a
14 UNITED STATES V. ORIHO
demonstration of possession or control.” (citation omitted)).
If the government is allowed to use evidence of the
repatriation transfers in court, the fact of the transfers alone
could communicate to the jury that Oriho controlled those
funds, helping to prove the government’s case.
Third, Fisher tells us to ask whether the information
communicated somehow relies on the truth-telling of the
defendant, unlike a handwriting exemplar or blood sample.
Id. at 408, 410–11. To this question, the Supreme Court
answered “no,” because the documents sought to be
produced belonged to and were created by the defendant’s
accountant, not the defendant himself. Id. at 411. But here,
effectuation of the order does depend on Oriho’s
truthfulness. The government and the court are relying on
Oriho to “prove the existence [and] his access to” unnamed
bank accounts and deposited funds, when he may in fact be
the only person who knows that they exist. Id.
Finally, and perhaps most importantly, we must ask
whether any of the implied statements poses a realistic threat
of incrimination. Id. at 412–13. 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. See Kastigar v.
United States, 406 U.S. 441, 453 (1972) (self-incrimination
privilege “afford[s] protection against being forced to give
testimony leading to the infliction of penalties affixed to . . .
criminal acts” (citation and internal quotation marks
UNITED STATES V. ORIHO 15
omitted)). The possibility of incrimination by any of these
routes is “realistic” and could be “substantial.” Fisher,
425 U.S. at 412–13. See also Antelope, 395 F.3d at 1134
(self-incrimination privilege may be invoked “when the
threat of future criminal prosecution is reasonably particular
and apparent” and “an individual need not incriminate
himself in order to invoke the privilege” (citation omitted)).
Having determined that the basic tenets of the self-
incrimination privilege apply here, we conclude that the
repatriation order implicates Oriho’s Fifth Amendment
rights. This determination is further supported by
contrasting this case with Doe v. United States, where the
Supreme Court upheld an order compelling a criminal
defendant to sign an omnibus consent directive, which
allowed for production of documents from any foreign bank
accounts in the defendant’s name when presented by the
police to a bank. 487 U.S. at 204–05, 215. The Court
determined that although the defendant’s signing of the
consent directive was a compelled communication, it was
not testimonial because the directive was purely drafted “in
the hypothetical.” Id. at 215. The form did not require the
defendant to identify a specific bank, “acknowledge that an
account . . . is in existence or that it is controlled by
[defendant],” or “indicate whether documents or any other
information relating to [defendant] are present at the foreign
bank.” Id. Ultimately, the testimonial significance of the
consent form was undermined because, “[a]lthough [such a]
form allows the Government access to a potential source of
evidence, the directive itself does not point the Government
toward hidden accounts or otherwise provide information
that will assist the prosecution in uncovering evidence. The
Government must locate that evidence ‘by the independent
labor of its officers.’” Id. (quoting Estelle v. Smith, 451 U.S.
454, 462 (1981)).
16 UNITED STATES V. ORIHO
None of the protections that the Court relied on in Doe
are accounted for by the repatriation order here. If Oriho
repatriates funds from as-yet-unidentified African banks, he
may very well “point the Government toward hidden
accounts” and allow the prosecution to sidestep its duty to
independently locate evidence. Id. Whether directly, or by
“furnish[ing] a link in the chain of evidence,” Hoffman,
341 U.S. at 486, Oriho could incriminate himself through the
testimonial statements compelled by the order. The district
court was wrong to conclude otherwise.
2
The district court also relied on 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. See Fisher, 425 U.S.
at 411 (characterizing a foregone conclusion as one where
the evidence “adds little or nothing to the sum total of the
Government’s information”). For this “exception to apply,
the government must establish its independent knowledge of
three elements: the documents’ existence, the documents’
authenticity and [the defendant’s] possession or control of
the documents.” United States v. Sideman & Bancroft, LLP,
704 F.3d 1197, 1202 (9th Cir. 2013) (citation omitted).
Oriho contends that the district court clearly erred in its
broad application of the exception, and we agree.
The district court’s foregone conclusion analysis rested
on two pieces of information: the indictment’s approximate
total of $7,287,000 in fraudulent payments made to Oriho,
and the government’s bald assertion in a motion that it
“already knows that the Defendant transferred
approximately $2,400,000 to African countries since
January 1, 2016.” The government provided no support for
its statement about Oriho’s alleged transfer of $2,400,000,
UNITED STATES V. ORIHO 17
and there is no reference to this figure in the indictment. We
reject the government’s argument that Oriho “did not
challenge” the legitimacy of this figure and it should
therefore be accepted. Oriho has doggedly opposed the
entire basis of the government’s repatriation motion,
requested and was denied an evidentiary hearing to put the
government to its proof, and has brought an interlocutory
appeal of the district court’s subsequent order. Even if we
were to take the government’s word, neither of the multi-
million dollar figures relied on by the district court show that
the government is aware of all the information that could be
implicitly communicated by the repatriation; namely, the
existence and location of specific bank accounts holding
additional funds and whether Oriho has control over them.
We conclude that the government cannot satisfy the first or
third elements of the foregone conclusion test. See id.
The government also has not proven that it can
independently verify the authenticity of information
gathered through the repatriation because that element of the
test “inquires into whether the government is compelling the
witness to use his discretion in selecting and assembling the
responsive documents.” In re Grand Jury Subpoena Dated
April 18, 2003, 383 F.3d 905, 912 (9th Cir. 2004) (holding
that application of foregone conclusion exception was clear
error). By identifying and repatriating all of the funds he has
transferred to any bank in Africa during a three-year time
period, Oriho is being tasked with “tacitly providing
identifying information that is necessary to the government’s
authentication of the [compelled material].” Id. The
government needs to show that it can authenticate the
evidence without Oriho’s assistance, Bright, 596 F.3d at 693,
but conceded at oral argument that it cannot currently
provide evidentiary support for the full sum authorized by
18 UNITED STATES V. ORIHO
the repatriation order. 4 Thus, the district court’s application
of the foregone conclusion exception to all $7,287,000 was
clear error.
We found clear error in a similar situation where “the
government made no showing that it knew [defendants]
maintained possession or control of [two bank] accounts and
thus of the account documents” sought by a summons. Id.
at 694. That opinion contrasted those two accounts with two
others specifically named in the summons, the existence of
which was a foregone conclusion because the government
independently knew about, had account numbers for, and
could show that the defendants had access to them. Id.
at 693–94. In the present case, though the transfers to
accounts specifically named in the indictment are already
known to the government based on the Grand Jury’s
determination of probable cause, the unnamed array of
African accounts reachable under the order (including any
that might house the $2,400,000 the government says it
“already knows” about) resemble those that failed to meet
the foregone conclusion requirements in Bright.
4
For purposes of the foregone conclusion test, the government only
needs to prove that it is possible that “the records could be independently
authenticated by banking officials.” Bright, 596 F.3d at 693 (“[n]or did
the government need to prove that it had previously authenticated the
same documents or that it had used these same bank officials in the
past”). See also id. at 693 n.4 (even where there are no treaties between
the United States and the foreign government where the bank accounts
are located, the documents could be authenticated through American
card servicing company). Even if this prong of the test can be satisfied,
the district court will likewise need to be vigilant that the government
does not rely on any privileged information gained through repatriation
to actually authenticate documents introduced at trial. Fed. R. Evid. 402
(evidence is inadmissible if it violates the United States Constitution).
UNITED STATES V. ORIHO 19
On the evidence before us, the only potentially correct
application of the foregone conclusion exception was to the
$760,000 in transfers named in Counts 37–43. The district
court could properly rely on the Grand Jury’s probable cause
determination regarding Oriho’s transfer to the receiving
accounts in Kenya and Uganda on the dates and in the
amounts alleged to support a repatriation order. It would not
be illogical to conclude that Oriho owned or controlled the
accounts at the Kenyan and Ugandan banks identified in the
indictment. If all that is true, the district court could properly
surmise that the government will not learn anything new
about the existence, authenticity, or Oriho’s control over the
funds named in the indictment to justify repatriation.
Though the indictment does not provide account numbers for
the Kenyan and Ugandan bank accounts, the specific dates,
bank names, and dollar amounts create a fairly high degree
of certainty about the government’s current independent
knowledge.
Therefore, on the record as presented to us, $760,000 is
the only supportable monetary cap for the order because any
other compelled repatriation would violate Oriho’s self-
incrimination privilege. But given that the record evidence
on this point is scarce, we instruct the district court on
remand to hold an evidentiary hearing to determine the
correct monetary cap. To do so, the court must determine
whether the government can prove the elements of the three-
pronged foregone conclusion test outlined above, and to
which funds it applies.
3
The district court’s final effort to assuage the Fifth
Amendment concerns Oriho presented in opposition to the
repatriation order was to confirm the enforceability of the
government’s promise that it “will not introduce evidence
20 UNITED STATES V. ORIHO
that [Oriho] repatriated funds from Africa in its case-in-
chief.” 5 Oriho argues that even with this promise in place,
the government will still be able to use information gained
from repatriation in rebuttal, on cross-examination, or to
bring new charges against him. He is correct.
Though “the government has an option to exchange the
[self-incrimination] privilege for an immunity to
prosecutorial use of any compelled inculpatory testimony,”
it must “provide an immunity as broad as the privilege
itself.” Balsys, 524 U.S. at 682. As Oriho points out, the
self-incrimination privilege extends, not just to evidence that
might be used in the government’s case-in-chief, but to all
evidence that might provide a “link in the chain of evidence”
in any future criminal proceeding against him. Maness,
419 U.S. at 461. The language of the government’s promise
does not fully “negate[] the possibility of a Fifth Amendment
violation,” as the district court concluded and as required by
law. See Balsys, 524 U.S. at 682. And for the same reasons,
“pocket immunity”—an informal promise of immunity from
the prosecutor in this case that provides protection in only
one jurisdiction—also does not suffice. See id. (it is
“intolerable to allow a prosecutor in one or the other
jurisdiction to eliminate the privilege by offering immunity
less complete than the privilege’s dual jurisdictional reach”);
Murphy v. Waterfront Comm’n, 378 U.S. 52, 78 (1964)
(privilege against self-incrimination protects “a federal
witness against incrimination under state as well as federal
5
The language of this promise was essentially plucked from two
out-of-Circuit district court cases, neither of which provides support for
the use of such limited protection here. See United States v. Morrison,
No. 04-699, 2006 WL 2990481 (E.D.N.Y. Oct. 19, 2006) (inapposite
facts because defendant previously disclosed information sought);
United States v. Sellers, 848 F. Supp. 73, 77 (E.D. La. 1994) (opinion
includes almost no self-incrimination analysis).
UNITED STATES V. ORIHO 21
law”). Only full use immunity would override any
compelled violation of the self-incrimination privilege. See
Kastigar, 406 U.S. at 453 (noting that “immunity from use
and derivative use is coextensive with the scope of the
privilege against self-incrimination”).
We direct the district court to revise the repatriation
order on a more complete evidentiary record to avoid any
infringement of Oriho’s Fifth Amendment rights. If the
court foresees any further self-incrimination that might
occur as a result of this order, it is free to limit the
introduction of compelled evidence at trial or enforce the
requirements of 18 U.S.C. §§ 6001–03, if the government
chooses to offer statutory immunity. We leave to the district
court on remand whether a formal use immunity order
authorized by the Justice Department may be required if
Oriho does not comply with the revised repatriation order
and “the testimony or other information from [Oriho] may
be necessary to the public interest.” Id. at § 6003(b).
***
As currently framed, the pre-trial repatriation order
violates Oriho’s self-incrimination privilege under the Fifth
Amendment. 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. But because the district
court did not previously hold a hearing on this issue, we
remand for an evidentiary hearing to consider what factual
information may support application of the foregone
conclusion exception under the proper test, and to what
amount of the alleged fraudulent proceeds the exception
applies.
22 UNITED STATES V. ORIHO
VACATED and REMANDED with instructions.