U.S. v. Waknine

• Decision Date: 10 September 2008
• Docket Number: No. 06-50521.,No. 06-50713.,06-50521.,06-50713.
• Citation: 543 F.3d 546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hai WAKNINE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Hai Waknine, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 546

UNITED STATES of America, Plaintiff-Appellee, v. Hai WAKNINE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Hai Waknine, Defendant-Appellant.

No. 06-50521.

No. 06-50713.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2008.

Filed September 10, 2008.

Ronald Richards, Beverly Hills, CA, David Kenner, Encino, CA, 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, CA, for the plaintiff-appellee.

Appeals from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CR-04-00373-R, CR-04-00373-R-1.

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.

GOULD, Circuit Judge:

Hai Waknine appeals his sentence of 121 months of imprisonment 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 considering the 18 U.S.C. § 3553(a) factors before imposing his sentence, and (4) the district court erred in its restitution calculation. Waknine also asks us to remand this case to a different district judge. We have jurisdiction under 28 U.S.C. § 1291. We conclude that there was plain error in the sentencing, 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 with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence. We also vacate the district court's restitution order, and remand for recalculation and explanation of restitution payments. Finally, we reject Waknine's request for a new sentencing 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). Waknine 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 category 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 objections 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 convictions 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 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 government 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 district 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 district court responded, "It would be on a criminal history category 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 government. The government requested that Waknine pay restitution 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, Waknine 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 inconsistencies in Hadad's testimony and his statements in his victim loss summary, and the conflicting testimony of cooperating witnesses, 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 participating in Waknine's investigation and prosecution. At the restitution 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 government 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 Beverly Hills, became involved with Waknine and his co-conspirators after he told Waknine he was looking for investors 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 attorneys' fees and $25,000 in investigator's fees. At the restitution 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.

II

Waknine challenges his 121-month sentence on three grounds. Waknine did not raise these objections to his sentence 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, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). If these three conditions are met, we may then exercise our discretion to grant relief if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 sentence, that the district court sentence Waknine to 108 months of imprisonment.²

"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 quotation marks omitted). "To decide whether a plea agreement has been breached, this court considers what the defendant reasonably 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 application 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 imprisonment." Notably, four days before the sentencing hearing, the government filed a sentencing memorandum in which it expressly recommended "...