United States v. Lo

• Decision Date: 05 October 2016
• Docket Number: No. 15-10219,15-10219
• Citation: 839 F.3d 777
• Parties: United States of America, Plaintiff–Appellee, v. Henry Lo, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

839 F.3d 777

United States of America, Plaintiff–Appellee,

v.Henry Lo, Defendant–Appellant.

No. 15-10219

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2016 San Francisco, California

Filed October 5, 2016

Martha Boersch (argued), Boersch Shapiro LLP, Oakland, California, for Defendant–Appellant.

Meredith Osborn (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff–Appellee.

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Royce C. Lamberth,^** District Judge.

OPINION

IKUTA

, Circuit Judge:

Henry Lo appeals the district court's imposition of a restitution order and a forfeiture money judgment, both in the amount of $2,232,894, as part of his sentence for three counts of wire fraud and mail fraud to which he pleaded guilty. The district court had jurisdiction under 18 U.S.C. § 3231

, and we have jurisdiction under 28 U.S.C. § 1291. Because Lo validly waived his right to appeal, and none of the exceptions to such waivers are applicable, we dismiss this appeal.

I

On August 19, 2014, Henry Lo was indicted in district court for two different schemes to defraud: wire fraud in violation of 18 U.S.C. § 1343

, and mail fraud in violation of 18 U.S.C. § 1341.

According to the indictment, Lo worked for Absolutely New, Inc. (ANI), a consumer goods company headquartered in San Francisco, from 2007 until 2010. Lo “knowingly and with intent to defraud” devised and executed “a scheme and artifice to defraud ANI” that involved several different uses of the wires. From January 2008 until September 2010, Lo used about $1,300,000 from ANI bank accounts to purchase cashier's checks, and either deposited them in his personal account at the brokerage firm Charles Schwab & Co., Inc., or used them to make payments on his personal line of credit at Wells Fargo bank. In late 2010, Lo gained access to one of ANI's bank accounts, and from December 2010 until February 2012 (after Lo left the company), he directed almost $240,000 from that account into his own American Express account. From January 2010 to February 2012, Lo caused ANI to transfer around $550,000 to Lo's PayPal account. Finally, Lo also used a debit card linked to ANI's bank account to pay about $30,000 of his personal expenses. In total, Lo stole more than $2,000,000 from ANI.

The indictment detailed specific acts that constituted use of the wires to further Lo's scheme to defraud. Counts 1 through 12 recited specific instances (including the date and the dollar amount of the transfer) when Lo caused electronic payments from an ANI bank account to be made to Lo's American Express account through American Express's computer servers. Count 1 alleged that Lo made an “[e]lectronic payment in the amount of $26,750.00” on January 4, 2011. Counts 13 through 24 recited twelve additional instances when Lo caused electronic payments from his PayPal account to be transferred to one of his bank accounts. Count 13 alleged a “[t]ransfer in the amount of $2,000.00” on January 26, 2010.

The indictment also charged Lo with mail fraud, in violation of 18 U.S.C. § 1341

. According to the indictment, from March 2013 to June 2013, Lo “knowingly and with the intent to defraud” executed a scheme to steal money from his girlfriend, A.W. Lo persuaded A.W. to let him prepare her tax returns, and then convinced A.W. to pay her estimated taxes to the IRS by writing checks totaling more than $125,000 to a Schwab account in the name of Lo's wife. In connection with this scheme, Lo forged confirmation statements from Schwab which confirmed that her checks would be sent to the IRS on A.W.'s behalf. He sent these statements through the mail to A.W.

As with the wire fraud charges, the indictment also detailed the acts that constituted use of the mail to further Lo's scheme to defraud. Counts 26 through 29 recited four specific instances (including the date and the dollar amount) of forged confirmation statements from Schwab. Count 26 alleged: “Statement purporting to confirm Schwab's wire transfer of $50,000.00 to the IRS on behalf of A.W.” on April 2, 2013.

The indictment contained a forfeiture allegation under 18 U.S.C. § 981(a)(1)(C)

and 28 U.S.C. § 2461(c), stating that if convicted, Lo would forfeit to the United States “property constituting, and derived from, proceeds the defendant obtained directly and indirectly, as the result of those violations, including, but not limited to, the following real property or personal property.”

The listed property included one piece of real property and identified funds in various bank or brokerage accounts. The forfeiture allegation also stated that if any of the listed property was unavailable as a result of an act or omission by Lo, “any and all interest the defendant has in other property” would be forfeited to the United States under 21 U.S.C. § 853(p)

.

On November 20, 2014, Lo entered into a plea agreement with the government, in which he agreed to plead guilty to Counts 1, 13, and 26 of the indictment. Lo admitted he was guilty of the elements of both wire fraud and mail fraud, including that he knowingly participated in a scheme or plan to defraud. He also agreed that the maximum penalties included restitution and forfeiture.

In section 2 of the plea agreement, Lo agreed to the truth of the facts underlying his conviction. Among other things, Lo specified the precise dollar amount of funds he had stolen as part of his schemes to defraud. He admitted that he transferred $239,053 of ANI funds into his American Express account as part of the wire fraud scheme, that he transferred payments totaling $564,311 to the PayPal account that he controlled, that he used ANI funds to purchase $1,356,777 in cashier's checks that he deposited into his personal accounts, and that he made $30,330 in purchases using an ANI debit card for his personal expenses. Lo also agreed that he induced A.W. to write more than $125,000 in checks to a Schwab account in his wife's name as part of the mail fraud scheme. In total, Lo admitted to defrauding ANI and A.W. of at least $2,315,469.

The plea agreement included Lo's agreement to give up the rights he would otherwise have if he chose to proceed to trial. Section 4 of the plea agreement also contained an appeal waiver, which stated:

I agree to give up my right to appeal my convictions, the judgment, and orders of the Court. I also agree to waive any right I have to appeal any aspect of my sentence, including any orders relating to forfeiture and or restitution.

In Section 9, Lo agreed “to pay restitution for all the losses caused by all the schemes or offenses with which [he] was charged in this case,” and he further agreed that restitution “will not be limited to the loss attributable to the counts to which [he is] pleading guilty.” He continued, “I agree that the Court may order and I will pay restitution in an amount to be set by the Court, but in no event less than $1,700,000 to ANI and $46,189.54 to A.W., less any amounts paid by me to ANI or A.W. after the date of this Agreement.” He also agreed that “any fine, forfeiture, or restitution imposed by the Court ... will be immediately due and payable and subject to immediate collection by the government.”

Before sentencing, the government made an application for a preliminary order of forfeiture. Its application stated that Lo's thefts from ANI and A.W. totaled at least $2,323,971, and accordingly that amount was subject to forfeiture.

At his change of plea hearing on November 20, 2014, the district court engaged Lo in a detailed colloquy as required by Rule 11 of the Federal Rules of Criminal Procedure

. Lo stated that the plea agreement was voluntary and that he understood and agreed to its terms. Further, Lo stated that he understood that the terms in the plea agreement “are merely recommendations” to the court, and that the court could impose a sentence that was more severe than he anticipated, without letting him withdraw his plea. During the course of the Rule 11 colloquy, Lo reaffirmed several times his understanding that the district court could impose a sentence that was different or more severe than he had been told. Lo admitted that he had engaged in schemes to defraud both ANI and A.W. and that he had fraudulently obtained over $2.2 million. Lo stated that he understood that the court would order restitution of at least $1,700,00 to ANI and at least $46,190 to A.W.

The court also addressed the appeal waiver and asked Lo:

Now, do you also understand that under some circumstances you or the government would have the right to appeal any sentence that I impose, but because of the agreement that you've entered into in entering a plea of guilty you will have waived or given up your right to appeal or collaterally attack all or part of your sentence?

Lo responded “yes” to this question.

At the conclusion of the sentencing proceedings, the district court sentenced Lo to 70 months imprisonment. The district court interpreted the government's forfeiture application as seeking a money judgment, and ordered a forfeiture money judgment in the amount of $2,232,894. The district court also ordered Lo to pay $2,232,894 in restitution to ANI and A.W. Pursuant to the plea agreement, the district court dismissed the remaining counts. Lo timely appealed.

II

Before addressing Lo's claims, we must first address the government's argument that Lo waived his right to appeal any aspect of the sentence by agreeing to an appeal waiver in his plea agreement. “We review the question whether a defendant has validly waived his statutory right to appeal de novo.” United States v. Nguyen , 235 F.3d 1179, 1182 (9th Cir. 2000)

, abrogated on other grounds by

United States v. Rahman , 642 F.3d 1257, 1259 (9th Cir. 2011). We also review the district court's interpretation of statutes and the federal rules de novo. See

United States...