United States v. Oriho

• Decision Date: 10 August 2020
• Docket Number: No. 19-10291,19-10291
• Citation: 969 F.3d 917
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander ORIHO, dba Rhino's Med. Trans, LLC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

969 F.3d 917

UNITED STATES of America, Plaintiff-Appellee,

v.Alexander ORIHO, dba Rhino's Med. Trans, LLC, Defendant-Appellant.

No. 19-10291

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2020 San Francisco, California

Filed August 10, 2020

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.

Before: Eugene E. Siler,^* Richard C. Tallman, and Danielle J. Hunsaker, Circuit Judges.

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 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.

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).

Ct	Date	Money Transaction	Amount
37	07/13/2017	Wire transfer from Bank of America account #X1850 to a Stanbic Bank account in Uganda	$110,000
38	12/28/2017	Wire transfer from Bank of America account #X1850 to a KCB Bank account in Uganda	$110,000
39	01/08/2018	Wire transfer from Bank of America account #X1850 to a KCB Bank account in Uganda	$110,000
40	04/17/2018	Wire transfer from Bank of America account #X1850 to a Stanbic Bank account in Kenya	$120,000
41	06/14/2018	Wire transfer from Bank of America account #X1850 to a Equity Bank account in Uganda	$80,000
42	06/14/2018	Wire transfer from Bank of America account #X1850 to a Stanbic Bank account in Kenya	$110,000
43	09/04/2018	Wire transfer from Bank of America account #X1850 to a Stanbic Bank account in Uganda	$120,000

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 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

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 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...