United States v. Brizan, No. 11-10449 (9th Cir. 2013)
Annotate this CaseDefendant pleaded guilty to an information charging misprision of a felony based on her concealment and failure to notify authorities of her husband's drug trafficking activities. Defendant appealed, arguing that the district court should have allowed her to withdraw her plea because the misprision charge violated her Fifth Amendment privilege against self-incrimination, the information failed to allege an essential element of misprision, and the plea lacked an adequate factual basis. The court dismissed the appeal because defendant could not overcome the appeal waiver contained in her plea agreement.
Court Description: Criminal Law. The panel dismissed, as waived, an appeal from a conviction by guilty plea to misprision of a felony in a case in which the defendant argued that the district court should have allowed her to withdraw her guilty plea because the charge violated her Fifth Amendment privilege against self- incrimination, the information failed to allege an essential element of misprision, and the plea lacked an adequate factual basis. The panel enforced the waiver of the right to appeal in the plea agreement where the district court conducted a thorough Fed. R. Crim. P. 11 colloquy, which included an admonishment regarding the appeal waiver and ensured that the plea was knowing and voluntary, and where the sentence did not contradict the agreement or exceed statutory limits. The panel wrote that to the extent that a constitutional claim of the sort the defendant raises could survive a waiver, it found no merit in the argument that the misprision charge violated her Fifth Amendment rights. The panel wrote that the defendant waived her right to raise a Fifth Amendment defense to the misprision charge by pleading guilty, and agreed with the First and Fifth Circuits that there is no constitutional impediment to a defendant, implicated in the underlying felony, waiving her Fifth Amendment privilege and voluntarily pleading guilty to a misprision count. The panel declined to entertain the defendant’s ineffective assistance of counsel claim on direct appeal.
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