United States v. Oriho, No. 19-10291 (9th Cir. 2020)Annotate this Case
After defendant was indicted on healthcare fraud and money laundering charges, he challenged a pre-trial repatriation order entered by the district court as a violation of his Fifth Amendment privilege against self-incrimination. The order requires defendant 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 Ninth Circuit vacated the district court's order, holding that the challenged order compels 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. The panel also held 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 panel explained that the order allows the government to shirk its responsibility to discover its own evidence, and the government's narrow promise of limited use immunity is insufficient to counterbalance these harms. Accordingly, the panel remanded with instructions to conduct an evidentiary hearing.