United States v. Alexander Oriho

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10291

Plaintiff-Appellee,

D.C. No.

v. 2:19-cr-00667-

DJH-1

ALEXANDER ORIHO, DBA Rhino’s

Med. Trans, LLC,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

Diane J. Humetewa, District Judge, Presiding

Argued and Submitted July 13, 2020

San Francisco, California

Filed August 10, 2020

Before: Eugene E. Siler, * Richard C. Tallman, and

Danielle J. Hunsaker, Circuit Judges.

Opinion by Judge Tallman

*

The Honorable Eugene E. Siler, Senior United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 UNITED STATES V. ORIHO

SUMMARY **

Criminal Law

The panel vacated the district court’s order requiring the

defendant, who was indicted on healthcare fraud and money

laundering charges, to repatriate any proceeds of the

fraudulent scheme that he may have transferred to an African

bank during a three-year period, up to $7,287,000, in order

to preserve funds for potential forfeiture.

The panel determined that it had jurisdiction under

28 U.S.C. § 1292(a)(1) to review the interlocutory order,

which was issued under the authority of 21 U.S.C. § 853.

The panel held that, as currently written, the repatriation

order violates the defendant’s Fifth Amendment privilege

against self-incrimination. The panel concluded (1) that the

order compels the 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; (2) that the district court

failed to apply the proper “forgone conclusion” exception

test, relieving the government of its obligation to prove its

prior knowledge of the incriminating information that may

be implicitly communicated, thereby allowing the

government to shirk its responsibility to discover its own

evidence; and (3) that the government’s narrow promise of

limited use immunity is insufficient to counterbalance these

harms.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. ORIHO 3

The panel remanded with instructions to conduct an

evidentiary hearing designed to elicit from the government

evidence supporting a more limited repatriation order. The

panel instructed that 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 the defendant’s Fifth

Amendment privilege by ordering strict compliance with

18 U.S.C. §§ 6001–03.

COUNSEL

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.

4 UNITED STATES V. ORIHO

OPINION

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

UNITED STATES V. ORIHO 5

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.

6 UNITED STATES V. 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).

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

UNITED STATES V. ORIHO 7

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

1

The case is currently proceeding in district court with trial set for

February 16, 2021. Oriho moved to stay the repatriation order pending

appeal, but the motion was denied. Our motions panel likewise denied

8 UNITED STATES V. ORIHO

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

his emergency motion for a stay pending appeal. The district court

docket does not reflect that any funds have been repatriated, however.

UNITED STATES V. ORIHO 9

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 therefore proper.

B

Because we have jurisdiction we address the merits of

the case: whether the repatriation order violates Oriho’s Fifth

Amendment privilege against self-incrimination. The Fifth

Amendment states, in relevant part, that no person “shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. Oriho invokes this

constitutional protection to argue that the district court

wrongly concluded both that the repatriation order involves

no risk of self-incrimination, and that any compelled

statements are essentially a foregone conclusion that will not

add anything to the government’s case. Oriho contends that

the order is too broad, and that the government’s promise,

relied upon by the court—not to use evidence of the

repatriation in its case-in-chief—is not sufficient to fully

protect his Fifth Amendment rights. The applicability of the

self-incrimination privilege to an order for repatriation

issued under the forfeiture statute is a question of first

impression among the circuits.

10 UNITED STATES V. ORIHO

We conclude that, as currently written, the repatriation

order violates Oriho’s Fifth Amendment self-incrimination

privilege. The district court’s application of the foregone

conclusion exception was too broad, and the government’s

limited immunity promise is too narrow. The order cannot

stand in its present form.

1

We first approach whether the self-incrimination

privilege is implicated here. The Fifth Amendment privilege

against self-incrimination “applies only when the accused is

compelled to make a Testimonial Communication that is

incriminating.” Fisher v. United States, 425 U.S. 391, 408

(1976). But the communication need not be express or oral.

“[T]he act of production itself may implicitly communicate

statements of fact,” because, for example, “[b]y producing

documents in compliance with a subpoena, the witness

would admit that the papers existed, were in his possession

or control, and were authentic.” United States v. Hubbell,

530 U.S. 27, 36 (2000) (quotation marks omitted). And

“[t]he privilege afforded not only extends to answers that

would in themselves support a conviction . . . but likewise

embraces those which would furnish a link in the chain of

evidence needed to prosecute the claimant.” Hoffman v.

United States, 341 U.S. 479, 486 (1951). At bottom, it is the

“extortion of information from the accused; the attempt to

force him to disclose the contents of his own mind, that

implicates the Self-Incrimination Clause.” Doe v. United

States, 487 U.S. 201, 211 (1988) (citations and internal

quotation marks omitted).

The novel issue presented is whether these principles

extend to protect information that might be communicated

by the pre-trial transfer of funds for forfeiture. The district

court’s order under 21 U.S.C. § 853(e) is not part of the pre-

UNITED STATES V. ORIHO 11

trial criminal discovery process, 2 but Oriho argues that

repatriation of the funds in question will nonetheless reveal

information that the government could use against him in

this or future criminal prosecutions. Part of Oriho’s concern

stems from the fact that, as a pretrial detainee, he will be

forced to effectuate the transfer of funds under jail

surveillance. And the transfer itself may generate a paper

trail of records like those often sought in discovery. See Doe,

487 U.S. at 203, 206–07 (analyzing self-incrimination

privilege in the context of defendant’s compulsion to sign a

consent form for production of his bank account documents

from foreign banks).

The government admits that discovery-like records

“might be generated if Oriho repatriates funds from Africa.”

Yet it still argues that Oriho’s concerns about self-

incrimination are “mere speculation”—a contention

supported only by citation to a case where the party asserting

the privilege “flatly refused to justify his fear of criminal

2

Some of the government’s arguments suggest that because

forfeiture is not a tool of discovery, it does not have the same Fifth

Amendment implications. To the contrary, the Supreme Court and the

circuit courts have broadly applied the privilege outside the formal

discovery context. See United States v. Balsys, 524 U.S. 666, 672 (1998)

(the self-incrimination privilege “can be asserted in any proceeding”

(citation omitted)); Maness v. Meyers, 419 U.S. 449, 461 (1975) (“This

Court has always broadly construed its [Fifth Amendment self-

incrimination] protection to assure that an individual is not compelled to

produce evidence which later may be used against him as an accused in

a criminal action.”); cf. United States v. Antelope, 395 F.3d 1128, 1135

(9th Cir. 2005) (holding that self-incrimination privilege was implicated

by defendant’s required participation in sexual abuse treatment program

after conviction); Bramble v. Richardson, 498 F.2d 968, 973 (10th Cir.

1974) (stating that even civil forfeiture proceedings “will not be

permitted to provide an avenue through which the fundamental rights of

protection against . . . self-incrimination can be frustrated”).

12 UNITED STATES V. ORIHO

prosecution.” McCoy v. C.I.R., 696 F.2d 1234, 1236 (9th

Cir. 1983). Oriho, in contrast, stands indicted in a major

healthcare fraud case and has gone to great lengths to brief

us and the district court on his specific Fifth Amendment

concerns.

We are unpersuaded by the government’s inapt case

citations when caselaw teaches that the Fifth Amendment

inquiry is unique to each situation and “often depends on the

facts and circumstances of the particular case.” Doe,

487 U.S. at 214–15. Because the facts at bar involve

potential communications implicit in the act of transferring

funds, the most analogous caselaw relates to information

disclosed through the “act of production,” as discussed in the

Supreme Court’s opinion in Fisher v. United States. See

425 U.S. at 409–15. The Court outlined four facets of an

implicit communication that together support invocation of

the self-incrimination privilege. We ask whether:

(1) compulsion is involved; (2) a statement is being

communicated; (3) the statement relies on the truth-telling of

the defendant; and (4) the statement carries the risk of

incrimination. Id. 3 We consider each in turn.

First, is compulsion involved? Id. at 409–10. The Fisher

Court answered yes, by virtue of the defendant’s receipt of a

subpoena, id. at 410, and the same is true here. Oriho is

under a compulsory court order to repatriate the funds at

3

In Antelope, we set out only a two-part test for the self-

incrimination privilege, which covered the incrimination and

compulsion elements of Fisher. See 395 F.3d at 1134. But that case

involved verbal statements that the government sought from the

defendant, and therefore the two remaining elements of Fisher were

inherently met. See id. at 1131–32; see also id. at 1134 (framing the self-

incrimination test around “the testimony desired”). We cannot assume

away those elements in the case of implicit communications.

UNITED STATES V. ORIHO 13

issue and he can be held in contempt with no credit for time

served against any criminal sentence he may receive

following conviction on the underlying indictment if he fails

to comply. See 21 U.S.C. § 853(e)(4)(B). The order is

directed at him personally, and the repatriation would not be

undertaken willingly.

Second, is a statement being communicated? Fisher,

425 U.S. at 410. Fisher again said “yes” based on the act of

producing evidence in response to a subpoena, which “has

communicative aspects of its own” because it may “tacitly

concede[] the existence of the papers demanded and their

possession or control by the [defendant].” Id. We agree with

Oriho that the same principle applies here. The transfers

named in the indictment only refer to two different banks in

two African countries, yet the repatriation order demands the

transfer of funds from any bank in any African country. This

may provide information about other bank accounts of which

the government is not yet aware, forcing Oriho to “disclose

the contents of his own mind” regarding what accounts he

has access to and control over in order to effectuate the

transfer. Doe, 487 U.S. at 211 (quoting Curcio v. United

States, 354 U.S. 118, 128 (1957)).

Even solely with regard to the funds listed in the

indictment under Counts 37–43, repatriation further implies

Oriho’s “possession or control” over allegedly unlawfully

obtained money. See Fisher, 425 U.S. at 410. Those

transfers are charged under 18 U.S.C. § 1957, which requires

the government to prove Oriho had control over the funds

received from the fraudulent claims and then transferred in

interstate or foreign commerce to convict him. See In re

Brown, 953 F.3d 617, 623 (9th Cir. 2020) (“Courts have held

that to show that a defendant ‘obtained’ proceeds [of

criminally derived property under § 1957], there must be a

14 UNITED STATES V. ORIHO

demonstration of possession or control.” (citation omitted)).

If the government is allowed to use evidence of the

repatriation transfers in court, the fact of the transfers alone

could communicate to the jury that Oriho controlled those

funds, helping to prove the government’s case.

Third, Fisher tells us to ask whether the information

communicated somehow relies on the truth-telling of the

defendant, unlike a handwriting exemplar or blood sample.

Id. at 408, 410–11. To this question, the Supreme Court

answered “no,” because the documents sought to be

produced belonged to and were created by the defendant’s

accountant, not the defendant himself. Id. at 411. But here,

effectuation of the order does depend on Oriho’s

truthfulness. The government and the court are relying on

Oriho to “prove the existence [and] his access to” unnamed

bank accounts and deposited funds, when he may in fact be

the only person who knows that they exist. Id.

Finally, and perhaps most importantly, we must ask

whether any of the implied statements poses a realistic threat

of incrimination. Id. at 412–13. As discussed above, the

repatriation order may force Oriho to incriminate himself by

revealing the location of bank accounts and potentially

numerous other transfers of criminally derived funds that are

presently unknown to the government. The government

could improperly use that information to support the current

charges, bring additional charges, or even to file a new

indictment against Oriho for violating other criminal

provisions of state or federal law that he might reveal in

complying with the repatriation order. See Kastigar v.

United States, 406 U.S. 441, 453 (1972) (self-incrimination

privilege “afford[s] protection against being forced to give

testimony leading to the infliction of penalties affixed to . . .

criminal acts” (citation and internal quotation marks

UNITED STATES V. ORIHO 15

omitted)). The possibility of incrimination by any of these

routes is “realistic” and could be “substantial.” Fisher,

425 U.S. at 412–13. See also Antelope, 395 F.3d at 1134

(self-incrimination privilege may be invoked “when the

threat of future criminal prosecution is reasonably particular

and apparent” and “an individual need not incriminate

himself in order to invoke the privilege” (citation omitted)).

Having determined that the basic tenets of the self-

incrimination privilege apply here, we conclude that the

repatriation order implicates Oriho’s Fifth Amendment

rights. This determination is further supported by

contrasting this case with Doe v. United States, where the

Supreme Court upheld an order compelling a criminal

defendant to sign an omnibus consent directive, which

allowed for production of documents from any foreign bank

accounts in the defendant’s name when presented by the

police to a bank. 487 U.S. at 204–05, 215. The Court

determined that although the defendant’s signing of the

consent directive was a compelled communication, it was

not testimonial because the directive was purely drafted “in

the hypothetical.” Id. at 215. The form did not require the

defendant to identify a specific bank, “acknowledge that an

account . . . is in existence or that it is controlled by

[defendant],” or “indicate whether documents or any other

information relating to [defendant] are present at the foreign

bank.” Id. Ultimately, the testimonial significance of the

consent form was undermined because, “[a]lthough [such a]

form allows the Government access to a potential source of

evidence, the directive itself does not point the Government

toward hidden accounts or otherwise provide information

that will assist the prosecution in uncovering evidence. The

Government must locate that evidence ‘by the independent

labor of its officers.’” Id. (quoting Estelle v. Smith, 451 U.S.

454, 462 (1981)).

16 UNITED STATES V. ORIHO

None of the protections that the Court relied on in Doe

are accounted for by the repatriation order here. If Oriho

repatriates funds from as-yet-unidentified African banks, he

may very well “point the Government toward hidden

accounts” and allow the prosecution to sidestep its duty to

independently locate evidence. Id. Whether directly, or by

“furnish[ing] a link in the chain of evidence,” Hoffman,

341 U.S. at 486, Oriho could incriminate himself through the

testimonial statements compelled by the order. The district

court was wrong to conclude otherwise.

2

The district court also relied on the foregone conclusion

exception, which allows for circumvention of the self-

incrimination privilege if the government already has the

information it is seeking to compel. See Fisher, 425 U.S.

at 411 (characterizing a foregone conclusion as one where

the evidence “adds little or nothing to the sum total of the

Government’s information”). For this “exception to apply,

the government must establish its independent knowledge of

three elements: the documents’ existence, the documents’

authenticity and [the defendant’s] possession or control of

the documents.” United States v. Sideman & Bancroft, LLP,

704 F.3d 1197, 1202 (9th Cir. 2013) (citation omitted).

Oriho contends that the district court clearly erred in its

broad application of the exception, and we agree.

The district court’s foregone conclusion analysis rested

on two pieces of information: the indictment’s approximate

total of $7,287,000 in fraudulent payments made to Oriho,

and the government’s bald assertion in a motion that it

“already knows that the Defendant transferred

approximately $2,400,000 to African countries since

January 1, 2016.” The government provided no support for

its statement about Oriho’s alleged transfer of $2,400,000,

UNITED STATES V. ORIHO 17

and there is no reference to this figure in the indictment. We

reject the government’s argument that Oriho “did not

challenge” the legitimacy of this figure and it should

therefore be accepted. Oriho has doggedly opposed the

entire basis of the government’s repatriation motion,

requested and was denied an evidentiary hearing to put the

government to its proof, and has brought an interlocutory

appeal of the district court’s subsequent order. Even if we

were to take the government’s word, neither of the multi-

million dollar figures relied on by the district court show that

the government is aware of all the information that could be

implicitly communicated by the repatriation; namely, the

existence and location of specific bank accounts holding

additional funds and whether Oriho has control over them.

We conclude that the government cannot satisfy the first or

third elements of the foregone conclusion test. See id.

The government also has not proven that it can

independently verify the authenticity of information

gathered through the repatriation because that element of the

test “inquires into whether the government is compelling the

witness to use his discretion in selecting and assembling the

responsive documents.” In re Grand Jury Subpoena Dated

April 18, 2003, 383 F.3d 905, 912 (9th Cir. 2004) (holding

that application of foregone conclusion exception was clear

error). By identifying and repatriating all of the funds he has

transferred to any bank in Africa during a three-year time

period, Oriho is being tasked with “tacitly providing

identifying information that is necessary to the government’s

authentication of the [compelled material].” Id. The

government needs to show that it can authenticate the

evidence without Oriho’s assistance, Bright, 596 F.3d at 693,

but conceded at oral argument that it cannot currently

provide evidentiary support for the full sum authorized by

18 UNITED STATES V. ORIHO

the repatriation order. 4 Thus, the district court’s application

of the foregone conclusion exception to all $7,287,000 was

clear error.

We found clear error in a similar situation where “the

government made no showing that it knew [defendants]

maintained possession or control of [two bank] accounts and

thus of the account documents” sought by a summons. Id.

at 694. That opinion contrasted those two accounts with two

others specifically named in the summons, the existence of

which was a foregone conclusion because the government

independently knew about, had account numbers for, and

could show that the defendants had access to them. Id.

at 693–94. In the present case, though the transfers to

accounts specifically named in the indictment are already

known to the government based on the Grand Jury’s

determination of probable cause, the unnamed array of

African accounts reachable under the order (including any

that might house the $2,400,000 the government says it

“already knows” about) resemble those that failed to meet

the foregone conclusion requirements in Bright.

4

For purposes of the foregone conclusion test, the government only

needs to prove that it is possible that “the records could be independently

authenticated by banking officials.” Bright, 596 F.3d at 693 (“[n]or did

the government need to prove that it had previously authenticated the

same documents or that it had used these same bank officials in the

past”). See also id. at 693 n.4 (even where there are no treaties between

the United States and the foreign government where the bank accounts

are located, the documents could be authenticated through American

card servicing company). Even if this prong of the test can be satisfied,

the district court will likewise need to be vigilant that the government

does not rely on any privileged information gained through repatriation

to actually authenticate documents introduced at trial. Fed. R. Evid. 402

(evidence is inadmissible if it violates the United States Constitution).

UNITED STATES V. ORIHO 19

On the evidence before us, the only potentially correct

application of the foregone conclusion exception was to the

$760,000 in transfers named in Counts 37–43. The district

court could properly rely on the Grand Jury’s probable cause

determination regarding Oriho’s transfer to the receiving

accounts in Kenya and Uganda on the dates and in the

amounts alleged to support a repatriation order. It would not

be illogical to conclude that Oriho owned or controlled the

accounts at the Kenyan and Ugandan banks identified in the

indictment. If all that is true, the district court could properly

surmise that the government will not learn anything new

about the existence, authenticity, or Oriho’s control over the

funds named in the indictment to justify repatriation.

Though the indictment does not provide account numbers for

the Kenyan and Ugandan bank accounts, the specific dates,

bank names, and dollar amounts create a fairly high degree

of certainty about the government’s current independent

knowledge.

Therefore, on the record as presented to us, $760,000 is

the only supportable monetary cap for the order because any

other compelled repatriation would violate Oriho’s self-

incrimination privilege. But given that the record evidence

on this point is scarce, we instruct the district court on

remand to hold an evidentiary hearing to determine the

correct monetary cap. To do so, the court must determine

whether the government can prove the elements of the three-

pronged foregone conclusion test outlined above, and to

which funds it applies.

3

The district court’s final effort to assuage the Fifth

Amendment concerns Oriho presented in opposition to the

repatriation order was to confirm the enforceability of the

government’s promise that it “will not introduce evidence

20 UNITED STATES V. ORIHO

that [Oriho] repatriated funds from Africa in its case-in-

chief.” 5 Oriho argues that even with this promise in place,

the government will still be able to use information gained

from repatriation in rebuttal, on cross-examination, or to

bring new charges against him. He is correct.

Though “the government has an option to exchange the

[self-incrimination] privilege for an immunity to

prosecutorial use of any compelled inculpatory testimony,”

it must “provide an immunity as broad as the privilege

itself.” Balsys, 524 U.S. at 682. As Oriho points out, the

self-incrimination privilege extends, not just to evidence that

might be used in the government’s case-in-chief, but to all

evidence that might provide a “link in the chain of evidence”

in any future criminal proceeding against him. Maness,

419 U.S. at 461. The language of the government’s promise

does not fully “negate[] the possibility of a Fifth Amendment

violation,” as the district court concluded and as required by

law. See Balsys, 524 U.S. at 682. And for the same reasons,

“pocket immunity”—an informal promise of immunity from

the prosecutor in this case that provides protection in only

one jurisdiction—also does not suffice. See id. (it is

“intolerable to allow a prosecutor in one or the other

jurisdiction to eliminate the privilege by offering immunity

less complete than the privilege’s dual jurisdictional reach”);

Murphy v. Waterfront Comm’n, 378 U.S. 52, 78 (1964)

(privilege against self-incrimination protects “a federal

witness against incrimination under state as well as federal

5

The language of this promise was essentially plucked from two

out-of-Circuit district court cases, neither of which provides support for

the use of such limited protection here. See United States v. Morrison,

No. 04-699, 2006 WL 2990481 (E.D.N.Y. Oct. 19, 2006) (inapposite

facts because defendant previously disclosed information sought);

United States v. Sellers, 848 F. Supp. 73, 77 (E.D. La. 1994) (opinion

includes almost no self-incrimination analysis).

UNITED STATES V. ORIHO 21

law”). Only full use immunity would override any

compelled violation of the self-incrimination privilege. See

Kastigar, 406 U.S. at 453 (noting that “immunity from use

and derivative use is coextensive with the scope of the

privilege against self-incrimination”).

We direct the district court to revise the repatriation

order on a more complete evidentiary record to avoid any

infringement of Oriho’s Fifth Amendment rights. If the

court foresees any further self-incrimination that might

occur as a result of this order, it is free to limit the

introduction of compelled evidence at trial or enforce the

requirements of 18 U.S.C. §§ 6001–03, if the government

chooses to offer statutory immunity. We leave to the district

court on remand whether a formal use immunity order

authorized by the Justice Department may be required if

Oriho does not comply with the revised repatriation order

and “the testimony or other information from [Oriho] may

be necessary to the public interest.” Id. at § 6003(b).

***

As currently framed, the pre-trial repatriation order

violates Oriho’s self-incrimination privilege under the Fifth

Amendment. The foregone conclusion exception was

improperly applied, and the government’s limited use

immunity promise is insufficient to alleviate the order’s

harms to Oriho’s constitutional rights. We must therefore

vacate the district court’s order. But because the district

court did not previously hold a hearing on this issue, we

remand for an evidentiary hearing to consider what factual

information may support application of the foregone

conclusion exception under the proper test, and to what

amount of the alleged fraudulent proceeds the exception

applies.

22 UNITED STATES V. ORIHO

VACATED and REMANDED with instructions.