US vs. Oriho

Case: 19-10291, 12/20/2019, ID: 11540443, DktEntry: 13, Page 1 of 52
19-10291
_______________________________________________________
_______________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER ORIHO, DBA Rhino’s Med. Trans, LLC,
Defendant-Appellant.
________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA (CR-19-00667-DJH-1)
_______________________________________
DEFENDANT - APPELLANT’S OPENING BRIEF

_______________________________________
JON M. SANDS
Federal Public Defender
District of Arizona
DANIEL L. KAPLAN
Assistant Federal Public Defender
850 West Adams Street, Suite 201
Phoenix, Arizona 85007-2730
(602) 382-2767
_______________________________________________________
_______________________________________________________
TABLE OF CONTENTS
PAGE
Table of Authorities .............................................................................................. iv
Introduction ............................................................................................................ 1
Statement of Bail Status ......................................................................................... 2
Statement of Jurisdiction ........................................................................................ 2
Statement of the Issues ........................................................................................... 4
Statement of the Case ............................................................................................. 5
A. In June of 2019, the government filed a 43-count indictment charging

Mr. Oriho with health care fraud, identity theft, and unlawful transfers
of criminal proceeds to banks in Africa. ............................................... 5
B. The government moved the district court to order Mr. Oriho to

repatriate criminal proceeds that it alleges he unlawfully transferred
to banks in Uganda and Kenya ............................................................. 6
C. Mr. Oriho opposed the repatriation order, arguing that it violated the
Fifth Amendment by requiring him to incriminate himself. ................ 8
D. The district court rejected Mr. Oriho’s Fifth Amendment objection

and ordered him to repatriate “all funds, not to exceed $7,287,000,
that he wired or transferred to Africa since January 1, 2016.” ............. 9
E. The district court denied Mr. Oriho’s motion to reconsider its

repatriation order. .............................................................................. 10
i
F. Mr. Oriho filed the instant appeal from the district court’s repatriation
order and denial of his motion to reconsider, and unsuccessfully
moved the district court and this Court to stay these orders pending
the resolution of the appeal. ............................................................... 14
Summary of Argument .......................................................................................... 18
Argument .............................................................................................................. 21
I. This Court has jurisdiction to review the district court’s orders

requiring Mr. Oriho to repatriate funds from Africa. ......................... 21
A. Standard of Review .................................................................. 21
B. The district court’s orders are subject to review under 28

U.S.C. § 1291 and the collateral order doctrine and/or 28
U.S.C. § 1292(a)(1)’s grant of power to review orders
granting injunctions, or this Court’s power to issue writs
of mandamus under 28 U.S.C. § 1651(a). ................................ 21
1. 28 U.S.C. § 1291 and the Collateral Order Doctrine ..... 21
2. 28 U.S.C. § 1292(a)(1)’s Grant of Jurisdiction to Review

Orders Granting or Refusing to Modify Injunctions...... 25
3. 28 U.S.C. § 1651(a) and this Court’s Power to Issue

Writs of Mandamus ....................................................... 27
II. The district court’s orders violate Mr. Oriho’s Fifth Amendment
privilege against compelled self-incrimination.. ................................. 29
A. Standard of Review .................................................................. 29
B. The district court’s orders effectively require Mr. Oriho to

generate and supply the government with evidence that may
incriminate him in the instant case, as well as possible future
prosecutions.. .......................................................................... 29
ii
C. The district court’s belief that Mr. Oriho has no Fifth

Amendment privilege with respect to information that the
government claims it “already knows” is misguided. ............. 33
D. The government’s promise not to use the fruits of Mr. Oriho’s

compliance with the repatriation order in its case-in-chief in the
instant case does not nullify the infringement of his Fifth
Amendment privilege. ............................................................. 41
Conclusion ............................................................................................................ 42
Certificate of Compliance with FRAP 32(a)(7)(B)
Statement Regarding Related Cases
iii
TABLE OF AUTHORITIES
PAGE
Cases
Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965)............................ 41
Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) ...................................... 28
29
Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751 (9th Cir. 2017) ............. 29
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) ................................. 3, 22
Douglas v. U.S. Dist. Court, 495 F.3d 1062 (9th Cir. 2007) .................................... 27
Fisher v. United States, 425 U.S. 391 (1976) ........................................ 9, 33, 35, 36, 37
Gallo v. U.S. Dist. Court, 349 F.3d 1169 (9th Cir. 2003) ........................................ 27
Hilton v. Braunskill, 481 U.S. 770 (1987) ................................................................. 17
In re Feit & Drexler, Inc., 760 F.2d 406 (2d Cir. 1985) ............................................ 26
In re Grand Jury Subpoena, Dated Apr. 18, 2003,

383 F.3d 905 (9th Cir. 2004) ................................................................ 32-33, 34, 35
In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011,

670 F.3d 1335 (11th Cir. 2012) ......................................................................... 32, 35
In re Zermeno-Gomez, 868 F.3d 1048 (9th Cir. 2017) ................................................ 3
Maness v. Meyers, 419 U.S. 449 (1975) .........................................24, 28, 32-33, 37, 41
Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. 2013)............................................. 3
iv
SEC v. Hickey, 322 F.3d 1123 (9th Cir. 2003),

amended, 335 F.3d 834 (9th Cir. 2003) ................................................................. 26
Sell v. United States, 539 U.S. 166 (2003) .......................................................... 18, 23
Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989 (9th Cir. 2004) .............................. 27
United States v. Adams, 782 F. Supp. 2d 229 (N.D. W. Va. 2011),

appeal dismissed, 442 F. App’x 18 (4th Cir. 2011) ...................................... 33, 37, 38
United States v. Arthur, 750 F. App’x 540, 542 (9th Cir. 2018), amended on denial
of reh’g (Nov. 20, 2018), cert. denied, 140 S. Ct. 158 (2019) .................................. 32
United States v. Bright, 596 F.3d 683 (9th Cir. 2010) ........................................ 29, 34
United States v. Fox, 721 F.2d 32 (2d Cir. 1983) ..................................................... 33
United States v. Godinez-Ortiz, 563 F.3d 1022 (9th Cir. 2009) ............................... 22
United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009) ........................................... 26
United States v. Morrison, No. 04–CR–699 (DRH)(S–2),

2006 WL 2990481 (E.D.N.Y. Oct. 19, 2006) .................................. 33-34, 38-39, 40
United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994) ............................................ 26
United States v. Romero-Ochoa, 554 F.3d 833 (9th Cir. 2009) ................................. 21
United States v. Roth, 912 F.2d 1131 (9th Cir. 1990) ............................................... 26
United States v. Sellers, 848 F. Supp. 73 (E.D. La. 1994) ............................. 34, 39, 40
United States v. Spilotro, 680 F.2d 612 (9th Cir. 1982) ................................ 22, 23, 25
United States v. Vela, 624 F.3d 1148 (9th Cir. 2010)............................................... 21
v
Statutes
18 U.S.C. § 982(a)(1) ............................................................................................... 7
18 U.S.C. § 982(a)(7) ............................................................................................... 7
18 U.S.C. § 1028A ................................................................................................... 5
18 U.S.C. § 1347 ....................................................................................................... 5
18 U.S.C. § 1957 ....................................................................................................... 6
18 U.S.C. § 3231 ....................................................................................................... 2
21 U.S.C. § 853 ...................................................................................................... 26
21 U.S.C. § 853(e) .................................................................................................... 2
21 U.S.C. § 853(e)(4) .............................................................................. 6, 12, 24, 28
21 U.S.C. § 853(e)(4)(B) .............................................................................24, 25, 30
28 U.S.C. § 1291 .............................................................................................. passim
28 U.S.C. § 1292(a)(1) ..................................................................................... passim
28 U.S.C. § 1651(a) .......................................................................................... passim
USA Patriot Act, Pub. L. No. 107-56, tit. III, § 319(d) (2001) ............................... 40
Rules
Fed. R. Crim. P. 47 ................................................................................................ 2-3
D. Ariz. LRCiv 7.2(g) ............................................................................................... 3
D. Ariz. LRCrim. 12.1(a) .......................................................................................... 3

vi
Other
15B Edward H. Cooper, Federal Practice & Procedure § 3918 (Westlaw, current
through Aug. 2019 Update) .................................................................................. 23
16 Edward H. Cooper, Federal Practice & Procedure § 3922 (Westlaw, current

through Aug. 2019 Update) ............................................................................. 19, 25
U.S. Const. amend. V ............................................................................................ 32
vii
Introduction
Alexander Oriho is a naturalized United States citizen and father of six who
runs a Phoenix, Arizona-based medical transportation company called Rhino Med.
Trans, LLC. In June of this year, the government filed a 43-count indictment
charging him with health care fraud, aggravated identity theft, and unlawful
monetary transactions, in connection with allegations that his company submitted
fraudulent reimbursement applications to the agency that administers Arizona’s
Medicaid program. The final seven counts allege that Mr. Oriho unlawfully
transferred the proceeds of the fraud to banks in Uganda and Kenya. Shortly after
filing the indictment, the government moved the district court to order Mr. Oriho
to repatriate all funds that he wired or transferred to Africa since January 1, 2016 –
all of which, the government alleged, represented property involved in money
laundering offenses and proceeds of a federal health care offense. Mr. Oriho
objected, arguing that such an order would violate his Fifth Amendment right to be
free from compelled self-incrimination. The district court rejected Mr. Oriho’s
objection, ordered him to repatriate the funds, and later denied his motion to
reconsider that order. Mr. Oriho then filed the instant interlocutory appeal
challenging the district court’s orders. The case meanwhile continues to move
forward in the district court, unimpeded by this appeal.

Statement of Bail Status
Mr. Oriho was arrested on June 12, 2019.1 (Footnotes in this brief contain
only names and pertinent page and line numbers of cited documents.) On June 14,
2019, a magistrate judge ordered that he be detained pending trial.2 On June 27,
2019, Mr. Oriho moved the district court to revoke the detention order.3 On July
11, 2019, the district court held a hearing on Mr. Oriho’s motion and then denied it,
ordering that he “shall continue to be detained pending further proceedings.”4 The
district court’s most recent scheduling order set an evidentiary hearing/interim
pretrial conference for April 2, 2020.5 As of the filing of this brief, Mr. Oriho
remains detained pending trial.
Statement of Jurisdiction
The United States District Court for the District of Arizona (Humetewa,
DJ) has jurisdiction over the underlying criminal case pursuant to 18 U.S.C. § 3231.
The district court had jurisdiction over the government’s motion to repatriate
funds pursuant to 21 U.S.C. § 853(e) and Federal Rule of Criminal Procedure 47.
The district court had jurisdiction over Mr. Oriho’s motion for reconsideration of
1
Defendant-Appellant’s Excerpts of Record (ER) Vol. 2 at 249.
2
Id. at 250; Clerk’s Record (CR) Docs. 13, 15.
3
ER Vol. 2 at 251.
4
Id. at 252.
5
Id. at 254.
2
its order granting the motion to repatriate funds pursuant to Federal Rule of
Criminal Procedure 47 and this Court’s precedent. Navajo Nation v. Norris, 331
F.3d 1041, 1046 (9th Cir. 2003).
The district court entered its order granting the government’s motion to
repatriate funds on July 19, 2019.6 Mr. Oriho filed a motion to reconsider that order
on August 2, 2019.7 Fed. R. Crim. P. 47; D. Ariz. LRCiv 7.2(g); D. Ariz. LRCrim
12.1(a). The district court entered its order denying Mr. Oriho’s motion to
reconsider on August 12, 2019.8 Mr. Oriho filed a notice of appeal of both of the
district court’s orders on August 21, 2019.9
As explained further in section I below, this Court’s jurisdiction is invoked
pursuant to (1) 28 U.S.C. § 1291 and the collateral order doctrine, Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); (2) 28 U.S.C. § 1292(a)(1),
granting appellate jurisdiction to review interlocutory district court orders granting,
continuing, or refusing to dissolve or modify injunctions; and (3) 28 U.S.C.
§ 1651(a), granting this Court authority to issue writs of mandamus to the district
court, In re Zermeno-Gomez, 868 F.3d 1048, 1051 (9th Cir. 2017).
6
ER Vol. 1 at 1-5.
7
ER Vol. 2 at 28-30.
8
ER Vol. 1 at 6-9.
9
ER Vol. 2 at 38-39.
3
Statement of the Issues
I. Interlocutory appeal jurisdiction. Does this Court have jurisdiction to
review the district court orders challenged herein, which do not completely
terminate the case in the district court, pursuant to (1) 28 U.S.C. § 1291 and the
collateral order doctrine; and/or (2) 28 U.S.C. § 1292(a)(1), which gives this Court
jurisdiction to review interlocutory district court orders granting, continuing, or
refusing to dissolve or modify injunctions; or (3) 28 U.S.C. § 1651(a), establishing
this Court’s authority to issue writs of mandamus to the district court?
II. Violation of Mr. Oriho’s Fifth Amendment protection against
compelled self-incrimination. The district court’s orders challenged here compel
Mr. Oriho to use the government-monitored telephone and mail systems available
to him in federal custody to repatriate from Africa up to $7.287 million – which the
government contends are all proceeds and evidence of his federal crimes. Do these
orders violate Mr. Oriho’s Fifth Amendment right to be free from compelled self-
incrimination?
4
Statement of the Case
A. In June of 2019, the government filed a 43-count indictment

charging Mr. Oriho with health care fraud, identity theft, and
unlawful transfers of criminal proceeds to banks in Africa.
Mr. Oriho is a naturalized United States citizen and father of six who runs a
Phoenix, Arizona-based non-emergency medical transportation company called
Rhino Med. Trans, LLC.10 On June 5, 2019, the government filed a 43-count
indictment against Mr. Oriho.11 The counts fall into three groups.
Counts 1 through 30 charge health care fraud against the Arizona Health
Care Cost Containment System (“AHCCCS”), the state agency that administers
Arizona’s Medicaid programs, in violation of 18 U.S.C. § 1347.12 These counts
charge that Mr. Oriho, through Rhino Med. Trans, submitted 30 fraudulent
reimbursement claims to AHCCCS, seeking payment for transports that never
occurred or were fraudulently billed.13
Counts 31 through 36 charge aggravated identity theft in violation of 18
U.S.C. § 1028A.14 These counts allege that in connection with six of the 30
transactions underlying the first 30 counts, Mr. Oriho knowingly possessed and
10
CR Doc. 8.
11
ER Vol. 2 at 10-17.
12
ER Vol. 2 at 12-13.
13
Id.
14
Id. at 14.
5
used without lawful authority names and AHCCCS numbers belonging to “another
actual person.”15
Counts 37 through 43 charge monetary transactions in violation of 18 U.S.C.
§ 1957, which applies to a person who knowingly transfers the proceeds of a federal
health care offense.16 These counts allege that seven wire transfers between a Bank
of America account and accounts in three banks in Uganda and Kenya, occurring
on six dates between July 13, 2017 and September 4, 2018, of amounts ranging from
$80,000 to $120,000 and totaling $760,000, constituted monetary transactions in
violation of Section 1957.17
Mr. Oriho has pleaded not guilty and invoked his right to a jury trial.18
B. The government moved the district court to order Mr. Oriho to

repatriate criminal proceeds that it alleges he unlawfully
transferred to banks in Uganda and Kenya.
On June 26, 2019, the government filed a motion to repatriate funds.19 The
motion sought an order, pursuant to 21 U.S.C. § 853(e)(4), directing Mr. Oriho “to
repatriate the criminal proceeds from his indicted offenses and property involved in
his money laundering offenses and to deposit them with the United States
15
ER Vol. 2 at 14.
16
ER Vol. 2 at 14-15.
17
Id.
18
Id. at 249-50.
19
Id. at 18-21.
6
Marshals Service pending further order of th[e] Court.”20 The government noted
that this request related to the final seven counts of the indictment, which alleged
that Mr. Oriho “laundered some of his health care fraud proceeds by wiring them
to Africa.”21 The government further alleged that Mr. Oriho “made many more
wire transfers of his proceeds to Africa that are not included in the Indictment and,
based on what the government currently knows, [Mr. Oriho] wired approximately
$2,400,000 to Africa since January 1, 2016.”22 The government asserted that “[a]ll
of the proceeds that [Mr. Oriho] wired or transferred to Africa are subject to
forfeiture because, among other reasons, they are property involved in a money
laundering offense and are proceeds of a federal health care offense. 18 USC
§ 982(a)(1) and (7).”23 On these grounds, the government sought an order
directing defendant to “repatriate all funds that he wired or transferred to Africa
since January 1, 2016, and will deposit those funds with the United States Marshals
Service[.]”24
20
Id. at 18.
21
Id.
22
Id.
23
Id. at 18-19.
24
Id. at 21.
7
C. Mr. Oriho opposed the repatriation order, arguing that it violated

the Fifth Amendment by requiring him to incriminate himself.
Mr. Oriho filed a response opposing the government’s motion on the ground
that “[a]n order to repatriate funds would violate [his] Fifth Amendment privilege
against self-incrimination.”25 He noted that “[i]f the Court ordered [him] to
repatriate funds, it would be compelling [him] to engage in monetary transactions,
authenticate certain evidence, and produce an evidentiary trail that the
Government could use in its efforts to convict [him].”26 And he observed that
“[t]he act of repatriating funds would amount to compelled testimony because it
would require [him] to confirm certain facts the Government seeks to prove at trial
and authenticate evidence.”27
The government filed a reply in which it argued that Mr. Oriho’s act of
repatriating funds from Africa “would not be a testimonial communication entitled
to Fifth Amendment protection.”28 The government also represented that it
“w[ould] not use in its case-in-chief evidence of [Mr. Oriho’s] repatriation of the
25
Id. at 22-24.
26
Id. at 23.
27
Id.
28
Id. at 25-27.
8
foreign funds,” suggesting that this promise would “eliminate[] any possibility of a
Fifth Amendment violation.”29
D. The district court rejected Mr. Oriho’s Fifth Amendment

objection and ordered him to repatriate “all funds, not to exceed
$7,287,000, that he wired or transferred to Africa since January 1,
2016.”
On July 19, 2019, the district court entered an order granting the
government’s motion to repatriate funds.30 The court quoted Fisher v. United
States, 425 U.S. 391, 411 (1976), for the proposition that a compelled production of
material does not violate the Fifth Amendment where it “‘adds little or nothing to
the sum total of the Government’s information.’”31 The court reasoned that this
proposition nullified any Fifth Amendment problem because the government
“already knows” that Mr. Oriho “transferred approximately $2,400,000 to
African countries since January 1, 2016,” and thus his forced repatriation of the
funds “would add little or nothing to the sum total of the government’s
information.”32 The court also reasoned that the government’s promise to refrain
from introducing evidence of Mr. Oriho’s compelled repatriation of funds in its
29
Id. at 26-27.
30
ER Vol. 1 at 1-5.
31
ER Vol. 1 at 3.
32
Id. at 3-4.
9
case-in-chief “further negates the possibility of a Fifth Amendment violation.”33
The court did find it appropriate to limit the amount to be repatriated to
$7,287,000, which it identified as “the total amount [Mr. Oriho] allegedly
generated through his health care fraud.”34
The court’s repatriation order accordingly provided that “within sixty (60)
days Defendant will repatriate all funds, not to exceed $7,287,000, that he wired or
transferred to Africa since January 1, 2016, and will deposit those funds with the
United States Marshals Service.”35
E. The district court denied Mr. Oriho’s motion to reconsider its

repatriation order.
On August 2, 2019, Mr. Oriho filed a motion to reconsider the repatriation
order.36 Mr. Oriho argued that the order not only violated his Fifth Amendment
privilege against self-incrimination, but also required “action that is not possible
from the custody of the United States Marshals Service.”37 Mr. Oriho noted that
the government had not “demonstrated that [he] controls the funds at issue and
ha[d] not established that [he] ha[d] the means or access to repatriate funds given
33
Id. at 4.
34
Id.
35
Id.
36
Id. at 28-30.
37
Id. at 28.
10
his status as a detainee.”38 Mr. Oriho asked the court to reconsider its ruling and
deny the government’s motion to repatriate funds.39
In the alternative, Mr. Oriho asked the court to amend its order to state that
“the Government shall not use any information derived from the repatriation
against [him] for any purpose in any prosecution against [him].”40 Mr. Oriho
explained that the government’s promise to refrain from using such information in
its case-in-chief in the instant prosecution did not “fully alleviate the Fifth
Amendment violation,” because the government “could still use Court-compelled
testimony and evidence derived from [his] repatriation to impeach him at trial.”41
He further noted that it would be “the Government’s burden at trial to prove that
the bank accounts at issue belong to [him] or were controlled by [him] and that he
used the accounts to conduct monetary transactions,” and that “[b]y forcing [him]
to authenticate this information and actually engage in additional monetary
transactions using the same accounts at issue in the Indictment, the Court would be
forcing [him] to create additional testimonial evidence that could be used against
38
Id. at 29.
39
Id.
40
Id. at 30.
41
Id. at 29.
11
him.”42 The district court ordered the government to file a response to the motion
to reconsider.43
The government filed a response opposing Mr. Oriho’s motion.44 The
government urged the district court to “disregard” Mr. Oriho’s observation that
he is in federal custody and “allegedly does not control the funds” because he had
not raised it earlier.45 The government added that the observation was irrelevant
because 18 U.S.C. § 853(e)(4) “does not impose any burden or obligation on the
government to prove a defendant controls assets subject to repatriation or has the
ability to repatriate them.”46 And even if it had such a burden, the government
argued, it would be satisfied because the allegations in the indictment showed that
Mr. Oriho controlled the funds enumerated in Counts 37 through 43 “both before
and after he made these seven wire transfers to Africa.”47 The government asserted
that Mr. Oriho’s practical objections were adequately addressed by the 60-day
period that the court gave him to comply, and that despite being in federal custody,
Mr. Oriho “can still make and receive phone calls, can still receive and send mail,
42
Id. at 29-30.
43
Id. at 31-32.
44
Id. at 33-37.
45
Id. at 34.
46
Id. at 34-35.
47
Id. at 35.
12
can still meet and communicate with his family, friends, and attorney, can still
execute necessary transmittal documents, etc.”48
With respect to Mr. Oriho’s Fifth Amendment argument, the government
urged that its promise to refrain from using the fruits of any compelled repatriation
against him in its case-in-chief adequately protected Mr. Oriho’s Fifth Amendment
privilege.49 The government suggested that, if the court took a broader view of the
Fifth Amendment protection, it could amend the order “to preclude the
government from using evidence of repatriation for any purpose at trial.”50
On August 12, 2019, the district court entered its order denying Mr. Oriho’s
motion for reconsideration.51 The court found that Mr. Oriho’s practical objections
provided “an insufficient basis for the Court to reconsider its Order” because he
failed to raise them in his response to the government’s motion to repatriate
funds.52 The court rejected Mr. Oriho’s Fifth Amendment argument as well,
noting that it had been raised and rejected previously.53 The court rejected Mr.
Oriho’s alternative request that it amend the repatriation order to provide that the
48
Id.
49
Id. at 36.
50
Id.
51
ER Vol. 1 at 6-9.
52
Id. at 8.
53
Id.
13
fruits of any repatriation could not be used against him “for any purpose in any
prosecution,” noting that Mr. Oriho had “provide[d] no authority” support the
“necessity of such broad language.”54
F. Mr. Oriho filed the instant appeal from the district court’s
repatriation order and denial of his motion to reconsider, and
unsuccessfully moved the district court and this Court to stay
these orders pending the resolution of the appeal.
On August 21, 2019, Mr. Oriho filed a notice of appeal identifying the July
19, 2019 order granting the government’s motion for repatriation of funds and the
August 12, 2019 order denying Mr. Oriho’s motion for reconsideration.55
On the same date, Mr. Oriho filed a motion for stay pending appeal in the
district court.56 Mr. Oriho argued that this Court would accept jurisdiction of the
appeal because the repatriation order was either subject to immediate appeal
pursuant to the collateral order doctrine, or reviewable by writ of mandamus.57 Mr.
Oriho further argued that the pertinent factors supported the entry of a stay,
because he had a substantial probability of success on the merits of the appeal,
54
Id. at 9.
55
ER Vol. 2 at 38-39.
56
Id. at 40-56.
57
Id. at 42-43.
14
would suffer irreparable injury in the absence of a stay, his appeal raised serious
legal questions, and the balance of hardships tipped in his favor.58
On August 30, 2019, the government filed a response opposing Mr. Oriho’s
stay motion.59 The government argued that this Court would not accept
jurisdiction over Mr. Oriho’s interlocutory appeal, because the repatriation order is
not an immediately appealable collateral order, and did not merit the exercise of
mandamus authority.60 The government further argued that, even if appellate
jurisdiction were proper, the conditions supporting the issuance of a stay were not
present.61
On September 4, 2019, because the district court had not ruled on his motion
for a stay pending appeal and the deadline for his compliance with the repatriation
order was only thirteen days away, Mr. Oriho filed an emergency motion for stay
pending appeal in this Court.62 In his motion, as in his motion in the district court,
Mr. Oriho argued that the repatriation order is subject to immediate appeal, and
that the pertinent factors supported the entry of a stay.63
58
Id. at 42-55.
59
Id. at 57-70.
60
Id. at 58-64.
61
Id. at 64-69.
62
Id. at 71-184.
63
Id. at 77-95.
15
The next day, September 5, 2019, the district court entered an order denying
Mr. Oriho’s motion for stay pending appeal.64 The court found that Mr. Oriho
would not suffer irreparable injury in the absence of a stay, because the government
promised not to use the fruits of repatriation in its case-in-chief, and because Mr.
Oriho could seek to remedy any violation of his Fifth Amendment right by filing
suppression motions and appealing from a final judgment.65 The court found that
Mr. Oriho had not shown a probability of success on the merits because appellate
jurisdiction was lacking, and because he had not demonstrated that the repatriation
order breached his Fifth Amendment right.66 Although it denied Mr. Oriho’s stay
motion, the district court extended by 30 days his deadline to comply with the
repatriation order.67 Later that day, Mr. Oriho filed in this Court a supplement to
his emergency stay motion, attaching the district court’s order and noting that, in
light of the extension of the compliance deadline, the stay motion could be treated
as an “Urgent,” rather than an “Emergency” motion.68
64
Id. at 200-05.
65
Id. at 202.
66
Id. at 203-05.
67
Id. at 205.
68
Id. at 191-99.
16
The government filed a response opposing Mr. Oriho’s motion in this Court
for a stay pending appeal.69 The government argued that appellate jurisdiction was
lacking, and that the factors supporting a stay were not present.70 Mr. Oriho filed a
reply in support of his stay motion in this Court.71
On October 11, 2019, Judges W. Fletcher and Rawlinson entered a brief
order denying Mr. Oriho’s motion for a stay pending appeal, citing page 776 of
Hilton v. Braunskill, 481 U.S. 770 (1987), which identifies the factors governing the
issuance of stay pending appeal as “(1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where
the public interest lies.” 72 This Court’s order concluded by stating that “[t]he
briefing schedule established previously remains in effect.”73
69
Id. at 206-30.
70
Id. at 213-29.
71
Id. at 231-41.
72
Id. at 242.
73
Id.
17
Summary of Argument
I. Interlocutory appeal jurisdiction. The orders challenged in this appeal
are subject to immediate review in this Court, notwithstanding the fact that a final
judgment has not yet been entered, on any of three different grounds.
First, they are reviewable pursuant to 28 U.S.C. § 1291 and the collateral
order doctrine, which provides for immediate appellate review of district court
orders that (1) conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the action, and (3) are
effectively unreviewable on appeal from a final judgment. The government has not
disputed the first two factors, and the third is plainly applicable here. If Mr. Oriho
is acquitted, “there will be no appeal through which he might obtain review” of the
orders, and if he is convicted, he will have already been compelled to incriminate
himself by complying with the challenged orders – “the very harm that he seeks to
avoid.” Sell v. United States, 539 U.S. 166, 177 (2003).
Second, they are reviewable pursuant to 28 U.S.C. § 1292(a)(1), which gives
this Court jurisdiction over appeals from interlocutory district court orders
“granting, continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions.” The repatriation order qualifies as an
“injunction” subject to Section 1292(a)(1) because it is directed to a party,
18
enforceable by contempt, and designed to protect some or all of the substantive
relief sought by the indictment in more than temporary fashion. 16 Edward H.
Cooper, Federal Practice & Procedure § 3922 (Westlaw, current through Aug. 2019
Update). Moreover, this Court and others have exercised jurisdiction under
Section 1292(a)(1) to review orders similar to the orders challenged in this appeal.
Finally, if this Court were to find that these orders are not reviewable on
either of the above grounds, it could and should exercise its mandamus power
under 28 U.S.C. § 1651(a) to review them. Under those circumstances, the factors
supporting the exercise of this power would be present, because Mr. Oriho would
have no other adequate means to vindicate his Fifth Amendment rights, the lack of
review would expose him to irreparable injury from his compelled self-
incrimination, and the challenged orders are clearly erroneous as a matter of law.
In light of these doctrines, this Court should exercise its jurisdiction to
immediately review the orders challenged in this appeal.
II. Violation of Mr. Oriho’s Fifth Amendment right to be free from
compelled self-incrimination. The indictment in this case charges Mr. Oriho with
conducting seven unlawful transfers of criminal proceeds totaling $760,000 to
banks in Uganda and Kenya, over a fourteen-month period beginning in mid-July of
2017. In its pleadings, the government asserts more broadly that all of the money
19
Mr. Oriho wired or transferred “to Africa” since January 1, 2016, which it
estimates at approximately $2.4 million, represents property involved in money
laundering and proceeds of federal health care offenses.
Under these circumstances, it is self-evident that requiring Mr. Oriho to
repatriate funds from Africa would effectively compel him to supply the
government with self-incriminating evidence – particularly in light of the fact that,
as a federal inmate, he must use government-monitored telephone and mail
systems to conduct these transfers. Yet the district court rejected Mr. Oriho’s Fifth
Amendment objection, and ordered him to repatriate “all funds” that he wired or
transferred “to Africa” since January 1, 2016, up to a maximum of $7.287 million.
The court reasoned that this compelled repatriation “would not involve testimonial
self-incrimination” because the government claimed to know that Mr. Oriho
transferred approximately $2.4 million to African countries since January 1, 2016,
and thus the repatriation “would add little or nothing to the sum total of the
government’s information.”
This reasoning – which is tantamount to concluding that Mr. Oriho has no
right to a jury trial because the government, having conducted an investigation and
procured an indictment, “already knows” that he is guilty – is untenable, and the
authorities on which the district court relied do not support it. For this reason, and
20
because the repatriation order and order denying Mr. Oriho’s motion to reconsider
it severely infringe upon his right to be free from compelled self-incrimination, this
Court should vacate them.
Argument
I. This Court has jurisdiction to review the district court’s orders

requiring Mr. Oriho to repatriate funds from Africa.
A. Standard of Review
This Court “determine[s] de novo whether [it] may properly exercise
jurisdiction over an interlocutory appeal.” United States v. Romero-Ochoa, 554 F.3d
833, 835 (9th Cir. 2009).
B. The district court’s orders are subject to review under 28 U.S.C.

§ 1291 and the collateral order doctrine and/or 28 U.S.C.
§ 1292(a)(1)’s grant of power to review orders granting
injunctions, or this Court’s power to issue writs of mandamus
under 28 U.S.C. § 1651(a).
1. 28 U.S.C. § 1291 and the Collateral Order Doctrine
28 U.S.C. § 1291 gives this Court jurisdiction to review “all final decisions of
the district courts of the United States[.]” This statute has its clearest application
to district court orders that “end[] the litigation on the merits and leave[] nothing
for the court to do but execute the judgment.” United States v. Vela, 624 F.3d 1148,
1151 (9th Cir. 2010) (internal quotation marks omitted). But the Supreme Court
has exhorted the federal circuit courts to give the statute a “practical rather than a
21
technical construction.” Cohen, 337 U.S. at 546. Pursuant to this practical
construction, “[a]lthough interlocutory appeals are generally not permitted, there
is a small class of cases ‘which finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.’” United States v. Spilotro, 680 F.2d
612, 615 (9th Cir. 1982) (quoting Cohen, 337 U.S. at 546).
This principle, known as the “collateral order doctrine,” provides that “a
preliminary or interim decision is appealable as a collateral order when it
(1) conclusively determine[s] the disputed question, (2) resolve[s] an important
issue completely separate from the merits of the action, and (3) is effectively
unreviewable on appeal from a final judgment.” United States v. Godinez-Ortiz, 563
F.3d 1022, 1026 (9th Cir. 2009) (internal quotation marks omitted).
Collateral order jurisdiction is proper here, with respect to the orders
challenged in this appeal. The orders conclusively determine the question of
whether Mr. Oriho may be compelled to repatriate funds from Africa. This
question is an important one bearing upon his Fifth Amendment right to be free of
compelled self-incrimination. While the question relates to the merits of the
underlying case “in the sense that those proceedings will finally adjudicate the
22
question of whether [Mr. Oriho’s] ‘interest’ in [the funds allegedly transferred to
Africa] is subject to forfeiture,” it is nevertheless separable in the sense that the
constitutionality of the repatriation order “will not be answered by the disposition
of the pending criminal trial.” Spilotro, 680 F.2d at 615. Indeed, this Court and
others have exercised collateral order jurisdiction to review similar pretrial orders
in criminal cases. See id. at 614-15 (order restraining defendants from disposing of
title to, assets of, or interest in retail jewelry store allegedly involved in racketeering
offenses during pending criminal proceedings); see also 15B Edward H. Cooper,
Federal Practice & Procedure § 3918.3 & n.21 (Westlaw, current through Aug. 2019
Update) (“A number of cases have relied on collateral order doctrine to allow
appeal from orders restraining disposition of property that might be subject to
forfeiture.”) (citing cases).
Regardless of whether Mr. Oriho is acquitted or convicted, the district
court’s orders will be effectively unreviewable on appeal from the final judgment. If
he is acquitted, “there will be no appeal through which he might obtain review” of
the orders. Sell, 539 U.S. at 177. If he is convicted, he will have already been
compelled to incriminate himself by complying with the challenged orders – “the
very harm that he seeks to avoid.” Id. Indeed, once Mr. Oriho has been compelled
to repatriate the funds, the self-incrimination “cat” will be “out of the bag,” “with
23
no assurance whatever of putting it back.” Maness v. Meyers, 419 U.S. 449, 463
(1975). As the Supreme Court has noted, “appellate courts cannot always ‘unring
the bell’ once [self-incriminating] evidence has been released.” Id.
Mr. Oriho could, of course, refuse to comply with the district court’s orders,
accept a contempt sanction, and then press his Fifth Amendment objection on
appeal from the contempt order. See id. at 460-61; 21 U.S.C. § 853(e)(4)(B)
(“Failure to comply with an order under this subsection . . . shall be punishable as a
civil or criminal contempt of court . . .”). But that method would expose him to the
possible affirmance of the contempt order, if this Court were to reject his Fifth
Amendment objection. Maness, 419 U.S. at 460. And while in some circumstances
the “necessity for expedition in the administration of the criminal law” might be
thought to justify requiring a defendant to take this perilous route, that concern has
no application here. Id. (internal quotation marks omitted). The repatriation order
has nothing to do with the progress of the underlying criminal case. Its purpose is
merely to ensure that funds that might be subject to forfeiture at the end of the case
will be available for that purpose at that time. 21 U.S.C. § 853(e)(4). In fact, the
underlying criminal case is moving forward in the district court, entirely
unimpeded by the pendency of this appeal, with an interim pretrial conference set
24
for April 2, 2020.74 As this Court has recognized, the “policy of avoiding excessive
delay” does not weigh against the exercise of collateral order jurisdiction where the
posture of the case “permits the District Court to retain jurisdiction during the
interlocutory appeal and proceed with the criminal trial.” Spilotro, 680 F.2d at 615.
In short, the district court orders challenged here are reviewable pursuant to
28 U.S.C. § 1291 and the collateral order doctrine.
2. 28 U.S.C. § 1292(a)(1)’s Grant of Jurisdiction to Review Orders

Granting or Refusing to Modify Injunctions
28 U.S.C. § 1292(a)(1) gives this Court jurisdiction over appeals from
“[i]nterlocutory orders of the district courts of the United States . . . granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions.” An “injunction” for purposes of Section 1292(a)(1) is an
order “directed to a party, enforceable by contempt, and designed to accord or
protect some or all of the substantive relief sought by a complaint in more than
temporary fashion.” 16 Edward H. Cooper, Federal Practice & Procedure § 3922
(Westlaw, current through Aug. 2019 Update) (internal quotation marks omitted).
The district court’s repatriation order is directed to Mr. Oriho, enforceable by
contempt (21 U.S.C. § 853(e)(4)(B)), and designed to “protect” the government’s
74
ER Vol. 2 at 254.
25
ability to secure the availability of funds it claims are subject to forfeiture. See In re
Feit & Drexler, Inc., 760 F.2d 406, 412-13 (2d Cir. 1985) (order designed to “ensure
the availability of the substantive relief sought in the suit” is an injunction subject
to Section 1292(a)(1)). In addition, the district court’s order denying Mr. Oriho’s
motion for reconsideration constitutes an order “refusing to dissolve or modify”
the injunction set forth in the repatriation order. 28 U.S.C. § 1292(a)(1).
This Court and others have exercised jurisdiction under Section 1292(a)(1)
to review similar pretrial orders. See, e.g., SEC v. Hickey, 322 F.3d 1123, 1128 n.1
(9th Cir. 2003), amended, 335 F.3d 834 (9th Cir. 2003) (pretrial order freezing
assets of real estate brokerage allegedly controlled by perpetrator of securities
fraud) (citing United States v. Roth, 912 F.2d 1131, 1132-33 (9th Cir. 1990)); United
States v. Ripinsky, 20 F.3d 359, 360-61 (9th Cir. 1994) (pretrial order freezing assets
held overseas by defendant charged with financial crimes) (citing Roth, 912 F.2d at
1133); Roth, 912 F.2d at 1132-33 (pretrial order pursuant to 21 U.S.C. § 853 freezing
proceeds from sale of property allegedly acquired with proceeds of crimes); United
States v. Kaley, 579 F.3d 1246, 1249-52 (11th Cir. 2009) (pretrial order pursuant to
21 U.S.C. § 853 restraining defendants charged with trafficking in stolen medical
devices from transferring or otherwise disposing of property listed in forfeiture
count); Feit & Drexler, 760 F.2d at 408-13 (pretrial order in bankruptcy case
26
effectively requiring defendant to turn over assets, including assets held in other
states and countries, to her attorney in district in which case was pending).
It is thus evident that this Court has jurisdiction under Section 1292(a)(1) to
review the orders challenged in this appeal.
3. 28 U.S.C. § 1651(a) and this Court’s Power to Issue Writs of

Mandamus
If the Court were to find the above-described jurisdictional grounds for
reviewing the district court’s orders inapplicable, it should nevertheless review
those orders pursuant to its power to issue writs of mandamus pursuant to 28
U.S.C. § 1651(a). See Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 993 (9th Cir.
2004) (construing notice of appeal of nonappealable order as mandamus petition);
Gallo v. U.S. Dist. Court, 349 F.3d 1169, 1177 (9th Cir. 2003) (same).
This Court examines five factors in determining whether to grant a writ of
mandamus: (1) does the party have other adequate means, such as a direct appeal,
to attain the relief he desires?; (2) will the party suffer damage or prejudice in a
way not correctable on appeal?; (3) is the district court’s order clearly erroneous as
a matter of law?; (4) has the district court committed an oft-repeated error or
manifested a persistent disregard of the federal rules?; and (5) does the district
court’s action raise new and important problems, or issues of law of first
impression? Douglas v. U.S. Dist. Court, 495 F.3d 1062, 1065-66 (9th Cir. 2007)
27
(per curiam) (citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.
1977)).
All but the fourth factor are present here. Assuming that review by appeal is
not available, Mr. Oriho has no other adequate means to vindicate his Fifth
Amendment rights. Because “appellate courts cannot always ‘unring the bell’ once
[self-incriminating] evidence has been released” (Maness, 419 U.S. at 463), this
Court’s refusal to accept review of the district court’s orders would expose him to
irreparable injury. Mr. Oriho will show below that the district court’s orders are
clearly erroneous as a matter of law. And the statute underlying the orders, 21
U.S.C. § 853(e)(4), is an unusual and seldom-invoked provision, which has not yet
faced serious scrutiny from a federal circuit court – as evidenced by the fact that the
district court was compelled to rely upon a Supreme Court case that did not
involve this statute, and a smattering of district court decisions, in ruling on the
government’s motion.75 This appeal thus raises an important legal issue of first
impression for this Court, and for the circuit courts generally.
In sum, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and/or
1292(a)(1) to review the district court orders challenged here. In the alternative, it
may exercise its power to issue writs of mandamus to review those orders.
75
ER Vol. 1 at 1-5.
28
II. The district court’s orders violate Mr. Oriho’s Fifth Amendment
privilege against compelled self-incrimination.
A. Standards of Review
This Court reviews constitutional questions de novo. Branch Banking & Tr.
Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). In the context of
determining whether the existence of documents was a “foregone conclusion” for
Fifth Amendment purposes, the Court reviews for clear error. United States v.
Bright, 596 F.3d 683, 690 (9th Cir. 2010).
B. The district court’s orders effectively require Mr. Oriho to

generate and supply the government with evidence that may
incriminate him in the instant case, as well as possible future
prosecutions.
The first 36 counts in the indictment charge Mr. Oriho with numerous acts
of health care fraud and identity theft.76 The final seven counts allege unlawful
transfers of money “derived from” those crimes to banks in Uganda and Kenya77:
76
ER Vol. 2 at 10-14.
77
ER Vol. 2 at 15.
29
In order to secure convictions on these seven counts, the government will have to
prove to a petit jury beyond a reasonable doubt that Mr. Oriho (1) derived the
specified funds from health care fraud, and (2) conducted the alleged transfers
from the identified Bank of America account to the identified banks in Uganda and
Kenya. Pursuant to the orders challenged in this appeal, Mr. Oriho is compelled –
on pain of possible contempt and sentencing enhancement (21 U.S.C.
§ 853(e)(4)(B)) – to make part (2) of the government’s case for it.
Indeed, Mr. Oriho is compelled to do much more than that, because the
repatriation order sweeps a great deal more broadly than the indictment. The order
does not merely compel Mr. Oriho to reverse the alleged transfers identified in the
indictment – instead, it compels Mr. Oriho to repatriate “all funds” that he wired
30
or transferred “to Africa” “since January 1, 2016.”78 The only constraint is that
the total amount of funds repatriated should not exceed $7,287,000.79 The
repatriation order thus reaches transfers (1) occurring up to 17 months before and
11 months after the date range specified in the indictment, (2) involving not only
the three banks and the two African countries listed in the indictment, but every
bank, financial institution, or other entity or person capable of receiving wired or
transferred funds on the world’s second-largest and second-most-populous
continent80, (3) up to an amount $6,527,000 greater than the amount enumerated
in the indictment.
Because the government has made plain that it believes that “[a]ll of the
proceeds that [Mr. Oriho] wired or transferred to Africa” constitute “property
involved in a money laundering offense” and “proceeds of a federal health care
offense” (emphasis added),81 the government would undoubtedly view information
relating to Mr. Oriho’s transfer of any and all funds from Africa to the United
States as a treasure trove of evidence of criminal conduct reaching well beyond that
specified in the indictment. And the repatriation order effectively compels Mr.
78
ER Vol. 1 at 4.
79
Id.
80
https://blog.nationalgeographic.org/2013/10/31/getting-to-know-africa-
interestingfacts/.
81
ER Vol. 2 at 18-19.
31
Oriho not only to generate this evidence, but also to place it directly into the
government’s hands, because to comply with it he must use the government-
monitored phone and mail systems available to inmates in federal custody. Cf.
United States v. Arthur, 750 F. App’x 540, 542 (9th Cir. 2018), amended on denial of
reh’g (Nov. 20, 2018), cert. denied, 140 S. Ct. 158 (2019) (government introduced
recording of prison phone call in first degree murder trial).
This mandate cannot be reconciled with Mr. Oriho’s Fifth Amendment right
to be free of compelled self-incrimination. U.S. Const. amend. V. Mr. Oriho’s
compliance with the repatriation order would be testimonial, in that it would
amount to his acknowledgment that the alleged African bank accounts containing
transferred funds exist, and are in his possession or control. In re Grand Jury
Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1345 (11th Cir. 2012).
Indeed, his compliance with the repatriation order would incriminate him not only
with respect to the crimes alleged in the indictment, but also with respect to
possible additional criminal charges reaching well beyond the indictment. This
mandate flies directly in the face of Mr. Oriho’s Fifth Amendment protection,
which “does not merely encompass evidence which may lead to criminal
conviction, but includes information which would furnish a link in the chain of
evidence that could lead to prosecution.” Maness, 419 U.S. at 461; cf. In re Grand
32
Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905, 909 (9th Cir. 2004) (“By
producing documents in compliance with a subpoena, the witness admits that the
documents exist, are in his possession or control, and are authentic. These types of
admissions implicitly communicate statements of fact that may lead to
incriminating evidence.”) (citation omitted). In effect, the repatriation order
requires Mr. Oriho “to become the primary informant against himself.” United
States v. Fox, 721 F.2d 32, 38 (2d Cir. 1983) (cited in In re Grand Jury Subpoena, 383
F.3d at 911 n.2).
C. The district court’s belief that Mr. Oriho has no Fifth

Amendment privilege with respect to information that the
government claims it “already knows” is misguided.
The district court nevertheless rejected Mr. Oriho’s Fifth Amendment
objection to the government’s motion, reasoning that his repatriation of the funds
would not be “testimonial” because “the government already knows that [he]
transferred approximately $2,400,000 to African countries since January 1, 2016,”
and thus his compliance with the Order “would add little or nothing to the sum
total of the government’s information.”82 In support, the court cited Fisher, 425
U.S. at 411; United States v. Adams, 782 F. Supp. 2d 229 (N.D. W. Va. 2011), appeal
dismissed, 442 F. App’x 18 (4th Cir. 2011); United States v. Morrison, No. 04–CR–
82
ER Vol. 1 at 3-4.
33
699 (DRH)(S–2), 2006 WL 2990481 (E.D.N.Y. Oct. 19, 2006); and United States
v. Sellers, 848 F. Supp. 73 (E.D. La. 1994). The court’s reasoning cannot withstand
scrutiny.
The court’s basis for stating that the government “already knows” that Mr.
Oriho transferred approximately $2,400,000 to Africa since January 1, 2016
appears to be the prosecutor’s assertion to that effect in his motion to repatriate
funds.83 But a prosecutor’s broad assertion is not sufficient to render the
information that would be generated by a compelled production a “foregone
conclusion” – to the contrary, the government bears the burden of establishing its
knowledge of that information with “reasonable particularity.” In re Grand Jury
Subpoena, 383 F.3d at 910; cf. Bright, 596 F.3d 683, 692 (9th Cir. 2010) (to invoke
“foregone conclusion” doctrine with respect to documents, government must
establish independent knowledge of documents’ existence, documents’
authenticity, and defendant’s possession or control of documents).
A prosecutor’s sweeping assertion about “approximately” $2.4 million
having been “wired or transferred” to “Africa” over the course of several years84
does not meet this standard. Indeed, this Court has observed that “broad
83
ER Vol. 2 at 18.
84
ER Vol. 2 at 18.
34
language” in a governmental request for material suggests that the government
does not have particular knowledge of the material sought, and instead “needs the
act of production to build its case against [the defendant].” In re Grand Jury
Subpoena, 383 F.3d at 911; cf. In re Grand Jury Subpoena Duces Tecum, 670 F.3d at
1347 (“categorical requests for documents the Government anticipates are likely to
exist simply will not suffice”). In light of these principles, it is unsurprising that the
authorities on which the district court relied do not support its rejection of Mr.
Oriho’s Fifth Amendment claim.
In Fisher, the Supreme Court addressed the question of “whether a
summons directing an attorney to produce documents delivered to him by his client
in connection with the attorney-client relationship is enforceable over claims that
the documents were constitutionally immune from summons in the hands of the
client and retained that immunity in the hands of the attorney.” Fisher, 425 U.S. at
393. The materials at issue were “certain documents relating to the preparation by
the [petitioners’] accountants of their tax returns.” Id. at 394. The Court
acknowledged that “[t]he act of producing evidence in response to a subpoena”
has “communicative aspects,” inasmuch as it “tacitly concedes” the “existence of
the papers demanded,” their “possession or control by the taxpayer,” and “the
taxpayer’s belief that the papers are those described in the subpoena.” Id. at 410.
35
The Court further noted that the question of whether a compelled production of
documents is “‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth
Amendment” may “depend on the facts and circumstances of particular cases or
classes thereof.” Id.
In finding that the production of the documents would not amount to
testimonial self-incrimination, the Fisher Court stressed that “[t]he existence and
possession or control of the subpoenaed documents” was not “in issue,” and that
their compelled production would not amount to testimonial self-incrimination
because “it is not illegal to seek accounting help in connection with one’s tax
returns or for the accountant to prepare workpapers and deliver them to the
taxpayer.” Id. at 412. Thus, although the substance of the documents might
incriminate the petitioners, their act of producing them did not amount to
testimonial self-incrimination. Id.
The instant case presents the opposite scenario: The substance of the funds in
question is immaterial – they are simply currency, which cannot be incriminating in
and of itself – but Mr. Oriho’s act of repatriating them from financial institutions in
Africa would amount to his compelled testimony confirming a portion of the
allegations in the indictment, and also providing the government with a wealth of
additional “information which would furnish a link in the chain of evidence that
36
could lead to prosecution.” Maness, 419 U.S. at 461. Moreover, here, in direct
contrast to Fisher, the existence and possession or control of the transferred funds
is very much “in issue.” Fisher, 425 U.S. at 412. The Fisher opinion thus supports,
rather than undermining, Mr. Oriho’s Fifth Amendment objection to compelled
repatriation.
In Adams, the Northern District of West Virginia addressed a Fifth
Amendment objection to repatriation filed by a defendant charged with conspiracy,
Medicare and Medicaid fraud, money laundering, and obstruction of justice.
Adams, 782 F. Supp. 2d at 229-33. The indictment alleged that the defendant was a
doctor of osteopathic medicine who submitted fraudulent claims to Medicare and
Medicaid, then laundered the criminal proceeds by transferring them to overseas
banks. United States v. Adams, No. 08-cr-77 (N.D. W. Va.) (Doc. 409). The court
overruled the objection, reasoning that repatriation of the funds would not be
incriminating because “there is no issue as to whether the defendant received the
funds – but only whether he was entitled to them.” Adams, 782 F. Supp. 2d at 233.
“Thus,” the court reasoned, “the disclosure of where the funds are (or the
production of them to the United States Marshals Service) does not require that
the defendant admit guilt (i.e. that he was not entitled to receive the funds).” Id.
37
The court’s premise was incorrect, because Mr. Adams, like Mr. Oriho, was
charged with laundering criminally derived funds by transferring them overseas
(United States v. Adams, No. 08-cr-77 (N.D. W. Va.) (Doc. 409)), and thus his
compelled repatriation of the funds from overseas would be incriminating. What is
significant about the Adams opinion is that it identifies the crucial fact that the
district court in that case had to ignore, in order to articulate a plausible-sounding
response to the defendant’s Fifth Amendment objection. That same crucial fact –
that the government alleges that Mr. Oriho’s possession and control of funds held
overseas is evidence of his having unlawfully transferred those funds there – is also
present here. This Court should not imitate the Adams court by ignoring this
essential fact, but should instead recognize its importance to the Fifth Amendment
analysis.
In Morrison, the Eastern District of New York addressed an objection to
repatriation by a defendant charged with conducting a racketeering enterprise
involving the sale of contraband cigarettes. United States v. Morrison, No. 04-cr-699
(E.D.N.Y.) (Doc. 95). The indictment sought forfeiture of (among other things)
money allegedly transferred to overseas banks. Id. at 20-23. The court entered a
restraining order directing the defendant to “repatriate certain funds and other
things of value on deposit in accounts located in foreign jurisdictions.” Morrison,
38
2006 WL 2990481, at *1. The defendant objected, arguing that compelling him to
repatriate funds from accounts in Costa Rica and Mexico would violate his Fifth
Amendment privilege against self-incrimination. Id. Disagreeing, the court noted
that, in a bail application, the defendant had already “voluntarily submitted” a
financial compilation that “includ[ed] the Costa Rican, Mexican, and Swiss
accounts.” Id. The court found that, “[g]iven the factual scenario of th[e] case,” in
which the defendant had already “voluntarily disclosed the existence of the foreign
accounts,” the act of repatriating funds from those accounts would not constitute
testimonial self-incrimination. Id. at *4.
The contrast to the instant case is clear: Mr. Oriho has not “voluntarily
disclosed” the existence of the alleged African bank accounts, or his transfer of
funds to such accounts.
Finally, in Sellers, the Eastern District of Louisiana addressed an objection to
repatriation by defendants charged with (among other things) bank fraud and
money laundering. United States v. Sellers, No. 93-cr-327 (E.D. La.). The funds
ordered repatriated were “alleged proceeds of bank fraud located in Grand Cayman
bank accounts.” Sellers, 848 F. Supp. at 74. The court initially dismissed the
defendants’ Fifth Amendment concern in a brief, conclusory discussion, reasoning
that repatriation was “a tool of preservation and not discovery.” Id. at 77. After one
39
of the defendants filed a motion for reconsideration pressing the Fifth Amendment
issue, the court added a supplement ordering the government to “LIMIT its use of
the evidence, related to the repatriation of the subject funds . . . to potentially
future proceedings, if any, related to the criminal forfeiture of these funds.” Id.
The Sellers order does not represent an application of 18 U.S.C. § 853(a)(4),
which was not enacted until seven years later, as part of the USA Patriot Act, Pub.
L. No. 107-56, tit. III, § 319(d) (2001). Moreover, the order does not indicate
whether the defendants’ alleged transfer of funds to Grand Cayman formed any
part of a criminal charge in the indictment, or whether the defendants had
voluntarily acknowledged the existence of the overseas funds (as the defendant in
Morrison had done). In light of the these aspects of the Sellers order, and the
cursory nature of its analysis, its holding carries no persuasive force. In any event, if
the Sellers order were deemed persuasive, it would counsel in favor of imposing the
very sort of limitation on the government’s permissible use of information derived
from compelled repatriation that the district court refused to adopt here.85
In sum, the authorities on which the district court relied, in rejecting Mr.
Oriho’s Fifth Amendment objection to its orders compelling him to repatriate
funds from Africa, either fail to support, or directly undermine, its reasoning.
85
ER Vol. 1 at 8-9.
40
D. The government’s promise not to use the fruits of Mr. Oriho’s

compliance with the repatriation order in its case-in-chief in the
instant case does not nullify the infringement of his Fifth
Amendment privilege.
The district court also posited that the government’s promise to refrain from
introducing evidence generated by Mr. Oriho’s compliance with the repatriation
order in its case-in-chief “further negates the possibility of a Fifth Amendment
violation.”86 But the government’s representation does little to mitigate the
infringement of Mr. Oriho’s Fifth Amendment privilege. It supplies no protection
whatever against the government’s use of this information as an “investigatory
lead” or “link in the chain of evidence” that could lead to additional criminal
charges. Maness, 419 U.S. at 461; see also Albertson v. Subversive Activities Control
Bd., 382 U.S. 70, 80 (1965) (noting that use of compelled information as an
“investigatory lead” is “barred by the privilege” against compelled self-
incrimination). These could include new federal or state criminal charges. See
Maness, 419 U.S. at 462 n.10 (noting that while City Attorney asserted that he “did
not intend to prosecute based on” the material ordered produced, he
acknowledged that “the State or county might still prosecute”). And even with
respect to the pending federal trial, the government’s promise applies only to its
86
ER Vol. 1 at 4.
41
“case-in-chief,” leaving Mr. Oriho open to the use of his compelled self-
incrimination in rebuttal.
In short, the district court’s orders clearly infringe upon Mr. Oriho’s Fifth
Amendment right to be free from compelled self-incrimination, and the
government’s promise not to use the self-incriminating information that these
orders would force him to turn over in its case-in-chief does not nullify that
infringement.
Conclusion
The district court’s repatriation order, and its refusal to reconsider or limit
that order, effectively require Mr. Oriho to generate information that supports the
charges in the instant case, and that may lead to additional criminal charges, and to
drop that information directly into the government’s hands. This Court has
jurisdiction to address this patent violation of Mr. Oriho’s Fifth Amendment
privilege pursuant to 28 U.S.C. §§ 1291 and/or 1292(a)(1), or through its power to
42
issue writs of mandamus under 28 U.S.C. § 1651(a). It should exercise this
jurisdiction, and vacate these unconstitutional orders.
Respectfully submitted on December 20, 2019.
s/Daniel L. Kaplan
DANIEL L. KAPLAN
850 West Adams Street, Suite 201
Phoenix, Arizona 85007-2730
(602) 382-2767
43
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B)
I hereby certify that, pursuant to FRAP 32(a)(7)(B), the foregoing
Defendant-Appellant’s Opening Brief is proportionately spaced, has a typeface of
14 points, and contains 8,674 words.
s/Daniel L. Kaplan
DANIEL L. KAPLAN
Attorney for Defendant - Appellant
STATEMENT REGARDING RELATED CASES
This appeal is taken from orders entered in United States v. Oriho, No. CR-
19-00667-DJH-1 (D. Ariz.), which remains pending in the district court.
s/Daniel L. Kaplan
DANIEL L. KAPLAN
Attorney for Defendant - Appellant

US vs. Oriho

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Case: 19-10291, 12/20/2019, ID: 11540443, DktEntry: 13, Page 1 of 52

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ALEXANDER ORIHO, DBA Rhino’s Med. Trans, LLC,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DEFENDANT - APPELLANT’S OPENING BRIEF

Table of Authorities .............................................................................................. iv

Statement of Bail Status ......................................................................................... 2

Statement of Jurisdiction ........................................................................................ 2

Statement of the Issues ........................................................................................... 4

Statement of the Case ............................................................................................. 5

A. In June of 2019, the government filed a 43-count indictment charging

B. The government moved the district court to order Mr. Oriho to

D. The district court rejected Mr. Oriho’s Fifth Amendment objection

E. The district court denied Mr. Oriho’s motion to reconsider its

Summary of Argument .......................................................................................... 18

I. This Court has jurisdiction to review the district court’s orders

A. Standard of Review .................................................................. 21

B. The district court’s orders are subject to review under 28

1. 28 U.S.C. § 1291 and the Collateral Order Doctrine ..... 21

2. 28 U.S.C. § 1292(a)(1)’s Grant of Jurisdiction to Review

3. 28 U.S.C. § 1651(a) and this Court’s Power to Issue

A. Standard of Review .................................................................. 29

B. The district court’s orders effectively require Mr. Oriho to

C. The district court’s belief that Mr. Oriho has no Fifth

D. The government’s promise not to use the fruits of Mr. Oriho’s

Certificate of Compliance with FRAP 32(a)(7)(B)

Statement Regarding Related Cases

Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965)............................ 41

Hilton v. Braunskill, 481 U.S. 770 (1987) ................................................................. 17

In re Grand Jury Subpoena, Dated Apr. 18, 2003,

In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011,

In re Zermeno-Gomez, 868 F.3d 1048 (9th Cir. 2017) ................................................ 3

Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. 2013)............................................. 3

SEC v. Hickey, 322 F.3d 1123 (9th Cir. 2003),

Sell v. United States, 539 U.S. 166 (2003) .......................................................... 18, 23

United States v. Adams, 782 F. Supp. 2d 229 (N.D. W. Va. 2011),

United States v. Fox, 721 F.2d 32 (2d Cir. 1983) ..................................................... 33

United States v. Morrison, No. 04–CR–699 (DRH)(S–2),

United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994) ............................................ 26

United States v. Vela, 624 F.3d 1148 (9th Cir. 2010)............................................... 21

18 U.S.C. § 982(a)(1) ............................................................................................... 7

18 U.S.C. § 982(a)(7) ............................................................................................... 7

18 U.S.C. § 1028A ................................................................................................... 5

18 U.S.C. § 1347 ....................................................................................................... 5

18 U.S.C. § 1957 ....................................................................................................... 6

18 U.S.C. § 3231 ....................................................................................................... 2

21 U.S.C. § 853 ...................................................................................................... 26

21 U.S.C. § 853(e) .................................................................................................... 2

21 U.S.C. § 853(e)(4) .............................................................................. 6, 12, 24, 28

21 U.S.C. § 853(e)(4)(B) .............................................................................24, 25, 30

28 U.S.C. § 1291 .............................................................................................. passim

28 U.S.C. § 1292(a)(1) ..................................................................................... passim

28 U.S.C. § 1651(a) .......................................................................................... passim

Fed. R. Crim. P. 47 ................................................................................................ 2-3

D. Ariz. LRCiv 7.2(g) ............................................................................................... 3

D. Ariz. LRCrim. 12.1(a) .......................................................................................... 3

16 Edward H. Cooper, Federal Practice & Procedure § 3922 (Westlaw, current

U.S. Const. amend. V ............................................................................................ 32

runs a Phoenix, Arizona-based medical transportation company called Rhino Med.

monetary transactions, in connection with allegations that his company submitted

fraudulent reimbursement applications to the agency that administers Arizona’s

all of which, the government alleged, represented property involved in money

forward in the district court, unimpeded by this appeal.