United States v. Henry Lo
2016 U.S. App. LEXIS 18052
| 9th Cir. | 2016Background
- Henry Lo pleaded guilty to three counts (two wire fraud, one mail fraud) based on two fraudulent schemes that stole over $2.2 million from his employer (ANI) and more than $125,000 from his girlfriend (A.W.).
- Plea agreement admitted $2,315,469 in losses, specified minimum restitution amounts ($1,700,000 to ANI; $46,189.54 to A.W.), and contained a broad appeal waiver expressly covering forfeiture and restitution.
- At the plea colloquy the district court conducted a Rule 11 colloquy, confirmed Lo understood the waiver and that the court could impose a harsher sentence than expected.
- Government sought a criminal forfeiture money judgment and a preliminary order of forfeiture for roughly $2,323,971; the district court ultimately entered a forfeiture money judgment and restitution order for $2,232,894 and sentenced Lo to 70 months.
- Lo appealed only the restitution and forfeiture amounts; the government moved to dismiss based on the plea appeal waiver.
Issues
| Issue | Plaintiff's Argument (Lo) | Defendant's Argument (Gov’t) | Held |
|---|---|---|---|
| Enforceability of appeal waiver | Waiver not knowing/voluntary re: restitution because plea lacked reasonably accurate estimate of restitution exposure | Waiver was knowing/voluntary: plea and colloquy gave adequate notice and minimum amounts; waiver language clear | Waiver enforceable; Rule 11 colloquy and plea provisions made waiver knowing and voluntary |
| Validity of restitution order | Restitution amount lacked adequate evidentiary support and thus is an illegal sentence; government didn’t prove losses directly caused by offenses | MVRA mandates restitution for fraud; plea admitted scheme-wide losses and identified victims and amounts | Restitution lawful and mandatory under MVRA; plea admissions and scheme-based rule authorized restitution for entire scheme |
| Applicability of Tsosie notice rule to forfeiture | Plea did not give reasonably accurate estimate of forfeiture; Tsosie notice rule should apply so waiver unenforceable re: forfeiture | Tsosie is restitution-specific; forfeiture statutes and Rule 32.2 require different notice and permit forfeiture waiver without a money-estimate in the plea | Tsosie does not extend to forfeiture; waiver can validly cover forfeiture money judgments without a precise estimate in plea |
| Scope/procedures and constitutionality of forfeiture order | Forfeiture limited to amounts traceable to the specific counts of conviction; government should have followed §853(p)/Rule 32.2(e) for substitute property; amount must be jury-determined (Apprendi) | Forfeiture statutes sweep proceeds of the underlying fraud scheme (not only the specific count amounts); government sought a money judgment so §853(p)/32.2(e) substitute-property procedures inapplicable; Libretti controls (no jury right on forfeitability) | Forfeiture lawful: notice adequate; substitute-property procedures not required for money judgments; forfeiture may cover scheme proceeds beyond amounts in specific counts; Apprendi challenge rejected (Libretti remains good law) |
Key Cases Cited
- United States v. Nguyen, 235 F.3d 1179 (9th Cir. 2000) (standard for reviewing validity of appeal waivers)
- United States v. Jeronimo, 398 F.3d 1149 (9th Cir. 2005) (interpret plea-agreement waivers under contract principles; knowing waiver standard)
- United States v. Tsosie, 639 F.3d 1213 (9th Cir. 2011) (requirement of a reasonably accurate restitution estimate in plea for waiver to be valid)
- United States v. Newman, 659 F.3d 1235 (9th Cir. 2011) (distinction between forfeiture of specific property and money judgments; applicable procedures)
- Libretti v. United States, 516 U.S. 29 (Sup. Ct. 1995) (no Sixth Amendment right to jury verdict on forfeitability)
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct. 2000) (any fact that increases penalty beyond statutory maximum must be found by a jury) (discussed/rejected as controlling for forfeiture)
- United States v. Venturella, 585 F.3d 1013 (7th Cir. 2009) (forfeiture may cover proceeds of the entire scheme, not only amounts in the specific convicted counts)
- United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) (forfeiture jury-right analysis; Libretti remains good law)