592 F. App'x 553
9th Cir.
2014
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Background

  • Kazzaz pleaded guilty to one count of conspiracy to defraud and to commit offenses against the United States, six counts of paying kickbacks to a government contractor’s employees to obtain subcontracts and renewals, one count of wire fraud, and four counts of mail fraud.
  • Appeal challenges the district court’s finding that the plea satisfied Rule 11(b)(3) factual basis.
  • Appellate waiver does not automatically bar appeal where the plea did not satisfy Rule 11; court reviews unpreserved Rule 11 challenges for plain error.
  • Court reviews the record to determine if a sufficient factual basis exists for the plea and affirms.
  • Court need not decide if Kazzaz’s Rule 11 challenges would be proper post-plea and post-waiver.
  • Record shows a domestic nexus for mail and wire-fraud counts via stipulated facts about mailing checks and electronic communications.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Was there a sufficient factual basis under Rule 11(b)(3)? Kazzaz argues the facts don’t establish a proper basis. The government contends the stipulated facts support the offenses. Yes; the facts provide a sufficient basis.
Does Morrison-style extraterritoriality bar the counts? Kazzaz contends no domestic nexus exists. Stipulated facts show domestic nexus for mail/wire; AMA applies differently to some counts. No; there is a sufficient domestic nexus for mail and wire fraud.
Do the Anti-Kickback Act and conspiracy-to-defraud counts lack traditional fraud elements? Kazzaz argues the facts show no loss to the United States. Stipulated facts show kickbacks inflated contract costs and caused losses. No; the record supports loss and satisfies the fraud elements.

Key Cases Cited

  • United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) (court noted appellate waiver does not bar appeal on Rule 11 issues when plea lacks proper basis)
  • United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999) (waiver does not preclude appeal from Rule 11 error)
  • United States v. Brizan, 709 F.3d 864 (9th Cir. 2013) (continued viability of Rule 11 challenges after waiver)
  • United States v. Escamilla-Rojas, 640 F.3d 1055 (9th Cir. 2011) (plain-error standard for unpreserved Rule 11 challenges)
  • United States v. Santiago, 466 F.3d 801 (9th Cir. 2006) (plain-error review framework)
  • Parr v. United States, 363 U.S. 370 (1959) (mail fraud statutory elements and purpose)
  • United States v. Serang, 156 F.3d 910 (9th Cir. 1998) (elements of mail fraud and use of mails)
  • United States v. Garlick, 240 F.3d 789 (9th Cir. 2001) (wire fraud elements and use of wires)
  • United States v. Avery, 719 F.3d 1080 (9th Cir. 2013) (honest-services vs traditional-fraud predicates compatibility)
  • United States v. Pelisamen, 641 F.3d 399 (9th Cir. 2011) (support for dual theories of fraud)
  • United States v. Cotten, 471 F.2d 744 (9th Cir. 1973) (statutory reach abroad—territorial presumption exceptions)
  • United States v. Bowman, 260 U.S. 94 (1903) (territoriality of statutes implicated by national interests)
  • United States v. Corey, 232 F.3d 1166 (9th Cir. 2000) (extraterritorial application for statutes with national-interest scope)
  • United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991) (extraterritorial interpretation considerations)
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