FILED
NOT FOR PUBLICATION OCT 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50360
Plaintiff - Appellee, D.C. No. 2:04-cr-00373-R-1
v.
MEMORANDUM *
HAI WAKNINE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 5, 2010
Pasadena, California
Before: CUDAHY,** WARDLAW and W. FLETCHER, Circuit Judges.
Hai Waknine appeals the district court’s denial of his July 1, 2009, motion to
withdraw the guilty plea he entered on June 13, 2006, to one count of RICO
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
conspiracy in violation of 18 U.S.C. § 1962(d). We have jurisdiction pursuant to
28 U.S.C. § 1291. We reverse.
I.
The district court abused its discretion by failing to identify and apply the
correct “fair and just reason” standard for requesting the withdrawal set forth in
Fed. R. Crim. P. 11(d)(2)(B). See United States v. Ruiz, 257 F.3d 1030, 1031 (9th
Cir. 2001) (en banc); United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.
2009) (en banc). Rule 11(d)(2)(B) was the correct standard because on appeal the
Ninth Circuit had vacated the previously imposed sentence and remanded for
resentencing. Therefore, there was no sentence imposed when Waknine moved to
withdraw his guilty plea.
The district court also clearly erred by incorrectly finding that the July 23,
2008, Second Superseding Indictment, which repeatedly describes Waknine as a
co-conspirator and which in part focuses on the extortion that served as the factual
basis for Waknine’s plea, had nothing to do with Waknine’s case. See United
States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009).
II.
The record does not support any reason for affirming the district court’s
denial of Waknine’s motion. See, e.g., Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th
2
Cir. 2009). After Waknine pleaded guilty he obtained newly-discovered evidence
in the form of conversations, which were described in the Second Superseding
Indictment, corroborating his claimed defense of duress. See Showalter, 569 F.3d
at 1154 (9th Cir. 2009) (“Fair and just reasons for withdrawal include . . . newly
discovered evidence . . . .”) (quoting United States v. McTiernan, 546 F.3d 1160,
1167 (9th Cir. 2008)); United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005).
These intercepted conversations were the only independent evidence (apart from
his own testimony, or the testimony of his family members) that Waknine had
acted under duress, and therefore it is plausible that a reasonable person in
Waknine’s position would not have pleaded guilty had he known about the newly-
translated intercepts before he entered the plea. See, e.g., Garcia, 401 F.3d at
1011-12.
There is no indication on the record that (as the government argues)
Waknine delayed for three years, that Waknine’s reasons for withdrawal were not
bona fide, or that the government would suffer great prejudice from allowing
Waknine to withdraw his plea. See Garcia, 401 F.3d at 1013. The Second
Superseding Indictment was not filed until July 23, 2008. Waknine’s appeal was
pending before the Ninth Circuit until the mandate issued on October 8, 2008, thus
depriving the district court of jurisdiction to act until after that date. In the nine
3
months between October 8, 2008, and July 1, 2009, Waknine reasonably and
properly sought and received continuances to prepare a sentencing memorandum
and further investigate the facts underlying the Second Superseding Indictment. In
February of 2009, Wakine and the government together sought and received a
three-month continuance, in part to negotiate restitution issues. The only
prospective prejudice to the government is that which normally accompanies retrial
following an appeal.
III.
In order to preserve the appearance of justice, we “exercise [our] supervisory
power under 28 U.S.C. § 2106 to reassign this case to a different district court
judge on remand.” Living Designs, Inc. v. E.I. Dupont De Nemours & Co., 431
F.3d 353, 372 (9th Cir. 2005). We therefore reverse and remand to the Clerk of the
Central District of California for this case to be reassigned to a different district
court judge and for consideration of whether the Second Superseding Indictment,
filed under the same criminal docket number, should be reassigned to the same
judge.
REVERSED AND REMANDED.
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