United States v. Jerry Gregoire, Jr. , 628 F. App'x 496 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50022
Plaintiff - Appellee, D.C. No. 2:13-cr-00288-R-1
v.
MEMORANDUM*
JERRY ANTHONY GREGOIRE, Jr., AKA
Jerry Gregoire, AKA Jerry Anthony
Gregoire,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 10, 2015
Pasadena, California
Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.
Jerry Gregoire, Jr. appeals his convictions and sentences on six counts of
making false statements in violation of 18 U.S.C. § 287, six counts of theft of
government property in violation of 18 U.S.C. § 641(a), and one count of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
aggravated identity theft in violation of 18 U.S.C. § 1028A. We vacate in part and
remand for further proceedings.
1. We commend government counsel for his candor and assistance to the
court and accept the government’s concession that the district court erred in failing
to perform an adequate inquiry into Gregoire’s alleged irreconcilable conflict with
appointed counsel. See United States v. Musa, 220 F.3d 1096, 1102-03 (9th Cir.
2000). We remand so that the district court may conduct an adequate inquiry,
including an in camera hearing if necessary, to determine the extent of the pre-trial
conflict between Gregoire and counsel. Id. at 1103. If the district court finds that
an irreconcilable conflict existed that would have resulted in a constructive denial
of counsel or actual prejudice to Gregoire, it shall order a new trial and appoint
new counsel; the convictions otherwise will stand. Id.
2. The government also correctly concedes that the district court erred by
ordering Gregoire to pay restitution in the total amount of tax refunds issued to
him, instead of the amount of refunds he actually received under the six offenses of
conviction. United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013). We
therefore vacate the restitution order, the amount of which must be recalculated on
remand if the district court does not grant Gregoire a new trial.
3. Exercising our supervisory powers under 28 U.S.C. § 2106, we direct this
case be reassigned to a different judge on remand. See United States v. Working,
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287 F.3d 801, 809 (9th Cir. 2002).
VACATED IN PART and REMANDED.
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