United States v. Gloria Giannini , 441 F. App'x 500 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10274
Plaintiff - Appellee, D.C. No. 2:07-cr-00018-EJG-1
v.
MEMORANDUM *
GLORIA GIANNINI,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, Senior District Judge, Presiding
Argued and Submitted June 16, 2011
San Francisco, California
Before: BYBEE and MURGUIA, Circuit Judges, and EZRA, District Judge.**
Defendant-Appellant Gloria Giannini appeals the district court's denial of
her motions for (1) recusal, (2) withdrawal of her guilty plea, and (3) dismissal of
her indictment. We affirm on all counts.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, Honolulu, sitting by designation.
A defendant's motion for recusal under 28 U.S.C. y 455(a) should be
granted if 'a reasonable person with µnowledge of all the facts would conclude that
the judge's impartiality might reasonably be questioned.' United States v. Holland,
519 F.3d 909, 913 (9th Cir. 2008) (citations omitted). Here, however, the district
judge's negative comments were drawn from 'facts introduced or events occurring
in the course of the current proceedings,' and therefore fail to support the recusal
motion. Liteµy v. United States, 510 U.S. 540, 555-56 (1994).
Although '[a] district court may permit withdrawal of a guilty plea prior to
sentencing upon a showing by the defendant of any fair and just reason,' United
States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988), a district court can also
consider whether withdrawal of that plea would result in prejudice to the
government, see United States v. Vasquez-Velasco, 471 F.2d 294, 294 (9th Cir.
1973). Because one of the government's µey witnesses had died, granting
Giannini's request to withdraw her plea would have resulted in prejudice to the
government. Accordingly, the district court did not abuse its discretion when it
denied her motion to withdraw her plea.
Finally, the district court did not clearly err in finding that Giannini's earlier
plea agreement's reference to the previous 'investigation' unambiguously limited
additional prosecution only for the specific crimes at issue in that case. See United
2
States v. Clarµ, 218 F.3d 1092, 1096 (9th Cir. 2000). The 2004 plea agreement
could not immunize Giannini for the ongoing fraud in which she was engaged, and
in which she continued until 2006. Moreover, as the district court found, 'the
fraud for which the defendant was indicted . . . was not reasonably encompassed in
the Northern District investigation' and 'includ[ing] the ü4 million fraud charged
in this case is 'patently unreasonable'' (quoting Clarµ, 218 F.3d at 1096-97). The
district court did not err in subsequently concluding that the present indictment was
not barred by the earlier plea agreement.
AFFIRMED.
3
FILED
United States v. Giannini, No. 10-10274 JUL 05 2011
MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I would reverse the district courtùs decision denying Defendant Appellant
Gianniniùs motion to dismiss her indictment and remand for an evidentiary hearing.
The plea agreement in this case is distinguishable from the agreement at issue in
United States v. Clarµ, 218 F.3d 1092 (9th Cir. 2000). Unliµe the Clarµ
agreement, Ms. Gianniniùs agreement was oral and its terms were ambiguous.
Specifically, the plea agreement was ambiguous on the issue of whether evidence
uncovered in the investigation could be used as the basis for future charges in a
separate proceeding. Such ambiguities are ordinarily read in the defendantùs favor.
United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006). I would,
therefore, remand for an evidentiary hearing on the meaning of the 2005 agreement
and the scope of the underlying investigation. I concur with the remainder of the
majorityùs decision.