Metropolitan News-Enterprise


Wednesday, March 6, 2013


Page 3


C.A. Rejects Self-Incrimination Claim in Misprision Case


By a MetNews Staff Writer


A defendant who was originally charged with involvement in a drug and money laundering conspiracy, but ultimately pled guilty to misprision, was not forced to incriminate herself in violation of the Fifth Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed the conviction and sentence of Francheska Brizan, who was sentenced to four months in jail and a year of supervised release following her plea. According to press releases issued in 2006 by the U.S. Attorney’s Office in Fresno and the Drug Enforcement Agency, Brizan, her husband, and two of her husband’s brothers were among 12 defendants charged with helping traffic millions of dollars’ worth of cocaine throughout the United States.

The indictment followed the seizure of 38 kilograms of cocaine, which the DEA said was the largest such seizure in the Eastern District up to that time.

Brizan, originally charged with conspiracy to distribute and attempted possession with intent to distribute large quantities of cocaine, agreed to plead guilty to one count of misprision. She admitted that she knew of her husband’s illegal activities, but did not report them to law enforcement, and agreed to waive her right to appeal her conviction or her below-guidelines sentence.

After entering the plea, however, she retained new counsel and moved to withdraw the plea. She contended that she was compelled to admit to knowledge of illegal activities in which she herself may have been involved, and that this constituted forced self-incrimination.

U.S. District Judge Anthony W. Ishii denied the motion, saying the plea was knowing and voluntary.

Brizan’s appellate attorney, William M. Kent of Jacksonville, Fla., argued on appeal that both the plea and the appellate waiver were invalid. But the appellate panel disagreed as to both points.

U.S. District Judge Lynn M. Adelman of the Eastern District of Wisconsin, sitting on the Ninth Circuit by designation, explained that the appeal was subject to dismissal. An appellate waiver in a plea agreement, he explained, must be enforced unless the court failed to conduct a proper plea colloquy, the defendant was told that she retained the right to appeal, the plea agreement was breached, or the sentence was illegal.

None of those occurred in Brizan’s case, Adelman wrote.

Even if the waiver was not enforced, the judge went on to say, the court would affirm the conviction.

 “We have held that a misprision charge would be unconstitutional under the Fifth Amendment if, and to the extent, it required a defendant to report her own criminal conduct to the authorities,” he acknowledged. “However, Brizan waived her right to raise a Fifth Amendment defense to the misprision charge by pleading guilty.”

He went on to say:

“We agree with our colleagues in the First and Fifth Circuits that there is no constitutional impediment to a defendant, implicated in the underlying felony, waiving her Fifth Amendment privilege and voluntarily pleading guilty to a misprision count.”

Adelman also said that Brizan’s claim that her prior counsel was ineffective in advising her to enter into the plea agreement could not be considered on direct appeal.

Adelman was joined by Judge Susan Graber and Senior Judge A. Wallace Tashima.

Assistant U.S. Attorney Karen Escobar of the Eastern District represented the government on appeal.

The case is United States v. Brizan, 11-10449.


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