                                                                            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                            NOT FOR PUBLICATION                               JUL 05 2011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.
