United States v. Jaramillo, 021511 FED9, 09-50480
|Party Name:||UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE HENRY JARAMILLO, Defendant-Appellant.|
|Judge Panel:||Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.|
|Case Date:||February 15, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
NOT FOR PUBLICATION
Argued and Submitted February 7, 2011 Pasadena, California
Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding D.C. No. 8:07-cr-00036-AG-1
George Henry Jaramillo appeals his conviction and sentence (guideline calculation and restitution award) for mail fraud/depriving the public of the right of honest services of a public official (18 U.S.C. §§ 1341 and 1346).1 We have jurisdiction under 28 U.S.C. § 1291. We vacate Jaramillo's conviction and restitution order as to Count 2 and remand for further proceedings.
1. Count 2 – Honest Services Fraud
After Jaramillo entered a plea agreement and was sentenced to 27 months in prison, the United States Supreme Court decided Skilling v. United States, 130 S.Ct. 2896 (2010). Skilling limited the application of "honest services" fraud to bribery and kickback schemes. Id. at 2933. Jaramillo now argues that the Information on Count 2 does not allege a crime encompassing a bribery or kickback scheme, thus the conviction should be set aside.
Jaramillo did not raise this issue in his opening brief. However, Jaramillo's argument is an exception to the general waiver rule, because the opening brief was filed prior to the Skilling opinion. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992); see also Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
At the time of the plea agreement, this court applied honest services fraud in two situations: "[(1)] fraud based on a public official's acceptance of a bribe and [(2)] fraud based on a public official's failure to disclose a material conflict of interest." United States v. Kincaid-Chauncey, 556 F.3d 923, 942 (9th Cir. 2009). Thus, at the time of the plea, Jaramillo's charged and admitted conduct — that he "defrauded the citizens of the County of Orange and the State of California by soliciting and receiving gifts and loans from other individuals while a public official and falsely stated, concealed, and failed to disclose his receipt of such gifts and loans on his publically-filed Form 700's" — fell...
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