U.S. v. Weyhrauch

• Decision Date: 26 November 2008
• Docket Number: No. 07-30339.,07-30339.
• Citation: 548 F.3d 1237
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bruce WEYHRAUCH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

548 F.3d 1237

UNITED STATES of America, Plaintiff-Appellant, v. Bruce WEYHRAUCH, Defendant-Appellee.

No. 07-30339.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 4, 2008.

Filed November 26, 2008.

Nicholas A. Marsh, Trial Attorney, United States Department of Justice, Criminal Division, Public Integrity Section, Washington, D.C., for the plaintiff-appellant.

Douglas Pope, Pope & Katcher, Anchorage, AK, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CR-07-00056-JWS.

Before: D.W. NELSON, A. WALLACE TASHIMA and RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge:

This is an interlocutory appeal by the government of the district court's pretrial order excluding evidence from a mail fraud prosecution. It presents a matter of first impression in this circuit—whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law. Preliminarily, we must also address the government's repeated failures to certify this appeal properly according to the jurisdictional requirements of 18 U.S.C. § 3731. We accept the government's fourth attempt to certify, and thus have jurisdiction under § 3731. On the merits, we disagree with the district court that a state law violation is required, and thus reverse the court's order excluding certain evidence from trial.

I. BACKGROUND

Defendant Bruce Weyhrauch, a lawyer, was a member of the Alaska House of Representatives in 2006 while Alaska's legislature was considering legislation that would alter how the state taxed oil production. According to the criminal indictment against him, VECO Corp., an oil field services company, took an active interest in the legislature's reconsideration of the oil tax, and two of its executives had a series of contacts with Weyhrauch regarding the pending legislation.¹ The indictment alleges that Weyhrauch solicited, by mail, telephone and personal contact, future legal work from VECO in exchange for voting on the oil tax legislation as VECO instructed and taking other actions favorable to VECO in Weyhrauch's capacity as state legislator, such as maneuvering the legislation and reporting information about proposed changes to the legislation to the VECO executives. The indictment does not allege that Weyhrauch received any compensation or benefits from VECO or its executives during this period, but alleges facts suggesting that Weyhrauch took the actions favorable to VECO on the understanding that VECO would hire him in the future to provide legal services to the company.

Count VII of the indictment charges Weyhrauch with devising "a scheme and artifice to defraud and deprive the State of Alaska of its intangible right to [his] honest services ... performed free from deceit, self-dealing, bias, and concealment" and attempting to execute the scheme by mailing his resume to VECO ("the honest services charge"). Before trial, the parties filed cross-motions regarding the admission or exclusion of evidence related to the honest services charge. Specifically, the government proposed to introduce: (1) legislative ethics publications containing excerpts of various Alaska state statutes addressing conflicts of interest and disclosure requirements; (2) evidence that members of the Alaska State Legislature customarily acknowledge the existence of conflicts of interests on the floor of the Legislature, and that Weyhrauch never disclosed he was negotiating for employment with VECO; (3) a description of the ethics training Weyhrauch had received and (4) evidence that Weyhrauch served on the Legislature's Select Committee on Ethics.

The district court found that the proffered evidence related only to duties to disclose a conflict of interest that might be imposed by state law, and that state law did not require Weyhrauch to disclose the conflict of interest he faced in discharging his duties while negotiating for future employment with a company affected by pending legislation.² The government argued that the evidence should nonetheless be admitted because proof that a legislator knowingly concealed a conflict of interest may be used to support an honest services fraud conviction even if state law does not require disclosure of the conflict of interest. Recognizing an absence of Ninth Circuit precedent and a split among the other circuits on this issue, the district court adopted the approach outlined by the Fifth Circuit in United States v. Brumley, 116 F.3d 728 (5th Cir.1997) (en banc), and concluded that "any duty to disclose sufficient to support the mail and wire fraud charges here must be a duty imposed by state law." Accordingly, on September 4, 2007, the district court granted Weyhrauch's motion, denied the government's motion and excluded the proffered evidence. The next day, September 5, the government initiated this interlocutory appeal of the district court's ruling.

II. STANDARD OF REVIEW

We review a district court's ruling excluding evidence for abuse of discretion. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004). "The district court abuses its discretion when its evidentiary rulings are based on an erroneous view of the law or a clearly erroneous assessment of the facts." United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir.2006) (internal quotation marks omitted).

III. CERTIFICATION OF THIS APPEAL UNDER § 3731

Under 18 U.S.C. § 3731, the government may bring an interlocutory appeal "if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." See United States v. W.R. Grace, 526 F.3d 499, 504-05 (9th Cir.2008) (en banc). We recently recounted in detail the procedural history of this interlocutory appeal in a published order, see United States v. Weyhrauch, 544 F.3d 969 (9th Cir.2008) (order to show cause), so we summarize only the pertinent details here.

Nicholas Marsh, lead trial counsel from the Department of Justice, Criminal Division, Public Integrity Section (PIS), orally advised the district court at a September 5 pre-trial conference that the government intended immediately to appeal the ruling, that the excluded evidence was substantial proof of a material fact and that the appeal was not being taken for the purpose of delay. Based on this oral certification, the district court stayed the trial pending the interlocutory appeal. However, because the purported certification to the district court was not made by the United States Attorney as required by § 3731, before oral argument we issued an order to show cause (OSC) why the appeal should not be dismissed as improperly certified.

In its response, the government argued that Marsh's certification was sufficient under § 3731 because it was made in consultation with and at the direction of William M. Welch II, Chief of PIS, who was overseeing the prosecution, and submitted a document signed by Chief Welch, dated July 25, 2008, certifying the appeal pursuant to § 3731. The government failed to explain how Chief Welch, who is not a United States Attorney, could properly certify an appeal under § 3731, so after oral argument we issued a second OSC to address this issue.

In response, the government submitted a formal recusal notice, dated November 7, 2005, from the Executive Office for United States Attorneys stating that the United States Attorney's Office for the District of Alaska was recused from the investigation that led to the prosecution of Weyhrauch and that PIS had agreed to handle the matter in its entirety. The government also continued to argue that trial attorney Marsh's September 5, 2007 certification was sufficient, but on a new theory that he was himself authorized to certify the appeal because he had been specially appointed under 28 C.F.R. § 0.13(a) by the Deputy Assistant Attorney General and therefore was authorized to conduct "any legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct." 28 C.F.R. § 0.13(a). In a published OSC, we held that the recusal notice failed to explain Chief Welch's authority to certify the appeal and rejected the government's argument that any attorney specially appointed under § 0.13(a) can certify an interlocutory appeal under 18 U.S.C. § 3731. Weyhrauch, 544 F.3d at 972-73, 975. We gave the government a final opportunity to demonstrate that this appeal was properly certified.

On September 22, 2008, the government submitted two documents signed by Attorney General Michael Mukasey.³ In the first, the Attorney General averred that the appeal was not taken for the purposes of delay and that the evidence at issue is substantial proof of facts material to the proceeding; in the second, he ratified Chief Welch's written certification of July 25, 2008 and confirmed that Chief Welch had been delegated authority to make that certification. We accept that the Attorney General can himself certify an appeal. Plainly, Congress' designation of the United States Attorney as the one authorized to make the requisite § 3731 certification was not intended to preclude certification by an equivalent or higher authority should there be no United States Attorney or acting United States Attorney overseeing a prosecution.⁴ Because the ultimate authority to appoint an acting United States Attorney rests with the Attorney General under 28 U.S.C. § 515(a), see Weyhrauch, 544 F.3d at 973 the Attorney General can certify an appeal under § 3731 if no one else has been properly designated to do so. Because we conclude that the Attorney General's own certification is sufficient, we do not decide whether ratification alone would suffice. See Weyhrauch, 544...