United States v. Weyhrauch

623 F.3d 707 (2010)

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

No. 07-30339.

United States Court of Appeals, Ninth Circuit.

September 27, 2010.

M. Kendall Day, Trial Attorney, U.S. Dept. of Justice, Washington, DC, James A. Goeke, Assistant U.S. Attorney, Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellant.

Ray Richard Brown, Esquire, Dillon & Findley, P.C., Douglas Pope, Pope & Katcher, Anchorage, AK, for Defendant-Appellee.

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

ORDER

This case is on remand from the Supreme Court in light of the Court's decision in Skilling v. United States, ___ U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). See Weyhrauch v. United States, ___ U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 705 (2010). In light of Skilling, we affirm the district court's denial of the government's motion in limine.

Under Skilling, nondisclosure of a conflict of interest is no longer a basis for prosecution under 18 U.S.C. § 1346. See Skilling, 130 S.Ct. at 2932. Skilling therefore precludes the government from offering evidence to prove a violation of § 1346 based on such nondisclosure. Here, the government sought to introduce evidence to prove "a knowing concealment of a conflict of interest." Because Skilling does not permit the government to prove a violation of § 1346 on that basis, we affirm the district court's evidentiary order.

We express no opinion whether the evidence is otherwise admissible, or whether the government has alleged facts sufficient to pursue a § 1346 prosecution consistent with Skilling.

AFFIRMED AND REMANDED.