United States v. Imad Hereimi

FILED
NOT FOR PUBLICATION SEP 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 08-30468
)
Plaintiff – Appellee, ) D.C. No. 3:08-CR-00007-JKS
)
v. ) MEMORANDUM *
)
IMAD SALIM HEREIMI, )
)
Defendant – Appellant. )
)
On Remand from the United States Supreme Court
Before: FERNANDEZ, KLEINFELD, and CLIFTON, Circuit Judges.
After a jury verdict, the district court issued a judgment of conviction against
Hereimi for honest services fraud. We affirmed the district court, but the Supreme
Court vacated our decision and remanded “for further consideration in light of
Skilling v. United States, 561 U.S. ___, [130 S. Ct. 2896] (2010).” Having done
so, it is apparent to us that this case was tried and argued to the jury solely on the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
theory of honest services fraud that was rejected in Skilling. See id. at ___, 130 S.
Ct. at 2931; see also McNally v. United States, 483 U.S. 350, 360, 107 S. Ct. 2875,
2882, 97 L. Ed. 2d 292 (1987) (conviction reversed where “there was no charge
and the jury was not required to find that the [State] itself was defrauded of any
money or property.”) Moreover, the jury was instructed and brought in a verdict
on that theory alone. Therefore, we reverse the judgment and remand to the district
court for further proceedings. See United States v. Moreland, 604 F.3d 1058,
1076–78 (9th Cir. 2010); see also Johnson v. United States, 520 U.S. 461, 468, 117
S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997) (where at time of trial law “settled and
clearly contrary to the law at time of appeal,” error still plain); United States v.
Hilling, 891 F.2d 205, 206–08 (9th Cir. 1989) (when jury instructed on improper
intangible right theory, conviction reversed).
REVERSED and REMANDED.
2