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Federal Judiciary

: California Appellate Report

U.S. v. Weyhrauch (9th Cir. - Nov. 26, 2008)

By Shaun Martin

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Here's a pre-holiday case that's interesting on a lot of levels.

First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?

Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion. It was an unusual situation; nonetheless, you'd have thought the government could have gotten it together at least a little earlier. Plus, Judge Fisher's reaction to all of this is priceless. He's (relatively) nice about the whole thing, but doesn't pull any punches either.

Third, down here in San Diego, we have a long-running criminal case against our own city officials, and this holding by the Ninth Circuit is certainly not a great pre-Thanksgiving present any of those defendants. Basically, Judge Fisher holds that, contrary to the views of several other circuits, an "honest services" mail fraud charge against public officials need not be based upon an underlying state law violation. That doesn't help the defendants (at all) either in the San Diego case or in this Alaska prosecution.

I'd ordinarily think that the importance of the case and the creation of a circuit split would make this a pretty good candidate for Supreme Court review. But the unique procedural complexity in this case -- while arguably providing yet another basis for a grant of certiorari -- on balance may lead the Court to let the matter percolate one more time, and in a slightly more straightforward vehicle, before taking the matter up. (Plus, this one's an interlocutory appeal, so no need for the Supreme Court to get involved now rather than after a final judgment.)

So some interesting reading from the Ninth Circuit -- which has been a bit sleepy over the past week -- right before the break. Enjoy.

Full post as published by California Appellate Report on November 26, 2008 (boomark / email).