CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, September 3, 2009

Previewing the Coming Term (Part 13): Weyhrauch v. United States

[This is the thirteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]

Case: Weyhrauch v. United States 
Docket No.: 08-1196
Oral Argument Date: not yet assigned

Issue:  Whether 18 U.S.C. § 1346, by criminalizing denials of "the intangible right of honest services," mandates the creation by the federal courts of a federal common law defining the disclosure obligations of state government officials.

Factual and Procedural History:  Petitioner, Bruce Weyhrauch, is a licensed attorney who represented Juneau in the Alaska House of Representatives in 2006 while the House was considering legislation that would alter how the state taxed oil production.  Five days before the legislature’s scheduled adjournment, petitioner authored a letter to Bill Allen, the CEO of an oil fields services company, requesting further conversations about petitioner’s law office representing his oil company.  The letter included a heading that stated “Advertising Material.” 

Because of this letter, petitioner was charged with allegations that he improperly requested employment during his representation of the city, and sought early adjournment of the special session of the legislature in favor of the oil company.  In the end, the government officially charged him with, among other things, devising “a scheme and artifice to defraud and deprive the State of Alaska of its intangible right to honest services...performed free from deceit, self-dealing, bias, and concealment,” in violation of 18 U.S.C. §§ 1341 and 1346.

Prior to trial, the government proposed to introduce several pieces of evidence to establish that petitioner violated § 1346 by knowingly concealing a conflict of interest.  Petitioner moved to exclude the government’s evidence for lack of relevance on the ground that Alaska law does not require that state legislators disclose ongoing negotiations for employment.  The district court granted petitioner’s motion to exclude, finding that federal common law does not provide the requisite duty to disclose.  

The court of appeals reversed and remanded, noting that while Congress had created some confusion over the reach of the mail fraud statute, and that the circuits have been split on the proper meaning of “honest services” for public officials, the Ninth Circuit has held that § 1346 creates a uniform standard for “honest services” that governs every public official, and the government need not prove an independent violation of state law to sustain an honest services fraud conviction.  Petitioner’s timely petition for rehearing en banc was denied, and a writ of certiorari was granted by the U.S. Supreme Court.  Oral argument has not yet been scheduled.

Summary of Petitioner’s Argument:  No merit brief has been filed yet.

Summary of Respondent’s Argument:  No merit brief has been filed yet.

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