FILED
NOT FOR PUBLICATION
AUG 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-56499
Plaintiff-Appellee, D.C. Nos. 3:02-cv-01391-ER
3:96-cr-00698-DMS-3
v.
JAMES A. MALKUS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted August 8, 2017**
Pasadena, California
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.
1. Skilling v. United States narrowed 18 U.S.C. § 1346 to bribery or
kickback schemes, but stopped short of declaring the statute unconstitutionally
vague. See 561 U.S. 358, 412 (2010). The facts recited in this court’s decision on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Malkus’s first appeal and established by the record here show that Malkus’s
conviction rests on a bribery scheme and falls within the heartland of post-Skilling
honest services fraud. See United States v. Frega, 179 F.3d 793, 798 (9th Cir.
1999). Malkus’s conviction also comports with United States v. Milovanovic, 678
F.3d 713, 726–29 (9th Cir. 2012) (en banc) (describing the reach of the honest
services fraud statute after Skilling).
2. Nor does McDonnell v. United States establish that Malkus was
wrongfully convicted. Before a defendant may be convicted of honest services
fraud, the government must prove that the defendant “committed or agreed to
commit an ‘official act’ in exchange for” something of value. 136 S. Ct. 2355,
2365 (2016). McDonnell clarified that to prove an “official act” took place, the
government must first “identify a ‘question, matter, cause, suit, proceeding or
controversy’ that ‘may at any time be pending’ or ‘may by law be brought’ before
a public official.” Id. at 2368 (quoting 18 U.S.C. § 201(a)(3)). The “question” or
“matter” must “involve[] a formal exercise of governmental power that is similar in
nature to a lawsuit, administrative determination, or hearing.” Id. at 2370. The
government must also “prove that the public official made a decision or took an
action ‘on’ that question, matter, cause, suit, proceeding, or controversy, or agreed
to do so.” Id. at 2368. The record establishes that Malkus took an “official act” as
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defined by McDonnell when he awarded attorney Patrick Frega’s client more than
$4 million while accepting gifts from Frega.
Malkus also argues that the government conceded there was no quid pro quo
and thus the government could not have established that the requisite “official act”
occurred in return for Frega’s gifts. But the government concedes only that it did
not show an explicit quid pro quo arrangement; rather, it showed an implicit one.
McDonnell does not require more. Id. at 2371 (“The agreement need not be
explicit, and the public official need not specify the means that he will use to
perform his end of the bargain.”); see also United States v. Garrido, 713 F.3d 985,
997 (9th Cir. 2013) (“Section 1346 honest services convictions on a bribery theory
. . . require at least an implied quid pro quo.”). A jury may “conclude that an
agreement was reached if the evidence shows that the public official received a
thing of value knowing that it was given with the expectation that the official
would perform an ‘official act’ in return.” McDonnell, 136 S. Ct. at 2371.
Furthermore, nothing prevented Malkus from raising the question whether
the government “prove[d] a link between a thing of value conferred upon a public
official and a specific ‘official act’ for or because of which it was given” in his first
appeal. See Frega, 179 F.3d at 805 n.11 (citing 18 U.S.C. § 201(c)(1)(A)).
McDonnell did not change the “linkage” requirement of federal bribery statutes,
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and any belated sufficiency of the evidence argument does not justify the
extraordinary remedy of coram nobis relief. See Carlisle v. United States, 517 U.S.
416, 429 (1996) (“[I]t is difficult to conceive of a situation in a federal criminal
case today where [a writ of coram nobis] would be necessary or appropriate.”
(second alteration in original) (citation omitted)).
AFFIRMED.
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