NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 09 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10356
Plaintiff-Appellee, D.C. No.
2:11-cr-00429-JAM-7
v.
WILLIAM HUGH WEYGANDT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
Before: W. FLETCHER, FUENTES,** and RAWLINSON, Circuit Judges.
Defendant William Weygandt appeals from the jury’s verdict finding him
guilty of conspiracy to commit fraud involving aircraft parts in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
U.S.C. § 38(a) and from the district court’s denial of his motion for a judgment of
acquittal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Sufficiency of the Evidence
Weygandt argues that the government failed to present sufficient evidence to
prove Weygandt’s knowledge of the conspiracy to commit fraud and his intent to
defraud. We review de novo challenges to the sufficiency of the evidence
supporting a conviction. United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir.
2010). We “view[] the evidence produced at trial in the light most favorable to the
prosecution” and consider whether the evidence “is sufficient to allow any rational
juror to conclude that the government has carried its burden of proof.” United
States v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (en banc).
A rational juror could find beyond a reasonable doubt that Weygandt knew
of and participated in the conspiracy to commit fraud with intent to defraud. In the
light most favorable to the government, the evidence shows that Weygandt was a
hands-on manager who frequently participated in production meetings and was
knowledgeable about the technical aspects of the business. Various employees
testified that they notified Weygandt of their need for different equipment but
never received the machinery they requested. In addition, the government elicited
testimony that only Weygandt was authorized to make major purchases. Based on
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this and other evidence, a jury could rationally conclude that Weygandt knew
WECO’s equipment was inadequate to comply with the component maintenance
manuals (“CMMs”) and his employees were falsely certifying 8130-3s, and that he
intended to further the conspiracy by failing to acquire equipment and deflecting
his employees’ requests.
2. Trial Errors
In addition to his sufficiency of the evidence challenge, Weygandt raises a
variety of alleged trial errors. First, Weygandt argues that the jury instruction
defining “accountable manager” was improper because it permitted the jury to
convict on a theory of vicarious liability. We review de novo whether jury
instructions “misstated or omitted an element of the charged offense” but review
for abuse of discretion “the district court’s formulation of jury instructions.”
United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012). Here, the jury was
properly instructed regarding the elements of conspiracy to commit fraud involving
aircraft parts, including the need to find knowledge and intent beyond a reasonable
doubt. The accountable manager instruction did not misstate any element of the
charged offense, and the formulation was not an abuse of discretion.
Second, Weygandt argues that the prosecution effected a constructive
amendment or fatal variance by advancing a theory of inaction at trial. When a
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defendant fails to object to such an error at trial, we review for plain error. United
States v. Hugs, 384 F.3d 762, 766 (9th Cir. 2004). Under the plain error standard,
“we may reverse a conviction if there exists (1) an error, (2) that is plain and (3)
that affects substantial rights.” Id. at 767 (internal quotation marks and alterations
omitted). When these elements are present, we may correct an error “if the error
seriously affects the fairness, integrity or public reputation of the judicial
proceedings.” Id. (internal quotation marks omitted).
There was no constructive amendment or fatal variance. An impermissible
amendment occurs when “the charging terms of the indictment are altered, either
literally or in effect, by the prosecutor or a court after the grand jury has last passed
on them,” and a variance occurs when “the evidence offered at trial proves facts
materially different from those alleged in the indictment.” United States v.
Adamson, 291 F.3d 606, 614 (9th Cir. 2002) (internal quotation marks omitted).
The evidence offered at Weygandt’s trial was consistent with the indictment. The
indictment charged that Weygandt “directed and caused” his employees to
complete repairs, sign 8130-3s, and return parts to customers “with knowledge”
that the repairs had not been conducted in accordance with the CMMs. At trial, the
government presented evidence from which a rational jury could infer that
Weygandt directed his employees to continue completing repairs “with
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knowledge” that the repairs were not being conducted in compliance with the
CMMs.
Third, Weygandt argues that the government improperly misstated evidence
during closing argument. Because Weygandt did not object at trial, we review for
plain error. United States v. Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir.
2005). Weygandt is likely correct that the government misused Government
Exhibit 504, a memorandum from Weygandt to Honeywell, in closing argument by
advancing its own interpretation of the memorandum and presenting this
interpretation as fact. See United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir.
1993) (explaining that it is improper for a prosecutor to make “unsupported factual
claims” because “[w]hen a lawyer asserts that something not in the record is true,
he is, in effect, testifying”). However, these statements were not sufficiently
prejudicial to warrant reversal under plain error review. The improper statements
were limited to two assertions about the meaning of certain language from a
memorandum that had been properly admitted into evidence. Thus, the jury had
the opportunity to independently examine the document during deliberations and to
assess the plausibility of the government’s interpretation.
Fourth, Weygandt argues that the government’s references to Weygandt’s
wealth denied him due process. Because Weygandt did not raise this objection at
5
trial, we review for plain error. United States v. Reyes, 660 F.3d 454, 461 (9th Cir.
2011). The government may not introduce evidence simply to show that a
defendant is wealthy or poor, because financial condition alone has little probative
value and risks unfair prejudice. Id. at 464. However, such evidence may be
admissible if it proves motive, knowledge, or intent. Id. At Weygandt’s trial, the
government introduced evidence of Weygandt’s salary and the purchase price of
WECO and made various references to Weygandt’s wealth and greed. According
to the government, this evidence was introduced to show that Weygandt could
have purchased the necessary equipment but decided not to in order to increase his
personal earnings. In light of the government’s potentially valid uses for the
wealth-related evidence, any error here was not “clear” or “obvious.” United States
v. Olano, 507 U.S. 725, 734 (1993) (internal quotation marks omitted).
Fifth, Weygandt argues that the government engaged in a pattern of
misconduct warranting dismissal or a new trial. He alleges that the government
committed discovery violations, rendered defense witnesses unavailable, and
knowingly elicited false testimony. “We review the district court’s rulings on
alleged prosecutorial misconduct for an abuse of discretion.” Reyes, 660 F.3d at
461. Here, the district court explicitly stated that it had observed no prosecutorial
misconduct over the course of the trial. With regard to the alleged discovery
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violations, the district court took remedial steps where necessary and noted on the
record that it did not believe the government’s late disclosures were the result of
misconduct. There is no reason for dismissal on this basis.
Weygandt’s allegation that the government purposefully prevented witnesses
from testifying for the defense is similarly unconvincing. The district court
properly denied Weygandt’s motion to compel immunity for a potential defense
witness, because there was nothing in the record indicating that the government
“took affirmative steps to prevent [the witness] from testifying.” See United States
v. Whitehead, 200 F.3d 634, 640 (9th Cir. 2000) (explaining that in order to compel
immunity, the defendant must show that the government “distorted the judicial
fact-finding process” and “took affirmative steps to prevent” witnesses from
testifying (internal quotation marks omitted)).
In his final claim of prosecutorial misconduct, Weygandt alleges that the
government elicited false testimony from Anthony Zito. This allegation is not
supported by the record. Zito testified that he told Weygandt that Odom’s Aircraft
was “doing the same thing” as WECO–that is, continuing repairs without the
proper equipment. The government had earlier interviewed the owner of Odom’s
Aircraft, who stated that Odom had never had problems with the Federal Aviation
Administration. While these statements undercut Zito’s credibility and were valid
7
impeachment evidence, they were not proof that Zito was lying. To avoid any
prejudice, the district court permitted the defense to call the agent who had
interviewed the owner to testify. The district court did not abuse its discretion in
declining to dismiss the indictment based on these allegations of prosecutorial
misconduct.
Sixth, Weygandt argues that the government’s use of guilt-assuming
hypotheticals was improper. The government may not ask character witnesses
hypothetical questions that “assume the defendant’s guilt of the precise acts for
which he is on trial.” United States v. Shwayder, 312 F.3d 1109, 1120 (9th Cir.
2002). When a defendant fails to object to such questions at trial, we review for
plain error. Id. Here, the government concedes that the prosecutor asked one series
of guilt-assuming hypotheticals but contends that the error was harmless. We
agree. A single series of improper questions, asked to only one of various
character witnesses, is unlikely to have any meaningful effect on the verdict. The
other questions identified by Weygandt are not guilt-assuming hypotheticals. They
ask about specific instances of the defendant’s misconduct and are permissible
under Federal Rule of Evidence 405(a).
Seventh, Weygandt argues that the district court erred in limiting the
testimony from Weygandt’s character witnesses. We review evidentiary rulings
8
for abuse of discretion. United States v. Hankey, 203 F.3d 1160, 1166-67 (9th Cir.
2000). A criminal defendant may present evidence of his own character in the
form of opinion testimony or reputation testimony. Fed. R. Evid. 404(a)(2)(A),
405(a). However, specific instances of conduct are admissible only when the
character trait is “an essential element of a charge, claim, or defense.” Fed. R. Evid.
405(b). Weygandt does not attempt to argue that character is an essential element
of any charge, claim, or defense involved in this case, and his reliance on United
States v. Whitman, 771 F.2d 1348 (9th Cir. 1985), is misplaced. Nothing
in Whitman exempts the defense from complying with the Federal Rules of
Evidence.
Finally, Weygandt argues that cumulative error justifies reversal. Because
only the government’s use of Exhibit 504 and its use of a series of guilt-assuming
hypotheticals were improper, the errors here did not produce significant prejudice.
AFFIRMED.
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FILED
U.S. v. Weygandt, Case No. 14-10356
MAR 09 2017
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.