Petition for Writ of Certiorari — William Hugh Weygandt, Petitioner v. United States

APPENDIX TABLE OF CONTENTS

Memorandum Opinion of the Ninth Circuit Court

of Appeals (March 9, 2017) ................................ 1a

Order of the Ninth Circuit Court of Appeals

Granting Motion for Stay Mandate

(October 13, 2017) .............................................. 9a

Order Denying Defendant’s Motion for Judgment

of Acquittal (November 19, 2013) .................... 11a

Order of the Ninth Circuit Denying Petition for

Rehearing En Banc (October 5, 2017) ............. 21a

App.1a

MEMORANDUM OPINION

OF THE NINTH CIRCUIT COURT OF APPEALS

(MARCH 9, 2017)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM HUGH WEYGANDT,

Defendant-Appellant.

________________________

No. 14-10356

D.C. No. 2:11-cr-00429-JAM-7

Appeal from the United States District Court for the

Eastern District of California John A. Mendez,

District Judge, Presiding

Before: W. FLETCHER, FUENTES, and

RAWLINSON, Circuit Judges.

 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.

App.2a

Defendant William Weygandt appeals from the

jury’s verdict finding him guilty of conspiracy to commit fraud involving aircraft parts in violation of 18

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 this and other evidence, a jury

could rationally conclude that Weygandt knew WECO’s

App.3a

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

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

App.4a

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 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

App.5a

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 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

App.6a

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 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

App.7a

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 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).

App.8a

Seventh, Weygandt argues that the district court

erred in limiting the testimony from Weygandt’s character witnesses. We review evidentiary rulings 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 guiltassuming hypotheticals were improper, the errors

here did not produce significant prejudice.

AFFIRMED.

App.9a

ORDER OF THE NINTH CIRCUIT COURT

OF APPEALS GRANTING MOTION

FOR STAY MANDATE

(OCTOBER 13, 2017)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM HUGH WEYGANDT,

Defendant-Appellant.

________________________

No. 14-10356

D.C. No. 2:11-cr-00429-JAM-7

Eastern District of California, Sacramento

Before: W. FLETCHER, FUENTES, and

RAWLINSON, Circuit Judges.

Upon due consideration of Defendant-Appellant’s

motion to stay the mandate of this Court pending the

filing of a petition for writ of certiorari (Dkt. 93),

such petition to be filed within 90 days of this Order,

 The Honorable Julio M. Fuentes, United States Circuit Judge

for the U.S. Court of Appeals for the Third Circuit, sitting by

designation.

App.10a

IT IS ORDERED that the motion for stay of

mandate be GRANTED. In the event that the petition for writ of certiorari is timely filed, “the stay

shall continue until final disposition by the Supreme

Court.” Fed. R. App. P. 41(d)(2)(B).

App.11a

ORDER DENYING DEFENDANT’S MOTION

FOR JUDGMENT OF ACQUITTAL

(NOVEMBER 19, 2013)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

________________________

UNITED STATES OF AMERICA,

Plaintiff,

v.

WILLIAM HUGH WEYGANDT,

Defendant.

________________________

No. No. 2:11-CR-00429 JAM

Before: John A. MENDEZ,

United States District Judge

Presently before the Court is Defendant William

Hugh Weygandt’s (“Defendant”) Renewed Rule 29

Motion for Judgment of Acquittal (Doc. # 247). The

Government opposes the motion (Doc. # 257) and Defendant replied (Doc. # 270). For the reasons set forth

below, Defendant’s Motion for Judgment of Acquittal

is denied.1

1 This matter was determined to be suitable for decision without

oral argument. See United States v. Green, 89 F.3d 657, 660

(9th Cir. 1996).

App.12a

I.

Factual and Procedural Background

On October 10, 2012, Defendant was indicted on

a single count for Conspiracy to Commit Fraud Involving Aircraft Parts in Interstate and Foreign Commerce

in violation of 18 U.S.C. § 38 (Doc. # 64). This crime

arises out of Defendant’s role as President and owner

of WECO Aerospace Systems, Inc. (“WECO”), an aviation repair station. The Superseding Indictment alleges

that Defendant conspired with various WECO employees to defraud the Federal Aviation Administration (“FAA”) and WECO customers through improper

repairs and overhauls on parts contrary to the representations made on the FAA Form 8130s (“8130s”). Following a three week jury trial, a guilty verdict was

returned on Count I on November 4, 2013 (Doc.

# 260).

II.

Opinion

A. Legal Standard

Federal Rule of Criminal Procedure 29(a) (“Rule

29(a)”) “requires the trial court to grant a motion for

judgment of acquittal ‘if the evidence is insufficient

to sustain a conviction.’” United States v. Hazeem,

679 F.2d 770, 772 (9th Cir. 1982). Specifically, the court

determines if “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United States v. VonWillie, 59 F.3d

922, 928 (9th Cir. 1995). “The district court’s function

in reviewing a defendant’s motion for acquittal is quite

narrow. The court, after viewing the evidence in the

light most favorably to the government, must determine whether the jury could reasonably find the defendant guilty beyond a reasonable doubt.” United States

App.13a

v. Bernhardt, 840 F.2d 1441, 1448 (9th Cir. 1988).

“[I]t is the jury’s exclusive function to determine the

credibility of witnesses, resolve evidentiary conflicts,

and draw reasonable inferences from proven facts.” Id.

(citations omitted). Furthermore, pursuant to Rule

29(b), “If the Court reserves decision, it must decide the

motion on the basis of the evidence at the time the

ruling was reserved.” Fed. R. Crim. P. 29(b). In this

case, the Court reserved ruling on the motion after

the close of all the evidence in this case.

B. Discussion

Defendant moves for acquittal on Count I, arguing

that the evidence was insufficient for a rational juror

to conclude beyond a reasonable doubt that Defendant

is guilty of conspiracy under 18 U.S.C. § 38. The

Government counters that there was ample evidence

to support Defendant’s conviction.

To sustain a conviction in this case, the Government must prove the following: (1) that beginning no

later than on or about October 26, 2006, and ending

on or about February 15, 2008, there was an agreement between two or more persons to commit fraud

involving aircraft parts in interstate or foreign commerce, and (2) that the defendant became a member of

the conspiracy knowing of at least one of its objects

and intending to help accomplish it. 18 U.S.C. § 38(a)

(1)(A).

1. Agreement to Commit Fraud

The Government does not have to prove that an

explicit agreement existed. United States v. Cloud,

872 F.2d 846, 852 (9th Cir. 1989). The agreement “may

be inferred from the defendant’s acts pursuant to a

App.14a

fraudulent scheme or from other circumstantial

evidence.” Id. (citations omitted). “An inference of the

existence of a conspiratorial agreement may also be

drawn if there be concert of action, all the parties

working together understandingly, with a single design

for the accomplishment of a common purpose.” Id.

(citations and internal quotations omitted); see also

United States v. Hubbard, 96 F.3d 1223, 1226 (9th

Cir. 1996) (same). Therefore, “[t]he agreement need not

be explicit; it is sufficient if the conspirators knew or

had reason to know of the scope of the conspiracy and

that their own benefits depended on the success of

the venture.” United States v. Sullivan, 522 F.3d 967,

976 (9th Cir. 2008) (citations omitted).

Defendant does not dispute the existence of fraudulent behavior on the part of some WECO employees.

Instead, he argues that there is no evidence of an agreement to commit fraud, relying on the testimony of

several witnesses who testified that they neither

expressly agreed to defraud customers or the FAA nor

were ordered to do so. Mot. at 7-8. However, as the

Government argues, conspiratorial agreements may be

implicitly evidenced by a “concert of action.” Defendant argues that the “concert of action” line of cases

do not apply in this case because the parties did not

work together with a shared understanding and because an inference of an agreement is permissible only

when the nature of the acts would logically require

coordination and planning. Reply at 23 (citing United

States v. Iriarte-Ortega, 113 F.3d 1022, 1024 opinion

amended on denial of reh’g, 127 F.3d 1200 (9th Cir.

1997)). However, evidence of coordination and a shared

understanding exists here.

App.15a

The Ninth Circuit has held, “Coordination between

conspirators is strong circumstantial proof of agreement; as the degree of coordination between conspirators rises, the likelihood that their actions were

driven by an agreement increases.” Iriarte-Ortega, 113

F.3d at 1024. In this case, a jury could reasonably

have inferred a conspiratorial agreement from all the

coordinated actions. Sufficient evidence was presented

at trial to show that Defendant knew WECO did not

have the equipment to do the tests called for in the

component maintenance manuals (“CMMs”). See e.g.

Testimony of Howell at 20-24. Nevertheless, WECO

employees continued to certify in 8130s that aircraft

parts were overhauled in accordance with the CMMs.

See id. at 23-24. In addition, there was evidence

establishing that Defendant had a repeated pattern

of ignoring requests for proper testing equipment

even though he was the only person at WECO

authorized to purchase equipment. See Testimony of

Tony Zito, Doc. # 250, at 20-24; Testimony of Michael

Maupin, Doc. # 253, 107-08. For example, Tony Zito

testified that he stopped requesting equipment because

Defendant routinely denied the requests; Matthew

Mortimer testified that after Defendant declined to

buy equipment, he understood that he was to do his

job without the equipment; and Jerry Kuwata testified

he presented Defendant with a quote on a varidrive,

which was never purchased. Testimony of Tony Zito

at 23-24; Testimony of Matthew Mortimer, Doc. # 241,

at 66; Testimony of Jerry Kuwata, Doc. # 266, at 6970. Defendant argues that this disagreement over the

equipment shows that Defendant and the coconspirators opposed each other and consequently, there

was no shared understanding. However, this argument is unpersuasive because the common purpose was

App.16a

not whether or not to purchase equipment; it was to

defraud the FAA and WECO customers by skipping

required tests due to the lack of equipment. Therefore,

the “concert of action” consisted of Defendant refusing

to buy the required equipment, allowing his employees

to perform tests without the equipment, and the fraudulent representations that the required tests were

properly performed. This scheme required coordination

and participation of several people. Moreover, by

refusing to buy the required testing equipment, Defendant acted pursuant to the fraudulent scheme and he

benefitted from the scheme by saving money, which

is enough to show an agreement. See Cloud, 872 F.2d

at 852; Sullivan, 522 F.3d at 976.

Accordingly, there was sufficient evidence to show

an implicit agreement to commit fraud between

Defendant and the coconspirators.

2. Knowledge of at Least One of Its Objects

and Intent to Help Accomplish It

Defendant argues that the Government failed to

present sufficient evidence to show that he became a

member of the conspiracy with the requisite knowledge

and intent to defraud. Mot. at 11-12. Defendant relies

on three cases: United States v. Hernandez, 301 F.3d

886 (8th Cir. 2002); United States v. Esparza, 876 F.2d

1390 (9th Cir. 1989); and United States v. EstradaMacias, 218 F.3d 1064 (9th Cir. 2000). Reply at 6-7.

In Hernandez, the Eighth Circuit upheld the

district court’s decision to set aside a verdict for

insufficient evidence where the defendant was arrested

in a sting against her boyfriend, but there was no

evidence to suggest she was aware of the drugs and

drug paraphernalia found hidden in her home nor was

App.17a

there any other evidence linking her with drug use or

drug dealing. Hernandez, 301 F.3d at 890-91. The court

held that the evidence led only to conjecture of guilt

and “conjecture is something less than an inference

reasonably drawn from the evidence.” Id. In Esparza,

the court held that there was insufficient evidence to

support a conviction for conspiracy where the defendant

was present in the passenger seat of a moving van

but there was no evidence that the defendant knew

that aliens were hidden in the van. Esparza, 876 F.2d

at 1392-93 (“Considered in its factual context, Esparza’s

presence as a passenger in the Dodge is not a sufficient

basis to infer that he knew of the conspiracy or participated in it.”) Finally, in Estrada-Macias, the Ninth

Circuit held that there was insufficient evidence to

support the defendant’s conviction for conspiracy to

manufacture methamphetamine because the evidence

showed that the defendant was near the manufacturing site and knew about the manufacturing but not

that he actually participated in the conspiracy. 218 F.3d

at 1066-68. The court clarified that “[m]ere casual association with conspiring people is not enough.” Id. at

1066 (citation omitted).

These three cases establish that mere presence

or mere association is not enough to show that a person

is a member of a conspiracy. Here, however, Defendant’s

assertion that he was merely present at WECO or

merely associated with the coconspirators is without

merit. There was strong circumstantial evidence that

Defendant was intimately familiar with the aircraft

parts repair business and WECO in particular: He

inherited WECO from his father, worked his way up,

and as the President and owner of WECO, he was

involved in the day-to-day operations, often providing

App.18a

input on work orders and regularly attending the daily

production meetings. See Testimony of Michael Maupin,

Doc. # 251, at 38, and Doc. # 253, at 91-92, 113-14;

Testimony of Jerry Kuwata, Doc. # 265, at 20-23;

Testimony of William Howell, Doc. # 258, at 29-30;

Testimony of Scott Durham, Doc. # 249, at 34-35, 4547. There was also evidence that Defendant knew about

8130s and their importance in the aviation industry.

See Gov’t Ex. 603 (email from Defendant discussing

the need to include 8130s); Testimony of Howell, Doc.

# 258, at 11 (acknowledging that Defendant was

authorized to sign 8130s). In addition, as mentioned

above, the evidence showed that Defendant was aware

that WECO was missing the equipment necessary to

conduct tests pursuant to the CMMs. Therefore, there

was sufficient evidence for a rational jury to infer

that Defendant, who was a sophisticated businessman

with extensive experience, knew that the required

tests were not being performed and the 8130s were

being falsely certified. Moreover, this evidence shows

that Defendant was sophisticated enough to distance

himself from the criminal activity that was occurring,

even though he permitted and encouraged it. Therefore,

unlike the defendants in Hernandez, Esparza, and

Estrada-Macias, Defendant in this case was neither

merely present at WECO nor merely associated with

the coconspirators. Rather, Defendant was at the center

of this conspiracy.

Defendant also argues that there is no evidence

that he intended to defraud the FAA or WECO customers. However, as mentioned above, there was sufficient evidence to establish that Defendant knew the

8130s were being falsely certified but he nonetheless did

nothing to remedy the situation, such as buying the

App.19a

required equipment or shutting down the facilities, even

though he was the only one in the position to do so.

Defendant knowingly continued on this course of

action until he sold WECO to Gulfstream and he stated

that they could finally get the testing equipment now

that they had deeper pockets, referring to Gulfstream.

Testimony of Michael Maupin, Doc. # 253, 81, 126-127.

Therefore, the jury reasonably inferred from Defendant’s conscious and calculated decision not to buy

the necessary equipment that he acted with the intent

to defraud. United States v. Pelisamen, 641 F.3d 399,

409 (9th Cir. 2011) (“It is settled law that intent to

defraud may be established by circumstantial evidence.”) (quoting United States v. Rogers, 321 F.3d 1226,

1230 (9th Cir. 2003)). Defendant points to the evidence

that he purchased equipment and invested in WECO to

show that he did not have the requisite intent; however

this evidence is insufficient to overcome the Government’s proof. Indeed evidence that Defendant spent

money on such items as a trash compactor, the move

to a new facility and improvements to that facility

carries little weight on the intent issue and does not

address the central issue raised by the Government,

i.e., why didn’t Defendant purchase the equipment he

knew that WECO needed to insure that airplane parts

were being repaired and overhauled as required by law.

Thus, despite Defendant’s assertions, there was ample

circumstantial evidence of Defendant’s knowledge of

and intent to defraud the FAA and WECO customers.2

2 In his Reply, Defendant raises for the first time what appears

to be a statute of limitations argument. Reply at 24-25. The Court

may not consider new arguments raised in a Reply brief. Even if

the Court were to consider this argument, it is without merit.

The evidence in this case clearly demonstrates that the conspiracy

App.20a

Accordingly, taking all of this evidence together

and viewing it in the light most favorable to the

Government, the Court finds that there was relevant

and substantial evidence from which the jury could

reasonably have found and did find Defendant guilty

beyond a reasonable doubt.

III. Order

For the reasons discussed above, Defendant’s

Motion for Judgment of Acquittal is denied.

IT IS SO ORDERED.

/s/ John A. Mendez

United States District Judge

Dated: November 19, 2013

to defraud continued up through the date of Defendant’s

termination by Gulfstream in February 2008. See Government’s

Opposition at pp. 8-11.

App.21a

ORDER OF THE NINTH CIRCUIT

DENYING PETITION FOR REHEARING EN BANC

(OCTOBER 5, 2017)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM HUGH WEYGANDT,

Defendant-Appellant.

________________________

No. 14-10356

D.C. No. 2:11-cr-00429-JAM-7

Eastern District of California, Sacramento

Before: W. FLETCHER, FUENTES, and

RAWLINSON, Circuit Judges.

Defendant-Appellant’s Request for Leave to File

a Reply to the Government’s Brief (Dkt. 88) is

GRANTED. The panel accepts Defendant-Appellant’s

brief filed on September 27, 2017 (Dkt. 91).

 The Honorable Julio M. Fuentes, United States Circuit Judge

for the U.S. Court of Appeals for the Third Circuit, sitting by

designation.

App.22a

The petition for panel rehearing and rehearing en

banc (Dkt. 64) is DENIED. The panel unanimously

voted to deny the petition for panel rehearing.

Judges W. Fletcher and Rawlinson also voted to deny

the petition for rehearing en banc and Judge Fuentes

so recommended.

The full court has been advised of the petition

for en banc rehearing, and no judge of the court has

requested a vote on the petition for rehearing en

banc. Fed. R. App. P. 35(b).