Weyhrauch

BACKGROUND

The government indicted Defendant-Appellee Bruce Wey- hrauch for allegedly attempting to commit honest services mail fraud, among other charges. On September 4, 2007, the day before trial, the district court excluded evidence the gov- ernment proffered to support its theory that Weyhrauch had breached his duty to provide honest services by failing to dis- close that he had solicited or was negotiating for employment

13675 13676 UNITED STATES v. WEYHRAUCH with a company interested in pending legislation. At the final pre-trial conference the next morning, Nicholas Marsh, an attorney from the Department of Justice, Criminal Division, Public Integrity Section (PIS), and lead trial counsel orally advised the court that the government intended immediately to appeal the ruling under 18 U.S.C. § 3731. Marsh further represented that the appeal would not be taken for purpose of delay and that the excluded evidence was substantial proof of a fact material in the proceeding. The district court stayed the trial to allow this interlocutory appeal.

Section 3731 authorizes interlocutory appeals by the gov- ernment “if the United States attorney certifies to the…