NOT FOR PUBLICATION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

2 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

3 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

4 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

6 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.

9

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.