Scharringhausen

MEMORANDUM ***

Appellant Robert Scharringhausen appeals the district court’s denial of his motion to vacate his bankruptcy fraud conviction. He argues his conviction is unconstitutional because of a defect in the jury instructions.

This is Scharringhausen’s second round of direct appeals. In his first appeal, he *500 challenged his conviction arguing that there was insufficient evidence. The government cross-appealed, challenging the sentence Scharringhausen received. This Court upheld Scharringhausen’s conviction and agreed with the government that he should have received a two-level sentencing enhancement. United States v. Scharringhausen, No. 97-50630, 1999 WL 811337 , slip op. at 2, (9th Cir. Oct. 7,1999). We affirmed in part, and reversed and remanded in part for the imposition of the sentencing enhancement.

In that decision we stated there was “an (unobjected to) defect in the jury instructions” regarding whether false statements had to be made knowingly and fraudulently. Id. at 4. It is that defect that Scharringhausen challenged in the district court after remand and now here. 1 The government argues, among other things, that the district court lacked jurisdiction to…