                                                                              FILED
                              NOT FOR PUBLICATION                              SEP 23 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                )      No. 08-30468
                                         )
      Plaintiff – Appellee,              )      D.C. No. 3:08-CR-00007-JKS
                                         )
      v.                                 )      MEMORANDUM *
                                         )
IMAD SALIM HEREIMI,                      )
                                         )
      Defendant – Appellant.             )
                                         )

                 On Remand from the United States Supreme Court




Before:      FERNANDEZ, KLEINFELD, and CLIFTON, Circuit Judges.

      After a jury verdict, the district court issued a judgment of conviction against

Hereimi for honest services fraud. We affirmed the district court, but the Supreme

Court vacated our decision and remanded “for further consideration in light of

Skilling v. United States, 561 U.S. ___, [130 S. Ct. 2896] (2010).” Having done

so, it is apparent to us that this case was tried and argued to the jury solely on the




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
theory of honest services fraud that was rejected in Skilling. See id. at ___, 130 S.

Ct. at 2931; see also McNally v. United States, 483 U.S. 350, 360, 107 S. Ct. 2875,

2882, 97 L. Ed. 2d 292 (1987) (conviction reversed where “there was no charge

and the jury was not required to find that the [State] itself was defrauded of any

money or property.”) Moreover, the jury was instructed and brought in a verdict

on that theory alone. Therefore, we reverse the judgment and remand to the district

court for further proceedings. See United States v. Moreland, 604 F.3d 1058,

1076–78 (9th Cir. 2010); see also Johnson v. United States, 520 U.S. 461, 468, 117

S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997) (where at time of trial law “settled and

clearly contrary to the law at time of appeal,” error still plain); United States v.

Hilling, 891 F.2d 205, 206–08 (9th Cir. 1989) (when jury instructed on improper

intangible right theory, conviction reversed).

      REVERSED and REMANDED.




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