United States v. Ethan Berry

I. BACKGROUND

Berry was appointed representative payee for social secur- ity benefits to be paid to his son, DB. The benefits were to be UNITED STATES v. BERRY 6665 used for DB’s maintenance. One of Berry’s first payments was a retroactive lump sum payment for benefits from April, 2000, through June, 2005, in the amount of $42,086. Begin- ning in August, 2005, Berry received regular monthly benefit payments for his son.

Berry deposited most of the money he received for DB, including the lump sum payment, into a bank account belong- ing to his sister, Diane Williams. The bank account was a business account, for which Berry had signatory authority. Neither DB nor his mother had access to this account.

The lump sum retroactive payment was deposited in Diane Williams’ business bank account on September 16, 2005. Six days later, Diane Williams withdrew $41,500 from the bank account and deposited it into her personal credit union account. Another benefit check for DB was deposited into an investment account to which only Diane Williams had access. Neither DB nor his mother, received any of the money obtained by Berry as DB’s representative payee during the…

concurring in part and dissenting in part:

I agree with the majority that the district court failed properly to instruct the jury on the meaning of “willful.” However, I must dissent from Parts III.A and III.B of the majority opinion because: (1) the evidence presented at trial makes clear that the erroneous jury instruction was not harmless beyond a reasonable doubt; and (2) the introduction of Government Exhibits 5 and 6 violated Berry’s Confrontation Clause rights and was also not harmless beyond a reasonable doubt. For each of these reasons, I would reverse and remand for a new trial.

I

I agree with the majority that the jury instructions merged the definition of “willful” into the definition of “knowing,” and, thus, misstated the law by reading the requirement of willfulness out of the statute. See Maj. Op. at 1020-21. The question on which I part company with the majority is whether this error was harmless. “If a jury instruction misstates an element of a statutory crime, the error is harmless only if it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’ ” United States v. Awad, 551 F.3d 930, 938 (9th…

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge TASHIMA.

*1019 OPINION

Appellant Ethan Berry (Berry) appeals his conviction for social security fraud pursuant to 42 U.S.C. § 408 (a)(5). We have jurisdiction under 28 U.S.C. § 1291 and affirm the conviction.

I. BACKGROUND

Berry was appointed representative payee for social security benefits to be paid to his son, DB. The benefits were to be used for DB’s maintenance. One of Berry’s first payments was a retroactive lump sum payment for benefits from April, 2000, through June, 2005, in the amount of $42,086. Beginning in August, 2005, Berry received regular monthly benefit payments for his son.

Berry deposited most of the money he received for DB, including the lump sum payment, into a bank account belonging to his sister, Diane Williams. The bank account was a business account, for which Berry had signatory authority. Neither DB nor his mother had access to this account.

The lump sum retroactive payment was deposited in Diane Williams’ business bank account on September 16, 2005. Six days later, Diane Williams withdrew $41,500 from the bank account and deposited it into her personal credit union…