United States v. Ethan Berry, 683 F.3d 1015

Background

Berry was appointed representative payee for social security benefits for his son DB; a retroactive lump-sum payment of $42,086 (Apr 2000–Jun 2005) and ongoing monthly benefits were paid to Berry.
Berry deposited most DB funds into his sister Diane Williams’ business bank account, where Berry had signatory authority; DB or his mother had no access to this account.
The lump-sum payment was deposited into Williams’ account on Sept 16, 2005; six days later Williams withdrew $41,500 and deposited it into her personal account; another DB benefit check was deposited into an account accessible only by Williams.
Neither DB nor his mother received any of Berry’s DB-benefit proceeds during the roughly 18 months Berry handled the payments.
A grand jury indicted Berry on Apr 9, 2008; after a four-day trial, Berry was convicted of one count of Social Security Representative Fraud under 42 U.S.C. § 408(a)(5); Berry’s closing arguments and the court’s jury instructions were contested, and Berry timely appealed.
The district court’s handling of jury instructions, evidentiary rulings, prosecutorial comments, and motion denials are central to the appeal and the court’s affirmance of the conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instruction on willfully misstated the mental-state element	Berry argues willfully was merged with knowing, diluting culpable state of mind	Berry contends the instruction failed to convey the required culpable state of mind	No reversible error; harmless beyond a reasonable doubt
Whether computer-generated SSA records were properly admitted under Rule 803(8) without violating the Confrontation Clause	Berry contends the SSA application is testimonial and subject to confrontation rights	Majority held records were routine, non-testimonial administrative documents not requiring confrontation	Admissible; no Confrontation Clause violation (majority view)
Whether the prosecutor’s closing arguments violated the Fifth Amendment or shifted the burden of proof	Berry claims improper comments infringed rights and misdirected the jury	Court properly controlled comments with objections and limiting instructions	No reversible error; district court acted within discretion
Whether there was sufficient evidence to support Berry’s conviction	Insufficient evidence to prove willful and knowing misapplication beyond reasonable doubt	Evidence, including electronic applications and records, supported guilt	Sufficient evidence; denial of motion for acquittal affirmed
Whether § 408(a)(5) is unconstitutionally vague	Berry argues the statute is vague regarding the lump-sum exception and deposits	Statute’s plain language is clear; Skilling cited but not applicable here	Not vague; statute plainly imposes liability for misuse by a representative payee

Key Cases Cited

Bryan v. United States, 509 U.S. 184 (U.S. 1998) (willfulness requires knowledge that conduct is unlawful (instructional standard))
Awad v. United States, 551 F.3d 930 (9th Cir. 2009) (harmlessness of willfulness instruction depends on direct proof of unlawfulness)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (testimonial nature of certificates and confrontation requirements)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (testimonial nature of lab reports; confrontation limits)
Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002) (admissibility of documents under confrontation clause; context matters)
Marguet-Pillado, 560 F.3d 1078 (9th Cir. 2009) (hearsay and non-testimonial records analysis post-Melendez-Diaz)
Keffeler, 537 U.S. 371 (U.S. 2003) (relevance of reimbursement standards and beneficiary needs)
Dearing, 504 F.3d 897 (9th Cir. 2007) (standard for reviewing sufficiency of evidence in criminal cases)
Shetler, 665 F.3d 1150 (9th Cir. 2011) (standard for reviewing denial of motion for acquittal)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (harmless-error review framework)