- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 06-12-2012
- Case #: 10-10361
- Judge(s)/Court Below: Circuit Judge Rawlinson for the Court; Senior District Judge Hatter; Partial Concurrence and Partial Dissent by Circuit Judge Tashima
Ethan Berry was appointed as representative payee to receive social security benefits on his son鈥檚 behalf. Berry鈥檚 son did not receive any part of the lump sum or monthly payments that Berry received as his representative. Berry was later convicted of social security fraud under 42 U.S.C. 搂 408(a)(5). Berry moved for acquittal and a new trial based on the prosecution鈥檚 misconduct during closing statements. The motions were denied and Berry appealed, arguing that reversal of his conviction was warranted because of the prosecutorial misconduct, on the grounds that 搂 408(a)(5) is constitutionally vague, and because the district court did not properly define 鈥渨illfully鈥 to the jury. The Ninth Circuit noted that while the prosecution made some 鈥渋mproper comments鈥 during closing argument it did not warrant reversal. Further, the Court held that the district court鈥檚 instruction to the jury on 鈥渨illfully鈥 amounted to harmless error and that 搂 408(a)(5)鈥檚 meaning is unambiguous. Therefore, the Court held that the district court did not commit error when it denied Berry鈥檚 motions for acquittal and a new trial. AFFIRMED.