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United States of America v. Ethan Allen

June 12, 2012


Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding D.C. No.4:08-cr-00233- DLJ-1

The opinion of the court was delivered by: Rawlinson, Circuit Judge:



Argued and Submitted July 22, 2011-San Francisco, California

Before: A. Wallace Tashima and Johnnie B. Rawlinson, Circuit Judges, and Terry J. Hatter, Jr., Senior District Judge.*fn1

Opinion by Judge Rawlinson; Partial Concurrence and Partial Dissent by Judge Tashima


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.


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 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 approximately eighteen months when Berry received checks on DB's behalf.*fn2 It was only after the Department of Child Support Services contacted DB's mother that she learned DB was eligible for Social Security Benefits due to Berry's disability. After being advised of DB's eligibility, Walker applied to be her son's representative payee.

The Grand Jury indicted Berry on April 9, 2008. Following a four-day trial, the jury found Berry guilty of one count of Social Security Representative Fraud in violation of 42 U.S.C. § 408(a)(5).

During closing argument, the prosecutor represented to the jury that Berry did not deny the first two elements of the offense. Berry's defense counsel immediately objected. After sustaining the objection, the judge told the prosecutor to rephrase her statement. Despite this exchange, the prosecution repeatedly made statements inferring admissions by Berry. Defense counsel repeatedly objected, and the court repeatedly ordered the prosecutor to rephrase her statements and limit her comments to evidence presented during trial. The prosecution also introduced a slide referencing "Defendant's Stories and Excuses." When defense counsel objected to the slide, the judge immediately ordered the slide to be removed and again reminded the prosecutor to limit her comments to the evidence introduced during trial.

While instructing the jury, the judge explained that a defendant was innocent until proven guilty, that the jury was to consider only the evidence presented during trial to determine if the defendant's conduct met the elements of the crime, and emphasized what was considered evidence and what was not. Specifically, the judge stressed that arguments or statements by the attorneys were not evidence. Following the presentation of evidence by the prosecution, Berry moved for a judgment of acquittal and for a new trial. Both motions were denied. Berry was sentenced to four months' imprisonment and three years supervised release. Berry filed a timely notice of appeal.


A district court's formulation of jury instructions is reviewed for an abuse of discretion; when there is a question whether the jury instruction misstated an element of the crime, review is de novo. See United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007).

The district court's resolution of Confrontation Clause claims is reviewed de novo. See United States v. MarguetPillado, 560 F.3d 1078, 1081 (9th Cir. 2009). Additionally, "we review de novo the district court's construction of hearsay rules, but review for abuse of discretion the court's determination to admit hearsay evidence. . . ." Id. (citation omitted).

We review claims of prosecutorial misconduct for plain error if there was no objection during the trial. See United States v. Navarro, 608 F.3d 529, 532 (9th Cir. 2010). When it is highly probable that a prosecutor's argument is so prejudicial that it materially affects the verdict, reversal is required. See id. If defense counsel objected to the prosecutor's improper comments during trial, we review for harmless error. See United States v. Blueford, 312 F.3d 962, 973 (9th Cir. 2002), as amended.

A motion for a new trial is reviewed for abuse of discretion. See Sec. Exch. Comm'n. v. Todd, 642 F.3d 1207, 1225 (9th Cir. 2011).

When a district court denies a motion for a judgment of acquittal based on insufficient evidence, we review de novo. See Dearing, 504 F.3d at 900. Our review of a jury verdict is "highly deferential. . . ." Id. (citation omitted). If any rational trier of fact could find the elements of the crime beyond a reasonable doubt when viewing the evidence in a light most favorable to the prosecution, that evidence is sufficient to affirm a conviction. See id.

A challenge to the constitutionality of a statute is reviewed de novo. See United States v. Potter, 630 F.3d 1260, 1260-61 (9th Cir. 2011). We also review de novo when a criminal statute is challenged for vagueness. See United States v. Guo, 634 F.3d 1119, 1121 (9th Cir. 2011).


A. The District Court Committed No Reversible Error in the Formulation ...

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