U.S. v. Berry, No. 10-10361 (6-12-12)(Rawlinson with Hatter, Sr. D.J.,; partial dissent by Tashima).

The defendnat was charged and convicted of using SSA disability payments for his disabled son for other purposes.  The statute, 42 USC 408(a)(5)(social security fraud) requires the act be done wilfully.  The court's instructions conflated "knowingly" and "willfully."  Although the district court erred when it instructed the jury regarding the definition of “willfully,” the error was harmless beyond a reasonable doubt. The evidence showed that the defendnat knew his responsibilities, was so informed, and acted with a culpable state of mind.  Because the SSA application Berry signed was part of a routine administrative process unrelated to litigation, the district court did not abuse its discretion in admitting the computer-generated form into evidence.  There was no confrontation problem because the SSA records were administrative and not prepared for trial.  They are public records, and are not akin to police reports.  As for prosecutorial error, although the prosecutor made misstatements and errors, especially in arguing  that the defendant had admitted some elements and in mentioning his stories, the district court properly corralled the prosecutor’s improper comments and instructed the jury appropriately prior to its deliberations.  No  reversible error occurred.  There was sufficient evidence for a rational juror to find the defendant guilty beyond a reasonable doubt, and the district court committed no error when it denied Berry’s motion for a judgment of acquittal. Finally, in view of its plain language, 42 U.S.C. § 408(a)(5) is not vague or unconstitutional.  Tashima partially dissented.  He would reverse on two grounds: (1) the jury instructions did possibly mislead the jury.  The wrong jury instructions were prejudicial given the evidence.  (2) The admission of the SSA records violated the confronbtation clause.  In the first, there was no evdience presented that the defendnat was actually told, or that he mentioned, that putting the disability payments in his sister's account was wrong.  Indeed, most of the money was still there ($41,000+). The records or forms were not signed by the defendant nor was there any record of him admitting that what he did was wrong.  He might not have been told.  Second, the SSA records had warnings about perjury and criminal prosecution that  were directly tied to possible prosecution.  The records were ultimately meant for trial, and so fell into the Melendez-Diaz and Bullcoming line of cases.  The majority disagreed, reasoning that the SSA information was for publci records.