United States v. Conti, No. 14-30232 (10-21-15)(Gould with Goodwin and Ikuta). 

The 9th embraces the Neder-world regarding jury instructions and error.

Here, the defendant was charged with defrauding a federal program designed to aid juveniles on an Indian Reservation. The grant aid was for mental health and substance abuse. The grant funds ended up in the defendants' pockets, with the theft amounting to millions. The defendant was convicted on numerous fraud counts and conspiracy. This opinion deals with the conspiracy conviction.

At trial, the court erred in instructing on the conspiracy count: 18 U.S.C. § 371, the trial court instructed on the "offense" clause (the means) and not the "defrauds" clause.  To convict on the "defraud clause," the government must prove (1) an agreement; (2) to obstruct a lawful government function; (3)) by deceitful or dishonest means; and (4) one overt act.  The difference is that the "defraud clause" has the element of "deceitful or dishonest" means.  This was missing.

A missing element requires reversal?  No. The missing element is subject to "harmless error" analysis.  The Supremes in Neder v. United States, 527 U.S. 1 (1999), held that failure to instruct on an element was subject to harmless error review.  In Neder, the missing element was "materiality."  In conducting the review, if the element was not contested, and there was overwhelming evidence presented, then the error in not instructing on the missing element can be deemed harmless.  If the element is contested, and defendant raised sufficient evidence to support a contrary finding, then the error is prejudicial.

The 9th in Caldwell, 989 F.2d 1056 (9th Cir. 1993) had required reversal if the element was missing. The 9th held that Caldwell is overruled in light of Neder.

Here, to make matters even more difficult for defendant's claim, he did not object.  The review is for plain error. 

The 9th found there was substantial, indeed, overwhelming, evidence that the defendant had engaged in deceitful and dishonest means.  It affirmed the conviction.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/21/14-30232.pdf