good morning your honor may have please the court as it's richardson royer on behalf of michael snyder mr snyder has raised a number of issues in this case and this morning i plan to focus on the two instructional errors although of course i'm happy to answer questions about the other cla as well the first error that i planned to discuss is the course failure to give mr snyder's requested instruction on what household means under the social security regulatory scheme the second error is the court's plain error and instructing the jury that in order to prove a violation of eighteen u s c section one thousand one the government does not need to prove that mr snyder knew his conduct was unlawful but turning now to the first error this really gets at the heart of the case because instructional error had to do with whether mr snyder's wife as he being or whether her income could be deemed to mr snyder such that he would no longer be eligible for social security income payments supplemental security think there's a difference yes you're right and so whether her income could be deemed to him was the critical matter for all of the counts in this case now the regulations in twenty c f r section fo sixteen eleven sixty say that her income should be deemed to him if they share a household but that section which has to do with the deeming of income just not define household and it gives no guidance as to how honor it gives no guidance as to how a jury should determine where mr snyder's household is and so is with the district court did in this case was turned to another section of the regulation the section having to do with in kind support and maintenance and took the definition of household from there the first part is that the household is the primary residence but the court didn't stop there there is another section of the in kind support and maintenance part of the regulation that sets forth five factors any of which can indicate that a household is present and the court took just one of those factors and instructed the jury that if that factors present that's where the household is and that factor is whether the recipient mr snyder or his phallus is responsible for part of a rental payment and what mr snyder wanted was to set forth all of those factors particularly the factor that states that if you pays a pro rata share of the household expenses that is where his household is and the court refused to give that instruction as a result mr snyder was denied the opportunity to have the jury consider his defense which was that he split his time between his wife's home and his mother's home but that he was responsible for household expenses only where his mother lived and that is where his household was for purposes of the social security scheme what was the evidence that he contributed to the household expenses at his mother's home you know there was testimony from mr snyder's nephew travis venables that mr snyder and his mother split all of the household expenses fifty fifty and that is the rent and that is groceries bills all of the expenses and in addition in the application for the disability benefits mr snyder listed household expenses and there are a number of questions in the redetermination application that forms the basis for the charges in this case that ask about household equipment was there actual evidence that he  phrasing like there was evidence in the form of testimony which was before the jury and which would have permitted the jury to find that he did make those payments i believe there was not any receipts or bank account information or anything checks or anything like that but it was uncontroverted even the government's witnesses who testified about mr snyder living with his wife indicated that he he didn't pay anything there and that they knew he was supporting his mother and so this is really a point that he was financially supporting that household is not something that was going to be evident had to do with food expenses he would help out with groceries and help out in the caretaking but you're saying that there was specific evidence in the record that he contributed to the right first mother's location yes your honor the nephew testified that they split that fifty fifty and  reapplication questionnaire he also indicated that he contributed toward the rent and so the court denial of this requested instruction really deprive mr snyder the opportunity to establish his his house where his household was and centrally directed a verdict by telling the jury that as long as mr snyder or her spouse paid rent somewhere that's where his household was full stop second claim that i planned to talk about and i'm happy to turn to that claim now if if your honour's are no no ok the instruction to propose is proposed instruction just looked at all the utility room right and i will tell you exactly where it is  at page excerpted record page thirty six the requested instruction was factors that you should consider in determining whether two individuals are sorry one in determining and what household an individual lives include w the following and then list all five of the factors including the first one where an individual is liable to the landlord for payment of any part of the rental charges which is the one that the district court pulled out and the one that really went to the heart of his defense which was where an individual is liable for a share of household operating expenses with the elite he was on the lease at various points in time including part of the time for which  the government asserted that he was receiving benefits unlawfully and so he was on the least until december sixth two thousand and seven which is when the nephew became onto the lease and that's halfway the lease as a check as a resident which is required under the section eight housing authority rules if he has to live there with his mother he had to be listed on the lease i'm not i'm not certain what the  the factor that the district court cared about that is where where rental payment is due may not have applied with respect to his mother's household but the other factor that is where he contributed to help hold expenses the evidence is uncontroverted that he did contribute at that place to be money he was moved by giving money to his mother by by buying the groceries by you know contributing fifty fifty as the evidence showed to to the operation of that one and your honor is correct that at the time that the instruction was given the ninth circuit model instruction was what the district court essentially gave in this case which was that wilfulness only requires that the action be knowing and deliber e and i believe that even at that time and now in particular that instruction is plainly erroneous in light of the supreme court's decision and brian versus united states which was  hundred eight and that that case had to do with willfulness in statute very like this one where the court gave an instruction very like the one is given in this case that knowledge of unlawfulness was not required and the supreme court said that as a general matter and in criminal statutes willfulness has to have the knowledge of unlawfulness and this court has applied that in cases that involved similar statutes to the wanted issue here subsequent to brian in united states versus awad and united states versus very in both of those cases the court had no trouble applying brian and saying brian requires that wilfulness the knowledge of willfulness even if it's aired still subject to harmless analysis right yes so the evidence in this case seems pretty compelling can you trust whether there's harm in this case the there is evidence that a false statement was made there's strong evidence that there was a false statement regarding mr snyder's marriage to s c banger the question is what evidence was there that he knew that making that statement was unlawful and really the only wrong full or that he knew he wasn't being honest i don't think the jury necessarily found that he knew this was a crime that he knew this was unlawful in a criminal sense  and really it's just this boilerplate that is evidence that he knew it was a crime a federal crime to make false statements on these forms and the jury could have credited that and said this is a person who knew he was committing a crime right here and the jury also could not of credit that that the jury could have said this is someone who's really confused he tells he told the administration that he is married in august two thousand and seven and december two thousand and seven he says he isn't in may he says he is then he says that you know he goes back and forth his wife testified that he wasn't mentally all there the jury could have said i'm not sure beyond a reasonable doubt that he knew his  unlawful as opposed to wrongful correctible he said oh i'm willing to pay it back you know he might have just thought it was sort of an administrative error that could be corrected instead of a federal criminal offense and that is the standard for harmlessness is whether the jury i understand that anyone who knowingly lies or misrepresents the truth or arranges for someone to knowingly lie or misrepresent the truth is committing a crime which can be punished under federal law state law or both and in and for me said he wasn't very bright and  is there's no question that that certification exists and that he signed his name under it which the jury could find meant that he had read it and understood it and subjectively knew his conduct was unlawful but the it's a subjective standard here it's not constructive knowledge we're concerned with it's not what somebody would have thought it's what this individual thought and these are complicated forms this is an individual who's maybe not thinking things through so  i submit the jury could have found that he didn't know which is like to say the bells of your toes i read this one that you have the instruction on the elements two thousand and one that was given you have any problems with the structure with the instruction on the on the elements the elements no your honor the instruction on the elements themselves we don't object to it's the definition that the court gave of what willfulness means that is erroneous under brian versus united states repeat th they come to the second element second the defendant acted willfully that is the defendant acted deliberately and with knowledge both that the statement was  further down than this looking under comment and it was a paragraph to make a false statement willfully under section a thousand and then that must have both the specific intent specific intent to make a false statement and the knowledge that his or her conduct was unlawful was was that part of the instruction that was given no your honor and so though this is a critical one this whole since it was given in mr snyder's case mr snyder's case did not have the language that the defendant must know it to be unlawful or or that the defendant must must have specific intent that has been added subsequently if that instruction had been given we would have no issue whatsoever it's the absence of the requirement that the defendant know it to be unlawful that's a problem and in fact it was worse in mr snyder's case because the court actually instructed the jury the government is not required to prove that defendant knew his acts or omissions were unlawful and in light of brian versus united states that is incorrect as the as the model jury instruction now reflects is i believe it was may but i want to be sure april april two thousand and fourteen but the question about plain error is what whether it's playing at the time of appellate consideration which is today and so even under the model jury instruction it's been clear for at least two years i submit it's been clear since brian versus united states was decided really doing and i'm saying that better or worse yeah the government in all its glory good morning your honor isn't it please the court diana kwok for the united states if the court has no objection i will go ahead and address the save two issues that  starting with the jury instruction regarding the definition of a household what i believe counsel tried to do in proposing this particular instruction was to for lack of a better analogy take a piece from one puzzle and drop it into another that is as counsel suggested the benefits scheme that was that issue here was the supplemental security income that defendant was because he was married to his wife and living with her his wife's income was deemed to him because they were married and the government contends they were living together  the word household is used in that regulatory scheme but the term household as used by defense counsel or as a defense couple tried to apply was taken from another set of regulations under s s i for what they call in current benefits so in kind benefits deal with say a long term health cost or a couch surfer who's receiving benefits like food and shelter for free under those circumstances that person's at that size reduced by one third but that is not the regulatory scheme that we were dealing with during the trial which was the me so if you look at the regulation that defense counsel was referring to that is twenty c f r for sixteen eleven thirty two it lists a number of factors namely if you own the place if you pay rent at the place if you pay a pro rata share of the expenses at the place then you're not receiving in kind benefits from a third party rather you are paying your own way you are living in your own household if as counsel seems to suggest this definition of household is just applied to every other portion of the regulatory scheme it doesn't make sense anymore because the question for the deeming is where was this s s i recipient living it's a very basic question and if i was to say in my dream own five houses and i have an ownership interest in all five houses under this definition of household in four sixteen not eleven thirty two i apparently belong to five different households that is simply not true because where i live is completely different from the property that i own though your honour's we would submit that the statutory scheme that defendant was trying to use to fit into the deeming income regulatory scheme was simply incorrect so it wasn't supported by the law and that instruction that defense counsel was proposing was simply erroneous to the judge did give a definition that the judge did give a definition of because in this is a review of the structure here the government did not propose that an instruction be given for help to the extent that an instruction was given the government proposed that the definition of household being personal place of residence be all that was given however because defense counsel was pushing for this particular instruction and more explanation for the jurors this instruction was ultimately given to the jury well the question for me really is whether the instruction that was denied to the son's counsel  the evidence that they were able to present now counsel him her argument indicated that there was clear testimony in the record that he was paying fifty percent of household expenses including i guess you have rent and utilities and i thought in viewing the record i'm looking at the portion of council opening statement that summarize the evidence one household i thought it was the payment of groceries and taking care of her and all that that there wasn't testimony right and utilities can you clarify that for me are five thirty your honour's the defendant's nephew says to him referring to the defendant and my grandmother did a fifty fifty thing with the food and he would go run the errands and all that so that your hon right so that's the only portion that i was aware of fifty fifty for the food and then running errands that i would help take care of her not that yes that is correct there was limited cross examination of the government's witnesses namely as the binger and her children regarding whether they knew if defendant was paying for utility bills at his mother's apartment the one piece of evidence that came out was that a few things are said that she believed he was paying for the cable bill at his mother's apartment because he liked to go over there and watch wrestling but that was the extent of it let me ask you regarding willfulness the government has taken  section ten thirty five is the same as wilfulness for section one thousand and one right that it's for why is the government taking a contrary position in this case because although the solicitor general said that he believes the definition should be the same that is not what this court has help so we are still bound by this court's precedent which continues to be that ten thirty five and one thousand one different statute different issue and no i understand that i understand that government is taking a position that well i mean the ninth circuit there seems to be this precedent out there whether there's a problem present is clearly irreconcilable with subsequent change in law is a subsequent issue but what i what i'm asking you is a different question setting aside whether the government believes that we're still bound by our circuit precedent you have taken a position which the supreme court has characterized as confessing error why is the government confessing error in this case to say the landscape has changed it's now our belief that for all intents and purposes the definition is the same not that at some point it changed but that it was always intended to be that knowledge of unlawfulness is a necessary element of the one thousand and one statute so i guess the timing of this case comes into play your honor because this trial took place in november two thousand and thirteen before the solicitor general took that position while i understand that your honor is asking why aren't we taking the same position as the solicitor general now the fact is we didn't believe there was error committed at the trial court level when the trial actually took place and now still there isn't clear based on this court's precedent doesn't that pretty much signal a change it does your honor but the case is still indicate that ten thirty five and one thousand one are a little bit different just really where they want to go there was a one thousand and one charge here  great were the other charge yes wrong but just recently in the united states versus eeg last this court said that a joker did not just wrote the well established principle but eighteen u s c section one thousand one requires only that the defendant deliberately and with knowledge and that was filed as recently as february seventeenth of this year so that was where you get the government doesn't leave that to be the case right you're just saying sitting here as a three judge panel we can't do anything about it because of i think a clash with that case this name and a couple of other unpublished decisions that follow along the same lines but you're but you're saying that's not the government's position yes i guess i guess you can say that the government's position is what the solicitor general said and that is that knowledge of awfulness should apply but given that we are bound by this court's precedent and we don't make the law this court does instead  rich get their bonuses and the bankers and all i would like to think that that wasn't the case here your honor happening is i mean i think one of the first cases i had was it went on do they sit on the california court of appeals look us and say and it was a case where a reasonable doubt we believe it's harmless beyond a reasonable doubt because there is evidence in the record as your honor has seen that defendant signed statements saying that he understood that the statements that he was making on those alleged billeted questionnaires statements that he would be held to and that he could be prosecuted for if he made material misrepresentations what was lying and what was the evidence surrounding his signing of that statement that was at the social security office or was he at home by him so he was actually present at the social security office and the social security office employees that spoke with him that day specifically warned him that once he signed that document he would be held to his statements so he needed to read those statements very very carefully he was told that again when he signed a subsequent form your honor for retirement benefits that day so he knew that he was obligated to read the form that he was signing and that he would be held to th he was making that day when he filled out the form did he feel it out and sell or did the work or complete the form for him the way it worked according to the testimony your honor is that defendant came into the office he'd sit in the chair at a desk with the representative the representative would ask him the questions from the computer screen defendant would then give his responses the representative would input those responses into the computer and at the end the representative would print out the responses that he received from the defendant at which point the defendant was warned you need to read over all of this very carefully because all of the statements there and are statements that you'll be bound by and one of the questions what other evidence was there that he knew that his statements were unlawful on the your honor if i may i might go over time just a little but the fact that defendants went into the social security office prior to this occasion when he signed his documents and specifically asked for the same representative you know what happens if my friend is married and the woman that he's married to  might make a really high income say ninety thousand dollars and at that point the social security representative specifically told him well your friend needs to report that marriage and your friend may be that could be could infer that all that meant was that he knew that it was wrong to collect he would be eligible to collect benefits disclose that he was married correct but in order to receive those benefits he would have had to lie to the representative and on the form by saying that he was not married and that he was living with his mother what's the monthly s s i benefits that he was getting i believe it was somewhere in the neighborhood of six hundred some dollars your honor i could be mistaken no that's fine i'm going to try to make three points very briefly the first is that while the government says that the defense has requested instruction on household is a piece from one puzzle into another that was already the case the instruction that the court did give was lifted from the in kind support and maintenance section already the instruction that the government wanted that is a household is a personal place of residence that is already language lifted from the kind support and maintenance section and so the government's contention that that section should have been ignored really is without basis given what actually happened in this case the second point that i'd like to make is with respect to the payment of rent  at excerpts of record page forty seven and forty eight in the redetermination questionnaire this is for section eight housing this is for mr snyder's eligibility for s s i benefits  the form says the rent amount was three hundred and thirty dollars and the food amount was three hundred dollars mr snyder paid half of that amount which is three hundred fifteen dollars every month so he is contributing to the rent and to the other expenses that's what he told social security that's the only evidence that we have in this case there's no evidence to the contrary and the final point that i'd like to make is the government contention that the statutes one thousand one and ten thirty five are different substantively is entirely without basis they are different only in that there is a jurisdictional requirement for ten thirty five and that it applies to medicare substantively as this court has held they are identical and so there is no reason for a remain and in a joke who based on an erroneous instruction in that case and a finding that there was no error in this case the statutes are the same and they should be treated the same by this court they've been construed together and in fact in cases in ten thirty five cases this court has cited to carrier and to toy and those one thousand one cases that the government is trying to rely on