United States of America v. Jeffrey James Milliron

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY JAMES MILLIRON,
Defendant - Appellant.
No. 13-30102
D.C. No. 6:12-cr-00006-CCL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted May 14, 2014
Seattle, Washington
Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.
Jeffrey James Milliron appeals the sentence imposed by the district court
following his guilty plea to violation of 18 U.S.C. §§ 1001(a)(1) and (2) by lying to
the Social Security Administration (SSA) about his marital status. Milliron
maintains that the district court clearly erred when it found that the government
FILED
MAY 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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met its burden to demonstrate by a preponderance of the evidence that it lost
$33,318 as a result of his lie. We agree.
The evidence offered by the government before the district court was not
sufficient to demonstrate that the couple had resources in excess of $3,000 in any
given month during the relevant time period. The government relied on SSA
agents’ testimony regarding the value of the vehicles that Milliron purportedly
owned and the money in his wife’s bank account. This evidence was insufficient
for several reasons.
First, the evidence did not establish that Milliron owned all of the vehicles
for each of the fifty-one months at issue. The government relied on three sources
of information regarding the vehicles: Department of Motor Vehicles information
obtained in 2011; Milliron’s probation reports; and Milliron’s own 2011
Supplemental Security Income (SSI) application. The Ford appeared on the SSI
application only, and there is no evidence that Milliron owned it before the date of
that application. Similarly, the Jeep appeared only on some of the probation
reports during the relevant time period, and even for those months, that
information did not show it was his asset – the requirement was to report the
vehicles at his residence, even if he did not own them. And the DMV information
revealed that the registration for some vehicles expired partway through the
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relevant time period. In short, as the SSA agent testified, the evidence in the
record showed that vehicles would “drop on and drop off,” not that Milliron
continually owned all of them for the entire time period. That fact was also
supported by the sworn testimony of a United States Fish and Wildlife Service
officer who knew Milliron for the relevant period and testified that although
Milliron has owned multiple cars “over the years,” he has “never” owned “more
than two or three at a time.” 1
The evidence in the record regarding the value of the vehicles is also
deficient. The SSA agents testified to values for the individual vehicles, and also
to a total value for the vehicles that is impossible to reach by adding any
combination of the individual values. This inconsistency undermined the
usefulness of the testimony of the agents regarding the value of the individual cars.
In addition, the government is incorrect in its argument that any deficiency
in its proof of the value of the cars can be made up by its showing of the value of
the money in Milliron’s wife’s bank account. The SSA agents testified only that
“there were 15 months where she had substantial financial resources,” between
1 With his sentencing memorandum, Milliron also provided the district court
with a Hearing Officer’s decision in an administrative proceeding that resulted in a
finding that Milliron’s wife was not overpaid federal Supplemental Nutritional
Assistance Program (SNAP) benefits for an overlapping time period. That Hearing
Officer found that Milliron owned two vehicles.
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$700 and $1382.75 in her bank account. The record does not show that her bank
balances for any other months during the relevant time period, and, indeed, one
agent affirmatively acknowledged that “the bank account balances” were in “some
months lower.”
More generally, the government’s so-called “snapshot” approach to proving
its loss is insufficient. The government’s theory of loss is that it paid Milliron’s
wife monthly benefits to which she was not entitled because the couple was above
the monthly resource threshold. The government has a duty to prove this loss for
each month. It cannot meet this burden for the entire time period by showing that
the couple had excessive resources for some of that period and then assuming,
without support, that their resources were consistent for the duration. Instead, it
must submit sufficient evidence of the couple’s resources for each month in the
relevant period to count the benefit payment for that month toward the restitution
amount.
VACATED AND REMANDED.
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