United States v. Benson

Opinion

FILED NOT FOR PUBLICATION SEP 30 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-4443

Plaintiff - Appellee, D.C. No. 3:21-cr-05222-BHS-1

v. MEMORANDUM* CODY BENSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted September 15, 2025 Seattle, Washington

Before: W. FLETCHER and DE ALBA, Circuit Judges, and ORRICK, District Judge.**

Cody Benson appeals from her conviction of two counts of wire fraud under

18 U.S.C. § 1343, challenging the district court’s denial of her motion to dismiss,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. proposed jury instructions, and motion for acquittal. We review de novo a district

court’s denial of a motion to dismiss an indictment, United States v. Lyle, 742 F.3d

434, 436 (9th Cir. 2014), and review de novo a motion for judgment of acquittal,

United States v. Amintobia, 57 F.4th 687, 697 (9th Cir. 2023). As Benson notes,

there is some confusion as to the standard of review of a district court’s ruling on a

proposed jury instruction. See United States v. Ehmer, 87 F.4th 1073, 1130 (9th

Cir. 2023) (citing support for both de novo and abuse of discretion standards of

review). We find it unnecessary to resolve that issue, however, as Benson’s claim

fails under de novo review.

All three of Benson’s claims turn on whether the government impermissibly

relied on a “salary-maintenance” theory of fraud that is foreclosed by our holding

in United States v. Yates, 16 F.4th 256 (9th Cir. 2021). In rejecting the

government’s salary-maintenance theory of fraud in Yates, we distinguished

between “a scheme whose object is to obtain a new or higher salary and a scheme

whose object is to deceive an employer while continuing to draw an existing

salary—essentially, avoiding being fired.” Id. at 266. Though the former could

constitute fraud, the latter was functionally equivalent to the salary-maintenance

theory rejected by the Supreme Court in Skilling v. United States, 561 U.S. 358

(2010). In support of our holding, we echoed the Skilling Court’s concerns that a

2 24-4443 salary-maintenance theory of fraud would sweep too broadly and “criminalize a

wide range of commonplace conduct.” Yates, 16 F.4th at 267.

1. The district court was correct in concluding that Benson was not

prosecuted under a salary-maintenance theory, and was therefore correct in

denying Benson’s motion to dismiss the indictment. Benson’s conduct was

substantially different from the conduct at issue in Yates in two key respects. First,

unlike the defendants in Yates, Benson was prosecuted for defrauding a third party

other than her employer—namely, the government of the State of Washington. In

her capacity as Executive Director of the Washington Coalition for Crime Victim

Advocates (“WCCVA”), Benson procured and submitted numerous fraudulent

invoices to the state Attorney General’s Office (“AGO”) to secure grant

reimbursements to WCCVA for trainings that WCCVA never held. Benson

attempts to circumvent that distinction by arguing that the AGO and WCCVA were

her joint or hybrid employers. That claim is unpersuasive. In Bonnette v.

California Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), we laid out

four factors for determining whether an entity is an employer: “whether the alleged

employer (1) had the power to hire and fire the employees, (2) supervised and

controlled employee work schedules or conditions of employment, (3) determined

the rate and method of payment, and (4) maintained employment records.” Id. at

3 24-4443 1470. It is undisputed that the AGO does not satisfy the first, second, or fourth

conditions.

Second, the defendants in Yates deprived their employers only of their own

salary and benefits. Here, the grant funds fraudulently obtained by Benson were

used to pay not only her salary and benefits, but also WCCVA’s other operating

expenses.

2. For similar reasons, we affirm the district court’s denial of Benson’s

proposed jury instruction. “A defendant . . . is not entitled to an instruction with

wording of his own choosing.” United States v. Hofus, 598 F.3d 1171, 1174 (9th

Cir. 2010). The “relevant inquiry is whether the instructions as a whole are

misleading or inadequate to guide the jury’s deliberation.” Id. (quoting United

States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.1999)). The instructions given

here were neither misleading nor inadequate.

3. Benson’s claim that the district court erred in denying her motion for a

directed judgment of acquittal rests on the same assertion that the jury convicted

based on an impermissible salary-maintenance theory of fraud. The district court,

therefore, did not err.

AFFIRMED.

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