                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                       FILED
                            FOR THE NINTH CIRCUIT                         SEP 23 2014

                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                       No. 11-50230

              Plaintiff - Appellee,             D.C. No. 2:08-cr-01094-WDK-5

  v.
                                                MEMORANDUM*
KELECHI AJOKU, aka Kelechi Ajouku,

              Defendant - Appellant.


               On Remand From The United States Supreme Court

                    Argued and Submitted September 16, 2014
                            San Francisco, California

Before: GOODWIN, HAWKINS, and WARDLAW, Circuit Judges.

       Kelechi Ajoku (“Ajoku”) was convicted of four counts of making a false

statement relating to a health care benefit program under 18 U.S.C. § 1035. On

appeal, Ajoku challenges the district court’s jury instruction on the statute’s

“willfulness” mental state element. We have jurisdiction under 28 U.S.C. § 1291, and

we reverse and remand for a new trial.



         *
            This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       As conceded by the government in its opposition brief to Ajoku’s petition for

certiorari, the district court erred by giving an instruction on the element of

“willfulness” that does not comply with Bryan v. United States. See 524 U.S. 184,

191-92 (1998) (“As a general matter, when used in the criminal context, a willful act

is one undertaken with a bad purpose. In other words, in order to establish a willful

violation of a statute, the Government must prove that the defendant acted with

knowledge that his conduct was unlawful.” (footnote and internal quotation marks

omitted)). It is thus undisputed that Ajoku’s jury received an erroneous instruction.

      We apply harmless-error analysis to cases involving improperly instructed

juries on a single element of the offense. See Neder v. United States, 527 U.S. 1, 9-10

(1999). On the record before us, we are unable to conclude that it is “clear beyond a

reasonable doubt that a rational jury would have found [Ajoku] guilty” of the charges

had it been properly instructed. Id. at 18. We therefore reverse and remand for a new

trial or other proceedings consistent with this disposition.

      REVERSED AND REMANDED.




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