dissenting.
The arranged marriage of Dedman’s adoptive father to her adopted daughter was a sham if ever there was one. And because the marriage was void under Arkansas law, Holland (the adopted daughter) is obligated to repay the SBP benefits to which she was not entitled. In sum, the scheme cooked up by Dedman and Holland to continue receiving Watson’s military pension benefits after his death carries the pungent aroma of “fraud” in the general sense of the word.
But the “ickiness” of the scheme (i.e., that a grandfather would marry his granddaughter) does not answer the question of whether Dedman violated 18 U.S.C. § 286. The fact that she “gamed the system,” in other words, does not necessarily make her guilty of violating the statute.
We first need to be clear about what § 286 makes illegal. The majority has accurately set out the elements of the offense. (Maj. Op. at 593-94) I disagree, however, with the majority’s conclusion that the government proved the third element of the offense — that Dedman either knew or was deliberately ignorant of the fact that the claim for benefits was false, fictitious, or fraudulent. In particular, I focus on the relationship between the second element of the offense — -that the claim for benefits was in fact false, fictitious, or fraudulent — and the knowledge component of the third element. To sustain a conviction under § 286, the government must produce sufficient evidence to prove that Dedman had knowledge (or was deliberately ignorant) of the very thing that made the claim false, fraudulent, or fictitious.
The majority explicitly states that the second element of the offense is “satisfied by the invalidity of the marriage” under Arkansas law, and I agree. (Maj. Op. at 597) But the majority’s contention that Dedman either knew or. was deliberately ignorant of the fact that the claim was false is based on nothing more than evidence indicating that the marriage be*604tween Holland and Watson was in fact a “sham,” entered into solely for the purpose of obtaining Watson’s SBP benefits. As the majority explains, “the totality of Ded-man’s actions — a pattern of skulking and scheming — establish that she had a sense that what she was doing was wrong, yet closed her eyes to that fact and proceeded with her plan.” (Maj. Op. at 595) This evidence indeed suggests that Dedman was intent on perpetrating a “fraud,” but it has no probative force regarding whether Dedman knew that the marriage was illegal under Arkansas law. With no evidence indicating that Dedman knew or was deliberately ignorant of the fact that her claim for benefits was fraudulent because the marriage was illegal — as opposed to being fraudulent because the marriage was a sham — her conviction cannot be sustained.
One has to wonder why Dedman would take Holland and Watson to Arkansas to enter a marriage that she allegedly either knew or suspected was illegal in that state. As the majority acknowledges, Dedman would not have violated § 286 if Holland had been married in Kentucky, where such a marriage of those related only by adoption is legal. (Maj. Op. at 597) The likelihood that Dedman picked Arkansas knowing or even suspecting that the marriage would be void simply defies common sense. Instead, her most likely motive was to have the ceremony far away from home so that her neighbors would not learn of the marriage.
Dedman’s ex-husband in fact testified at the trial that the wedding took place in Arkansas when Dedman went to pick up her ailing mother, who lived there. Holland also testified that Dedman had told her to keep the marriage secret “because [Dedman] didn’t want [Watson] to look like a cradle robber and she didn’t want me to look like a golddigger.” As the only person present at the wedding who testified at trial, Holland said that she did not know that there was anything legally wrong with the marriage. Any suggestion that Ded-man was deliberately ignorant of Arkansas law thus lacks evidentiary support and is a far cry from proof beyond a reasonable doubt.
This leaves only the question of whether proof of procuring a “sham” marriage can violate § 286 even if the marriage is otherwise legal. The Supreme Court answered that question in the negative in the analogous context of Social Security survivor benefits in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Weinberger involved a class-action challenge to the constitutionality of the Social Security Act’s nine-month duration-of-relationship requirement for a widow to receive survivor benefits. Salfi had been married for only six months when her husband died, but she claimed that her marriage was otherwise valid and should entitle her to her deceased husband’s Social Security benefits. A three-judge panel of the district court declared the nine-month requirement unconstitutional on the basis that the requirement “constitutes a presumption that marriages ... which did not precede the wage earner’s death by at least nine months were entered into for the purpose of securing Social Security benefits.” Id. at 767-68, 95 S.Ct. 2457 (quoting Salfi v. Weinberger, 373 F.Supp. 961, 965 (N.D.Cal.1974)).
In reversing the district court, the Supreme Court focused on Congress’s intent to impose a prophylactic duration-of-relationship requirement as opposed to individual determinations regarding the good-faith intentions of purported “widows.” The Court stated that the duration-of-relationship requirement “operates to lessen the likelihood of abuse through sham relationships entered in contemplation of imminent death.” Id. at 780, 95 S.Ct. 2457. *605It also noted that individual determinations are often flawed because of uncertainty that they “could effectively filter out sham arrangements, since neither marital intent, life expectancy, nor knowledge of terminal illness has been shown ... to be reliabl[y] determinable.” Id. at 782-83, 95 S.Ct. 2457. Ultimately, the Court rejected the call for individual determinations of the validity of marriages and the good-faith intentions of the spouses, explaining as follows:
[T]he duration-of-relationship requirement represents not merely a substantive policy determination that benefits should be awarded only on the basis of genuine marital relationships, but also a substantive policy determination that limited resources would not be well spent in making individual determinations. It is an expression of Congress’ [s] policy choice that the Social Security system, and its millions of beneficiaries, would be best served by a prophylactic rule which bars claims arising from the bulk of sham marriages which are actually entered, which discourages such marriages from ever taking place, and which is also objective and easily administered.
Id. at 784-85, 95 S.Ct. 2457. There is no reason to believe that the Supreme Court would reach a different conclusion in the analogous context of SBP benefits. I thus agree with the majority that Dedman’s improper motives are irrelevant in proving that the claim was false, fictitious, or fraudulent.
But this inexorably leads me to the heart of the problem with the majority’s analysis. Because there is no good-faith marriage requirement under the SBP, there are only two circumstances under which a surviving spouse such as Holland would not be entitled to SBP benefits: (1) where the marriage is invalid under state law, or (2) where a valid marriage does not meet the one-year durational requirement. Dedman’s conviction is unsustainable because her intended fraud — the arrangement of a sham marriage between her adoptive father and her adopted daughter — did not disqualify Holland for SBP benefits. The only thing that would have made Dedman’s conduct false, fraudulent, or fictitious under the SBP is proof beyond a reasonable doubt that she either knew or was deliberately ignorant of the fact that the marriage was invalid under Arkansas law.
Despite the majority’s conclusion “that Dedman was deliberately ignorant of the falsity of her claims” (Maj. Op. at 596), it is unable to point to any evidence that Ded-man suspected that the marriage in Arkansas would be invalid. The majority’s statement that “[i]t is likely that ... Ded-man assumed that the marriage would be equally void and equally false in Arkansas as in Kentucky,” id. at 596-97, finds no support in the record and is in fact contrary to the evidence that exists on this key issue. First of all, the majority itself acknowledges that the marriage would have been perfectly legal in Kentucky. (Maj. Op. at 597) Second, Holland testified that she had no reason to believe that her marriage to Watson in Arkansas was invalid. There is no evidence to the contrary.
I am thus unpersuaded by the majority’s ultimate conclusion that Dedman’s “bad intent ... is what triggers the finding of deliberate ignorance and satisfies the third element of a § 286 offense.” (Maj. Op. at 596) Dedman’s “bad intent” was simply to orchestrate a sham marriage, but this provides no proof that she had any reason to believe that the marriage in Arkansas was invalid. In fact, her bad intent would have been the same regardless of whether the marriage took place in Kentucky (where it *606would have been valid) or Arkansas. Moreover, Dedman had every reason to want the marriage to be valid in order for her to continue reaping the benefits of her adoptive father’s military pension after he died.
The majority’s conjecture, therefore, about Dedman’s state of mind regarding the validity of the marriage is insufficient to support her conviction. In the end, my disagreement with the majority is fundamentally a dispute about what evidence is legally required to establish the third element of a § 286 offense where, as in the present case, there is no evidence that the defendant knew or was deliberately ignorant of what made her claim legally false. Although we are required to view the evidence in the light most favorable to the prosecution, I find the record bereft of such evidence here. Accordingly, I believe that Dedman has been wrongly convicted of this offense.
I now turn to another issue in this ease — the amount of loss attributed to Dedman. On this question I agree with the result reached by the majority, but not with its reasoning. Including withheld taxes in the government’s loss calculation will generally lead to punishing a defendant for a nonexistent loss because taxes that are withheld from a government payment are simply redirected to the United States Treasury. In Dedman’s ease, however, the money she obtained was from a specific program administered by an agency that undoubtedly has an annual budget appropriated by Congress. Paying SBP benefits to an improper recipient thus has a detrimental effect on the funds allotted to the SBP. Although the withheld taxes were redirected from the SBP to the Treasury, we have no way of knowing what happened to the money subsequently. The withheld taxes from the benefits received by Dedman and Holland were therefore “diverted to unintended uses” despite remaining under the control of the government. See U.S.S.G. § 2B1.1 cmt. 3(F)(ii) (explaining that in the context of a loss calculation for government benefits, “loss shall be considered to be not less than the value of the benefits obtained by unintended recipients or diverted to unintended uses, as the case may be”).
In my opinion, of course, we should not even reach the amount-of-loss issue. We should instead reverse Dedman’s conviction due to the government’s failure to prove beyond a reasonable doubt that she either knew or was deliberately ignorant of the fact that Holland’s marriage was illegal under Arkansas law. I therefore respectfully dissent.