In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3840
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JENNIFER K. H OWARD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:08-CR-81—Theresa L. Springmann, Judge.
A RGUED A PRIL 22, 2010—D ECIDED A UGUST 30, 2010
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Jennifer Howard was convicted
of access device fraud, wire fraud, mail fraud, and aggra-
vated identify theft. She now appeals her convictions
for wire fraud and mail fraud claiming that there was
insufficient evidence to support the jury’s finding that
she had the specific intent to defraud two of the victims
identified in the superceding indictment. We affirm.
2 No. 09-3840
I. B ACKGROUND
Jennifer Howard rented the residence at 205 Scott
Street, New Haven, Indiana, from her grandmother,
Shirley Myers. In the summer of 2007, Howard applied to
the ITT Technical Institute in Fort Wayne, Indiana, for
the academic period from September through Decem-
ber 2007. That same summer, Howard submitted an on-
line student loan application request in the amount of
$30,000 to First Marblehead Education Resources,
located in Boston, Massachusetts.
In the application, Howard identified herself and her
grandmother as co-borrowers. Howard provided per-
sonal identifying information for Myers, including her
date of birth, social security number, phone number, and
employment and income information. Howard claimed
that both she and Myers had the same residential
address, e-mail address, and telephone number. She
also provided supporting documents, including three
pay stubs for Myers, Myers’s driver’s license, a letter
from ITT Tech regarding Howard’s admission, and copies
of Howard’s social security card, driver’s license, and a
marriage license application for Howard. Howard re-
quested that the funds be disbursed in a check made
payable to her and her grandmother, rather than
having the funds made payable to her and the school.
Sarah Kostas, a senior fraud investigator with First
Marblehead, testified regarding the on-line loan applica-
tion process. A majority of First Marblehead loans are
submitted on-line. After a prospective borrower submits
an application through the bank’s website, it is assigned
No. 09-3840 3
a loan identification number. First Marblehead em-
ployees are then able to access and print the application.
If the application is approved, the borrower is prompted
to download the loan credit agreement package. The
package contains details of the terms of the loan and
includes the signature pages. Although the on-line ap-
plication itself does not reference First Marblehead or
The Education Resource Institute (“TERI”), the company
that underwrites the loans, the credit agreement
refers to TERI in two different sections, using identical
language:
I acknowledge that the requested loan is subject
to the limitations on dischargeability and bank-
ruptcy contained in Section 523 and then A(8) of
the United States Bankruptcy Code because
either or both of the following apply: (a) this loan
is made pursuant to a program funded in whole
or part by the Education Resource Institute Inc.,
(“TERI”), a non-profit institution, or (b) this is a
qualified education loan as defined in the
Internal Revenue Code.
After reviewing the package, the borrower is directed to
execute the signature pages and fax or mail them back to
First Marblehead. In the event the lender deems that
supporting documentation is needed to approve the
loan, a First Marblehead loan analyst communicates the
request to the borrower by telephone. First Marblehead
retains copies of all loan documentation.
First Marblehead approved the loan to Howard in
late August 2007, based almost entirely on Myers’s credit
4 No. 09-3840
worthiness. First Marblehead then processed the loan
for Union Federal, printed the check in the amount of
$30,000 made payable to Howard and Myers, and
mailed the check to Howard. Although the funds were
disbursed from a bank account held by TERI, Astrive
appeared as the payor on the check. Neither First
Marblehead nor TERI were referred to on the check, but
a statement appearing below the endorsement line read
as follows: “Borrower(s) signing above agree to repay
this education loan as per Borrower’s credit agreement.”
Kostas said that it was more likely than not that Howard
knew, and certainly should have known, that Astrive
was a loan program, Union Federal was the lender,
First Marblehead processed the loan, and that TERI
guaranteed the loan.
In fact, on three separate occasions Howard made
changes to the loan that required her to sign and fax
documents back to First Marblehead. At the conclusion
of each iteration, First Marblehead would generate a
new credit agreement and provide it to Howard for her
signature. Union Federal Savings Bank, the lender, and
Astrive, the undergraduate loan program, were refer-
enced on the loan signature pages. Therefore, Howard
should have read of these companies and their roles on
at least three separate occasions. In the final documents,
each signature page bore Howard’s signature and a
forged signature of Myers as co-signer.
After the loan was disbursed, Howard deposited the
$30,000 into her Wells Fargo checking and savings bank
accounts, rather than using it to pay her tuition. A short
No. 09-3840 5
time thereafter, on November 21, 2007, First Marblehead
received a fraud notification alert in connection with
Howard’s loan from American Education Services
(“AES”). AES serviced First Marblehead loans after they
were disbursed by handling payments made on the
loans and providing collection services when payments
were not made. AES is the entity that appears on an in-
dividual’s credit report for nonpayment of debt. Because
of this role, AES realized that Howard’s loan applica-
tion was fraudulent. At the time of the alert, First
Marblehead’s amount at risk was $33,519, which in-
cluded the amount of the loan plus interest.
Also in 2007, Howard applied for credit card accounts
with Chase Visa and American Express using the
205 Scott Street, New Haven, address and Myers’s name
and personal information. Myers was at a Chase Bank
branch on September 1, 2007, conducting personal busi-
ness when the bank received a fraud notification alert
regarding activity on Myers’s account. It was then that
Myers first learned of the credit card acquired in her
name with the 205 Scott Street billing address.
The following month, a collection agency contacted
Myers regarding unpaid payments due on the American
Express account. Myers denied opening the account.
American Express received a fraud notification alert
on or about November 7, 2007.
Concerned and suspicious about these incidents,
Myers ordered a copy of her personal credit report and
learned of the $30,000 student loan in her name. Myers
testified that she never gave permission to Howard or
6 No. 09-3840
otherwise authorized anyone to open the credit card
accounts or to apply for the student loan.
Myers filed a report with the Allen County, Indiana,
Sheriff’s Department in November 2007. Based on the
information in the report, Detective Orville Roberts
interviewed Howard at the sheriff’s department.
Howard was properly advised of her rights, which she
waived by signing a waiver form. Howard claimed
to have opened the Chase Visa account, signed Myers’s
name to charge slips, and applied for the student
loan all with Myers’s permission. Howard denied any
knowledge of the American Express account. Although
Howard told Detective Roberts that she would fax the
student loan paperwork to him the following day,
Roberts never received it.
In August 2008, Postal Inspector Andrew Gottfried
interviewed Howard. Inspector Gottfried advised
Howard of her rights. Howard then admitted to signing
Myers’s name on the signature pages of the student
loan application without Myers’s permission, and to
charging various amounts to the credit card accounts.
She also admitted that the email addresses associated
with the credit card accounts belonged to her.
A federal grand jury in the Northern District of Indiana
issued a four-count indictment against Howard in
October 2008. The indictment charged Howard with the
following counts: (1) access device fraud in violation of
18 U.S.C. § 1029(a)(2); (2) wire fraud in violation of
18 U.S.C. § 1343; (3) mail fraud in violation of 18 U.S.C.
§ 1341; and (4) aggravated identify theft in violation
No. 09-3840 7
of 18 U.S.C. § 1028A. A superceding indictment was re-
turned in June 2009, but no new offenses were charged.
The superceding indictment named First Marblehead
and TERI as the specific entities that fell victim to
Howard’s scheme.
The four-day jury trial began on August 11, 2009.
Howard testified on her own behalf at the trial. Howard
denied her statements to Inspector Gottfriend, and
claimed to have opened and used the credit card
accounts and the student loan with Myers’s permission.
After the close of the government’s evidence, Howard
moved for a judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure. After both parties
rested, Howard renewed her motion. The district court
took both motions under advisement. The jury returned
a guilty verdict on all four counts on August 14. The
district court issued an order denying Howard’s motion
for a judgment of acquittal on August 17. Howard
timely appealed.
II. A NALYSIS
Howard argues on appeal that the district court erred
in denying her motion for judgment of acquittal
because there was insufficient evidence to convict her
of wire fraud or mail fraud. Howard “faces a nearly
insurmountable hurdle” when attacking the sufficiency
of the evidence. United States v. Morris, 576 F.3d 661, 665-
66 (7th Cir. 2009) (internal quotation marks omitted); see
also United States v. Melendez, 401 F.3d 851, 854 (7th Cir.
2005) (“Sufficiency of the evidence challenges rarely
8 No. 09-3840
succeed because we owe great deference to the jury’s
verdict.”). On a challenge to the sufficiency of the evi-
dence, “we examine that evidence in the light most fav-
orable to the government and will uphold the jury’s
verdict so long as any rational trier of fact could have
found the essential elements of the crime beyond a rea-
sonable doubt.” United States v. Garcia, 580 F.3d 528, 534
(7th Cir. 2009) (internal quotation marks omitted). When
conducting our review, “we do not weigh the evidence
or assess the credibility of witnesses.” United States v.
Khattab, 536 F.3d 765, 769 (7th Cir. 2008) (internal quota-
tion marks and alteration omitted).
In order to establish a violation of the mail or wire
fraud statutes, the government must prove (1) that the
defendant participated in a scheme to defraud; (2) with
the intent to defraud; (3) and used the mail (for 18 U.S.C.
§ 1341) or interstate wire (for 18 U.S.C. § 1343) in fur-
therance of the fraud. United States v. Radziszewski, 474
F.3d 480, 484-85 (7th Cir. 2007).
The thrust of Howard’s insufficiency of the evidence
argument is that, in order to sustain a conviction for
wire fraud or mail fraud, the government must have
proven that she intended to defraud the actual vic-
tims, First Marblehead and TERI. Howard argues
that because First Marblehead and TERI were identified
in the charging instrument and then again in the jury
instructions, the government was required to show that
she specifically intended to defraud those individual
victims. Howard contends that because there was no
evidence to show that she knew the specific sources of
No. 09-3840 9
her student loan, no reasonable jury could have found
her guilty of wire fraud or mail fraud. We find Howard’s
arguments unpersuasive, and we decline to raise the
government’s burden of proof to the level she proposes.
Under both statutes, “[i]ntent to defraud requires a
wilful act by the defendant with the specific intent to
deceive or cheat, usually for the purpose of getting finan-
cial gain for one’s self or causing financial loss to an-
other.” United States v. Britton, 289 F.3d 976, 981 (7th Cir.
2002). “However, ‘[b]ecause direct evidence of a defen-
dant’s fraudulent intent is typically not available, specific
intent to defraud may be established by circumstantial
evidence and by inferences drawn from examining the
scheme itself . . . .’ ” United States v. Paneras, 222 F.3d
406, 410 (7th Cir. 2000) (alteration in original) (quoting
United States v. LeDonne, 21 F.3d 1418, 1426 (7th Cir.
1994)). We have previously determined, however, that
this type of “fraud does not include an element re-
quiring a contemplated harm to a specific, identifiable
victim.” United States v. Henningsen, 387 F.3d 585, 590
(7th Cir. 2004). We have also addressed the particularity
of the indictment, holding that specific victims need not
be identified. United States v. Mizyed, 927 F.2d 979, 981
(7th Cir. 1991).
By logical extension, we hold today that even if an
indictment names particular victims, the government
need not prove intent to harm those named victims.
Although certainly the naming of First Marblehead
and TERI in the superceding indictment was not good
form, it was merely surplusage and did not raise the
10 No. 09-3840
government’s burden of proof. United States v. LaBudda,
882 F.2d 244, 249-50 (7th Cir. 1989); United States v. Greene,
497 F.2d 1068, 1086 (7th Cir. 1974). It is sufficient that
the government in this case proved that Howard in-
tended to defraud the scheme’s victims, whomever
they were, and such intent was established by examining
the circumstances of the scheme itself, not by who
was specifically named in the indictment.
We also note that Howard’s argument—that there was
an improper variance between the indictment and what
the government was required to prove at trial—is
flawed for another reason. “A variance is fatal only when
the defendant is prejudiced in [her] defense because
[she] cannot anticipate from the indictment what evi-
dence will be presented against [her] or [she] is exposed
to double jeopardy.” United States v. Ratliff-White, 493
F.3d 812, 820 (7th Cir. 2007) (internal quotation marks
omitted).
Howard’s trial strategy was to claim that she had her
grandmother’s authorization for the loan; it was not that
Howard was totally unaware of the financial entities
involved in the loan. In fact, when impeaching a detec-
tive, Howard’s counsel stated, “We know this loan
was not submitted to AES. This loan . . . was submitted
to Union Federal who farmed it out to TERI who then
submitted it to First Marblehead.” (R. at 502-03.) It is
obvious that the specific loan organization listed in the
indictment could not have affected Howard’s defense.
Howard, therefore, cannot show that there was any
prejudice to her defense because the government proved
No. 09-3840 11
Howard’s intent to defraud the scheme’s victims and
not those specifically listed in the indictment.
In the same vein, the government’s burden was not
raised by the mention of First Marblehead and TERI in
the jury instructions. We have held that “[t]he additional
language in the [jury] instruction . . . which identified
the victim of the scheme to defraud . . . was surplusage,
[and] was not an element the government was required
to prove.” United States v. Otto, 850 F.2d 323, 326 (7th
Cir. 1988). Similar to the wire fraud instruction in Otto,
the instruction in this instance was a correct statement
of the law under the wire fraud statute. The district
court’s mention of particular victims did nothing with
respect to the necessary elements of wire fraud that the
government was required to prove, and for the reasons
previously discussed, the names were merely surplusage.
At the time of the motion for judgment of acquittal, the
district court found that the record was replete with
evidence from which a reasonable jury could find
Howard intended to defraud the scheme’s victims. The
district court reasoned that:
At least one of the loan documents, the loan applica-
tion, put [Howard] on notice that the loan was
subject to limits on dischargeability in bankruptcy
because it was either a TERI loan, or was a qualified
education loan as defined in the Internal Revenue
Code. The evidence was that this document was
routinely sent to loan applicants like [Howard].
There was also evidence that [Howard] had various
contacts with First Marblehead as the processor
12 No. 09-3840
of the loan. The evidence related to the relationship
among and between the different entities involved
in processing, issuing, and guaranteeing the loan
included testimony about Astrive and Federal
Union, neither of which were identified in the
Superceding Indictment. However, this evidence
did not broaden the possible bases for conviction
from that which appeared in the Superceding Indict-
ment. All of the evidence presented at trial related
to the same student loan, the same wire transfer, and
the same mailing that were identified in Counts 2
and 3 of the Superceding Indictment. The scheme
proven was the scheme charged, and the Superceding
Indictment was not constructively amended by the refer-
ence to the other financial entities that were involved
with the loan.
(R. 49, at p.2 (emphasis added).) Because we agree with
the district court’s reasoning and because we do not re-
weigh the evidence or revisit witness credibility, we see
no value in rehashing the same reasoning here. Accord-
ingly, we find that there was sufficient evidence in the
record from which a reasonable jury could find that
Howard intended to defraud the scheme’s victims. We
note also that because the aggravated identity theft con-
viction was dependent on Howard’s guilt of either wire
fraud or mail fraud, her conviction for aggravated
identity theft stands.
We conclude that Howard failed to carry her burden
on appeal and that the district court properly denied
Howard’s motion for judgment of acquittal.
No. 09-3840 13
III. C ONCLUSION
We therefore A FFIRM Howard’s convictions.
8-30-10