FILED
NOT FOR PUBLICATION
DEC 03 2012
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30331
Plaintiff - Appellee, D.C. No. 3:10-cr-05314-RJB-4
v.
MEMORANDUM *
JENNIFER BYERS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30377
Plaintiff - Appellee, D.C. No. 3:10-cr-05314-RJB-2
v.
JESICA McMULLIN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted November 7, 2012 **
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
District Judge.***
Co-defendants Jennifer Byers and Jesica McMullin were each convicted of
seven counts of mail fraud in violation of 18 U.S.C. § 1341 and a single count of
financial aid fraud in violation of 20 U.S.C. § 1097(a). On appeal, Byers and
McMullin argue that the district court erred in denying their motions for judgment
of acquittal because there was insufficient evidence to convict them. See Fed. R.
Crim. P. 29. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Insufficiency of the evidence claims are reviewed de novo. See United
States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004). However, because Byers
and McMullin failed to renew their motions for acquittal at the close of the
evidence, we review for plain error or to prevent a manifest miscarriage of justice.1
See United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200-01 (9th Cir. 2000).
There is sufficient evidence to support a conviction if, “after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
***
The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.
1
Sufficient evidence supports Byers’s and McMullin’s convictions under
either standard.
2
I
Viewing the evidence in the light most favorable to the government, a
rational trier of fact could have found Byers guilty of committing, and aiding and
abetting, mail fraud and financial aid fraud. See 20 USC § 1097(a) (elements of
financial aid fraud include: (1) knowingly and willfully obtaining or attempting to
obtain; (2) by fraud or false statement; (3) financial aid funds); United States v.
Meredith, 685 F.3d 814, 820-21 (9th Cir. 2012) (explaining elements of mail
fraud); United States v. Delgado, 357 F.3d 1061, 1065-66 (9th Cir. 2004)
(explaining elements of aiding and abetting). The government’s evidence at trial
showed that Byers and other Crown College employees applied for retroactive
student loans shortly after learning that the college would close, that Byers did not
complete any classes during the retroactive loan period, that it had been seven
years since she last applied for financial aid, and that Byers joined and facilitated
the fraudulent financial aid scheme by drawing down the loan funds and issuing
checks to herself and others. Byers’s credibility arguments do not undermine her
convictions. See Schlup v. Delo, 513 U.S. 298, 330 (1995) (“[U]nder Jackson, the
assessment of the credibility of witnesses is generally beyond the scope of
review.”).
3
II
The government’s evidence against McMullin was similar to that against
Byers. The evidence showed that McMullin, who had prior financial aid
experience, devised the scheme to obtain student loans that would be discharged
under the Department of Education’s school closure policy, that McMullin was not
an active student at the time she applied for financial aid nor during the retroactive
loan period, that she had not applied for financial aid in more than three years, that
McMullin applied for retroactive financial aid for her husband knowing that he had
never been, and had no plans to become, a student at Crown College, and that
McMullin initially denied to an investigator any knowledge of a loan application
for her husband. Viewing this evidence in the light most favorable to the
government, a rational trier of fact could have found the essential elements for mail
fraud and financial aid fraud beyond a reasonable doubt.
AFFIRMED.
4