United States v. Jennifer Byers

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NOT FOR PUBLICATION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.”).

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 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.

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