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United States v. Howard

August 30, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JENNIFER K. HOWARD, 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.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED APRIL 22, 2010

Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

Jennifer Howard was convicted of access device fraud, wire fraud, mail fraud, and aggravated 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.

I. BACKGROUND

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 December 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 personal 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 requested 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 application 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 a loan identification number. First Marblehead employees 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 application 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 bankruptcy 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 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 referenced 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 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 individual's credit report for nonpayment of debt. Because of this role, AES realized that Howard's loan application was fraudulent. At the time of the alert, First Marblehead's amount at risk was $33,519, which included 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 business when the bank received a fraud notification alert regarding activity on Myers's account. It was then that Myers ...


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