United States v. Aileen Njoroge ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1384
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United States of America
Plaintiff - Appellee
v.
Aileen Kogera Njoroge
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 19, 2021
Filed: February 2, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Aileen Kogera Njoroge (“Kogera”) appeals from a judgment of conviction for
theft of government property under 18 U.S.C. §§ 641 and 2. The district court1
sentenced her to a term of 5 years of probation and ordered her to pay $143,099.84
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
in restitution. On appeal, Njoroge contends the evidence was insufficient to sustain
the conviction and she received ineffective assistance of counsel at trial. We affirm.
I. BACKGROUND
The Child Care and Development Fund Program (“the Program”) is a federal
program administered by the Department of Health and Human Services (“HHS”)
that provides subsidies to low-income working families for childcare expenses. The
Nebraska Department of Health and Human Services (“NHHS”) administers the
Program in Nebraska. Childcare centers receive funding under the Program if they
establish eligibility and meet certain health, safety, and licensing requirements.
Eligible centers apply for authorization and, if approved, enter into annual subsidy
agreements with the state. Each participating childcare center is required by the
NHHS to track attendance for authorized children and to enter relevant data into a
state billing portal. NHHS provides training on how to use the portal, along with
unique logins, identification numbers, and billing codes for funding requests.
Mock’s Loving Life Learning Center (“MLLLC”) was a childcare center in
Omaha that participated in the Program. MLLLC was owned by Seth and Pamela
Mock. Kogera has an M.S. in Computer Information Systems and served as
MLLLC’s director. In May 2015, Virginia Dyess, who was employed by NHHS as
a resource developer, met with Seth Mock (“Mock”) and Kogera to conduct an onsite
review. Dyess compared MLLLC’s billing information to attendance calendars and
determined that MLLLC had incorrectly billed the Program. Dyess then trained
Kogera on how to perform accurate billing using the state portal system. When
NHHS audited MLLLC’s billing in March 2015, it revealed an overpayment of
approximately $15,000. Considering the audit findings, MLLLC later surrendered
its childcare license, and its Program agreement was terminated.
Mock approached Mubanga Chongo-Ofafa about opening two new daycare
centers. Chongo-Ofafa agreed and was subsequently listed as the owner of Little
Blessings of Lincoln and Little Blessings of Omaha. Both locations applied for
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eligibility under the Program, and Mock arranged for participating children who
were previously under the care of MLLLC to be transferred to Little Blessings.
Although each Little Blessings center had an onsite director, Kogera handled the
billing, subsidy management, supplies purchasing, and maintenance. The onsite
directors sent child attendance and employee payroll information to Kogera. In turn,
Kogera entered billing information into the state portal for Program funds, and she
sent payroll figures to a third-party processor.
On February 9, 2017, investigators executed search warrants at both Little
Blessings locations. Kogera was interviewed during the search and told
investigators that she was responsible for Program billing. Kogera admitted to
having primary access to the state portal, and to submitting payroll information for
processing. Kogera also told investigators that she was the sole person with access
to the Little Blessings email account and the electronic files where billing and payroll
information was saved before submission. NHHS and HHS later calculated an
overpayment sum of $158,099.84 across both Little Blessings locations.
Following four days of trial, a jury convicted Kogera of theft of government
property. She appeals her conviction.
II. ANALYSIS
Kogera first argues the evidence was insufficient to sustain her conviction.
We review the sufficiency of the evidence de novo, “viewing evidence in the light
most favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v.
Mathews, 761 F.3d 891, 893 (8th Cir. 2014) (quotation omitted). “The verdict will
be upheld if there is any interpretation of the evidence that could lead a reasonable
jury to convict.” United States v. Brandon, 521 F.3d 1019, 1025 (8th Cir. 2008).
As charged in this case, the crime of theft of government property has three
elements: (1) the defendant voluntarily, intentionally, and knowingly stole or
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converted money to her own use or to the use of another; (2) the defendant acted
with intent to deprive the owner of the use or benefit of the money taken; and (3) the
money belonged to the United States. See 18 U.S.C. § 641; United States v. Rehak,
589 F.3d 965, 973 (8th Cir. 2009). We have long recognized that “circumstantial
evidence is intrinsically as probative as direct evidence and may be the sole support
for a conviction.” United States v. Jones, 16 F.3d 275, 279 (8th Cir. 1994) (cleaned
up).
At trial, the former directors of both Little Blessings locations testified that
Kogera was responsible for the overpayments. The directors sent two types of
information to Kogera: (1) calendar information with each child’s attendance, and
(2) employee hours for payroll. NHHS representatives testified that both types of
information were inflated after being provided by the directors. Attendance
information was inflated before entry into the state portal, while the payroll
information was inflated before submission for payroll processing. Kogera was the
only person who accessed the billing portal and submitted payroll. By Kogera’s own
admission, she was the sole person with access to the Little Blessings email account
and to the files where information was saved before submission.
“A jury’s credibility determinations are well-nigh unreviewable because the
jury is in the best position to assess the credibility of witnesses and resolve
inconsistent testimony.” United States v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010).
“[I]t is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of
fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per
curiam). Kogera’s arguments on appeal were submitted to the jury by defense
counsel at trial. After viewing all the evidence and determining which evidence to
believe or disbelieve, the jury arrived at a conclusion different from the one
advocated by Kogera. There is evidence in the record demonstrating that inflation
of the billing and payroll numbers was a coordinated effort, and there was sufficient
evidence for the jury to determine that Kogera was behind the theft. Because there
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is sufficient evidence for a reasonable jury to have found Kogera guilty beyond a
reasonable doubt, we cannot overturn the conviction.
Kogera also argues for the first time on appeal that she received ineffective
assistance of counsel at trial. Such claims are properly considered in a habeas
proceeding under 28 U.S.C. § 2255, and “[w]e will not consider ineffective
assistance of counsel claims on direct appeal except in ‘exceptional cases in which
the district court has developed a record on the ineffectiveness issue or where the
result would otherwise be a plain miscarriage of justice.’” United States v. Looking
Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005) (quoting United States v. Santana, 150
F.3d 860, 863 (8th Cir. 1998)). This is not such a case, and we decline to consider
Kogera’s ineffective assistance argument on appeal.
III. CONCLUSION
We affirm the judgment of the district court.
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