United States v. Kiser

• Docket Number: 22-4371
• Decision Date: 01 November 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARISSA L. KISER, a/k/a Marissa Kiser, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

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UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARISSA L. KISER, a/k/a Marissa Kiser, Defendant-Appellant.

No. 22-4371

United States Court of Appeals, Fourth Circuit

November 1, 2023

UNPUBLISHED

Submitted: September 20, 2023

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:21-cr-00024-JPJ-PMS-16)

ON BRIEF:

Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for Appellant.

Christopher R. Kavanaugh, United States Attorney, Jonathan Jones, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before AGEE, RUSHING, and HEYTENS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM

Marissa L. Kiser was convicted after a jury trial of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, fraud in connection with emergency benefits, in violation of 18 U.S.C. §§ 2, 1040(a)(2), conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349 mail fraud, in violation of 18 U.S.C. §§ 2, 1341 and aggravated identity theft, in violation of 18 U.S.C. §§ 2, 1028A, in connection with a scheme to file fraudulent claims for unemployment benefits boosted because of the COVID-19 pandemic. The district court sentenced Kiser to 27 months in prison and 3 years of supervised release. Kiser appeals her convictions, arguing that the district court erred in denying her Fed. R. Crim. P. 29 motions for a judgment of acquittal because there was insufficient evidence that she was not eligible to receive the pandemic-boosted unemployment benefits. We affirm.

We review the district court's denial of a Rule 29 motion for a judgment of acquittal de novo. United States v. Smith, 54 F.4th 755, 766 (4th Cir. 2022), cert. denied, 143 S.Ct. 1097 (2023). In conducting this review, "we view the evidence in the light most favorable to the prosecution and decide whether substantial evidence supports the verdict." Id. (cleaned up). "Substantial evidence is evidence that a reasonable fact-finder could accept as adequate and sufficient to support a defendant's guilt beyond a reasonable doubt." Id. (internal quotation marks omitted). In assessing whether substantial evidence is present, we are "not entitled to assess witness credibility and must assume that the jury resolved any conflicting evidence in the prosecution's favor." United States v. Robinson, 55 F.4^th 390, 404 (4th Cir. 2022) (internal quotation marks omitted). A defendant "bear[s] a heavy burden" under this standard. Smith, 54 F.4th at 766 (internal quotation marks omitted).

We conclude after review of the record and the parties' briefs that the evidence was sufficient to show that Kiser was not eligible for pandemic-boosted unemployment benefits in light of testimony from the Government's main witness against her, Leelynn Chytka. Although Kiser criticizes Chytka's testimony and the reliability of her memory and points out contradictions between Chytka's testimony and the testimony given by Kiser and her husband, it is the jury not this court, that...