United States v. Njoroge

25 F.4th 555

UNITED STATES of America, Plaintiff - Appellee

v.Aileen Kogera NJOROGE, Defendant - Appellant

No. 21-1384

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2021

Filed: February 2, 2022

Steven A. Russell, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Lincoln, NE, for Plaintiff - Appellee.

Aileen Kogera Njoroge, Pro Se.

Jason E. Troia, DORNAN & TROIA, Omaha, NE, for Defendant - Appellant.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

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 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 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 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...