Opinion and Order — U.S. v. Marissa L. Kiser (W.D. Va.)

Summary

An opinion and order in United States of America v. Marissa L. Kiser, Case No. 1:21CR00024-016, in the United States District Court for the Western District of Virginia, Abingdon Division, filed June 13, 2022 as Document 815. It denies the defendant's motions for judgment of acquittal under Fed. R. Crim. P. 29, made during trial and reserved before the jury convicted her. The opinion states that the defendant was convicted of conspiracy to defraud the United States, fraud in connection with emergency relief benefits, mail fraud conspiracy, mail fraud and aggravated identity theft over COVID-19 pandemic unemployment benefit claims. The court finds the testimony of a cooperating leader of the scheme, with other evidence, sufficient for a jury to find the defendant knowingly joined the scheme. It is signed /s/ by Senior United States District Judge James P. Jones.

Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Opinion and Order — U.S. v. Marissa L. Kiser (W.D. Va.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/opinion-and-order-on-rule-29-motion-marissa-l-no-1-21-cr-00024-dkt-815-b1f6d59285/, SHA-256 249880a0280bdaaa04987a2a4afc566e7f2dd9eab5d89d9836c01cc87ab4ac37.

Full text

Case 1:21-cr-00024-JPJ-PMS Document 815 Filed 06/13/22 Page 1 of 4 Pageid#: 6863

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

UNITED STATES OF AMERICA )
)
) Case No. 1:21CR00024-016
)
v. ) OPINION AND ORDER
)
MARISSA L. KISER, ) JUDGE JAMES P. JONES
)
Defendant. )

Daniel J. Murphy, Assistant United States Attorney, Abingdon, Virginia, for
United States; Michael A. Bragg, BRAGG LAW, Abingdon, Virginia, for Defendant.

The defendant moved for judgment of acquittal during trial after the close of

the government’s case-in-chief and again after the close of all of the evidence. The

court reserved decision on the motions, Fed. R. Crim. P. 29(b), and the defendant

was thereafter convicted by the jury. The issues have now been briefed by the

parties and are ripe for decision.1 For the reasons that follow, I will deny the

motions.

When considering a motion for judgment of acquittal, the trial evidence is to

be viewed in the light most favorable to the prosecution and denial is proper where

substantial evidence supports the verdict. United States v. Zelaya, 908 F.3d 920,

1
The defendant indicates in her brief that her argument is directed at the motion
made at the close of the government’s case-in-chief. Def.’s Brief 1, ECF No. 748. In any
event, I have decided both motions.
Case 1:21-cr-00024-JPJ-PMS Document 815 Filed 06/13/22 Page 2 of 4 Pageid#: 6864

925 (4th Cir. 2018). “‘Substantial evidence’ means ‘evidence that a reasonable

finder of fact could accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.’” United States v. Armel, 585 F.3d

182, 184 (4th Cir. 2009) (citation omitted). In appraising the sufficiency of the

evidence, it is not necessary that the trial judge be convinced beyond a reasonable

doubt of the guilt of defendant. Instead, “the relevant question is whether, 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 court is “not entitled to

assess witness credibility, and [should] assume that the jury resolved any conflicting

evidence in the prosecution’s favor.” United States v. Jeffers, 570 F.3d 557, 565

(4th Cir. 2009).

Finally, in deciding a reserved motion under Rule 29(b), the court must only

consider “the evidence at the time the ruling was reserved.” Fed. R. Crim. P. 29(b).

The defendant was charged in the Indictment along with 22 other defendants

with offenses relating to the fraudulent submission of claims for COVID-19

pandemic unemployment benefits.2 The evidence at her trial showed that she and

2
The defendant was charged with and convicted of conspiracy to defraud the United
States, 18 U.S.C. § 371 (Count 1); committing fraud in connection with emergency relief
benefits, 18 U.SC. § 1040(a)(2) (Count 17); conspiracy to commit mail fraud, 18 U.S.C.
§§ 1341, 1349 (Count 22); mail fraud, 18 U.S.C. § 1341 (Count 38); and aggravated
identity theft, 18 U.S.C. § 1028A (Count 61).
-2-
Case 1:21-cr-00024-JPJ-PMS Document 815 Filed 06/13/22 Page 3 of 4 Pageid#: 6865

her boyfriend and her children lived with a leader of the scheme, Danielle Chytka,

for a period of time during these events. Chytka cooperated with the government in

the prosecution and testified against the defendant in the government’s case-in-chief,

relating that Kiser gave Chytka her personal identifying information (social security

number and date of birth) in order to enable Chytka to file a fraudulent application

for her over the internet, as she did for other coconspirators. 3

After the government rested, Kiser testified on her own behalf, claiming that

she had not requested Chytka to file a claim for her. She also claimed that in any

event she was entitled to such benefits, because she had been employed as a

babysitter by a family member, but that the children brought COVID home from

school and she was then not allowed to go to that home. Trial Tr. 7, ECF No. 762.4

In contradiction to that, Chytka had testified in the government’s case-in-chief that

Kiser had been living with her and had never appeared to be working. Trial Tr. 156,

ECF No. 759.

In the motion for judgment of acquittal made at the close of the government’s

case, Kiser contended that there was insufficient evidence that (1) Kiser had

3
Chytka admitted that she had stolen the COVID-19 unemployment benefit money
paid on Kiser’s application (approximately $18,000), although she testified that she had
given Kiser $100 and illicit drugs. Trial Tr. 26–27, ECF No. 760.
4
Kiser also claimed that she had cut wood for her father, although she did not
expressly testify that this work had ended because of COVID-19.
-3-
Case 1:21-cr-00024-JPJ-PMS Document 815 Filed 06/13/22 Page 4 of 4 Pageid#: 6866

knowledge of the fraudulent scheme, and (2) that she was not entitled to such

unemployment benefits.

While the jury certainly could have disbelieved Chytka’s testimony, that

testimony was not insufficient to show, along with the other evidence presented by

the government as to the relationship between the parties and the methods of the

fraudulent scheme, that Kiser understood when she requested Chytka to file on her

behalf that she was knowingly joining the scheme to obtain benefits to which she

was not entitled. Accordingly, the government’s evidence was sufficient to prove

its case, both at the time the government rested its case-in-chief, and at the close of

all of the evidence.

It is accordingly ORDERED that the motions, ECF No. 706, are DENIED.5

ENTER: June 13, 2022

/s/ JAMES P. JONES
Senior United States District Judge

5
The oral motion for judgment of acquittal by the defendant after the close of the
government’s case-in-chief and the oral motion for judgment of acquittal made by her after
the close of all of the evidence were both made on the same day, Clerk’s Minutes Day
Four, ECF No. 703, although there is only one docket entry for both.
-4-

File and source

File: 815-opinion-and-order-on-rule-29-motion-marissa-l-kiser-016.pdf
Size: 119,563 bytes
SHA-256: 249880a0280bdaaa04987a2a4afc566e7f2dd9eab5d89d9836c01cc87ab4ac37
Our copy: 815-opinion-and-order-on-rule-29-motion-marissa-l-kiser-016.pdf
Original: archive.org