February 10, 2014, Argued and Submitted, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:11-cr-00289-RCJ-VCF-1. Robert Clive Jones, District Judge, Presiding.
Camille W. Damm (argued), Assistant United States Attorney; Daniel G. Bogden United States Attorney; and Robert L. Ellman, Appellate Chief, United States Attorney's Office, Las Vegas, Nevada, for Plaintiff-Appellant.
Brenda R. Weksler (argued), Assistant Federal Public Defender; and Rene L. Valladares, Federal Public Defender, Las Vegas, Nevada, for Defendant-Appellee.
Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Thomas O. Rice, District Judge.[*] Opinion by Judge Tallman.
TALLMAN, Circuit Judge:
Defendant Carlos Javier Ezeta was indicted on four counts of financial aid fraud in violation of 20 U.S.C. § 1097(a). Subsequently, the district court dismissed the indictment after concluding (1) that Ezeta's alleged actions did not satisfy the statute and (2) that Ezeta could not have " willfully cause[d]" or aided and abetted another to commit the crimes. The government appeals the dismissal and we must now decide as a matter of first impression whether § 1097(a) requires a defendant to personally receive or exercise control over federally insured funds obtained by fraud. We have jurisdiction under 28 U.S.C. § 1291, and we now hold that it does not.
The allegations are undisputed. Between 2008 and 2011, Ezeta worked as a counselor and professor at the College of Southern Nevada (" CSN" ), a community college in Las Vegas. He was the only tenured professor at CSN fluent in both English and Spanish. Both in conjunction with his employment and out of a desire to help the Hispanic community, Ezeta often assisted current and prospective Spanish-speaking students with CSN applications and with selecting courses. But his efforts to " assist" did not end with good advice. Instead, beyond performing his official duties, Ezeta " helped" these students obtain federal financial aid by falsifying and electronically submitting several Free Applications for Federal Student Aid (" FAFSA forms" ). In reliance on the representations made in these forms, student aid money was disbursed. These applications eventually drew the attention of the Department of Education, Office of Inspector General, which commenced an investigation.
The investigation revealed that eight CSN students had visited Ezeta for help with registration and class counseling. When Ezeta learned that the students intended to seek financial aid and had not successfully completed high school, a GED, or an ability-to-benefit test (at least one of which is required to receive funds under Department of Education regulations), he used their personal identification numbers to complete the FAFSA forms for them. In doing so, he falsely represented that the students satisfied the education requirements. Ezeta even told one student to obtain a fraudulent GED certificate.
Many of the students were unaware that their applications contained false statements and none of the students asked or paid Ezeta for his help in filling out the FAFSA forms. Of the eight students involved, six received disbursement of funds from the federal government; the seventh student's application was intercepted prior to disbursement; and the eighth student's application was never submitted because she had not yet obtained a phony certificate of high school completion. The six students who received funds were given $8,709 in federal loans, but the total amount of intended loss sought through the doctored FAFSA forms was $37,341.
Department of Education investigators then performed a sting operation, sending a Spanish-speaking undercover agent posing as a student to Ezeta's office for help with the enrollment process. The agent told Ezeta that she had not finished high school but nonetheless intended to seek financial aid. Ezeta then ...