United States v. Karen Gagarin, 950 F.3d 596

Background

From Sept. 2011–spring 2012, conspirators at Jatoft‑Foti Agency (AIL sales agent) submitted hundreds of fraudulent life‑insurance applications to obtain advanced commissions; policies were kept ~4 months to avoid chargebacks.
Karen Gagarin was a JFA General Agent who ran the San Jose office when the primary organizer (Halali) was absent; she knowingly participated, forged signatures, impersonated applicants, and submitted applications in others’ names.
The charged Gilroy application (Gagarin’s cousin) contained forged electronic signatures, false applicant data, and a bank account initially tied to a co‑conspirator then to Gagarin; Gilroy testified (with immunity) she never actually signed or reviewed that application.
A grand jury indicted Halali, Magat, Jilge, Gagarin, and Soundara for conspiracy (18 U.S.C. § 1349), wire fraud (§ 1343), and aggravated identity theft (§ 1028A); jury convicted Halali, Magat, and Gagarin; Jilge and Soundara pleaded guilty earlier.
At sentencing the court applied a three‑level § 3B1.1(b) manager/supervisor enhancement to Gagarin, imposed a consecutive 24‑month mandatory term for aggravated identity theft (total 36 months), and ordered joint-and‑several restitution of $2,837,791.93 to AIL.
On appeal Gagarin challenged (1) sufficiency of evidence for aggravated identity theft, (2) the § 3B1.1(b) role enhancement, and (3) the restitution calculation and apportionment; the Ninth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of aggravated identity theft (§ 1028A): whether Gagarin “used” another’s means of identification “during and in relation to” wire fraud, acted “without lawful authority,” and whether the ID was of “another person.”	Gov’t: Gagarin forged Gilroy’s signature, impersonated the applicant, and used Gilroy’s identifying information to further the wire‑fraud scheme; use was central to the fraud and unlawful even if consent existed.	Gagarin: Either Gilroy consented (so no “another person”), the use was not sufficiently connected to the fraud, or the use was not “without lawful authority.”	Affirmed. Forgery and impersonation constituted “use” that furthered the fraud; consent does not negate “without lawful authority” under Ninth Circuit precedent; “another person” means any actual person other than defendant.
§ 3B1.1(b) manager/supervisor enhancement: whether record supports role enhancement.	Gov’t: Evidence showed Gagarin ran the office in Halali’s absence, directed assistant agents (e.g., Zabihi), obtained Google Voice numbers and bank accounts, and instructed others to provide accounts—sufficient control over a criminally responsible participant.	Gagarin: She was at most a co‑equal conspirator who took some direction from Halali and thus did not exercise the required control.	Affirmed. District court did not abuse discretion; evidence supported inference she exercised control over at least one criminally responsible participant (preponderance standard).
Restitution: whether district court erred by not deducting value of defendants’ “back‑end” accounts, and by imposing joint‑and‑several liability / payment schedule.	Gov’t: Restitution should equal AIL’s actual loss (advances paid less recoveries); back‑end accounts were speculative projections, not vested entitlements, so no deduction; joint‑and‑several liability permitted under MVRA.	Gagarin: Back‑end accounts were real vested assets and should offset loss; restitution schedule allegedly internally inconsistent; court should apportion liability.	Affirmed. Court applied correct MVRA standard; defendants failed to prove entitlement to back‑end deductions (burden placed on them); MVRA allows joint‑and‑several liability and the payment schedule was not internally inconsistent here.

Key Cases Cited

United States v. Hong, 938 F.3d 1040 (9th Cir. 2019) (interpreting “use” under § 1028A and limiting it where no impersonation)
United States v. Osuna‑Alvarez, 788 F.3d 1183 (9th Cir. 2015) (holding consent to possession does not necessarily confer “lawful authority” under § 1028A)
United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (en banc) (construing “another person” to require non‑consent — discussed and declined as controlling)
United States v. Blixt, 548 F.3d 882 (9th Cir. 2008) (forgery of another’s signature qualifies as use of that person’s name under § 1028A)
United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (distinguishing use where defendants did not impersonate victims)
United States v. Michael, 882 F.3d 624 (6th Cir. 2018) (salient test: whether means of identification facilitated the predicate fraud)
United States v. Gadson, 763 F.3d 1189 (9th Cir. 2014) (standards for § 3B1.1 leader/manager role enhancement)
United States v. Bussell, 504 F.3d 956 (9th Cir. 2007) (restitution limited to victim’s actual losses and proper offset analysis)
United States v. Holden, 908 F.3d 395 (9th Cir. 2018) (role‑enhancement and restitution schedule principles)
United States v. Booth, 309 F.3d 566 (9th Cir. 2002) (district court discretion to impose joint and several restitution)