United States v. CroftUnited States v. Croft
Before GRAVES, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
In 2019, Bradley Lane Croft was convicted of four counts of aggravated identity theft under
Having evaluated the evidence adduced at Croft‘s trial under the “crux of the criminality” standard articulated in Dubin, we AFFIRM Croft‘s four convictions under
I.
Croft owned and operated Universal K-9, a school that primarily trained handlers and dogs for police work. Croft sought to expand the business by offering courses to veterans, who would pay tuition using G.I. Bill funds paid by the Department of Veterans Affairs (VA). However, to be eligible to receive such funds, Universal K-9 had to first obtain certification from the Texas Veterans Commission (TVC), the state agency designated by the VA to approve educational institutions and programs that sought to receive certain kinds of veterans’ educational benefits. For a program like the dog handling program, certification depended on the organization‘s employment of dog trainers with certain qualifications, and Croft was required to attach to his application a roster listing Universal K-9‘s instructors and administrative staff along with instructor qualifications.
Over the course of several years, Croft submitted multiple applications to the TVC. Finally, via application of March 2016, Universal K-9 was certified by the TVC, and accepted by the VA, in June 2016. On the March 2016 application that the TVC approved, Croft listed four instructors whose duties were teaching classes and training dogs: Wes Keeling, Dustin Bragg, Jesse Stanley, and Art Underwood. The application included several certificates showing the qualifications of these four instructors.
However, at trial, Keeling, Bragg, and Stanley testified that, while they had prior involvements with Universal K-9, they had never given their permission to be named as instructors for the purposes of the TVC application, nor had they actually served as instructors for the courses listed. The fourth trainer listed on the roster, Underwood, died in March 2014, two years before Croft certified to the TVC that he would be a trainer at Universal K-9. Rufus Coburn, the Assistant Director of the TVC during the relevant timeframe, testified that Universal K-9‘s application would not have been approved without the names of the instructors, their qualifications, and information about the classes they would teach.
After a bench trial, Croft was convicted of eight counts of wire fraud, four counts of aggravated identity theft, two counts of money laundering, and two counts of making or subscribing a false tax return. He was sentenced to 70 months of imprisonment on the wire fraud and money laundering counts, 36 months of imprisonment on the false tax return counts, and 24 months of imprisonment on two of the aggravated identity theft counts, all to be served concurrently. Croft was sentenced to 24 months of imprisonment on each of the remaining two aggravated identity theft counts, to be served consecutively with each other and the above sentences, for a total of 118 months. His sentence also included supervised release, forfeiture, and restitution.
II.
This court affirmed the district court‘s judgment on direct appeal, determining
When a case is remanded from the Supreme Court, with the “[e]xcept[ion] [of] that which we are mandated to review, our previous rulings are the law of the case and will not now be reconsidered.” Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967). Accordingly, we consider only whether Croft‘s four convictions for aggravated identity theft should be upheld under Dubin.
III.
The aggravated identity theft statute provides that “[w]hoever, during and in relation to” certain enumerated felonies, including wire fraud, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”
But the statute itself does not define the meaning of “during and in relation to.” In Dubin, the Supreme Court set out to clarify this meaning, holding that not every instance in which a person uses another person‘s means of identification “during” a fraud is “in relation to” that fraud such that it constitutes aggravated identity theft. The Court held that, under
In that case, the defendant overbilled Medicaid by inflating the qualifications of an employee who performed a test and claiming a higher reimbursement based on those qualifications. Dubin, 599 U.S. at 114. The defendant billed Medicaid as if the test had been done by a licensed psychologist, when in fact it had been done by a more junior “psychological associate.” Id.. The fraudulent bill submitted by the defendant included a patient‘s name and Medicaid reimbursement number, which are “means of identification.” Id. at 115. Because he misrepresented the employee‘s qualifications and overbilled Medicaid, the defendant was convicted of healthcare fraud pursuant to
The Supreme Court reversed the aggravated identity theft conviction, determining that the “means of identification” used—the patient‘s name—“was not at the crux of what made the underlying overbilling fraudulent” but was merely “an ancillary feature of the billing method employed.” Id. Rather, “the crux of the healthcare fraud was a misrepresentation about the qualifications of [an] employee.” Id. The Court explained that the fraud at issue “was in misrepresenting how and when services were provided to a patient, not who received the services.” Id. The Court thus concluded that there had not been a “use [of] the patient‘s means of identification in relation to a predicate offense within the meaning of
We now turn to analyzing Croft within the framework articulated by the Supreme Court in Dubin.
IV.
On remand, Croft argues that, because neither he nor any other Universal K-9 employee falsely claimed to be one of the four individuals Croft submitted in the application, no aggravated identity theft occurred. But Dubin did not hold that the defendant in that case was innocent of aggravated identity theft because he did not present himself to be someone else. Rather, it held that when a predicate felony involving “fraud and deceit crimes” hinges on “how and when services were provided to a patient, not who received the services,” Dubin, 599 U.S. at 132, it cannot sustain an aggravated identity theft conviction. As the Eleventh Circuit has explained, “Section 1028A‘s reach is thus limited to situations where ‘a genuine nexus’ exists between the use of a means of identification and the predicate offense.” United States v. Gladden, 78 F.4th 1232, 1244 (11th Cir. 2023).
In Dubin, the Supreme Court identified a mismatch between the “crux” of the predicate felony—overbilling Medicaid by misrepresenting Person A‘s qualifications—and the
There is no such mismatch here. Croft‘s misrepresentations about “who” was teaching courses at Universal K-9 were the basis—and “heart of” —his wire fraud convictions. See Dubin, 599 U.S. at 123; see also Gladden, 78 F.4th at 1245 (“[Defendant‘s] forgery of the [victims‘] identities is at the heart of the deception.“). Trial testimony established that Universal K-9‘s March 2016 application to the TVC was fraudulent because it identified Keeling, Bragg, Stanley, and Underwood as qualified trainers who worked for the company and would be teaching the classes to veterans. In his letter brief to this court, Croft acknowledges that the trial court heard evidence that he identified these four men as instructors “to receive VA approval to open his dog-handler training school” but that “none of the four individuals ever reported to work.” He further acknowledges that “three of these individuals testified that they did not give Croft permission to put their names on the application,” and that the fourth individual was deceased.
Croft presents his claim to us as one of evidentiary insufficiency, arguing that the government failed in its burden to prove with convincing force that his use of a means of identification of others was integral, not ancillary, to his wire fraud predicate offense. See generally United States v. Cosentino, 869 F.2d 301, 308-09 (7th Cir. 1989). We answer this evidentiary argument by affirming that the government met its “core” or “crux” burden under Dubin. At its core, Croft‘s application to the TVC was fraudulent because of his misappropriation of the victim trainers’ means of identification. This theft was the “key mover in [his] criminality.” Dubin, 599 U.S. at 122-123.
V.
In the light of Dubin, the evidence supports the trial court‘s findings that Croft used means of identification belonging to Keeling, Bragg, Stanley, and Underwood during and in relation to wire fraud. Accordingly, we AFFIRM his convictions and sentences for the four aggravated identity theft counts. This court has also considered Croft‘s pro se appeal of the district court‘s denial of his motion for a new trial under Brady, 373 U.S. 83, and we hold that the district court properly denied that motion. Finally, since this court has adjudicated both underlying appeals on the merits, and held that Croft‘s convictions stand, we DENY AS MOOT his motion for release pending appeal.
JAMES C. HO, Circuit Judge, dubitante:
Congress has defined “aggravated identify theft” in admittedly broad terms: Anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” — and does so “during and in relation to” certain enumerated felonies such as Medicaid or wire fraud—is subject to a mandatory two-year term of imprisonment.
On its face, this language doesn‘t just cover those acts that people would ordinarily consider “identity theft.” It also appears to include acts that we might not consider “identity theft” in the colloquial sense—but that plainly constitute theft involving the use of another person‘s identity. For example, it would cover a person who is authorized to use another person‘s identity to charge a certain amount—but who then abuse that authority to charge some additional, impermissible sum.
Or at least that‘s what the United States—and this court—thought. In United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022) (en banc), a majority of our en banc court adopted the position of the United States and affirmed the
In anticipation of these hypotheticals, the Solicitor General acknowledged that her reading would sweep in modest acts of theft. But she nevertheless maintained that hers was the correct reading of the statute. See U.S. Br. 21 (proposed hypotheticals present “archetypal scenarios in which a defendant ‘uses, without lawful authority, a means of identification’ in furtherance of a predicate crime“); see also Oral Arg. Tr. 65-66.
The Solicitor General‘s views are well taken. Congress could have included a minimum loss requirement in
That‘s a judgment call for legislators to make. Cf. Ewing v. California, 538 U.S. 11 (2003); Rummel v. Estelle, 445 U.S. 263 (1980). And it‘s a reasonable one for them to make. If you take only a modest item from a local CVS, you‘re still a shoplifter. If you grab just a few dollars worth of quarters from a parked car, you‘re still a thief. Cf. George L. Kelling & James Q. Wilson, Broken Windows, THE ATLANTIC, March 1982 (discussing social consequences when “courts do not punish petty [offenses]“).
Moreover, the purported absurdity of applying
The real underlying concern appears to be that
But it is the statutory text, not Congress‘s subjective expectations, that is supposed to govern the interpretive process. See, e.g., Smith v. United States, 508 U.S. 223, 239 (1993) (“It may well be that Congress, when it drafted the language of
In any event, that‘s why a majority of our court—including every member of this panel—endorsed the United States position. But that position has now been rejected by the Supreme Court. And it goes without saying that we‘re duty bound to follow Supreme Court precedent, whether we agree with it or not. See, e.g., AKHIL REED AMAR, AMERICA‘S UNWRITTEN CONSTITUTION 232 (2012).
So it doesn‘t matter if I‘m sympathetic with the panel majority‘s decision to affirm the convictions in this case, in light of the breadth of the governing text.1 Nor does it matter if I‘m sympathetic with Justice Gorsuch‘s concern that the test articulated in Dubin may present “intractable interpretive challenges of their own.” Dubin, 599 U.S. at 135.
All that matters is that we faithfully interpret and apply the Supreme Court‘s decision in Dubin. And in that spirit, I wonder if Dubin requires us to reverse the
Dubin holds that a person has committed aggravated identity theft under
The panel majority reasonably theorizes that Dubin doesn‘t foreclose affirmance here because Croft‘s “application would not have been approved without the names of the instructors, their qualifications, and information about the classes they would teach.” Ante, at 3.
But it would also be reasonable to respond that the real “crux” of Croft‘s fraud turned, not on any person‘s name, but rather on their qualifications to teach.
In Dubin itself, for example, the Court concluded that the crux of the fraud was the qualifications of the defendant‘s employee—not the name of the consumer. The defendant‘s “use of the patient‘s name was not at the crux of what made the underlying overbilling fraudulent. The crux of the healthcare fraud was a misrepresentation about the qualifications of [the defendant‘s] employee. The patient‘s name was an ancillary feature of the billing method employed.” Dubin, 599 U.S. at 132 (emphasis added).
Put simply, the “fraud was in misrepresenting how and when services were provided . . . , not who received the services.” Id.
So how do the principles articulated in Dubin cut in this appeal? Was the crux of the fraud here the names of the defendant‘s employees—or their qualifications? Was the crux of Croft‘s fraud ”who received the services” — or who delivered them? Or was it ”how . . . services were provided“?
Be that as it may, a majority of the panel has decided to affirm, and they do so in a typically thoughtful opinion. I respect the decision of my distinguished colleagues, even if I am personally not so sure that affirmance can be reconciled with Dubin. If nothing else, this case may help illustrate Justice Gorsuch‘s observation that the new test announced by the Supreme