United States v. Croft ( 2023 )

Case: 21-50380 Document: 00516987207 Page: 1 Date Filed: 12/01/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 1, 2023
No. 21-50380 Lyle W. Cayce
Consolidated with Clerk
No. 22-50659
____________
United States of America,
Plaintiff—Appellee,
versus
Bradley Lane Croft,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-603-1
______________________________
Before Graves, Higginson, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
In 2019, Bradley Lane Croft was convicted of four counts of aggra-
vated identity theft under 18 U.S.C. § 1028A. 1 After this court affirmed those
convictions, the Supreme Court decided United States v. Dubin, 599 U.S. 110,
_____________________
1
Croft was also convicted of eight counts of wire fraud, two counts of money
laundering, and two counts of making false tax returns. As discussed in this opinion, these
convictions are not challenged on remand.
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132 (2023), which articulated a new standard for convictions under § 1028A.
Subsequently the Supreme Court granted certiorari in this case, vacated this
court’s judgment, and remanded for consideration in light of Dubin. United
States v. Croft, 143 S. Ct. 2635 (2023). Croft asks that this court vacate his
convictions under § 1028A and remand this case for resentencing. During
the pendency of this case, Croft also filed a pro se appeal after the district
court denied his third motion for a new trial, in which he alleged newly dis-
covered evidence that the government should have, but did not, produce un-
der Brady v. Maryland, 373 U.S. 83 (1963). At the same time, he moved for
release pending appeal, arguing that he was likely to prevail in his direct ap-
peal and his pro se appeal. Because of the interrelatedness of Croft’s direct
and pro se appeals, No. 21-50380 and 22-50659, we sua sponte consolidate
these cases.
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 § 1028A. We further affirm the district court’s de-
nial of Appellant’s motion for a new trial, and deny as moot his motion
for release pending appeal.
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
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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
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consecutively with each other and the above sentences, for a total of 118
months. His sentence also included supervised release, forfeiture, and resti-
tution.
II.
This court affirmed the district court’s judgment on direct appeal, de-
termining that the evidence was sufficient to support Croft’s convictions of
wire fraud, aggravated identity theft, and money laundering, and rejecting
challenges to the orders of forfeiture and restitution. See United States v.
Croft, No. 21-50380, 2022 WL 1652742, at *2–6 (5th Cir. May 24, 2022) (per
curiam). To do so, it relied on United States v. Dubin, 27 F.4th 1021, 1021-22
(5th Cir. 2022) (en banc). See Croft, 2022 WL 1652742, at *4. However, the
Supreme Court then vacated and reversed the en banc Dubin decision, Dubin
v. United States, 599 U.S. at 132, then vacated this court’s judgment in
Croft’s appeal and remanded for further consideration in light of its Dubin
decision. See Croft, 143 S. Ct. 2635.
When a case is remanded from the Supreme Court, with the
“[e]xcept[ion] [of] that which we are mandated to review, our previous rul-
ings 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.”
U.S.C. 18 § 1028A(a)(1), §1028A(c) (listing enumerated felonies). The term
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“means of identification” is defined in relevant part as “any name or number
that may be used, alone or in conjunction with any other information, to
identify a specific individual.” Id. § 1028(d)(7).
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
§ 1028A(a)(1), “[a] defendant ‘uses’ another person’s means of
identification ‘in relation to’ a predicate offense when this use is at the crux
of what makes the conduct criminal.” Dubin, 599 U.S. at 131. The Court
added that, “[t]o be clear, being at the crux of the criminality requires more
than a causal relationship, such as ‘facilitation’ of the offense or being a but-
for cause of its ‘success.’” Id. (some internal quotation marks omitted). For
crimes that involve fraud or deceit, “the means of identification specifically
must be used in a manner that is fraudulent or deceptive. Such fraud or deceit
going to identity can often be succinctly summarized as going to ‘who’ is
involved.” Id. at 132.
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 18 U.S.C. § 1347. Id. at 114. Because he used a
patient’s name and Medicaid number, he was convicted of aggravated
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identity theft based on his unlawful use of a means of identification. See
Dubin, 599 U.S. at 114-15.
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 § 1028A(a)(1).” Id.
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).
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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 § 1028A conviction that the government
argued the predicate felony supported—the incidental use of Person B’s
name and Medicaid ID on the billing statement. Because the billing statement
was rendered fraudulent by the misrepresentation about Person A, and not
by the misrepresentation about Person B, Person B’s means of identification
was not used “in relation to”—that is, central to—the predicate offense of
fraud.
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.
Rufus Coburn of the TVC testified that the roster of instructors and
their qualifications was “particularly important” to the application, and that
veterans would not get G.I. Bill benefits if they took courses with unapproved
instructors. Far from being “ancillary feature[s]” of Croft’s application to
the TVC, the material misrepresentations that Croft made—that these four
men were qualified instructors employed by Universal K-9 to teach classes to
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veterans—were the basis of his conviction for the predicate felony of wire
fraud. 2 As is required by Dubin, the use of the four men’s names and
information was “at the crux of what made the underlying [conduct]
fraudulent.” Dubin, 599 U.S. at 132.
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
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2
Indeed, in his written closing argument to the trial court, Croft argued that “the
government must first establish that there is Aggravated Identity Theft in order for there to
be Wire Fraud.”
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Croft’s convictions stand, we deny as moot his motion for release
pending appeal.
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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. 18 U.S.C.
§ 1028A(a)(1).
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 § 1028A(a)(1) convictions accordingly.
But that view was subsequently rejected by the Supreme Court. 599
U.S. 110 (2023). The Court dismissed the notion that § 1028A(a)(1) covers
“defendants who fraudulently inflate the price of a service or good they
actually provided.” Id. at 114. Such a reading, the Court feared, might sweep
in “[a] lawyer who rounds up her hours from 2.9 to 3,” or “a waiter who
serves flank steak but charges for filet mignon.” Id. It might encompass
“[e]very contractor who has rounded up his billed time by even a few
minutes,” and “[e]very bill splitter who has overcharged a friend.” Id. at 133
(Gorsuch, J., concurring in the judgment).
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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 § 1028A(a)(1). But it did not do so.
Instead, Congress decided that “the small fraud is going to be punished the
same way as the big fraud,” as the United States put it during oral argument.
Oral Arg. Tr. 66. Congress imposed “a flat two-year penalty, regardless of
the size of the fraud in a particular case.” Id.
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 § 1028A(a)(1) to even
minor economic losses proves too much. After all, no one would dispute that
§ 1028A(a)(1) criminalizes prototypical acts of identity theft, even when they
cause only a small economic loss. A person who steals your identity just to
buy a meal at McDonald’s is still subject to a flat two-year prison sentence.
The real underlying concern appears to be that § 1028A(a)(1) covers
acts that just don’t look like the sort of “identity theft” that legislators
thought they were targeting. Admittedly, not every theft involving the use of
another person’s identity will sound like identity theft to the lay person.
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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 § 924(c), had in mind a more obvious use of guns in
connection with a drug crime, but the language of the statute is not so limited
. . . Whether guns are used as the medium of exchange for drugs sold illegally
or as a means to protect the transaction or dealers, their introduction into the
scene of drug transactions dramatically heightens the danger to society.”)
(quoting United States v. Harris, 959 F.2d 246, 262 (D.C. Cir. 1992)) (cleaned
up); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998)
(“[M]ale-on-male sexual harassment in the workplace was assuredly not the
principal evil Congress was concerned with when it enacted Title VII. But
statutory prohibitions often go beyond the principal evil to cover reasonably
comparable evils, and it is ultimately the provisions of our laws rather than
the principal concerns of our legislators by which we are governed.”).
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
_____________________
1
I was a member of the panel that originally affirmed Croft’s conviction, prior to
the Supreme Court’s decision in Dubin. See United States v. Croft, 2022 WL 1652742 (5th
Cir.).
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Gorsuch’s concern that the test articulated in Dubin may present
“intractable interpretive challenges of their own.” 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 § 1028A(a)(1) convictions presented in this case.
Dubin holds that a person has committed aggravated identity theft
under § 1028A(a)(1) only if his use of another person’s identity is “at the
crux of what makes the conduct criminal”—and not if the person’s identity
is merely “ancillary” to the crime. Id. at 131–32.
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
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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
Court in Dubin could prove difficult to administer in practice.
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