United States v. Croft

87 F.4th 644

UNITED STATES of America, Plaintiff—Appellee, v. Bradley Lane CROFT, Defendant—Appellant.

No. 21-50380

consolidated with No. 22-50659

United States Court of Appeals, Fifth Circuit

FILED December 1, 2023

Appeals from the United States District Court for the Western District of Texas, USDC No. 5:18-CR-603-1, David A. Ezra, U.S. District Judge

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Fidel Esparza, III, Daphne Danille Newaz, Esq., Mark Randolph Stelmach, Esq., Mary Nelda G. Valadez, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Bradley Lane Croft, Bastrop, TX, Pro Se.

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 18 U.S.C. § 1028A.¹ After this court affirmed those convictions, the Supreme Court decided United States v. Dubin, 599 U.S. 110, 132, 143 S.Ct. 1557, 216 L.Ed.2d 136 (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. Croft v. United States, — U.S. —, 143 S. Ct. 2635, —L.Ed.2d — (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 discovered evidence that the government should have, but did not, produce under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the same time, he moved for release pending appeal, arguing that he was likely to prevail in his direct appeal 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 denial 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 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 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, 143 S.Ct. 1557, 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 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." U.S.C. 18 § 1028A(a)(1), § 1028A(c) (listing enumerated felonies). The term "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, 143 S.Ct. 1557. 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, 143 S.Ct. 1557.

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, 143 S.Ct. 1557. 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, 143 S.Ct. 1557. 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, 143 S.Ct. 1557. Because he used a patient's name and Medicaid number, he was convicted of aggravated identity theft based on his unlawful use of a means of identification. See Dubin, 599 U.S. at 114-15, 143 S.Ct. 1557.

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...