United States v. Page

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SEAN PAGE, Defendant - Appellant

No. 16-41174

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 2, 2018

Appeal from the United States District Court for the Eastern District of Texas

USDC No. 4:15-CR-214-1

Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.

PER CURIAM:^*

After a four-day jury trial, a jury in the Eastern District of Texas convicted Defendant-Appellant Sean Page ("Sean") of theft of government money or property and aggravated identity theft, in violation of 18 U.S.C. § 641 and 18 U.S.C. § 1028A.¹ On appeal, Sean challenges the sufficiency of the evidence supporting his convictions as well as the district court's imposition ofa sentence of 69 months' imprisonment. For the reasons explained herein, we AFFIRM Sean's convictions and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns fraudulent bidding for Department of Veteran Affairs and Department of the Army contracts specifically set-aside for Service-Disabled Veteran-Owned Small Business ("SDVOSBs").

Sean owned and operated two landscaping and janitorial services companies—Premier Building Maintenance ("PBM") and I2G Resource Group, Incorporated ("I2G")—that applied for and were awarded government contracts set aside for SDVOSBs. The SDVOSB program provides business opportunities for veterans who are disabled as a result of their military service. Every federal agency is required to set aside contracts for SDVOSBs—at least three percent of awarded contracts must go to qualifying SDVOSBs. Federal law and regulations set forth certain criteria for businesses to satisfy and certify to when applying for such set-aside loans. Before a business can qualify to bid for such contracts it must certify that it meets the standards to qualify as a SDVOSB with the Center for Veterans Enterprise.² The standard includes three core components: eligibility, ownership, and control.

Eligibility looks to whether a service-disabled veteran is indeed connected to the company and whether the company's size comports with the Small Business Administration's requirements. With respect to ownership, the service-disabled veteran or a combination of service-disabled veterans must be at least 51 percent owners of the company. Control requires that the service-disabled veteran or veterans be in charge of day-to-day operations and responsible for the long-term decision making of the company. The service-disabled veteran must also be the highest compensated individual of the business and, if not, a letter explaining why he or she is not must be submitted. The contracting officers responsible for overseeing the bidding process simply confirm that the SDVOSB is registered in one of the relevant online databases.

Sean never served in the armed forces and, by extension, never suffered a service-connected disability. Sean's father, Dalton Page ("Dalton") did, however, serve in the armed forces and receive such a service-connected disability. Dalton's service spanned 20 years of active duty with the U.S. Army in Japan, Germany, and Vietnam. Seventy-two years old at the time of trial, Dalton had several tours of duty in Vietnam, first as a crew chief and then as a forward observer. When Dalton returned home from the military, he was suffering from post-traumatic stress disorder ("PTSD") and eventually divorced from his first wife—Sean's mother. The Department of Veteran Affairs certified Dalton as 100 percent service-disabled in light of his PTSD and exposure to Agent Orange. Despite being listed as leading PBM and I2G in various certifications to contracting agencies, Dalton testified at trial that he had no involvement with PBM and I2G.

Testimony revealed that Sean bid for and was awarded various SDVOSB set-aside contracts from the Department of Veteran Affairs and the Department of the Army based on false certifications that Dalton led PBM and I2G. Dalton never provided Sean permission, tacitly or otherwise, to use his name or social security number for any purpose, including applying for contracts as a SDVOSB. In 2011, Sean's ex-girlfriend informed Dalton that Sean was using Dalton's identity, social security number, and name in relation to the SDVOSB set-aside contracts. Dalton confirmed this improper usethrough I2G's website, which referenced documents concerning incorporation that had Dalton listed as CEO of I2G.

Deeply bothered by the discovery, Dalton invited Sean to visit his home to discuss the matter—a conversation that resulted in Sean simply responding, "I got to do what I got to do." The conversation left Dalton so angry afterward that he simply did not address the matter further. Rather, Dalton invited Sean back a few days later, telling Sean that he needed to remove Dalton's name from the company website and shut the companies down or Dalton would mail a letter to the Department of Veteran Affairs. This offer was made to Sean on three separate occasions; Dalton left a drafted letter undated on his office desk. Despite Dalton's admonishing him about the importance of the SDVOSB programs for service-disabled veterans, Sean did not seem to care.

Dalton mailed the letter to the Department of Veteran Affairs Office of the Inspector General in September 2011, a decision that was admittedly difficult for him to do to his "baby son." The letter informed the Department of Veteran Affairs that I2G misled the Department on its Form 0877 by listing Dalton as the CEO. The letter went on to explain that Dalton discovered that Sean stole Dalton's information and improperly listed him as having affiliation with I2G on the Form 0877. Dalton confirmed that C.T. Timmons, the individual listed as the registered agent for Sean's companies, was Dalton's stepfather and passed away about 42 years ago. Bryan Sewell, a special agent with the Department of Veteran Affairs Office of Inspector General in Dallas, Texas, began investigating the case in September 2011 and completed the investigation in September 2013, reporting his findings to the United States Attorney's Office in April 2014.

In a four-count indictment, three of which are relevant on appeal, Sean was charged with the following: (1) two counts of Theft of Government Money or Property, in violation of 18 U.S.C. § 641 (Counts One and Four); and (2) twocounts of Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A (Counts Two and Three).³ Pursuant to Federal Rule of Criminal Procedure 29(a), Sean moved for acquittal at the close of the Government's case and again at the close of all of the evidence. The district court denied each motion.

Sean was convicted on Counts One, Two, and Three. Prior to sentencing the Government noticed its intent to seek an upward variance. At sentencing, the district court granted the Government's motion for an upward variance, sentencing Sean to 69 months' imprisonment. On appeal, Sean challenges the sufficiency of the evidence to maintain his convictions as well as the substantive reasonableness of his sentence.

II. DISCUSSION

A. Sufficiency of the Evidence

As Sean properly preserved his challenge to the sufficiency of the evidence, this court reviews this issue de novo. See United States v. Umawa Oke Imo, 739 F.3d 228, 235 (5th Cir. 2014). "When reviewing the sufficiency of the evidence, the court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quotation marks omitted). The court must view the evidence "in the light most favorable to the verdict" and draw all reasonable inferences and make all credibility determinations in favor of the verdict. Id. The Government may prove its case through direct or circumstantial evidence, and the jury may choose among reasonable constructions of the evidence. United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). "[I]t [is] within the sole province of the jury as the fact finder to decide the credibility of the witnesses and to chooseamong reasonable constructions of evidence." United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citation omitted).

i. Theft of Government Property

To establish a violation of 18 U.S.C. § 641, the Government was required to prove that: (1) Sean knowingly stole, embezzled, and converted money, property or a thing of value to his own or another's use; (2) the property or thing of value belonged to the United States government and had a value in excess of $1,000; and (3) Sean did so knowing that the money, property, or thing of value was not his and intended to deprive the owner of the use or benefit of the money, property, or thing of value. See United States v. Dien Duc Huynh, 246 F.3d 734, 745 (5th Cir. 2001).

Sean argues that the conviction must be overturned because the Government failed to provide sufficient evidence establishing the requisite intent or mens rea required for a violation of 18 U.S.C. § 641. Sean contends that he merely "made a material misstatement of facts by having Dalton listed as CEO in the certification application." He argues that to steal, as relevant to the statute, requires "wrongful taking" of another's money or property with the intent to deprive the owner of its use or benefit either temporarily or permanently.

The evidence marshalled against Sean was sufficient. Before turning to that testimony, we quickly dispose of Sean's misguided argument that a conviction on this count must fail because there is no dispute concerning the completion of work required under the contracts. This completion, Sean urges, is sufficient to require reversal. This argument is plainly foreclosed by this circuit's decision in United States v. Barnes, 761 F.2d 1026 (5th Cir. 1985). The Barnes decision, addressing misrepresentations made in connection with securing federal loans, rejected the defendant's contention that actual property loss was required to sustain a conviction for a § 641 violation because, amongother things, "imposition of...