United States v. Karen Gagarin ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10026
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00627-SI-4
KAREN GAGARIN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted September 9, 2019
San Francisco, California
Filed February 13, 2020
Before: Ronald M. Gould, Carlos T. Bea, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Friedland
2 UNITED STATES V. GAGARIN
SUMMARY *
Criminal Law
The panel affirmed a conviction for aggravated identity
theft under 18 U.S.C. § 1028A(a)(1), a three-level sentence
enhancement, and the restitution order in a case in which the
defendant and her co-conspirators participated in a scheme
to defraud a life insurance company by submitting fraudulent
insurance applications on behalf of individuals who, in
general, did not intend to apply for life insurance or know
that their identifying information was being used.
The panel rejected the defendant’s challenges to the
district court’s denial of her motion for judgment of acquittal
on the aggravated identity theft count.
The panel held that the defendant “used” a means of
identification under the meaning of § 1028A(a)(1), where
her forgery of her cousin’s signature on a fraudulent
application was central to the fraud and “furthered and
facilitated” its commission.
The panel rejected the defendant’s contention that in
order to show that she acted “without lawful authority” as
required by the statute, the Government must show that her
use of the means of identification was “itself illegal.” The
panel explained that the defendant’s use of her cousin’s
identity during and in relation to the wire fraud was
sufficient.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GAGARIN 3
The panel wrote that the Seventh Circuit’s interpretation
of “another person” in United States v. Spears, 729 F.3d 753
(7th Cir. 2013) (en banc), to mean “a person who did not
consent to the use of the means of identification” contradicts
this court’s holding in United States v. Osuna-Alvarez, 788
F.3d 1183, 1185-86 (9th Cir. 2015) (per curiam). The panel
thus held that even if the defendant had her cousin’s consent
to file an insurance application for her, the panel would
follow this circuit’s precedent to hold that the defendant used
the means of identification of “another person” by using the
identification of another “actual person.”
The panel held that the district court did not abuse its
discretion and commit significant procedural error by
imposing a three-level “manager or supervisor”
enhancement under U.S.S.G. § 3B1.1(b).
Upholding the restitution order, the panel wrote that
there is no indication that the district court employed an
erroneous valuation methodology that focused on a criterion
other than the actual losses of the victim, and held that the
district court did not abuse its discretion by declining to
deduct the purported value of “back-end” accounts from the
restitution award. The panel declined to second-guess the
district court’s imposition of joint and several liability, and
rejected as unavailing the defendant’s contention that the
restitution schedule is internally inconsistent.
Concurring except as to the penultimate paragraph of
Part II.C, Judge Friedland wrote that she is disinclined to
criticize the analysis of the unanimous en banc Seventh
Circuit decision in Spears “on its own terms,” as the majority
does.
4 UNITED STATES V. GAGARIN
COUNSEL
Carmen A. Smarandoiu (argued), Chief, Appellate Unit;
Candis Mitchell, Assistant Federal Public Defender; Steven
G. Kalar, Federal Public Defender; Office of the Federal
Public Defender, San Francisco, California; for Defendant-
Appellant.
Kirstin M. Ault (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Section, Criminal
Division; David L. Anderson, United States Attorney;
United States Attorney’s Office, San Francisco, California;
for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Defendant Karen Gagarin was convicted of conspiracy
to commit wire fraud, wire fraud, and aggravated identity
theft. The district court sentenced her to a total of 36 months
in prison, after concluding that a three-level “manager or
supervisor” sentencing enhancement applied to Gagarin’s
role in the scheme to defraud the American Income Life
Insurance Company (AIL). It also imposed a restitution
order, which held Gagarin jointly and severally liable with
her convicted co-conspirators for the full loss suffered by
AIL. On appeal, Gagarin challenges the district court’s
denial of her post-trial motion for a judgment of acquittal on
the aggravated identity theft count, its imposition of the
three-level sentencing enhancement, and the restitution
order. We affirm.
UNITED STATES V. GAGARIN 5
I.
In late 2011, Benham Halali devised a scheme to defraud
AIL of millions of dollars. Halali ran the San Jose, Fresno,
Roseville, and Concord offices of the Jatoft-Foti Agency
(JFA), the exclusive California sales agent of AIL. Between
September 2011 and Spring 2012, Halali and co-
conspirators in those offices, all independent contractors of
AIL, submitted hundreds of fraudulent insurance
applications to AIL on behalf of individuals who, in general,
did not intend to apply for life insurance or know that their
identifying information was being used. Karen Gagarin was
a General Agent with sales and managerial responsibility in
JFA’s San Jose office, and she ran the office when Halali
was away. It is undisputed that she knowingly participated
in the fraudulent scheme.
The conspiracy took advantage of AIL’s system of
compensating agents for insurance policy sales. For each
policy an agent purportedly sold, the agent received
advanced commissions and bonuses from AIL according to
a specified percentage of the premiums that the policy would
be expected to generate during the year. The conspirators
then paid about four months of premiums on the fraudulent
policies, from hundreds of different bank accounts opened
for that purpose, before defaulting. According to AIL’s
compensation structure, policies that lapsed before the end
of four months resulted in the agents being “charged back”
for their unearned advances, but policies that lapsed after
four months would result in only a debit of the unearned
value against the agents’ “back-end” accounts. These back-
end accounts served as a retirement account of sorts,
representing the net earnings an agent could anticipate
collecting after leaving the agency, subject to certain
conditions. By keeping the fraudulent policies active for
6 UNITED STATES V. GAGARIN
four months, conspiring agents were able to pocket the
difference between their advanced compensation and the
premiums they paid on the policies. During the course of
this conspiracy, the conspirators submitted about
700 fraudulent applications, although not all applications
resulted in issued policies.
To convince AIL of the legitimacy of the fraudulent
policies, the conspirators forged electronic signatures on the
insurance applications and gave other identifying
information of the purported applicants. The conspirators
also misrepresented information about the applicants on the
insurance applications to increase the likelihood that AIL
would grant a policy. When AIL made phone calls to verify
the applicant’s identity, the conspirators, including Gagarin,
would impersonate the purported applicant from dozens of
cell phones purchased for that purpose. When AIL requested
a medical examination to determine eligibility for insurance,
the conspirators engaged in a variety of tactics to accomplish
the medical examination, including creating fake drivers’
licenses to impersonate applicants during the medical
examinations. Halali also encouraged agents to sign up
friends and family members for fraudulent policies by
offering them the opportunity to get a free medical exam.
When Gagarin was not managing JFA’s San Jose office
in Halali’s absence, her day-to-day responsibilities included
selling policies for AIL and supervising certain agents within
the office. On several occasions, Gagarin submitted
insurance applications that falsely listed these agents as the
“writing agent”—the agent who had executed the policy.
Because the policy would then be registered officially in
those agents’ names, Gagarin would ask them to reimburse
her for the advanced commissions and bonuses they were
paid on those policies.
UNITED STATES V. GAGARIN 7
In September 2011, AIL received an electronic insurance
application from Melissa Gilroy, Gagarin’s cousin.
Although not listed as the writing agent, by all accounts
Gagarin was the agent who executed and submitted the
application. The application contained false information
about Gilroy’s employment status, salary, and the nature of
her relationship with the intended beneficiary. Although the
application contained Gilroy’s electronic signature
indicating that she was the payor of the policy, the bank
account connected to the policy actually belonged to Steven
Nguyen—the brother of an admitted co-conspirator in the
scheme—and was later replaced by a bank account held in
Gagarin’s name. Elsewhere, the application contained
Gilroy’s electronic signature, purportedly certifying that all
information in the application was true and correct to the best
of her knowledge. The requested policy coverage was for
more than $300,000, at a monthly premium of $236.
Pursuant to a grant of immunity, Gilroy testified at trial
that she had asked her cousin Gagarin to “sign [her] up for a
policy” after experiencing a health scare. Gilroy further
testified that she had asked Gagarin to state falsely that
Metro PCS was her place of employment because she
worried she would be denied insurance if AIL knew she was
unemployed. At the same time, Gilroy testified that she had
intended to pay for the policy herself and never asked
Gagarin to pay for it through anyone else’s bank account.
Nor had she asked Gagarin to lie about the nature of her
relationship to the named beneficiary. Gilroy also stated that
she never discussed the type of coverage, the coverage
amount, or the premium amount with Gagarin. Although she
had previously worked for AIL for a few months, she stated
that she was not familiar with AIL’s new electronic
application process and that she had never seen the
8 UNITED STATES V. GAGARIN
application in question, let alone typed or otherwise
electronically signed her name on it.
In December 2014, a grand jury indicted five people—
Benham Halali, Ernesto Magat, Kraig Jilge, Karen Gagarin,
and Alomkone Soundara—on charges of conspiracy to
commit wire fraud under 18 U.S.C. § 1349; wire fraud under
18 U.S.C. § 1343; and aggravated identity theft under
18 U.S.C. § 1028A. Jilge and Soundara pleaded guilty
pursuant to a cooperation agreement, while Halali, Magat,
and Gagarin went to trial. At trial, the jury found Halali,
Magat, and Gagarin guilty of all charges. Gagarin was found
guilty of fourteen counts of wire fraud, including Count 10
in connection with the Gilroy insurance application. The
Gilroy application also was the basis for Gagarin’s Count 24
conviction for aggravated identity theft.
Gagarin filed a post-trial motion for a judgment of
acquittal, pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, contending that insufficient evidence
supported her wire fraud conviction under Count 10 and her
aggravated identity theft conviction under Count 24. The
district court denied the motion on both counts.
At sentencing, the district court concluded that a three-
level sentencing enhancement for having a “manager or
supervisor” role applied to Gagarin on the underlying fraud
counts, pursuant to § 3B1.1(b) of the United States
Sentencing Guidelines. Finding, nonetheless, that Gagarin
was “far less culpable than the other two,” the court
sentenced her to only 12 months of incarceration for the
conspiracy and fraud counts. In addition, the court
sentenced Gagarin to the mandatory minimum 24 months for
the aggravated identity theft conviction, to run consecutively
with the 12-month sentence, for a total of 36 months in
prison.
UNITED STATES V. GAGARIN 9
The district court also held Gagarin jointly and severally
liable with Halali and Magat for restitution to AIL for its
losses, which the court assessed at $2,837,791.93,
representing the total amount of advances AIL had paid out
to the conspirators, less the money AIL had already
recovered.
In this timely appeal, Gagarin challenges the district
court’s denial of her post-trial motion for acquittal on the
aggravated identity theft count, the court’s imposition of the
three-level sentencing enhancement on the fraud claims, and
the court’s order of restitution. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II
We review de novo a district court’s denial of a Rule 29
motion for a judgment of acquittal. United States v. Grovo,
826 F.3d 1207, 1213 (9th Cir. 2016). Upon a defendant’s
motion, the court “must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a). In determining whether
evidence was insufficient to sustain a conviction, we
consider whether, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Here, we consider whether, viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of aggravated
identity theft beyond a reasonable doubt. In relevant part,
“[w]hoever, during and in relation to any felony violation
enumerated in subsection (c),” including wire fraud,
10 UNITED STATES V. GAGARIN
“knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person” is
guilty of aggravated identity theft. 18 U.S.C. § 1028A(a)(1).
Gagarin claims that three essential elements were not
satisfied, contending that (1) she did not “use” a means of
identification “during and in relation to” the commission of
wire fraud under the terms of the statute, (2) she did not act
“without lawful authority,” and (3) she did not use the means
of identification of “another person.” We review questions
of statutory interpretation de novo. United States v. Osuna-
Alvarez, 788 F.3d 1183, 1185 (9th Cir. 2015) (per curiam).
The parties dispute, as a threshold matter, whether a rational
trier of fact could have concluded that, contrary to Gilroy’s
testimony, Gilroy never requested Gagarin’s help applying
for insurance. We do not resolve this dispute because,
assuming arguendo that any rational trier of fact would have
determined that Gilroy did make such a request, we conclude
nonetheless that sufficient evidence supports each element
of the offense.
A
After oral arguments in this appeal, another panel of our
court addressed the meaning of “use” under the aggravated
identity theft statute. See United States v. Hong, 938 F.3d
1040, 1049–51 (9th Cir. 2019). Drawing on previous
treatment of this term in the context of § 1028A by the First
and Sixth Circuits, we held in Hong that the owner of several
massage and acupuncture clinics did not “use” a means of
identification when, in order to fraudulently qualify for
Medicare reimbursement, he merely misrepresented the
nature of treatment that actual patients of his received. Id. at
1051. We reasoned that “[n]either Hong nor the physical
therapists [complicit in his scheme] ‘attempt[ed] to pass
themselves off as patients.’” Id. (quoting United States v.
UNITED STATES V. GAGARIN 11
Berroa, 856 F.3d 141, 156 (1st Cir. 2017)). Nor did they
“‘purport[] to take some other action on another person’s
behalf’ through impersonation or forgery.” Id. at 1051 n.8
(quoting United States v. Valdez-Ayala, 900 F.3d 20, 35 (1st
Cir. 2018)). As a result, the defendant did not “use” a means
of identification “during and in relation to” his commission
of health insurance fraud. Id. at 1051. In reaching this
holding, Hong relied on a line of cases from the Sixth Circuit
which that court has summarized as establishing that “[t]he
salient point is whether the defendant used the means of
identification to further or facilitate” the predicate felony for
the aggravated identity theft charge. United States v.
Michael, 882 F.3d 624, 627–28 (6th Cir. 2018)
(summarizing the circuit’s approach). 1
Here, Gagarin purported to take action on behalf of her
cousin Melissa Gilroy, and in so doing used Gilroy’s identity
to further the fraudulent insurance application. As Gilroy
testified, Gilroy never asked Gagarin to sign an insurance
application in her name, nor did the two ever discuss
specifics, such as the type or amount of coverage Gilroy
wanted or the premium she would be willing to pay. Instead,
they discussed in a general sense Gilroy’s desire that
Gagarin help her find an insurance policy, and Gilroy never
saw, let alone signed, the particular application that was
submitted to AIL. Viewing the facts in the light most
favorable to the prosecution, Nevils, 598 F.3d at 1163–64,
the inescapable inference is that Gagarin forged Gilroy’s
signature in two places on that application. The application
1
In Michael, the Sixth Circuit held that the defendant “used” a
means of identification when he “fashion[ed] a fraudulent submission
out of whole cloth.” 882 F.3d at 629. It noted that, if he had merely
“inflated the amount of drugs he dispensed, the means of identification
. . . would not have facilitated the fraud.” Id.
12 UNITED STATES V. GAGARIN
contained falsehoods and constituted the basis of Gagarin’s
Count 10 wire fraud conviction, which is unchallenged on
appeal. At the same time, Gagarin’s forgery of Gilroy’s
signature falsely conveyed the impression that Gilroy herself
certified that “the answers set forth above are full, complete
and true to the best of my knowledge and belief.”
Unlike Hong, in which the defendant submitted
documents about his own eligibility for certain benefits,
938 F.3d at 1049–51, Gagarin “attempt[ed] to pass [herself]
off” as her cousin through forgery and impersonation. Id.
at 1051; see also United States v. Blixt, 548 F.3d 882, 886
(9th Cir. 2008) (holding “that forging another’s signature
constitutes the use of that person’s name and thus qualifies
as a ‘means of identification’ under 18 U.S.C. § 1028A”).
As our sister circuits have recognized, “the use of another
person’s means of identification makes a fraudulent claim
for payment much harder to detect,” United States v.
Medlock, 792 F.3d 700, 707 (6th Cir. 2015) (quoting United
States v. Abdelshafi, 592 F.3d 602, 610 (4th Cir. 2010)), and
Gagarin’s forgery of her cousin’s signature did just that by
obscuring her own role in the fraudulent application. Her
use of Gilroy’s means of identification was thus central to
the fraud and “furthered and facilitated” its commission. For
these reasons, we hold that Gagarin’s actions constituted
“use” under the meaning of the aggravated identity theft
statute.
B
Gagarin also contends that she did not act “without
lawful authority,” a required element of aggravated identity
theft. We disagree. We have held that “despite its title,
§ 1028A does not require theft as an element of the offense.”
Osuna-Alvarez, 788 F.3d at 1185. We have further held that
§ 1028A’s prohibition of the use of another person’s means
UNITED STATES V. GAGARIN 13
of identification “without lawful authority” “clearly and
unambiguously encompasses situations . . . where an
individual grants the defendant permission to possess his or
her means of identification, but the defendant then proceeds
to use the identification unlawfully.” Id.
Gagarin acknowledges that, in light of Osuna-Alvarez,
even if Gilroy consented to the submission of the insurance
application, this would not mean that Gagarin had “lawful
authority.” Gagarin argues that, in order to show that she
acted “without lawful authority,” the Government must
show that her use of the means of identification was “itself
illegal.”
We disagree. Whether a particular use was “itself
illegal” relates to the degree of connection between the use
of the identity and the predicate felony. But the statute
already contains language about the required nexus: the use
must be “during and in relation to” specified unlawful
activity. Here, for the reasons stated above, Gagarin used
Gilroy’s identity during and in relation to the wire fraud that
Gagarin does not challenge occurred here. Gagarin has not
shown that use “without lawful authority” required more in
this case.
C
Next, Gagarin invites us to adopt the Seventh Circuit’s
interpretation of “another person.” The Seventh Circuit has
construed the phrase “another person” in the aggravated
identity theft context to mean “a person who did not consent
to the use of the ‘means of identification.’” United States v.
Spears, 729 F.3d 753, 758 (7th Cir. 2013) (en banc). The
Seventh Circuit found ambiguous the question of whether
“another person” refers to a “person other than the
defendant” or a “person who did not consent to the
14 UNITED STATES V. GAGARIN
information’s use” and therefore resorted to several tools of
statutory interpretation to resolve the perceived ambiguity.
Id. at 756–58. It was concerned that a broad construction of
the phrase “would convert most identity fraud into identity
theft and add a mandatory, consecutive, two-year term to
every conviction,” even as it acknowledged that § 1028A’s
abbreviated list of predicate offenses “is one reason why
§ 1028A carries a harsher sentence” than the identity fraud
statute. Id. at 757. The Seventh Circuit further cited to the
statutory caption—Aggravated Identity Theft—and the Rule
of Lenity to support its conclusion that “another person”
applies only to a person who did not consent to the
information’s use. Id. at 756–58.
Gagarin argues that because Gilroy requested that
Gagarin file an insurance application for her, under Spears
the “another person” element of aggravated identity theft is
not satisfied here. 2 But following Spears to so hold would
conflict with our precedent in Osuna-Alvarez. Interpreting
“another person” to mean “a person who did not consent to
the use of the means of identification” contradicts our
holding that, “regardless of whether the means of
identification was stolen or obtained with the knowledge and
2
In United States v. Maciel-Alcala, we considered another aspect of
the term “another person”—specifically, whether “another person”
“encompass[es] both living and deceased persons.” 612 F.3d 1092,
1100–01 (9th Cir. 2010). We concluded that it applies to either “so long
as the person is an actual person.” Id. at 1101 (citing Flores-Figueroa v.
United States, 556 U.S. 646, 654 (2009), which referred to “another
person” as a “real person” in determining the scope of § 1028A’s
“knowledge” requirement); see also United States v. Doe, 842 F.3d
1117, 1119–20 (9th Cir. 2016) (“To prove a violation of § 1028A, the
Government must prove . . . [t]he defendant knew the means of
identification belonged to a real person . . . .”). Gagarin does not dispute
that Gilroy is covered by this aspect of what it means to be “another
person.”
UNITED STATES V. GAGARIN 15
consent of its owner, the illegal use of the means of
identification alone violates § 1028A.” Osuna-Alvarez,
788 F.3d at 1185–86. Under the Seventh Circuit’s
construction, that case would have been wrongly decided,
because it affirmed the defendant’s conviction despite the
fact that the defendant had permission to use his brother’s
passport. See id. 3
Nor are we convinced by the interpretive analysis of
Spears on its own terms. The phrase “another person” does
not appear particularly ambiguous on its face, especially
when we have already determined the phrase refers to
another “actual person.” Maciel-Alcala, 612 F.3d at 1101.
The plain reading of “another person” seems to us to be an
actual “person other than the defendant.” Contra Spears,
729 F.3d at 756 (rejecting this reading). Since “[a] statute’s
caption . . . cannot undo or limit its text’s plain meaning,”
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
242 (2004), § 1028A’s caption of “Aggravated Identity
Theft” does not alter the plain meaning of “another person.”
Recourse to the Rule of Lenity is not necessary because
“another person” is unambiguous.
In summary, even if Gagarin had Gilroy’s consent, we
follow our circuit precedent to hold that Gagarin used the
3
In Osuna-Alvarez, we cited the panel opinion in Spears, which was
vacated by the Seventh Circuit’s en banc decision, as consistent with our
holding regarding “without lawful authority.” See 788 F.3d at 1185. We
did not, however, indicate that the Spears en banc opinion was consistent
with our holding. Today we recognize that it would not be workable to
adopt both the Spears en banc interpretation of “another person” and the
Osuna-Alvarez interpretation of “without lawful authority.” That the
cases interpreted different words in the statute cannot obscure that
Spears made available a consent defense that Osuna-Alvarez squarely
rejected.
16 UNITED STATES V. GAGARIN
means of identification of “another person” by using the
identification of another “actual person.”
III
Gagarin challenges the district court’s application of a
three-level “manager or supervisor” role sentencing
enhancement, pursuant to § 3B1.1(b) of the United States
Sentencing Guidelines. “A mistake in calculating the
recommended Guidelines sentencing range is a significant
procedural error that requires us to remand for
resentencing.” United States v. Munoz-Camarena, 631 F.3d
1028, 1030 (9th Cir. 2011). “[A]s a general rule, a district
court’s application of the Sentencing Guidelines to the facts
of a given case should be reviewed for abuse of discretion.”
United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (en banc), cert. denied, 138 S. Ct. 229 (2017).
Although “[i]t is not necessary that the district court make
specific findings of fact to justify the imposition of the role
enhancement,” there must be evidence in the record to
support the enhancement. United States v. Holden, 908 F.3d
395, 401 (9th Cir. 2018) (quoting United States v. Whitney,
673 F.3d 965, 975 (9th Cir. 2012)), cert. denied, 139 S. Ct.
1645 (2019).
To qualify for a three-level sentencing enhancement
under § 3B1.1(b), a defendant must have managed or
supervised one or more other “participants” in an extensive
criminal activity. 4 United States v. Gadson, 763 F.3d 1189,
1222 (9th Cir. 2014). A participant is a person “who [is]
criminally responsible for the commission of the offense, but
4
Gagarin does not dispute that the conspiracy to defraud AIL
involved five or more participants or was otherwise extensive, as
required for § 3B1.1 to apply.
UNITED STATES V. GAGARIN 17
[who] need not have been convicted.” Id. (internal quotation
marks and citation omitted). In determining by a
preponderance of the evidence whether the enhancement
applies, the district court considers factors such as:
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the fruits
of the crime, the degree of participation in
planning or organizing the offense, the nature
and scope of the illegal activity, and the
degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1 cmt. n.4; Gadson, 763 F.3d at 1222. In
particular, “there must be evidence that the defendant
exercised some control over others involved in commission
of the offense [or was] responsible for organizing others for
the purpose of carrying out the crime.” Gadson, 763 F.3d at
1222 (quoting United States v. Riley, 335 F.3d 919, 929 (9th
Cir. 2003)). The role enhancement cannot apply if the
defendant and the other participant are merely “co-equal
conspirators.” Holden, 908 F.3d at 402.
The district court did not abuse its discretion because
“evidence in the record supports an inference that [Gagarin]
exercised the requisite degree of control” over at least one
criminally responsible participant, Reza Zabihi. Gadson,
763 F.3d at 1222. There is no dispute that Zabihi, who joined
the San Jose office of JFA as an intern a few months before
the initiation of the conspiracy, was a criminally responsible
participant in the fraudulent scheme. At the time of the
offenses, Zabihi served as a sales agent of AIL policies and
as an unofficial personal assistant to Halali, even as Zabihi
18 UNITED STATES V. GAGARIN
held the “joke” title of HR manager. On many occasions,
Zabihi complied with Halali’s instructions to “Go get me
two free accounts,” which Zabihi knew meant unused bank
accounts that could be used to pay fraudulent policies.
Although Zabihi principally answered to Halali, Gagarin
ran the San Jose office when Halali was absent and was thus
in charge of Zabihi during those times. That both Gagarin
and Zabihi took instructions from Halali does not mean that
they were “co-equal conspirators.” See U.S.S.G. § 3B1.1
cmt. n.4 (“There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal
association or conspiracy.”); see also Holden, 908 F.3d
at 402–03 (overturning the imposition of a sentencing
enhancement where the district court expressly determined
that the only two conspirators were “co-equal” but
nonetheless impermissibly imposed a role enhancement). In
addition to running the office in Halali’s place, Gagarin also
guided Zabihi through actions to further the conspiracy. On
at least one occasion, she instructed Zabihi to “give [her] two
bank accounts” for use in paying premiums on fraudulent
policies. Zabihi also testified that he gave Gagarin Google
Voice phone numbers for her to use on applications as the
numbers for fake insurance applications. Cross-examination
of Zabihi, which showed that he had neglected to inform
investigators of Gagarin’s role in the conspiracy on multiple
occasions, also may have created a reasonable inference that
Zabihi’s testimony was less than forthcoming about the
extent of Gagarin’s involvement. On these bases, enough
evidence in the record existed for the district court to infer,
by a preponderance of the evidence, that Gagarin exercised
control over Zabihi, a criminally responsible participant in
the conspiracy. Gadson, 763 F.3d at 1222. We hold that the
district court did not abuse its discretion and commit
UNITED STATES V. GAGARIN 19
significant procedural error by imposing a three-level
“manager or supervisor” enhancement.
IV
The legality of a restitution order is reviewed de novo,
United States v. Galan, 804 F.3d 1287, 1289 (9th Cir. 2015),
as is the district court’s “valuation methodology,” United
States v. Berger, 473 F.3d 1080, 1104 (9th Cir. 2007). If
“the order is within statutory bounds,” then the restitution
calculation is reviewed for abuse of discretion, with any
underlying factual findings reviewed for clear error. Galan,
804 F.3d at 1289. We also review a district court’s decision
to impose joint and several liability for abuse of discretion.
United States v. Booth, 309 F.3d 566, 576 (9th Cir. 2002).
A
Under the Mandatory Victims Restitution Act (MVRA),
which applies “in all sentencing proceedings for convictions
of . . . an offense against property under this title . . .
including any offense committed by fraud or deceit,”
18 U.S.C. § 3663A(c)(1)(A)(ii), a court must order
restitution to each victim in the full amount of the victim’s
losses, 18 U.S.C. § 3664(f)(1)(A). Because “[t]he purpose
of restitution is to put the victim back in the position he or
she would have been but for the defendant’s criminal
conduct,” United States v. Gossi, 608 F.3d 574, 581 (9th Cir.
2010), the “amount of restitution is limited to the victim’s
‘actual losses’ that are a direct and proximate result of the
defendant’s offense,” United States v. Thomsen, 830 F.3d
1049, 1065 (9th Cir. 2016) (quoting United States v. Eyraud,
809 F.3d 462, 467 (9th Cir. 2015)). Actual loss represents
the difference between “(1) the loss [the victim] incurred
because of the unlawful conduct, [and] (2) the loss the
[victim] would have incurred had [defendant] acted
20 UNITED STATES V. GAGARIN
lawfully.” United States v. Bussell, 504 F.3d 956, 965 (9th
Cir. 2007).
A district court is to resolve disputes as to the proper
amount of restitution by a preponderance of the evidence.
18 U.S.C. § 3664(e). Although the Government bears the
initial burden of proving the loss amount, “[t]he question of
who bears the burden for establishing a right to statutory
offset is . . . left to the court’s determination of what ‘justice
requires.’” United States v. Crawford, 169 F.3d 590, 593 n.2
(9th Cir. 1999); see 18 U.S.C. § 3664(e) (for matters other
than proving the loss amount or the defendant’s financial
resources, the burden “shall be upon the party designated by
the court as justice requires”). For that reason, we have
upheld a restitution order where “it appears that the district
court placed this burden on the defendant.” Crawford,
169 F.3d at 593 n.2; accord United States v. Serawop,
505 F.3d 1112, 1127 (10th Cir. 2007).
Gagarin asserts that the district court employed an
unlawful valuation methodology or at least abused its
discretion by choosing not to deduct the value of
Defendants’ “back-end” accounts from the restitution award.
As described earlier, these accounts contained the ongoing
earnings from commissions not yet paid through advances,
minus the value of any advances that exceeded the agents’
actual earnings, e.g., because the policyholder stopped
paying premiums before the end of the period for which the
advance was made. Agents were permitted to collect from
these back-end accounts upon leaving the company, so long
as they were not fired for cause, their interest had vested, and
payments continued to be made on the policies that the
agents had sold. Gagarin contends that these back-end
accounts were real, vested assets, to which Defendants
would have been entitled had they acted lawfully, and
UNITED STATES V. GAGARIN 21
therefore that the value of the accounts should be deducted
from the restitution amount in accordance with Bussell,
504 F.3d at 965.
There is no indication, however, that the district court
employed an erroneous valuation methodology that focused
on a criterion other than the actual losses of the victim.
Rather, the court chose not to deduct the value of the back-
end accounts because of its conclusion that the accounts
were only “estimates which do not affect the calculation of
the loss here,” relying in part on the conclusions of the
Presentence Report. Since the district court applied the
proper standard, we review its determination of the amount
of loss for only clear error. Galan, 804 F.3d at 1289.
Because “it appears that the district court placed [the]
burden [of establishing the right to a deduction] on the
defendant,” Crawford, 169 F.3d at 593 n.2, Defendants had
to prove by a preponderance of the evidence that they would
have been entitled to the value of the back-end accounts had
they acted lawfully. See Bussell, 504 F.3d at 965. Although
Defendants’ counsel elicited an isolated acknowledgment
that an agent could be paid the value of the back-end
accounts upon termination if “customers continue to pay
premiums” and “if the agent was vested,” the weight of the
evidence characterized the back-end accounts not as actual,
vested entitlements, but rather as projections of the present
value of future commissions, “if all necessary criteria were
met.” Defendants did not show that all necessary criteria
were met. For example, it is far from clear that, had
Defendants not committed the crimes that caused them to be
fired for cause, they would have eventually left AIL in good
standing and would have met the necessary criteria to be paid
from the back-end accounts. See Serawop, 505 F.3d at 1127
(holding that a defendant could not prove entitlement to a
22 UNITED STATES V. GAGARIN
deduction based on speculative assumptions). The district
court did not commit clear error by finding that Defendants
had not met their burden and that the back-end accounts were
“estimates which do not affect the calculation of the loss
here.” As a result, we hold that the district court did not
abuse its discretion by declining to deduct the purported
value of the back-end accounts from the restitution award.
B
Gagarin’s remaining claims lack merit. The MVRA
expressly permits the imposition of joint and several
liability, 18 U.S.C. § 3664(h) (“the court may make each
defendant liable for payment of the full amount of
restitution”), and Gagarin cites no authority that reversed as
abuse of discretion a district court’s imposition of joint and
several liability in this context. Since the “court knew it had
[the] option” to apportion the restitution award among the
Defendants, “but decided not to exercise it,” we decline to
second-guess the court’s decision. Booth, 309 F.3d at 576.
Gagarin’s contention that the restitution schedule is
internally inconsistent is also unavailing. Gagarin relies on
United States v. Holden, in which we vacated and remanded
a restitution order because the restitution schedule’s
requirement of both a “[l]ump sum payment” due
immediately and a schedule of small payments to be made
during the defendant’s period of incarceration was internally
inconsistent. 908 F.3d at 403. But in Holden, the imposition
of installment payments during incarceration was not
contingent, by the schedule’s terms, on non-payment of the
lump sum. The restitution schedule in this case, in contrast,
is implicitly conditional: It specifies that a lump sum
payment is “due immediately,” but that the “balance”—i.e.,
any portion of that single restitution amount that is not in fact
paid “immediately”—is “due . . . in accordance with” an
UNITED STATES V. GAGARIN 23
installment plan. Gagarin contends that the restitution
schedule in Holden used the same “balance due” conditional
language as the district court used here with respect to the
defendant’s post-incarceration payment schedule. But
Holden vacated the restitution schedule on account of the
“unconditional schedule of payments during the period of
incarceration.” Id. at 404 (emphasis added). And unlike in
Holden, where the district court expressly found that the
defendant lacked ability to pay according to the schedule, id.,
here there has been no such finding. We conclude that there
was no error in the district court’s restitution order.
V
For the foregoing reasons, we affirm the aggravated
identity theft conviction, the sentencing enhancement, and
the restitution order.
AFFIRMED.
FRIEDLAND, Circuit Judge, concurring except as to the
penultimate paragraph of Part II.C:
I concur in Judge Gould’s thoughtful opinion as to all
issues but one: I am disinclined to criticize “on its own
terms” the analysis of the unanimous en banc Seventh
Circuit in United States v. Spears, 729 F.3d 753 (7th Cir.
2013).
I agree that Spears’s holding is irreconcilable with this
court’s holding in United States v. Osuna-Alvarez, 788 F.3d
1183 (9th Cir. 2015). I also agree that, under a faithful
application of our court’s precedent, Gagarin’s conviction
must be affirmed. In my view, however, Spears adopts a
24 UNITED STATES V. GAGARIN
reasonable limiting interpretation of a statute that could
otherwise be stretched to cover situations far afield from
what its title says it is about: aggravated identity theft, not
mere identity fraud.
Spears explains that there is a risk, in reading the
ambiguous text of 18 U.S.C. § 1028A too broadly, of
sweeping in conduct involving a “means of identification”
that is hardly stolen from a victim; the identity might, under
some interpretations of the statute, belong even to a willing
participant in the predicate offense. See Spears, 729 F.3d
at 756 (describing an interpretation of the statute that would
cover “every time a tax-return preparer claims an improper
deduction”). By holding that the term “another person”
describes only “a person who did not consent to the use of
the ‘means of identification,’” Spears provides one way to
make sure courts do not “convert most identity fraud into
identity theft and add a mandatory, consecutive, two-year
term to every conviction, even though [the identity fraud
statute] lacks any equivalent sentencing provision.” See id.
at 757–58 (emphases added). Indeed, although our holding
in Osuna-Alvarez is irreconcilable with Spears’s holding,
our later caselaw has, relying on language in § 1028A that
was not analyzed in either of those cases, incorporated
limitations that flow from the same concerns that animated
the Seventh Circuit’s decision in Spears. See United States
v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019) (rejecting a
broad interpretation of the term “use” based on the First
Circuit’s analysis in United States v. Berroa, 856 F.3d 141
(1st Cir. 2017), which in turn relied on Spears).
If this appeal had arisen on a blank slate, I would have
given serious consideration to adopting Spears’s holding.
And for the reasons expressed in Spears, I believe there may
be a need in future cases to adopt interpretations of the
UNITED STATES V. GAGARIN 25
identity theft statute that help prevent it from being read to
impose harsh sentences for offenses that do not actually
involve identity theft. I therefore refrain from criticizing our
sister circuit’s sensible attempt to interpret this puzzling
statute.