938 F.3d 757 (6th Cir. 2019)
Decided September 6, 2019
The Sixth Circuit Court of Appeals upheld the United States District Court for the Middle District of Tennessee’s decision in a case where Defendant Monique Ellis was convicted of aggravated identity theft by filing fraudulent tax returns under stolen identities and committing wire fraud.
In 2016, Ellis was indicted for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), (c)(5) and 18 U.S.C. § 2, and wire fraud in violation of 18 U.S.C. § 1343. The scheme involved filing tax returns on the stolen identities of Alabama inmates. Ellis was convicted on all counts at trial and sentenced in 2018, and the district court agreed with the government that the scheme was approximately worth $700,000. Thus, Ellis’ Sentencing guidelines Range for wire fraud was set at 51 to 71 months. The court ultimately sentenced Ellis to 48-months for wire fraud and 24-months for the aggravated identity theft, with three years of supervised release. Additionally, the district court imposed forfeiture of $11,670.00 and restitution of $352,183.20. This appeal followed.
Appellant Ellis contested four rulings of the district court: (1) the inaccurate statements made to the Grand Jury should render her conviction void, (2) the involvement of third-parties in the scheme were not properly considered, (3) the district court erred in its calculation of the amount owed in restitution, and (4) the district court failed to properly enforce the statute of limitations barring suits on acts committed five-years prior to the indictment.
First, the Appellant argued that the district court abused its discretion in denying her motion to dismiss the indictment after an agent provided inaccurate testimony. The Sixth Circuit rejected this argument. Perjury before the grand jury does not allow for immediate dismissal. This decision rests on whether the appellant’s later conviction renders such an error harmless. In this situation, the agent’s testimony misstated where the incriminating evidence was found – on a laptop as compared to in physical form. This statement was later admitted to be inaccurate, but had no substantial influence on the grand jury’s decision due to an overwhelming amount of incriminating evidence submitted. The Sixth Circuit stated this is a settled issue. United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996); United States v. Combs, 369 F.3d 925, 936 (6th Cir. 2004) (“any indictment defect generated by alleged perjured testimony was cured by the jury’s verdict that Combs was guilty of this offense”).
Second, Ellis argued that the district court failed to take in account that other parties were active in the unlawful conduct. The Sixth Circuit affirmed the district court’s ruling, holding that even if the Court agrees that third-parties may have played a role, this does not negate the substantial evidence that incriminates the Appellant.
Next, Ellis claimed that the district court erred by holding her personally responsible for a loss of more than $550,000.00, increasing her guidelines range for sentencing. During trial, the government presented substantial evidence to prove the amount of loss, including: the number of stolen identities, the number of years this scheme was in operation, and the number of tax refunds that were requested and deposited into accounts controlled by the Appellant. The district court was only required to make a reasonable estimate of the loss by a preponderance of evidence. On appeal there has been no showing that this amount was clearly erroneous.
Lastly, Ellis contested that the district court erred when it ordered the restitution amount because it did not properly apply the five-year statute of limitations. This case invoked the Mandatory Victims Restitution Act (“MVRA”), which requires the court to order the defendant to make restitution to the victims of the offense. 18 U.S.C.S.§ 3663A(a)(1). Ellis did not dispute the applicability of MVRA, but instead the time frame the court allowed for restitution. Ellis was indicted in November 2016 for unlawful conduct that lasted from 2008-2012. MVRA sets a time limit on restitution, requiring the indictment to be returned within five-years of the offense. Id. at § 3282(a). Ellis believed that no restitution shall be required for any fraud prior to November 2011, five years prior to November 2016. The Court rejected this argument. The indictment was brought within the five-year statute of limitations, and the last overt act was in furtherance of the same crime alleged in the indictment, lawfully reaching back to 2008. Restitution for all victims was warranted.
Judge Stranch wrote a concurring opinion to warn of the broad application of the MVRA used by the Court. Judge Stranch agreed that in this situation that the restitution was permissible. However, without further clarity, this ruling may encourage indictments without temporal boundaries allowing for restitution that is barred by the statute of limitations.
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