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United States v. Gandy

United States Court of Appeals, Sixth Circuit

June 7, 2019

United States of America, Plaintiff-Appellee,
v.
Christopher A. Gandy (17-2020); Anthony R. Gandy (18-1106); Sharon Gandy-Micheau (18-1137), Defendants-Appellants.

          Argued: May 1, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:15-cr-20338-Judith E. Levy, District Judge.

         ARGUED:

          Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020.

          Deborah A. Solove, Westerville, Ohio, for Appellant in 18-1106.

          Daniel R. Hurley, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

         ON BRIEF:

          Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020.

          Deborah A. Solove, Westerville, Ohio, for Appellant in 18-1106.

          Andrew P. Avellano, Columbus, Ohio, for Appellant in 18-1137.

          Daniel R. Hurley, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.

          OPINION

          RONALD LEE GILMAN, Circuit Judge.

         Anthony Gandy, his brother Christopher Gandy, their sister Sharon Gandy-Micheau, and Sharon's husband Durand Micheau sought tax refunds for 21 separate fictitious trusts that they created. The defendants' scheme was to submit fictitious tax returns to the Internal Revenue Service (IRS) for the purpose of claiming refunds for nonexistent excess withholding. They were successful in obtaining refund checks based upon many of these returns, receiving over $360, 000 in ill-gotten money. The defendants were convicted of several crimes, including mail fraud, conspiracy to commit mail fraud, aggravated identity theft, conspiracy to commit identity theft, and illegal monetary transactions.

         Anthony, Christopher, and Sharon now appeal, arguing that (1) insufficient evidence supports Sharon's convictions, (2) insufficient evidence supports the finding that Anthony and Sharon knew that they were using the names and personal identifying information of real people, (3) Anthony and Christopher were deprived of the effective assistance of counsel because their state-bar grievances against their attorneys created conflicts of interest, (4) the indictment was duplicitous regarding the aggravated-identify-theft charges and the district court failed to cure this defect by issuing a specific unanimity jury instruction, (5) the court's aiding-and-abetting jury instruction was legally incorrect, and (6) insufficient evidence supports the court's aiding-and-abetting jury instruction. For the reasons set forth below, we AFFIRM all aspects of the district court's judgment.

         I. BACKGROUND

         A. Factual background

         The defendants created trust documents using their own names, their friends' names, or the names of identity-theft victims as trustees, successor trustees, and beneficiaries. They then obtained an Employer Identification Number (EIN) from the IRS for each trust. Using these EINs, they submitted fictitious IRS Form 1041s, the form used for income-tax returns for estates and trusts. These tax returns falsely claimed that substantially more income had been withheld from each trust than was due in tax liability, and that the trust was accordingly due a refund in the amount of the excess withholding.

         On at least 14 occasions, the IRS relied on the veracity of the signed returns, which were submitted under penalty of perjury, and issued refund checks to the fictitious trusts. The checks were generally mailed to Post Office (P.O.) Boxes that the defendants had obtained. Once they received the checks, the defendants deposited the funds into bank accounts that they had created for the trusts, or at supermarkets or check-cashing businesses in Detroit that charged high fees. All told, the defendants requested $1, 425, 548 in refunds, the IRS issued refund checks totaling $939, 103.05, and the defendants netted $360, 469.05 from those checks. The defendants were not able to obtain the full $939.103.05 because several of the banks closed the trust accounts before the defendants were able to withdraw all the funds. In addition, the IRS seized two checks sent to a P.O. Box at a UPS store because the owner of the store alerted the authorities about the suspicious checks.

         The defendants used their own identities in the early days of the scheme. In June 2012, for example, a Form 1041 was submitted to the IRS on behalf of the Sharon Trust Fund. Sharon's sister Pamela Gandy signed the return and sought a refund of $33, 856 for excess withholding. Sharon was listed as the trustee of the fund and the return was mailed by Anthony. Furthermore, the return address was listed as a P.O. Box that was obtained by Sharon using her real driver's license. Sharon also used her real identification to cash the refund check at a supermarket in Detroit.

         The defendants then recruited family, friends, and acquaintances to lend their personal information for use in the scheme. For instance, Christopher and his fiancée, Deyana Wagner, submitted a return on behalf of a fictitious C&D Trust. They had the check sent to a P.O. Box rented by Anthony, and then cashed the $35, 051.80 check at a check-cashing store in Detroit.

         Similarly, Anthony recruited his longtime girlfriend, Sydona Robinson, to submit a fraudulent return. After Anthony established a trust in Robinson's name using her real personal identifying information, he submitted a Form 1041 that claimed a refund of $66, 629. Anthony named his friend Derrick McCoy as a trustee and used a P.O. Box that he controlled as the return address. McCoy and Anthony deposited the refund check, which Robinson claimed that she never saw, into an account at Fifth Third Bank.

         Anthony also had McCoy set up a fictitious trust. A Form 1041, submitted by Anthony, claimed that McCoy's trust was due a refund of $38, 986. The refund check was mailed to another P.O. Box controlled by Anthony. McCoy and Anthony cashed the check in Detroit, paying a $1, 500 fee. According to McCoy, Anthony kept almost all the money for himself.

         Anthony similarly brought his friend Darry Poole into the scheme, falsely telling Poole that he would help Poole with his taxes. Instead, Anthony used Poole's personal information to create the Darry Poole Trust, and he then submitted a Form 1041 on behalf of the trust. Anthony listed himself as the trustee and claimed that the trust was due a $34, 888 refund for excess withholding. The IRS sent a refund check for that amount to a P.O. Box controlled by Anthony, who cashed the check without giving any of the funds to Poole.

         Anthony also induced his friend Aaron Maddox to participate in the scheme. Maddox testified that Anthony had him rent a P.O. Box, which was listed as the return address for several trusts. Anthony prepared the paperwork to set up a trust in Maddox's name and claimed a refund of $58, 386 for the trust, but no funds were ever sent by the IRS. Maddox's name was used for other fictitious trusts as well, including the Capital One Investment Trust and the Aspen Investment Trust.

         Christopher also recruited friends into the scheme. For instance, he falsely told his friend Brandon Bradley that he could help Bradley get government money to repair houses in Detroit. Bradley gave Christopher his personal information, and Christopher created the Brandon Bradley Trust, seeking a refund of $34, 231. They received the refund check and cashed it at a local check-cashing store, paying a fee of between $4, 000 and $5, 000. Bradley kept $5, 000 for himself and Christopher kept the rest of the money.

         Christopher and Anthony jointly recruited Shanel Seay, who had been friends with both brothers for some time, into the fraudulent scheme. The brothers set up a trust in Seay's name and submitted a return seeking a refund of $36, 550. No refund was issued for this trust, but the brothers found other ways for Seay to help with the scheme. For example, they named Seay as the trustee for a fictitious Deshawntia Moorer Trust. The Gandy brothers successfully obtained a refund check for this trust, and Seay opened a bank account for the trust and deposited the refund check into the bank account. Christopher gave Seay the documents needed to open the bank account and deposit the check, and Christopher and Sharon both accompanied Seay to the bank. Shortly thereafter, Anthony and Christopher directed Seay to withdraw the money from the trust's bank account in a series of withdrawals.

         The defendants also used Seay to help with another fraudulent trust. Christopher falsely told his friend Randi Hardy that he could help her get money to promote her music career. He then used Hardy's personal information to set up a fictitious trust and filed a return for the trust, seeking a refund of $83, 597. Hardy denied signing the return, but she did admit to helping cash the refund check. The defendants had Seay accompany Hardy and Hardy's cousin, who was listed as the trustee, to the bank to deposit the refund check. Seay opened a ...


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