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United States v. Ellis

United States Court of Appeals, Sixth Circuit

September 6, 2019

United States of America, Plaintiff-Appellee,
v.
Monique Annette Ellis, Defendant-Appellant.

          Argued: December 7, 2018

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:16-cr-00236-1-Gershwin A. Drain, District Judge.

         ARGUED:

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          Mark S. Determan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Michael C. Holley, Ronald C. Small, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          Mark S. Determan, S. Robert Lyons, Joseph B. Syverson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Before: NORRIS, STRANCH, and LARSEN, Circuit Judges.

          OPINION

          LARSEN, CIRCUIT JUDGE.

         Over the course of more than four years, Monique Ellis submitted hundreds of false tax returns to the IRS using stolen identities, and she received hundreds of thousands of dollars in fraudulent refunds. When the IRS caught on to Ellis's scheme, she was indicted on eight counts of wire fraud and eight counts of aggravated identity theft. A jury convicted her on all counts. On appeal, Ellis challenges: (1) the district court's denial of her motion to dismiss the indictment; (2) the amount of loss the district court attributed to her for sentencing purposes; (3) the district court's calculation of the amount she owed in restitution; and (4) the ability of the district court to order restitution for conduct that occurred more than five years before the grand jury returned the indictment. But neither the law nor the facts support overturning the district court in any regard. We thus AFFIRM the district court's judgment.

         I.

         In 2012, the IRS began to suspect that Monique Ellis was filing fraudulent tax returns. In June 2012, the IRS searched Ellis's apartment in Antioch, Tennessee. Inside the apartment, agents found personal identifying information-such as names, dates of birth, and social security numbers-handwritten inside notebooks, on printouts from the Alabama Department of Corrections' database, and in a TurboTax database on laptops seized from Ellis's bedroom. All told, agents found the personal identifying information for more than 400 people inside Ellis's apartment. Agents seized two laptops found in Ellis's bedroom; a forensic review of the computers revealed that they had been used to file hundreds of electronic tax returns from 2008 through 2012.

         Four years later, in November 2016, the government sought to indict Ellis. The indictment alleged that Ellis had devised a scheme to submit fraudulent tax returns "[b]eginning no later than in or about January 2012 and continuing through at least in or about February 2012." The indictment charged Ellis with: (1) eight counts of wire fraud for submitting false tax returns using Alabama inmates' identities in January 2012, in violation of 18 U.S.C. § 1343; and (2) eight corresponding counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), (c)(5) and 18 U.S.C. § 2. IRS Special Agent Jason Ward testified before the grand jury, which ultimately returned the indictment on all counts. After the government admitted that some of Agent Ward's statements had been wrong, Ellis moved to dismiss the indictment.[1] The district court denied the motion, finding that "Special Agent Ward's inaccurate statements did not have a substantial influence on the grand jury's decision to indict because of the overwhelming other evidence he presented to the grand jury." Ellis went to trial, and the jury convicted her on all counts.

         Ellis was sentenced in January 2018. At sentencing, Agent Ward testified that the intended loss from Ellis's scheme was approximately $700, 000. This figure included the total amount requested as refunds, not just the amount actually refunded. The district court agreed with the $700, 000 calculation. This triggered a fourteen-step increase in offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(H), which applies to intended losses between $550, 000 and $1, 500, 000. The resulting Guidelines range for the wire fraud counts was 51 to 71 months. The district court departed downward and imposed a 48-month sentence for wire fraud and a consecutive, mandatory, 24-month sentence for aggravated identity theft, for a total of 72 months, followed by three years of supervised release.

         In March 2018, the district court held a separate hearing to determine the appropriate forfeiture and restitution amounts. The district court ordered forfeiture of $11, 670, which was the total of the eight tax returns for which Ellis had been indicted and convicted; Ellis did not object. The government asked the district court to order approximately $350, 000 in restitution as well. Ellis objected and argued that the government had not presented evidence that all of the refunds used to calculate that amount were part of the same scheme; she also argued that some of that amount was tied to conduct that occurred outside of the statute of limitations. The district court overruled Ellis's ...


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