Argued: December 7, 2018
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.
Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
S. Determan, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Michael C. Holley, Ronald C. Small, FEDERAL PUBLIC DEFENDER,
Nashville, Tennessee, for Appellant.
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.
LARSEN, CIRCUIT JUDGE.
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
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
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. 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.
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.
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 ...