United States v. Dorothy Anderson ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4433
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOROTHY LEE ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-00837-JFA-1)
Argued: May 17, 2013 Decided: July 10, 2013
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wilkinson wrote the
majority opinion, in which Judge Duncan joined. Judge Wynn
wrote a dissenting opinion.
ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Winston D.
Holliday, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:
Defendant Dorothy Lee Anderson was convicted of twenty
counts of various crimes for using stolen identities to
fraudulently obtain federal income tax refunds. Anderson now
challenges the jury’s guilty verdict on four of those counts, as
well as the district court’s application of two sentencing
enhancements. However, finding sufficient evidence to support the
convictions and concluding that the district court did not err
in applying either of the enhancements, we affirm.
I.
In late 2007, Anderson took steps to establish a tax
preparation business under the name of “DL Anderson Tax
Service.” She applied to the IRS for authorization to
electronically file tax returns and was issued an Electronic
Filing Identification Number (“EFIN”) for her business and a
Preparer’s Tax Identification Number (“PTIN”) for herself as a
paid tax preparer. Anderson used the EFIN and PTIN throughout
2008 to submit returns for the 2007 tax year.
In February 2009, the IRS interviewed Anderson as part of
an investigation into certain returns filed by her business
putatively on behalf of paid clients. Each return in question
indicated that the refund due was to be deposited into one of
several bank accounts controlled by Anderson, and each named
2
Anderson as a third-party designee authorized to receive private
tax information relating to the filer. When asked about these
returns, Anderson stated that her employee, Tamika Davis,
prepared them, but an IRS agent assigned to the case later
testified that he could find “no evidence of an existence of
that person.” J.A. 55.
On September 21, 2011, a federal grand jury in the District
of South Carolina charged Anderson in a twenty-one count
superseding indictment with nineteen counts of submitting false,
fictitious, or fraudulent claims against the United States, in
violation of 18 U.S.C. § 287; one count of embezzling public
money or property, in violation of 18 U.S.C. § 641; and one
count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A. The indictment alleged that Anderson stole the
identities of nineteen individuals and used their personal
information to file fraudulent tax returns, with refund payments
routed to accounts under her control.
At trial, the government presented testimony by fourteen
witnesses whose names appeared on tax returns corresponding to
Counts 1, 2, 4-8, 11-14, and 16-18 of the indictment, each filed
using Anderson’s EFIN and PTIN. The witnesses testified that
they did not authorize Anderson to prepare the returns and that
they did not receive any refund payments in connection with the
3
filed returns. Moreover, they indicated that much of the
personal information listed on the returns was incorrect.
The government also called seven other witnesses, among
them Ronald Cooley, President and CEO of Brookland Federal
Credit Union (“Brookland”); Russell Sciandra, an IRS Special
Agent; and Tracy Trivison, General Manager of Receivables
Management Corporation (“RMC”), Anderson’s former employer.
Cooley testified that Anderson controlled multiple accounts at
Brookland and identified certain deposits made by the United
States Treasury into those accounts. Sciandra linked the
Treasury deposit amounts to refunds claimed on tax returns filed
using Anderson’s EFIN and PTIN. And Trivison testified that,
while working for RMC, Anderson had access to the names,
addresses, social security numbers, and dates of birth of some
of the individuals whose tax returns were filed using Anderson’s
EFIN and PTIN.
The jury found Anderson guilty on twenty of the twenty-one
counts charged in the indictment. She was acquitted only on
Count 10, a false claim charge linked to a tax return for which
the refund was deposited into a separate bank account not
referenced on any of the eighteen other returns. The individual
whose name appeared on the return associated with Count 10 did
not testify at trial.
4
In calculating Anderson’s Guidelines sentencing range, the
Presentence Investigation Report (“PSR”) applied two
enhancements now at issue in this appeal, one for the number of
victims involved and another for the amount of loss implicated.
The PSR reported that there were nineteen victims of Anderson’s
crimes, triggering a two-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2), and that the intended loss amount was $437,822,
triggering a fourteen-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1)(H). After accounting for these enhancements, the
PSR arrived at a final Guidelines range of 65 to 75 months’
imprisonment.
Counsel for Anderson raised ten objections to the PSR, none
of which challenged the application of the aforementioned
sentencing enhancements and most of which were resolved prior to
sentencing. Anderson herself also filed a pro se objection
challenging the “entire” PSR, but her statement was directed
primarily at the jury’s finding of guilt and not at the proposed
Guidelines range. She did not raise any specific objection to
either enhancement. At the sentencing hearing, the district
court denied Anderson’s request for a variance, resolved the
outstanding PSR objections -- none of which affected the
advisory Guidelines range -- and sentenced Anderson to 75 months
of incarceration. This appeal followed.
5
II.
Anderson first challenges the sufficiency of the evidence
supporting the jury’s guilty verdict on four of her eighteen
convictions for submitting false or fraudulent claims against
the United States. Although Anderson preserved her objection on
this issue, we note at the outset that the standard for
overturning a jury verdict is a very difficult one to meet: a
conviction will be reversed for insufficient evidence “only if
no reasonable jury could have concluded beyond a reasonable
doubt” that the defendant committed the charged crime. United
States v. Sayles, 296 F.3d 219, 223 n.1 (4th Cir. 2002). On the
other hand, if “substantial evidence” -- that is, direct or
circumstantial evidence “that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt” -- supports a
verdict, it will be upheld. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc); see also United States v.
Stewart, 256 F.3d 231, 249 (4th Cir. 2001). Put otherwise, only
when the prosecution’s failure to prove its case is “clear” will
the defendant prevail in challenging a jury’s guilty verdict.
Burks v. United States, 437 U.S. 1, 17 (1978).
Anderson specifically attacks her convictions on Counts 3,
9, 15, and 19, four counts for which the government did not
present live witness testimony as to the fraudulent nature of
6
the corresponding tax returns. Notwithstanding the jury’s guilty
verdict, Anderson asserts that she is entitled to a judgment of
acquittal because “there is a total absence of evidence” with
respect to the challenged counts. Appellant’s Reply Br. 3. But
her argument is unavailing because the prosecution did present
substantial evidence of her guilt, although that evidence was
not in the form of direct witness testimony about the four
specific returns related to those counts.
It is well settled that the government is not required to
come forward with any particular form of evidence and may
proffer direct or circumstantial evidence to make its case. See
Stewart, 256 F.3d at 249 (citing Glasser v. United States, 315
U.S. 60, 80 (1942)). Here, the prosecution presented significant
circumstantial evidence demonstrating that Anderson was guilty
on Counts 3, 9, 15, and 19, and we therefore affirm her
convictions.
The tax returns associated with the four challenged counts
were remarkably similar to those associated with the fourteen
other counts on which Anderson was also convicted. All eighteen
returns contained Anderson’s EFIN and PTIN -- indicating that
she or someone acting at her instruction prepared the returns --
and each return directed the IRS to deposit the refund due into
one of two accounts controlled by Anderson. As discussed above,
the government presented direct testimonial evidence that
7
fourteen of these eighteen returns contained false information
and were filed without the authorization of the individuals
named therein, none of whom actually received the associated
refunds. That the four other returns contained the same EFIN,
PTIN, and bank account information as these fourteen is ample
circumstantial evidence from which a reasonable jury could have
concluded -- and, here, did conclude -- that Anderson was guilty
beyond a reasonable doubt on Counts 3, 9, 15, and 19.
We need not resolve the question of precisely how many
returns would, in some other case, be necessary to establish
this pattern of fraud. Rather, we need hold only that the
pattern established by direct testimony concerning the fourteen
returns unchallenged on appeal was sufficient circumstantial
evidence to justify the jury’s conclusion that the four other
remarkably similar returns were also false or fraudulent. Faced
with the government’s evidence, Anderson offered no satisfactory
explanation to the jury as to why those remaining returns were
not fraudulent. She was, of course, under no obligation to offer
such an explanation, but her failure to do so raised the risk
that the jury would accept the government’s evidence. See United
States v. Echeverri-Jaramillo, 777 F.2d 933, 938 (4th Cir. 1985)
(quoting McGautha v. California, 402 U.S. 183, 215 (1971)).
It is worth noting that the jury acquitted Anderson on
Count 10, the only count for which the corresponding tax return
8
directed the refund to a bank account not listed on any of the
eighteen other returns. The acquittal indicates that the jury
was not asleep at the wheel in this case but actually did
consider whether the evidence presented by the prosecution -- to
wit, the testimonial evidence and the marked resemblances among
the eighteen tax returns -- established Anderson’s guilt on each
individual count. The jury was convinced by the inculpatory
evidence with respect to eighteen of the charged counts, but not
by the evidence with respect to Count 10. This outcome is not
altogether surprising given that the single return in Count 10
deviated from the pattern displayed by the eighteen other
returns. That the jury apparently recognized and reacted to a
deviation from the pattern only fortifies the conclusion that
the striking conformity to that pattern of the four convictions
at issue here provided a sound basis for the jury’s verdict.
III.
Next, Anderson challenges the district court’s application
of a two-level sentencing enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2)(A) for the number of victims -- nineteen --
involved in this case. As an initial matter, we note that
neither Anderson nor her attorney objected to the PSR’s
application of this enhancement. Therefore, our review is for
plain error.
9
Under the plain-error standard, a defendant “must establish
that the district court erred, that the error was plain, and
that it affected [her] substantial rights.” United States v.
Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation
marks and alterations omitted) (citing United States v. Olano,
507 U.S. 725, 734 (1993)). And even if a defendant meets this
heavy burden, an appellate court has “discretion whether to
recognize the error, and should not do so unless the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Hargrove, 625 F.3d
170, 184 (4th Cir. 2010) (internal quotation marks omitted).
Here, the district court did not commit error -- much less plain
error -- and we therefore affirm its application of the number-
of-victims enhancement.
Pursuant to U.S.S.G. § 2B1.1(b)(2)(A), a defendant is
subject to a two-level sentencing enhancement if convicted of a
theft or fraud offense involving ten or more victims. The
commentary to § 2B1.1 generally defines the term “victim” as
“(A) any person who sustained any part of the actual loss
determined under subsection (b)(1); or (B) any individual who
sustained bodily injury as a result of the offense.” U.S.S.G.
§ 2B1.1 cmt. n.1. However, if an offense “involve[s] means of
identification,” that definition is expanded to include “any
10
individual whose means of identification was used unlawfully or
without authority.” Id. cmt. n.4(E).
Anderson does not dispute that her conviction brings her
within the scope of § 2B1.1(b)(2)(A) standing alone, given that
she was convicted of using the means of identification of
eighteen different individuals to submit fraudulent tax returns.
See Appellant’s Br. 18. She argues, however, that the number-of-
victims enhancement does not apply to her because that
enhancement is based on a “specific offense characteristic,”
U.S.S.G. § 2B1.1(b)(1), and the commentary to a separate
Guidelines provision for aggravated identity theft, U.S.S.G.
§ 2B1.6 cmt. n.2, instructs a court to “not apply any specific
offense characteristic for the . . . use of a means of
identification when determining the sentence for the underlying
offense” if the defendant is also being sentenced for aggravated
identity theft -- as Anderson was here. The identity theft
sentence, so Anderson’s argument goes, is meant to account for
the unlawful use of a means of identification, such that
application of the expanded definition of “victim” in
§ 2B1.1(b)(2)(A) would “double count” the use of the stolen
identities for sentencing purposes. See Appellant’s Br. 18-19.
We decline to embrace Anderson’s reasoning. Like all of our
sister circuits to have considered the issue, we conclude
instead that § 2B1.6 does not preclude a district court from
11
imposing a number-of-victims enhancement in conjunction with a
sentence for aggravated identity theft. See United States v.
Lyles, 2012 WL 5907483, at *5 (6th Cir. 2012) (unpublished);
United States v. Manatau, 647 F.3d 1048, 1057 n.4 (10th Cir.
2011); United States v. Yummi, 408 F. App’x 537, 541 (3d Cir.
2010) (unpublished); see also United States v. Jenkins-Watts,
574 F.3d 950, 961-62 (8th Cir. 2009).
Comment 2 to the aggravated identity theft Guidelines
provision instructs a district court to refrain from applying an
enhancement only if it is triggered by a “specific offense
characteristic for the transfer, possession, or use of a means
of identification.” U.S.S.G. § 2B1.6 cmt. n.2. The most natural
reading of the comment limits its application to enhancements
linked to the nature of the offense, such as the two-level
enhancement found in § 2B1.1(b)(11)(C) that applies if an
offense involved “the unauthorized transfer or use of any means
of identification unlawfully to produce or obtain any other
means of identification.” Applying this “means of
identification” enhancement from § 2B1.1(b)(11)(C) in
conjunction with an aggravated identity theft sentence would, in
fact, augment a defendant’s sentence twice for the same
substantive conduct -- use of a means of identification. Thus,
per Comment 2, an enhancement under § 2B1.1(b)(11)(C) cannot be
imposed alongside a sentence for aggravated identity theft.
12
By contrast, the § 2B1.1(b)(2)(A) enhancement at issue here
looks only to the number of victims of the offense. That the
term “victim” is defined to include the individuals whose means
of identification were used in the crime does not transform
§ 2B1.1(b)(2)(A) into an enhancement triggered by a “specific
offense characteristic for the transfer, possession, or use of a
means of identification.” As the Sixth Circuit has explained,
the number-of-victims enhancement “punishes the impact of the
crime, not the transfer, possession, or use of a means of
identification.” Lyles, 2012 WL 5907483, at *5. As such, the
instructions contained in Comment 2 do not bar the application
of that enhancement here.
IV.
Finally, Anderson challenges the fourteen-level sentencing
enhancement triggered by the PSR’s conclusion that her intended
loss was $437,822. As with the number-of-victims enhancement,
our review here is for plain error because neither Anderson nor
her attorney objected to the PSR’s calculation of the loss
amount or to the district court’s subsequent application of the
corresponding enhancement. After reviewing Anderson’s
contentions, we find no plain error in the district court’s
sentencing decision on this point.
13
Although the PSR states that “[t]he facts of the case
revealed the actual loss amount was $437,822.00,” J.A. 470,
Anderson contends that she is subject to an enhancement only for
the loss of $65,911 that was found by a jury, see Appellant’s
Br. 24-25. However, it is clear that a district court may
consider facts not found by a jury when issuing a sentence
somewhere between the statutory minimum and maximum. See Harris
v. United States, 536 U.S. 545, 566 (2002). 1 Here, the district
judge made a factual finding -- based on the PSR -- that
Anderson’s intended loss amount was $437,822. That finding
triggered an enhancement but did not take Anderson’s sentence
beyond the statutory maximum for her offenses. A sentencing
judge must remain free to make run-of-the-mill factual findings
underlying advisory Guidelines enhancements without eliciting
constitutional concerns. That is all the judge did here, and the
amount-of-loss enhancement was thus permissible.
Anderson next complains that, even if the trial judge was
free to impose an enhancement based on facts not found by a
jury, the government failed to provide sufficient evidence to
1
Anderson asks us to vacate her sentence and remand the
matter in light of the Supreme Court’s grant of certiorari in
United States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011)
(unpublished), cert. granted, 133 S. Ct. 420 (2012) (No. 11-
9335). However, Alleyne involves the application of mandatory
minimum sentences and is not relevant to the advisory Guidelines
enhancement dispute here.
14
support the PSR’s loss calculation of $437,822. Appellant’s Br.
21. But we must reject Anderson’s contention at the outset,
because the government is not required to present evidence
demonstrating the accuracy of facts in a PSR. See United States
v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). When challenging a
PSR, a defendant “has an affirmative duty to make a showing that
the information in the [document] is unreliable, and articulate
the reasons why the facts contained therein are untrue or
inaccurate.” Id. “Without an affirmative showing the information
is inaccurate, the court is ‘free to adopt the findings of the
[PSR] without more specific inquiry or explanation.’” Id.(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.
1990)). Here, Anderson failed to make an affirmative showing
that the loss calculation in the PSR was inaccurate or
unreliable, and her objection to that calculation now must
therefore fail.
Moreover, Anderson’s argument misses the mark for a
separate reason: the record does contain unrebutted evidence
supporting the PSR’s loss calculation. We note as an initial
matter that, for Guidelines sentencing purposes, loss amount is
not limited to the actual loss resulting from the charged
conduct. Rather, the Guidelines indicate that the defendant’s
intended loss is the relevant figure when it exceeds actual
loss, U.S.S.G. § 2B1.1 cmt. n.3(A), and both charged and
15
uncharged conduct may be considered, see U.S.S.G. § 1B1.3(a) &
cmt. background. Moreover, a sentencing court need not precisely
calculate intended loss, as the Guidelines require only “a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).
At trial, the government introduced certain bank statements
from Anderson’s accounts at Brookland, but was not permitted to
introduce evidence that the Treasury deposited $333,403 worth of
tax refunds into those accounts in 2008. The district judge
ruled that the government could introduce evidence of loss
associated with only the nineteen counts charged in this case.
Thus, the jury was not permitted to review the $333,403 figure,
although it is referenced in the record. 2
It is well settled, however, that the ordinary rules of
evidence do not apply in the sentencing phase of a criminal
proceeding. See 18 U.S.C. § 3661; Fed. R. Evid. 1101(d)(3).
Thus, the fact that indications of the total loss amount were
not before the jury did not bar the PSR or the trial judge from
using such evidence to determine Anderson’s sentence. Of course,
in the absence of any objection, the government had no
2
The record also indicates that the IRS was “actually able
to identify some of the refunds as fraudulent and stop them
before they went out.” J.A. 274. Therefore, it is unremarkable
that Anderson’s intended loss amount ($437,822) exceeds the
amount of fraudulent tax refund payments actually deposited into
her accounts ($333,403).
16
obligation to affirmatively establish the total loss amount
stated in the PSR in the first place. See Terry, 916 F.2d at
162. However, the ample evidentiary support for that loss
calculation only bolsters our conclusion that the district court
did not err -- much less commit plain error -- when it applied
the fourteen-level sentencing enhancement in this case.
V.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
17
WYNN, Circuit Judge, dissenting:
To prove a violation 18 U.S.C. § 287, the government bears
the burden of establishing “two elements: 1) making or
presenting a claim to any agency of the United States 2) knowing
such claim to be false, fictitious, or fraudulent.” United
States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992). There is no
dispute that filing a tax return for a refund constitutes
“presenting a claim” to the IRS. The key issue here is whether
the government presented sufficient evidence to show that each
of the tax returns in this matter supporting an individual count
under 18 U.S.C. § 287 was “false, fictitious, or fraudulent.”
For the fourteen returns supporting Counts 1, 2, 4-8, 11-
14, and 16-18, the government presented not only the returns but
also the persons named on those returns, who testified that the
returns were unauthorized and or inaccurate. Accordingly, I
agree with the majority that the government met its burden of
proof under 18 U.S.C. § 287 as to those fourteen counts.
As to Counts 3, 9, 15, and 19, however, the government
presented only the four returns. The government essentially
argued that because these naked returns looked just like the
fourteen returns clothed by witnesses’ testimonies, they were
dressed in the requisite criminality. The majority apparently
agreed, stating that the four naked returns were “remarkably
similar” to the returns clothed by witnesses’ testimonies.
18
Supra 7. But the only similarities between the naked and
clothed returns—the tax preparer information (PTIN and EFIN) and
refund destination—show nothing inherently false or fraudulent
about the four naked returns.
Moreover, the use of the PTIN and EFIN shows only that DL
Anderson prepared the return, not that this preparation was
unauthorized. Similarly, the use of the routing number shows
only that the refund was to be deposited into an account
controlled by Anderson, not that this direction was
unsanctioned. Nor is it unlawful to direct a refund to a tax
preparer or another third party. Put simply, the tax preparer
information (PTIN and EFIN) and refund destination appear on all
returns filed by tax preparers. Indeed, based on this evidence,
the returns were just as likely honest and accurate as they were
fraudulent and false.
Further, merely associating these naked returns with the
fourteen other returns was an insufficient basis for convicting
Anderson on Counts 3, 9, 15, and 19. A pattern of conduct may
be used to connect a crime to a particular individual or
establish intent. Here, however, the pattern is not being used
to infer that it was Anderson who filed the four returns, but
that those returns were false in the first place—that there was,
in fact, a crime. See United States v. Drape, 668 F.2d 22, 26
(1st Cir. 1982) (“Appellant’s signature on his [tax] return was
19
sufficient to establish knowledge once it had been shown that
the return was false.”) (emphasis added). Yet this cannot be,
as “[t]he first presumption is that a defendant is innocent
unless and until the government proves beyond a reasonable doubt
each element of the offense charged.” Clark v. Arizona, 548
U.S. 735, 766 (2006). Drawing this inference belies the bedrock
principle of criminal law that the government bears the burden
of proving each element of an offense. In re Winship, 397 U.S.
358, 364 (“[W]e explicitly hold that the Due Process Clause
protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”).
To be sure, the government need not have presented direct
witness testimony to demonstrate that the tax returns associated
with Counts 3, 9, 15, and 19 were false or fraudulent;
nonetheless, some evidence was required to carry the
government’s burden to prove this element—and none was
presented. Because the evidence at trial was insufficient for
any rational fact-finder to conclude beyond a reasonable doubt
that these four naked returns were false or fraudulent, I
respectfully dissent.
20