United States v. Monique Ellis ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0229p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> Nos. 18-5158/5316/5332
v. │
│
│
MONIQUE ANNETTE ELLIS, │
Defendant-Appellant. │
│
┘
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: December 7, 2018
Decided and Filed: September 6, 2019
Before: NORRIS, STRANCH, and LARSEN, Circuit Judges.
_________________
COUNSEL
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.
LARSEN, J., delivered the opinion of the court in which NORRIS and STRANCH, JJ.,
joined. STRANCH, J. (pp. 12–13), delivered a separate concurring opinion.
Nos. 18-5158/5316/5332 United States v. Ellis Page 2
_________________
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
Nos. 18-5158/5316/5332 United States v. Ellis Page 3
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
1Agent Ward testified that one of the laptops seized contained Ellis’s bank records and PDF copies of
several tax returns that were the subject of the indictment. But that was incorrect; the IRS had not found bank
records or PDFs of any tax returns on the laptop. The referenced documents were, instead, obtained through
subpoenas. The district court noted that Agent Ward appeared to have simply made a mistake. Agent Ward testified
that he inherited the case from another case agent, who placed the tax returns and bank statements in a folder labeled
“Search Warrant Files,” leading Ward to believe that those materials came from the seized laptop.
Nos. 18-5158/5316/5332 United States v. Ellis Page 4
court overruled Ellis’s objections and imposed the government’s requested amount, $352,183.20,
in restitution to the United States, Georgia, and Mississippi, for their respective losses. Ellis now
appeals.
II.
In her opening brief, Ellis argues that the district court had abused its discretion by
denying her motion to dismiss the indictment based on Agent Ward’s inaccurate testimony. In
response, the government cites United States v. Cobleigh, which—relying on the Supreme
Court’s decision in United States v. Mechanik, 475 U.S. 66 (1986)—declined to consider the
merits of a claim of perjury before the grand jury, holding that appellant’s subsequent conviction
rendered any such error harmless. 75 F.3d 242, 251 (6th Cir. 1996); see also United States v.
Combs, 369 F.3d 925, 936 (6th Cir. 2004) (“[A]ny indictment defect generated by alleged
perjured testimony was cured by the jury’s verdict that Combs was guilty of this offense.”). Ellis
now concedes that Cobleigh controls and that she cannot prevail on her argument here. Because
we are bound by Cobleigh and Combs, Ellis’s claim fails.
III.
Ellis next argues that the district court erred in finding that she was responsible for an
intended loss of more than $550,000—a finding that affected her Guidelines range. “Because of
the difficulties often associated with attempting to calculate loss in a fraud case, the district court
need only make a reasonable estimate of the loss using a preponderance of the evidence
standard.” United States v. Wendlandt, 714 F.3d 388, 393 (6th Cir. 2013) (citation and internal
quotation marks omitted). And the “district court’s findings are not to be overturned unless they
are clearly erroneous.” United States v. Rothwell, 387 F.3d 579, 582 (6th Cir. 2004). A district
court’s factual determination is clearly erroneous when “although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction” that the
district court made a mistake. United States v. Vasquez, 352 F.3d 1067, 1070 (6th Cir. 2003).
At sentencing, Agent Ward testified that Ellis was responsible for a loss of approximately
$700,000. He calculated the loss using: (1) the dollar amount of tax refunds deposited into bank
Nos. 18-5158/5316/5332 United States v. Ellis Page 5
accounts belonging to Ellis or her children ($130,101);2 and (2) the total dollar amount of refund
requests filed with TurboTax software that matched the unique identifier numbers (UIDs) found
in the browser history of the laptops seized from Ellis’s bedroom ($570,892). The loss
calculation, thus, included the total amount Ellis had requested in refunds, not just what she
received. See U.S.S.G. § 2B1.1, cmt. n.3(A). Agent Ward clarified that he had taken measures
to avoid counting the same return twice. For example, if a return was filed using the TurboTax
software and a refund corresponding to that return was later deposited into one of Ellis’s bank
accounts, he removed that amount from the TurboTax calculation, meaning he counted it only in
the deposit category.
The district court agreed with Agent Ward’s calculation, finding that Ellis’s intended loss
was over $700,000. That loss amount resulted in a fourteen-level increase in offense level under
U.S.S.G. § 2B1.1(b)(1)(H), which applies to an intended loss of between $550,000 and
$1,500,000. Ellis argues that the district court erred by holding her responsible for returns that
might have been filed without her aid or that were the product of valid claims. Specifically, Ellis
finds error in the district court’s findings: (1) that Ellis was involved in filing all tax returns
associated with the TurboTax UIDs found on the laptops; and (2) that all tax refund payments
made to Ellis-controlled bank accounts from 2008 through 2012 were fraudulent. We address
each argument in turn.
A.
Significant record evidence supported the district court’s conclusion that Ellis was
involved in filing all the tax returns associated with the UIDs found on the laptops. The UIDs
that Agent Ward used for his calculation were found in the browser history on the laptops, and
the laptops were found in Ellis’s bedroom. These laptops had been used to file over 300 tax
returns, and there was no indication another adult lived in the apartment. In addition, agents
found personal identifying information for more than 400 people in Ellis’s apartment. And many
2In addition to bank accounts in her own name, Ellis had tax refunds deposited into accounts for
Dominique Walker, Tilsa Walker/Monique Burton, and Jamarrios Fluker. Dominique Walker, Tilsa Walker, and
Jammarrios Fluker are all Ellis’s children. Dominique is developmentally disabled and does not have the capacity to
open a bank account. And as of February 2012, Jammarios was nineteen years old and Tilsa was eighteen years old.
Finally, “Monique Burton” is Ellis herself; “Burton” was a name from a previous marriage.
Nos. 18-5158/5316/5332 United States v. Ellis Page 6
of the names and social security numbers of the people on the TurboTax accounts matched the
personal identifying information found in Ellis’s apartment. There was also evidence that Ellis
was using the laptops and not, for example, merely storing them—the laptops had accessed the
internet provider (IP) address associated with Ellis’s apartment over 300 times. Lastly, the tax
returns linked to the laptops shared certain characteristics, such as being filed from one of several
IP addresses, including the IP address for Ellis’s apartment. This evidence was sufficient for the
district court to conclude that Ellis was involved in filing the returns.
But Ellis posits that other people—such as her one-time boyfriend, Seneca Shine, and
unknown persons including a “Montize Shine” and a “Thomas Shine”—could have created the
UIDs and filed the fraudulent tax returns without her involvement. She argues that an envelope
found in her apartment, containing names and social security numbers on slips of paper,
addressed to a “Shine” at a location in Montgomery, Alabama, implicates Seneca Shine. But
Agent Ward testified that no IP addresses from the fraudulent returns were associated with
Seneca Shine’s home, no personal identifying information was found in his home, and no tax
refunds were deposited into his bank accounts. While Ellis also claims that two of the UIDs
were associated with Montize Shine and Thomas Shine, she provides no record citations in
support. Ellis argues that the user names associated with one of the laptops—“Da Realest Stud”
and “Randy”—suggest that a man regularly used it. But nothing prevented Ellis from making
these user names herself. Finally, Ellis argues that patterns from the UID exhibit suggest
that: (1) the scheme in tax year 2008 was much different than the scheme in tax year 2011; and
(2) during the tax years 2009 through 2011, multiple people may have been using the same UIDs
or independently creating different UIDs for the same claimant. But even if patterns from the
UIDs suggested that the scheme changed from year to year, that pattern is consistent with Ellis
herself modifying the scheme. And again, even if other people participated, that would not
negate the substantial evidence implicating Ellis herself.
Nos. 18-5158/5316/5332 United States v. Ellis Page 7
B.
Substantial evidence in the record also supports the district court’s conclusion that the
refunds actually deposited to bank accounts controlled by Ellis were fraudulent. 3 First, the
evidence that showed Ellis was involved in filing the tax refunds associated with the UIDs found
on the laptops also supports the conclusion that the refunds deposited into Ellis-controlled bank
accounts were fraudulent—as noted above, for example, agents found the stolen personal
identification for more than 400 people inside Ellis’s apartment.
Bank records revealed that, from 2008 onward, approximately 120 tax refunds totaling
over $130,000 were deposited into accounts Ellis controlled. Ellis argues that at least one of
those refunds was issued to Ellis herself. But the government clarified that refunds issued in
Ellis’s name had not been included in the loss for sentencing purposes. Ellis also claims that, as
the refunds frequently failed to state for whom they were issued, they could have been for friends
or family who filed valid claims. But Ellis was, at no point, a registered tax preparer; nor does
she explain why so many people would have asked her to prepare their taxes and then have their
returns deposited into Ellis’s accounts. Considering the evidence against her, we cannot say that
we are left with a definite and firm conviction that the district court made a mistake.
Finally, even if we were to credit Ellis’s argument regarding the refunds made to her
bank accounts, it would not make a difference to her sentence. The district court found that Ellis
was responsible for an intended loss of more than $700,000, which triggered the fourteen-level
increase applicable to intended losses of more than $550,000. See U.S.S.G. § 2B1.1(b)(1)(H).
To affect her Guidelines calculation, therefore, Ellis would need to show that the district court
clearly erred in attributing at least $150,000 to her. But Agent Ward clarified that only $130,000
of the $700,000 amount came from the tax refunds deposited into Ellis’s various bank accounts;
discounting this amount entirely would not bring her below the $550,000 threshold.
3Ellis does not dispute that she was involved in filing these tax returns or that she controlled the accounts at
issue; nor does she dispute the amounts deposited.
Nos. 18-5158/5316/5332 United States v. Ellis Page 8
IV.
Our conclusion upholding the district court’s intended loss calculation for purposes of
calculating Ellis’s Guidelines range forecloses Ellis’s argument that the district court erred in
calculating the amount of restitution ($352,183.20) owed to the United States, Georgia, and
Mississippi. Ellis rightly notes that restitution may be awarded only for the loss caused by the
defendant’s crime, but her argument in this respect simply replicates her claim that the district
court clearly erred in calculating loss for Guidelines purposes. For the same reasons discussed
above, the district court did not abuse its discretion, see United States v. Boring, 557 F.3d 707,
713 (6th Cir. 2009), in imposing the amount of restitution. Because Ellis makes no new
arguments in support of this position, we need not examine it further.
V.
Ellis lastly argues that the district court erred in ordering restitution for any fraud
predating November 2011. The district court’s restitution calculation was based on evidence of
fraudulent returns filed as part of a scheme lasting from 2008 through 2012. But the grand jury
did not indict Ellis until November 2016. Ellis argues that the five-year statute of limitations, see
18 U.S.C. § 3282(a), precludes an award of restitution for any fraudulent tax returns submitted
before November 2011. We analyze whether the law allows restitution de novo. Boring, 557
F.3d at 713.
At this point, we take a step back to examine the statute under which Ellis was ordered to
pay restitution. All parties agree that the Mandatory Victims Restitution Act of 1996 (MVRA)
applies here. Pursuant to the MVRA, “the court shall order . . . that the defendant make
restitution to the victim of the offense . . . .” 18 U.S.C. § 3663A(a)(1). The MVRA defines
“victim” as “a person directly and proximately harmed as a result of a commission of [a
qualifying] offense . . . including, in the case of an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or pattern.” Id. § 3663A(a)(2). The
statute defining wire fraud, Ellis’s crime, includes “any scheme or artifice to defraud” as an
Nos. 18-5158/5316/5332 United States v. Ellis Page 9
element. Id. § 1343. Finally, the MVRA requires that the court order restitution “to each victim
in the full amount of each victim’s losses.” Id. § 3664(f)(1)(A).
So, the MVRA mandates restitution “in the full amount of each victim’s losses,” where
victim is defined as “any person directly harmed . . . in the course of the scheme” without
specifying a time limit. Ellis argues that the statute of limitations set forth in 18 U.S.C. § 3282
sets a time limit on restitution pursuant to the MVRA. She notes that § 3282(a) states that “no
person shall be prosecuted, tried, or punished for any offense” (emphasis added) unless an
indictment is returned within five years of the offense; she further observes that this circuit has
held that restitution ordered pursuant to the MVRA is punishment. See, e.g., United States v.
Schulte, 264 F.3d 656, 661–62 (6th Cir. 2001).
Of course, there can be no statute of limitations problem if, as the government argues, the
statute of limitations had not run. “[N]ormally the date of the last overt act in furtherance of the
conspiracy alleged in the indictment begins the clock for purposes of the five-year statute of
limitations.” United States v. Smith, 197 F.3d 225, 228 (6th Cir. 1999). In United States v.
Andrews, we applied this principle in the context of a scheme to obtain loans through wire fraud.
803 F.3d 823, 825–26 (6th Cir. 2015). Rejecting the defendant’s argument that the indictment
was time barred, we held that even if some of the fraudulent loans had been procured more than
five years before the indictment was returned, “the entire scheme faces no statute-of-limitations
problem because the last loan occurred within five years of the indictment.” Id.
Relying on Andrews, the government argues that because at least some of the fraudulent
tax returns in this case were filed after November 2011, Ellis may properly be ordered to pay
restitution for the whole scheme. In line with Andrews, Ellis’s counsel conceded at oral
argument that, had the government sought to indict Ellis for her earlier conduct, the statute of
limitations would have posed no obstacle to imposing criminal liability for acts predating
November 2011. Yet counsel continued to argue that the statute of limitations precluded
restitution for any fraudulent tax refunds Ellis received prior to November 2011. How can this
claim be reconciled with that concession? The MVRA, after all, requires “restitution . . . for all
losses attributable to [the defendant]’s scheme to defraud.” United States v. Jewitt, 978 F.2d
Nos. 18-5158/5316/5332 United States v. Ellis Page 10
248, 252 (6th Cir. 1992); see also United States v. Carpenter, 359 F. App’x 553, 559 (6th Cir.
2009) (same).
Counsel attempted to make sense of it by arguing that the statute of limitations treats
restitution differently than underlying criminal liability. But we see nothing in the relevant
statute of limitations, 18 U.S.C. § 3282(a), that would support such a distinction. To the
contrary, the statute, which states that “no person shall be prosecuted, tried, or punished for any
offense” unless an indictment is returned within five years of the offense, seems to treat
prosecution, trial, and punishment (here, restitution) equally.
Ellis argues that the Supreme Court’s decision in Kokesh v. SEC, 137 S. Ct. 1635, 1641
(2017), supports her claim. But Kokesh answered an altogether different question under a
different statute of limitations. Kokesh construed 28 U.S.C. § 2462, the “general statute of
limitations for civil penalty actions,” Gabelli v. SEC, 568 U.S. 442, 444 (2013). Section 2462
states:
an action, suit or proceeding for the enforcement of any civil fine, penalty, or
forfeiture, pecuniary or otherwise, shall not be entertained unless commenced
within five years from the date when the claim first accrued . . . .
(Emphasis added). The only question in Kokesh was whether disgorgement constituted a
“penalty” for purposes of the statute. Kokesh, 137 S. Ct. at 1639. The Supreme Court concluded
that it did, “and so disgorgement actions must be commenced within five years of the date the
claim accrues.” Id. Applying that principle meant that, although Kokesh had misappropriated
$34.9 million from his clients over more than ten years, he could be required to disgorge only $5
million because $29.9 million “resulted from violations outside the limitations period.” Id. at
1641. But the principle that limited the recovery of the earlier penalties in Kokesh derived from
the language of the statute at issue there, which measured the limitations period “from the date
when the claim first accrued,” 28 U.S.C. § 2462, and, in that context, meant the date when the
fraud occurred. See Gabelli, 568 U.S. at 448.
Kokesh, accordingly, has no bearing on the statute of limitations applicable to Ellis’s
case, 18 U.S.C. § 3282, or its relationship with the MVRA. Kokesh, therefore, is no help to Ellis.
Ellis concedes that under Andrews, which construed § 3282, the government could prosecute her
Nos. 18-5158/5316/5332 United States v. Ellis Page 11
for fraudulent returns filed before November 2011, so long as at least one fraudulent return in the
“scheme” was filed after that date. As explained above, the language of the statute treats
prosecution, trial, and punishment equally. And, except for her reliance on Kokesh, Ellis does
not explain why § 3282 would cabin the amount of restitution she could be ordered to pay to no
earlier than November 2011.
***
None of Ellis’s arguments persuade. We thus AFFIRM the district court’s judgment.
Nos. 18-5158/5316/5332 United States v. Ellis Page 12
_________________
CONCURRENCE
_________________
JANE B. STRANCH, Circuit Judge, concurring. I join the majority opinion but write
separately to express my serious concern about the language used by the Government in Ellis’s
indictment to define the scope of her fraudulent scheme.
Under the MVRA, courts may order restitution only for losses suffered by victims of “the
precise scheme that was an element of the defendant’s convicted offense.” United States v.
Jones, 641 F.3d 706, 714 (6th Cir. 2011). And where, as here, “a defendant is convicted by a
jury . . . the scope of the scheme is defined by the indictment for purposes of restitution.” Id.
The government therefore “bears the burden” of making an indictment’s “language sufficient to
cover all acts for which it will seek restitution.” United States v. Akande, 200 F.3d 136, 142 (3d
Cir. 1999) (quoting United States v. DeSalvo, 41 F.3d 505, 514 (9th Cir. 1994)).
The district court ordered Ellis to pay restitution for losses beginning in 2008, even
though the indictment stated that her scheme began “no later than in or about January 2012.” At
oral argument, the Government insisted that this language included losses from 2008 because the
indictment alleged only that Ellis’s scheme began “no later than in or about” 2012, which meant
the scheme possibly began years before 2012. Taken literally, this language would include
losses dating back to 2008. It would also include losses dating back to the beginning of time.
Indictment language cannot be boundless. Permitting indictments without temporal
boundaries would authorize a permanent escape hatch for government drafters who otherwise
“bear[] the burden” of making the language of an indictment “sufficient to cover all acts for
which [they] will seek restitution.” Id. (citation omitted). And it would prevent defendants
from determining what facts may later prove relevant to their defense. These concerns have led
other circuits to prohibit the government from seeking restitution for losses occurring outside the
dates identified in the indictment, even in cases where prosecutors tried to escape those
limitations by using indefinite indictment language. See, e.g., United States v. Alisuretove, 788
F.3d 1247, 1258–59 (10th Cir. 2015) (vacating restitution award that included losses occurring
Nos. 18-5158/5316/5332 United States v. Ellis Page 13
one month outside the dates identified in the indictment, though the indictment said the scheme
occurred only “[i]n or about” those dates); Akande, 200 F.3d at 141–42 (same); United States v.
Hughey, 147 F.3d 423, 438 (5th Cir. 1998) (vacating restitution award because some losses fell
outside “the timeframe defined for the subject offense in the indictment,” though the indictment
stated the scheme occurred only “on or about” the dates specified); see also United States v.
White, 883 F.3d 983, 992–93 (7th Cir. 2018) (finding plea agreement’s “loose language,” which
suggested that the defendant’s scheme began “no later than in or around the fall of 2009,” did not
warrant restitution for pre-2009 losses).
Ellis never raised this issue in the district court or on appeal, so it is not squarely before
us. Going forward, however, courts awarding restitution should take care to consider “not only
the objects of the [defendant’s charged scheme], but also its temporal limits.” Alisuretove, 788
F.3d at 1259.