United States v. Neil A. Thomsen
2016 U.S. App. LEXIS 13724
| 9th Cir. | 2016Background
- Neil Thomsen, a tax preparer, was indicted on 34 federal counts for a tax-refund fraud scheme; a jury convicted him of 32 counts and acquitted/charges withdrawn on two.
- Count 33 charged violation of 18 U.S.C. § 1546(a) for using a U.S. passport card bearing Thomsen’s photo but another person’s biographic data; Count 34 charged related aggravated identity theft under § 1028A.
- While Thomsen was tried in Case One, a separate Case Two charged him (and co-defendants) with a conspiracy to obtain false tax refunds; Thomsen was not convicted in Case Two and those charges were later dismissed as to him.
- At sentencing the district court (1) denied Thomsen’s judgment of acquittal on Counts 33–34, (2) imposed enhancements (intended-loss, victims count, sophisticated means, identity-theft, abuse-of-trust, obstruction), (3) used the 2011 Guidelines for the victims calculation, and (4) ordered ~$515,000 restitution, including losses from Case Two.
- On appeal the Ninth Circuit: vacated Counts 33–34 (holding § 1546(a) does not cover U.S. passports/passport cards), reversed restitution and sentence, affirmed some guideline enhancements, and remanded for resentencing with limited remand record.
Issues
| Issue | Plaintiff's Argument (U.S.) | Defendant's Argument (Thomsen) | Held |
|---|---|---|---|
| Application of 18 U.S.C. § 1546(a) to U.S. passport/passport card | §1546(a) applies to “other documents prescribed by statute or regulation for entry into or as evidence of authorized stay or employment,” and passports are so prescribed (IRCA/regulations). | §1546(a) targets immigration-related documents; passports are omitted from §1546(a) and instead covered by §1543, so §1546 does not reach U.S. passports/passport cards. | Court held §1546(a) does not apply to U.S. passports/passport cards; vacated Counts 33–34. |
| Restitution for losses from separate indictment (Case Two) | Losses from Case Two are part of Thomsen’s multi-year scheme and thus properly included as "related conduct" under 18 U.S.C. § 3663A(a)(2). | Restitution must be limited to losses related closely to the scheme of conviction; Case Two involved different victims, means, co-defendants, and time frame, so it was not sufficiently related. | Court held including Case Two losses exceeded the permissible scope; legal theory (including related conduct) could permit restitution, but factual finding of relatedness was clearly erroneous — reversed restitution. |
| Use of 2011 Guidelines for victim-count enhancement (ex post facto issue) | Use of current Guideline not an ex post facto problem or was harmless. | Use of the 2011 amendment increased offense level and violated ex post facto; 2008 Manual should apply. | Court agreed error implicated ex post facto concerns; remanded for resentencing using the 2008 Guidelines Manual. |
| Identity-theft guideline enhancement for producing "other means of identification" | Thomsen used victims’ SSNs to produce returns, which are "other means of identification" triggering the enhancement. | Tax returns are not "means of identification" within 18 U.S.C. § 1028(d)(7) or the Guideline; enhancement improperly applied. | Court held no authority establishes tax returns are "means of identification" for the enhancement; enhancement was improperly applied. |
Key Cases Cited
- United States v. Krstic, 558 F.3d 1010 (9th Cir. 2009) (statutory‑interpretation of §1546(a) and textual canons).
- United States v. Neal, 776 F.3d 645 (9th Cir. 2015) (use of statutory text and canons for interpretation).
- Hughey v. United States, 495 U.S. 411 (1990) (pre‑MVRA restitution limited to losses from the offense of conviction).
- United States v. Grice, 319 F.3d 1174 (9th Cir. 2003) (restitution may include related uncharged mail‑fraud conduct when part of same scheme).
- In re Her Majesty the Queen in Right of Canada, 785 F.3d 1273 (9th Cir. 2015) (relatedness requirement for restitution; parallel but causally unlinked schemes are too tangential).
- United States v. Brock‑Davis, 504 F.3d 991 (9th Cir. 2007) (related conduct for restitution when same conspiracy participants and contemporaneous acts).
- United States v. Dunnigan, 507 U.S. 87 (1993) (standards for obstruction/perjury enhancement).
- Peugh v. United States, 133 S. Ct. 2072 (U.S. 2013) (ex post facto analysis for Guidelines amendments).