UNITED STATES OF AMERICA, Plаintiff-Appellee, v. OGHENEVWAKPO IGBOBA, Defendant-Appellant.
No. 19-1116
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 2, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0200p.06
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:17-cr-00044-1—Robert J. Jonker, District Judge.
Decided and Filed: July 2, 2020
Before: COLE, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.
COUNSEL
ON BRIEF: Gary W. Crim, Dayton, Ohio, for Appellant. Christopher M. O‘Connor, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee.
CLAY, CIRCUIT JUDGE. A jury convicted Defendant Oghenevwakpo Igboba on multiple criminal counts based on his participation in a conspiracy to defraud the United States Department of the Treasury by preparing and filing false federal income tax returns using others’ identities. Defendant was subsequently sentenced to 162 months’ imprisonment, followed by three years of suрervised release, and required to pay restitution, special assessment, and forfeiture sums. Defendant challenges that sentence on appeal, presenting two primary arguments. First, he argues that when the district court increased his base offense level based on the total amount of loss his offense caused, pursuant to
For the reasons set forth belоw, we AFFIRM the district court‘s decision.
BACKGROUND
On February 7, 2017, a grand jury charged Defendant Oghenevwakpo Igboba with twenty-two criminal counts arising out of his participation in a fourteen-month-long conspiracy to defraud the United States Department of the Treasury Internal Revenue Service (“IRS“) by preparing and filing false and fraudulent tax returns. As part of this conspiracy, Defendant allegedly acquired his victims’ personally identifying information (“PII“) through various email accounts and then used that PII to file fraudulent tax returns, directing the proceeds into his own bank account or the bank accounts of his associates. After a four-day trial, a jury found Defendant guilty of the following eighteen cоunts: one count of conspiracy to defraud the United States, in violation of
Prior to Defendant‘s sentencing hearing, the United States Probation Office prepared a presentence report (“PSR“). As relevant on appeal, the PSR recommended increasing Defendant‘s base offense level by eighteen levels pursuant to
Defendant objected to the PSR‘s calculation of the approximately $4.2 million loss attributable to his offense. Specifically, he argued that “[t]here is insufficient proof that [he] actually, subjectively intended to inflict more than $4.2 million in lоsses” and that “there is insufficient evidence . . . [to show] that Mr. Igboba‘s fraud (as opposed to someone else‘s fraud) caused the loss,” in particular because the evidence did not suggest that he had “actual, singular control—much less exclusive control—over the[] various email accounts that were linked to the refund requests.” (Def. Sent‘g Memo., R. 106 at PageID ##522, 524.) Defendant also disputed the applicability of the sophisticated-means enhancement, arguing that none of the relevant qualifying circumstances was present in this case.
At sentencing, the district court summarized the PSR‘s Guidelines calculations and Defendant‘s objections before inviting the parties’ evidence. The government then presented the testimony of Special Agent Nathan LaFramboise with the Treasury Inspector General for Tax Administration. In the course of his testimony, LaFramboise discussed eight exhibits that allegedly showed Defendant‘s connection to the losses attributed to him and revealed his sophisticated means.
In testimony supporting the loss calculation, LaFramboise explained that he was “conservative” in estimating the loss attributable to Defendant. (Id. at #1376.) He stated that when putting together the aforementioned spreadsheet documenting the attributed losses, he only included losses that were linked to Defendant by two or more of the following: (1) tax refunds directed to Defendant‘s personal or business accounts or those of his family members or known associates; (2) Defendant‘s possession of the taxpayer‘s PII at the time of the tax filing; (3) use of emails associated with Defendant or the conspiracy in filing the returns or accessing tax transcripts; and (4) the filing‘s inclusion on lists of returns submitted that Igboba‘s codefendant emailed to him.
LaFramboise also said that he believed “there were more returns filed by members of the conspiracy than [we]re listed on [the] spreadsheet.” (Id.) He explained, as a specific example, that Defendant was not held responsible for returns associated with an email—kimfay@outlook.com—whose owner sent tax transcripts to Igboba‘s codefendant. Although there was sufficient evidence to link the owner of that email address to the broader conspiracy, this evidence was excluded because there was insufficient evidence to link her to Defendant. LaFramboise further noted that he did not include tax returns that were rejected by the IRS because they were already filed. He also removed at least two loss amounts from the spreadsheet after giving that information to the PSR writer but before presenting it at sentencing—because he found out that the IRS had not issued a refund on one return and that Defendant had not necessarily accessed another transcript.
The government also solicited testimony from LaFramboise on the means that Defendant used to commit his offense. As previously mentioned, LaFramboise discussed evidence suggesting Defendant used a VPN, specially created clean emails, the dark web, and international sources to commit his crimе. He also explained
Defendant did not put on any evidence of his own, but simply sought to undermine LaFramboise‘s testimony on cross-examination. Defendant‘s counsel drew into question whether Defendant had used cryptocurrency in the course of his fraud. He similarly questioned whether Defendant‘s email aliases could have been used by others. LaFramboise agreed that they could have, but he noted that there was “no evidence that anyone else was accessing” those aliases. (Id. at #1387.) LaFramboise also confirmed that he could not be sure that “Mr. Igboba was actively involved in every one of [the attempted tax fraud] transactions.” (Id. at #1389.) Finally, he agreed that most of the conspiracy occurred in the United States.
When the court invited the parties’ arguments, Defendant reiterated his objections to the amount of loss calculated and the sophisticated-means enhancement. With respect to the amount of loss, he focused on his subjective-intent argument, but also noted that “multiple people . . . can have access to the same email address provided they have the password” and “based on the ambiguity and . . . uncertainty here . . . the government‘s projection of the intended loss is exaggerated.” (Id. at #1398.)
After hеaring the parties’ arguments, the district court overruled Defendant‘s objection to the amount of loss calculated and found that his base offense level should be increased by eighteen levels under
I don‘t think that detracts from what we‘re talking about here when we‘re talking about coordinated conduct, conspiratorial conduct where each conspirator can and usually is accountable for what was reasonably within the scope of the conspiracy as they understood it. And сertainly at a minimum this was within the reasonable scope of the conspiracy as Mr. Igboba understood it . . . [because] you have at least two things
that tie each of these particular returns back to Mr. Igboba.
(Id. at #1408.)
The court next considered Defendant‘s objection to the sophisticated-means enhancement. It concluded that this enhancement applied whether or not cryptocurrency was used in the offense and whether or not most of it happened in the United States. The court explained that “the sophisticated nature of the scheme is what required us to march through such a vast amount of paperwork in order for the government to link . . . the particular transactions to the wrongdoing here and link it to Mr. Igboba.” (Id. at #1409.) As signs of the offense‘s sophistication, the court highlighted Defendant‘s use of a VPN, Tor, the dark web, multiple bank accounts, and multiple email aliases to commit the crime, as well as the difficulty of acquiring taxpayer PII in the first place.
After detailing these analyses, the court asked if the parties saw “any other guideline issues.” (Id. at #1412.) Defendant said no. The court next detailed its Guidelines range calculation and analysis of the
This timely appeal followed.
DISCUSSION
I. Amount of Loss
On appeal, Defendant argues that the district court failed to adequately distinguish between losses attributable to him and losses attributable to the entire conspiracy when it increased his base offense level pursuant to
Before delving into this issue, we must first consider whether it has been properly preserved for our review. At sentencing, Defendant objected to the amount of loss attributed to him for two reasons. First, he argued that there was “insufficient proof that [he] actually and subjectively intended to inflict more than $4.2 million in losses.” (Sent‘g Hr‘g Tr., R. 155 at PageID #1397.) Second, he argued that the government had not presented sufficient proof that he had caused that intended loss, in particular because multiple people could have accessed the email addresses that conneсted him to some of the loss amounts listed in the PSR. On appeal, the government argues that Defendant‘s objections were insufficient to preserve his current argument. Defendant does not meaningfully dispute this point.
We agree that Defendant has not properly preserved the argument presented on appeal. At sentencing, he did not argue that the relevant losses were not attributable to his jointly undertaken criminal activity, and so did not alert the district court to its alleged wrongdoing. See United States v. Huntington Nat‘l Bank, 574 F.3d 329, 332 (6th Cir. 2009) (holding that an issue is preserved if a litigant “state[s] the issue with sufficient clarity to give the court and opposing parties notice that it is asserting the issue” and “provide[s] some minimal level of argumentation in support of it“). In fact, Defendant twice rejected
This bears on the applicable standard of review. Where a procedural reasonableness claim—like this one—has not been properly preserved, we apply plain error review, considering whether there is “(1) error (2) that was ‘obvious or clear,’ (3) that ‘affected [the] defendant‘s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.‘” United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (alteration in original) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)). This standard is “extremely deferential to the district court, and it should be found ‘sparingly, only in exceptional circumstances, and solely to avoid a miscarriage of justice.‘” Id. (quoting United States v. Gold Unlimited, Inc., 177 F.3d 472, 483 (6th Cir. 1999)).
We turn now to the merits of Defendant‘s argument. When calculating the applicable Guidelines range for a defendant convicted of fraud, the defendant‘s base offense level is increased in proportion to the amount of actual or intended pecuniary loss that resulted from his offense. Donadeo, 910 F.3d at 894;
(A) all [criminal] acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—
- (i) within the scope of the jointly undertaken criminal activity,
- (ii) in furtherance of that criminal activity, and
- (iii) reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.
In the case at bar, the district court did not specifically address whether the relevant $4.1 million in losses was attributable to Defendant under subsection (A) or subsection (B). But its analysis suggests that it found all $4.1 million attributable to Defendant‘s own criminal activity, rather than others’ acts that were a part of “jointly undertaken criminal activity.” The court reasoned that the evidence cited on the government‘s loss-calculation spreadsheet
On appeal, Defendant does not identify any specific portion of this $4.1 million sum that is not attributable to his own activity—instead, he seems to suggest that the entire sum was only attributable to others’ activity. Upon review, we conclude that the district court could rightly attribute the relevant $4.1 million in losses to Defendant‘s individual criminal activity based on a preponderance of the evidence. Although Defendant repeatedly asserts that the $4.1 million for which he was held responsible represented the losses caused by the entire conspiracy, LaFramboise explainеd at sentencing that there were many fraudulent returns filed by members of the conspiracy that were not included in the amount of loss attributed to Defendant. And the government‘s loss-calculation spreadsheet connects each loss to Defendant individually—rather than to the conspiracy more broadly—through specific, identified pieces of evidence. These connections suggest that Defendant himself participated in filing the relevant fraudulent returns—whether by acquiring the taxpayer‘s PII, instructing others on how to file the return, directing others to file the return, or otherwise.
While Defendant argues that some of the evidence connecting him to this activity was unrеliable, he has not actually shown that this is the case. For example, Defendant asserts that others could have accessed the email accounts that connected him to the fraudulent returns, but points to no evidence that they actually did. The weight of the evidence before the district court thus suggested that these connections were reliable.
In his reply brief, Defendant points out that there were not, in fact, two pieces of evidence linking him to every one of the losses attributed to him. He specifically notes that thirty-five of the 210 individual amounts attributed to him are based upon only a single evidentiary connection. Defendant is correсt in this regard, and we agree that the district court erred in finding that “at least two things . . . tie each of these particular returns back to Mr. Igboba.” (Id.) But no law, rule, or Sentencing Guideline requires that a defendant be connected to a loss through at least two pieces of evidence. The government simply tried to show at least two connections as part of an appropriate effort to be “conservative” in estimating the loss attributable to Defendant. (Id. at #1376.)
Our precedent establishes that “the district court need only make a reasonable estimate of the loss [attributable to a defendant] using a preponderance of the evidence standard.” Ellis, 938 F.3d at 760 (quoting Wendlandt, 714 F.3d at 393). In light of that standard, we can discern no error in the district court attributing even these single-link sums to Defendant. Our review of the loss-calculation spreadsheet relied upon by the district court reveals that where amounts were attributed to Defendant based on only one evidentiary link, that link was particularly strong—for example, the refund went directly to Defendant‘s personal bank account, the return and transcript were found in Defendant‘s possession, or the return was included in one of the “work done” emails passed between Igboba and his codefendant. (See, e.g., Gov‘t Ex. 300, Doc. No.
Thus, the district court could rightly attribute $4.1 million in losses to “acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by” Dеfendant.
The district court thus madе no error in attributing $4.1 million in losses to Defendant at sentencing. Because there was no error, we also need not consider whether such error was obvious or clear, affected Defendant‘s substantial rights, or affected the fairness, integrity, or public reputation of the proceedings. See Donadeo, 910 F.3d at 893. We affirm the district court‘s decision to hold Defendant responsible for $4.1 million in losses.
II. Sophisticated-Means Enhancement
Defendant next argues that the district court erred in finding that his offense involved sophisticated means and therefore merited the application of a two-level enhancement under
(A) the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials; (B) a substantial part of a fraudulent scheme was committed from outside the United States; or (C) the offense otherwise involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophistiсated means.
The district court found that Defendant‘s offense involved “sophisticated means” under subsection (C). “[S]ophisticated means” require “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.”
Defendant first contends that the district court erred because it determined that his offense involved sophisticated means only because of the quantity of paperwork involved. This misrepresents the district court‘s analysis. The court suggested that the sophisticated means used were the reason why so much documentary evidence was necessary to prove Defendant‘s crime—not that the paperwork involved was itself what made the offense sophisticated. (See Sent‘g Hr‘g Tr., R. 155 at PageID #1409.) Instead, the court referred to Defendant‘s use of a VPN, the Tor browser, the dark web, multiple bank accounts, and multiple email aliases in committing his offense. It also noted the difficulty of acquiring the taxpayer PII used to file the fraudulent returns.
Defendant more generally asserts that these means were not sophisticated because they “relied on software and internet procedures available to the general public.” (Def. Br. at 18.) Our precedent suggests otherwise. In United States v. Ealy, 682 F. App‘x 432, 438 (6th Cir. 2017), we found that the sophisticated-means enhancement applied where a defendant “purchased [PII] from an overseas broker through an ‘anonymous’ electronic ‘black market financial network’ and concealed his actions through complex methods such as VPN software.” The case at bar nearly mirrors Ealy‘s facts. Evidence before the district court showed that Defendant acquired PII from a Somalian website and used a VPN and the ultra-privatе Tor browser to conceal his actions. This suggests that Defendant‘s means were at least as sophisticated as those in Ealy.
Moreover, Defendant‘s offense involved sophisticated means beyond the use of this technology. The record also showed that Defendant used corporate shell companies—specifically, the Fingerprint Store and Bubbly Fashion—to receive tax returns. Although the district court did not explicitly cite this conduct to support the application of the enhancement, this is a paradigmatic example of using sophisticated means. See
Defendant‘s remaining argument against the enhancement‘s applicability is unavailing. Defendant notes several times that these email aliases “were easily traceable to his address” and that the tax refunds were placed directly into accounts associated with him. (Def. Br. at 20–21.) But the fact that Defendant failed to successfully hide his identity does not indicate that his means were not sophisticated. If it did, courts would never be able to apply the sophisticated-means enhancement to a known defendant—surely an illogical result. We have applied the enhancement to defendants who “routed money through [their] own bank account” and “failed to disguise [their] identity” before. Pierce, 643 F. App‘x at 503. The district court did not clearly err in doing so here.
The district court found that the sophisticated-means enhancement “easily applies by a preponderance” of the evidence. (Sent‘g Hr‘g Tr., R. 155 at PageID #1409.) Taken in sum, the evidence presented at sentencing justifies that conclusion. Thus, we also affirm the district court‘s decision as to this issue.
III. Pro Se Issues
In an exercise of our “broad discretion to determine who practices before [this Court],” upon denying Defendant‘s motion to proceed pro se on appeal, we permitted him to file a pro se supplemental brief. Miller v. United States, 561 F. App‘x 485, 489 (6th Cir. 2014) (quoting United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976)); see also United States v. Darwich, 574 F. App‘x 582, 588 n.6 (6th Cir. 2014). We also invited the government‘s response to that brief.
Defendant makes two additional arguments in his pro se brief. First, Defendant argues that the district court erred by relying upon facts not found by a jury or admitted by him at sentencing. Second, he contends that the district court wrongly included individuals whose losses were reimbursed when it counted the victims of his crime for the purposes of applying an enhancement under
Neither argument has merit. Regarding the first, following United States v. Booker, 543 U.S. 220 (2005), “a district court may enhance a defendant‘s sentence ‘based upon facts not found by a jury, provided they do not consider themselves required to do so.‘” United States v. Kosinski, 480 F.3d 769, 776 (6th Cir. 2007) (quoting United States v. Davis, 397 F.3d 340, 352 (6th Cir. 2005) (Cook, J., concurring)). Defendant does not argue that the district court considered the Guidelines mandatory, and the record does not suggest it did.
Accordingly, the district court did not make either of the errors Defendant suggests. Absent error, this Cоurt need not reach the remaining elements of the plain-error analysis.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s decision in its entirety.