Submitted: February 10, 2017
from United States District Court for the District of
Minnesota - St. Paul
LOKEN, COLLOTON, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Pierre appeals his convictions for conspiracy to defraud the
government and money laundering, asserting that the district
court erred by denying his motions to suppress
evidence and to dismiss the charges. He also argues that the
district court committed procedural error in calculating an
advisory sentencing guideline range before imposing sentence.
We conclude that there was no reversible error, and we
and three co-conspirators were charged with conspiracy to
defraud the government and money laundering, in violation of
18 U.S.C. §§ 286 and 1957. The conspirators used
stolen social security numbers to submit fraudulent tax
returns and collect the refunds. Some of the victims were
incarcerated in Florida when their social security numbers
were used to submit the tax returns.
scheme began around July 2010, when Pierre registered a phony
tax-preparation business in Minnesota and opened bank
accounts in the company's name. Pierre and his
co-conspirators filed 98 fraudulent federal income-tax
returns requesting nearly $800, 000 in refunds through that
company. The IRS processed many of the returns and deposited
nearly $450, 000 in the company's account.
then recruited co-conspirators to register more phony
tax-preparation businesses and open corresponding bank
accounts. Pierre and the co-conspirators submitted at least
770 tax returns requesting more than $5.2 million in refunds.
The IRS processed over 200 of these returns and paid more
than $1.2 million before the fraud was discovered. Pierre and
his co-conspirators were indicted in Minnesota in May 2013.
months earlier, Pierre and another set of co-conspirators
were charged with a similar tax conspiracy in the Southern
District of Florida. In this scheme, Pierre and his Florida
co-conspirators agreed to use stolen social security numbers
to file fraudulent tax returns, direct the IRS to deposit the
tax refunds onto debit cards, and then withdraw the refunds.
The Florida indictment charged Pierre and his co-
conspirators with conspiracy to defraud the United States,
use of unauthorized access devices (i.e., debit
cards) and conspiracy to use them, and aggravated identity
theft. The indictment also charged Pierre with possession of
fifteen or more unauthorized access devices (i.e.,
social security numbers). The jury convicted Pierre on all
counts, and the Florida district court sentenced him to 208
months in prison. United States v. Pierre, 825 F.3d
1183, 1191 (11th Cir. 2016).
Pierre was charged in Minnesota, he moved to suppress certain
bank records and to dismiss the conspiracy charge. Pierre
argued that the government violated the Fourth Amendment and
the Right to Financial Privacy Act when it obtained
Pierre's bank records via grand jury subpoenas. The
district court denied the motion on the grounds that Pierre
lacked standing to bring the Fourth Amendment challenge and
that the Right to Financial Privacy Act does not authorize
the suppression of evidence.
motion to dismiss the conspiracy count, Pierre claimed that
the Double Jeopardy Clause prevented the prosecution in
Minnesota, because the Minnesota and Florida conspiracies
were actually a single conspiracy for which he had already
been prosecuted in Florida. After the district court denied
Pierre's motion, Pierre brought an interlocutory appeal.
This court affirmed, concluding that the government had shown
by a preponderance of the evidence that the two indictments
charged separate conspiracies. United States v.
Pierre, 795 F.3d 847, 852 (8th Cir. 2015).
then pleaded guilty to both counts of the Minnesota
indictment. Pierre proceeded pro se and renewed the
motion to dismiss on the double-jeopardy ground. He argued
that excerpts from government filings in the Minnesota and
Florida cases after the first appeal demonstrated that the
two indictments charged a single conspiracy. The district
court denied Pierre's renewed motion.
sentencing, the district court calculated a total offense
level of 33 under the sentencing guidelines. That total
offense level included a two-level increase for a vulnerable
victim, a two-level increase for sophisticated means, a
two-level increase for an offense involving ten or more
victims, an 18-level increase for an intended loss of more
than $5.2 million, and a four-level increase for an
aggravating role in the offense. With a criminal history
category of IV, Pierre's advisory guideline range was 188
to 235 ...