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United States v. Pierre

United States Court of Appeals, Eighth Circuit

September 1, 2017

United States of America, Plaintiff- Appellee,
v.
Frantz Pierre, Defendant-Appellant.

          Submitted: February 10, 2017

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         Frantz Pierre appeals his convictions for conspiracy to defraud the government and money laundering, asserting that the district court[1] 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 therefore affirm.

         I.

         Pierre 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.

         The 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.

         Pierre 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.

         Eight 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).

         After 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.

         In his 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).

         Pierre 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.

         At 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 ...


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