United States Court of Appeals For the First Circuit
No. 21-1804
UNITED STATES,
Appellee,
v.
EMMANUEL AKOTO, a/k/a Kofi,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Lynch, Circuit Judges.
Sara E. Silva, with whom Hogan Lovells US LLP was on brief, for appellant. Hannah Cook, Attorney, Tax Division, Department of Justice, with whom David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Katie Bagley, Attorney, Tax Division, Joseph B. Syverson, Attorney, Tax Division, and Jane E. Young, United States Attorney, were on brief, for appellee.
February 23, 2023 LYNCH, Circuit Judge. A New Hampshire federal jury
convicted Emmanuel Akoto of one count of conspiracy to commit wire
fraud, three counts of substantive wire fraud, and two counts of
aggravated identity theft. These charges were based on evidence
of Akoto's participation in an international scheme, involving
individuals in the United States, Nigeria, and Ghana, that used
stolen identities to file fraudulent federal income tax returns
with the Internal Revenue Service ("IRS"). At sentencing, the
district court determined that Akoto and his coconspirators had
filed at least 310 fraudulent tax returns seeking $1,326,633 in
refunds, $551,601 of which the IRS paid out. Based in part on
this loss amount, the district court sentenced Akoto to 70 months'
imprisonment, which represented a downward variance from his
Guidelines range.
On appeal, Akoto makes three arguments. First, he
contends that his conviction on one of the aggravated identity
theft counts should be vacated because his trial counsel's failure
to raise a statute of limitations defense to this count amounted
to ineffective assistance of counsel. Second, he argues that his
convictions on the three substantive wire fraud counts should be
vacated because the district court's jury instructions
constructively amended the indictment. Third, Akoto asserts that
his sentence should be vacated because the district court erred in
- 2 - calculating the loss amount attributable to his conduct. We
affirm.
I.
A.
We recount the background facts in the light most
favorable to the jury's verdict, consistent with record support.
See United States v. Tkhilaishvili, 926 F.3d 1, 8 (1st Cir. 2019).
Between 2011 and 2013, Akoto and his coconspirators used
stolen identities to file fraudulent federal income tax returns.
The scheme worked as follows.
Akoto and his coconspirators first purchased stolen
identity information from Hieu Minh Ngo, a Vietnamese hacker.
Between 2007 and 2013, Ngo ran an illicit business selling personal
identifying information ("PII") over the internet. This
information came as "fullz" (or "fulls") packages -- short for
"full information" -- that typically included information like an
individual's name, Social Security number, date of birth, address,
driver's license number, and bank account numbers. Much of this
information constituted "means of identification" ("MOI"), as
defined at 18 U.S.C. § 1028(d)(7). Ngo maintained an inventory of
more than 176,000 fullz and sold fullz to at least 1,300
individuals around the world. Ngo often resold the same fullz to
different individuals.
- 3 - Akoto purchased between 900 and 1,000 fullz from Ngo.
Ngo sent Akoto these fullz in email attachments. Akoto routinely
requested newly hacked information that would work for the tax
fraud scheme. He asked Ngo for "fresh ones" and "the newest info
that you have," specified the timeframes he was looking for, and
sought information that "would pass" -- i.e., could be successfully
used in the scheme.
Ngo was eventually apprehended by American law
enforcement and agreed to cooperate. He allowed Secret Service
Special Agent Matthew O'Neill to take over his email accounts.
Agent O'Neill used Ngo's email to communicate with Ngo's customers,
including Akoto, for investigatory purposes.
After receiving the stolen identities, Akoto and his
coconspirators "washed" each identity by submitting a tax return
to the IRS using that information but deliberately using the wrong
date of birth. The IRS typically responded with a rejection letter
stating either that (1) the date of birth was incorrect or (2) the
date of birth was incorrect and a return for that individual had
already been filed. If the former, the coconspirators knew they
could file a potentially successful fraudulent tax return using
that person's name because the person had not yet filed a tax
return for that year. The purpose of "washing" was to avoid
purchasing prepaid debit cards (the next step of the scheme) in
- 4 - the names of individuals for whom a fraudulent return could not be
successfully filed.
After a name had been successfully "washed," Akoto and
his coconspirators purchased a prepaid debit card in that person's
name, filed a fraudulent tax return (this time with the correct
date of birth), and routed the refund to the prepaid debit card.
The fraudulent returns were often filed by conspirators in Nigeria
and Ghana. If the IRS did not detect the fraud and issued a refund
to the prepaid debit card, Akoto or a coconspirator withdrew the
refund in cash from an ATM.1 Some of this money was sent to the
overseas conspirators by depositing it in different accounts, with
the conspirator who withdrew the cash also keeping some.
B.
On November 29, 2017, a federal grand jury returned an
indictment charging Akoto and codefendant Jeffrey Quaye with six
counts: one count of conspiracy to commit wire fraud (Count One),
see 18 U.S.C. §§ 1343, 1349; three counts of substantive wire fraud
and aiding and abetting wire fraud (Counts Two, Three, and Four),
see id. §§ 2, 1343; and two counts of aggravated identity theft
(Counts Five and Six), see id. § 1028A(a)(1).
Quaye entered into a plea agreement with the government
before trial and testified against Akoto at trial. The government
1 Some refunds were routed directly to bank accounts rather than to prepaid debit cards.
- 5 - also presented testimony from two other cooperating witnesses:
Ngo, the hacker and fullz seller, and Abiola Adeyemo, who was
present for a conversation between Akoto and Quaye regarding the
scheme and pleaded guilty to participation in a related tax fraud
scheme. The government further called as witnesses four government
agents and six victims whose PII had been used in the scheme.
Akoto's central defense at trial was that the government
could not tie him to the scheme because he did not control the
kwa2kg@yahoo.com email account that was used to communicate with
Ngo, receive fullz, share fullz with coconspirators, and share
other information such as "washed" names. The government
introduced evidence that emails sent from the account were sent
from an IP address tied to 2047 Paducah Lane, Grand Prairie, Texas,
the address where Akoto was living. Quaye also testified that the
email account belonged to Akoto. And the government introduced
other documentary evidence that the account belonged to Akoto,
including messages in the account referring to his business,
regarding airplane tickets for him and his wife, and addressing
him by his nicknames. The government further established that the
kwa2kg@yahoo.com account was used to correspond with two other
email accounts (kwa22kg@yahoo.com and nana2kg@gmail.com) to
further the conspiracy -- i.e., by sharing fullz and washed names.
Following a three-day trial, the jury convicted Akoto on
all counts.
- 6 - At sentencing, the district court adopted the findings
and recommendations set forth in the presentence investigation
report ("PSR"). It accepted that Akoto and his coconspirators had
filed at least 310 fraudulent tax returns seeking $1,326,633 in
refunds, of which the IRS actually paid out $551,601. Based on
this intended loss amount of $1,326,633 and several other
enhancements, the court calculated a total offense level of 25,
resulting in a Guidelines range of 57 to 71 months plus a mandatory
consecutive 24-month sentence for the aggravated identity theft
charges. The court varied downward and sentenced Akoto to 70
months' imprisonment: 46 months on the conspiracy count and on
each substantive wire fraud count, to be served concurrently, and
24 months on each aggravated identity theft count, to be served
concurrently to each other and consecutively to the 46 months.2
II.
As to Akoto's first argument on appeal, based on alleged
ineffective assistance of counsel, such arguments are rarely
entertained on direct appeal if not previously raised below, and
2 The district court also imposed two years of supervised release, $551,601 in restitution, and a $600 assessment.
- 7 - we decline to do so here. See United States v. Miller, 911 F.3d
638, 641-42, 646 (1st Cir. 2018).
Counts Five and Six of the indictment charged Akoto with
committing aggravated identity theft in violation of 18 U.S.C.
§ 1028A by "knowingly possess[ing] and us[ing], without lawful
authority, means of identification of other people, that is, the
names and Social Security Numbers of two individuals for the
purpose of filing false and fraudulent United States Income Tax
Returns claiming tax refunds . . . during and in relation to a
. . . conspiracy to commit wire fraud." The indictment alleged
that these offenses "continu[ed] to a date uncertain, but at least
as late as March 13, 2013." The indictment also specified that
the false tax returns associated with these counts were filed on
November 20, 2012 (Count Five) and January 31, 2013 (Count Six).
Akoto argues that Count Five was untimely "from the face
of the indictment" because the indictment was not returned until
November 29, 2017, more than five years after the false tax return
associated with Count Five was filed on November 20, 2012. See 18
U.S.C. § 3282(a) (setting a five-year statute of limitations period
for most noncapital offenses). He claims that his trial counsel's
failure to raise this statute of limitations defense amounted to
ineffective assistance of counsel in violation of the Sixth
Amendment.
- 8 - The government responds that (1) it is premature to
address Akoto's ineffective assistance claim in the present
appeal, not least because further factual development is needed,
and (2) should this court entertain Akoto's ineffective assistance
claim, it fails on the merits for multiple reasons. The government
argues that Count Five was timely for three reasons: First, the
charging language in the indictment expressly alleged that the
offense continued "at least as late as March 13, 2013," and the
inclusion of the earlier date on which the tax return was filed
should not override this charging language. Second, Count Five
was timely as a continuing offense: aggravated identity theft
requires the commission of a predicate felony, the statute of
limitations does not begin to run until the predicate felony is
completed, and the predicate felony here -- the conspiracy to
commit wire fraud -- lasted well into the statute of limitations
period. Third, Count Five was timely as proven at trial because
the refund associated with the false tax return was not issued
until December 5, 2012, within the statute of limitations period,
and because Akoto continued to "possess" the stolen identity
information in his email account within this period.
At the very least, the government argues, the uncertain
viability of a statute of limitations defense is such that trial
counsel's failure to raise it does not constitute ineffective
assistance and Akoto has also not met his burden to show prejudice.
- 9 - The government makes the point that Akoto faced a mandatory two-
year sentence based on the other aggravated identity theft count
(Count Six), which Akoto does not challenge as untimely, so trial
counsel's choice to pursue an alternative defense theory which
could have resulted in acquittal on all counts was reasonable.
We reach only the threshold question and decline to
review the merits of Akoto's ineffective assistance claim on direct
appeal. This court has "held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance of
counsel cannot make their debut on direct review of criminal
convictions, but, rather, must originally be presented to, and
acted upon by, the trial court." Tkhilaishvili, 926 F.3d at 20
(quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)).
The trial court, "by reason of [its] familiarity with the case, is
usually in the best position to assess both the quality of the
legal representation afforded to the defendant . . . and the impact
of any shortfall in that representation" in the first instance.
Id. (quoting Mala, 7 F.3d at 1063). "Thus, a criminal defendant
who wishes to pursue a claim of ineffective assistance not advanced
in the trial court is ordinarily required to defer that claim to
collateral proceedings." Miller, 911 F.3d at 642.
We have recognized a potential exception to this rule
"where the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration"
- 10 - of the claim on direct appeal. Id. (quoting United States v.
Natanel, 938 F.2d 302, 309 (1st Cir. 1991)). That exception is
not applicable here. It is by no means clear, for reasons
articulated by the government, that a statute of limitations
defense was obviously available to Akoto in this case. Further
factual development, which is not present in the record before us,
is necessary to appraise counsel's performance.3 See, e.g.,
Tkhilaishvili, 926 F.3d at 20 (declining to review an ineffective
assistance claim on direct appeal for similar reasons); Miller,
911 F.3d at 646 (same); United States v. Leahy, 473 F.3d 401, 410
(1st Cir. 2007) (same).
Akoto contends that our recent decision in Miller not to
take up an ineffective assistance of counsel claim on direct appeal
"turned on" the fact that counsel in that case was at least aware
of a potential statute of limitations issue -- and that the absence
of evidence of a similar awareness in this case is grounds to
decide Akoto's claim on direct appeal. Nothing in Miller supports
that proposition. Miller noted by way of background that counsel
was aware of a potential statute of limitations issue, see 911
F.3d at 641, but that fact did not guide our analysis. Miller's
holding rested instead on the general rule that we will not resolve
3 Akoto points to certain portions of the trial transcript he claims "affirmatively show[]" that counsel was unaware of the statute of limitations defense. Not so.
- 11 - an ineffective assistance claim on direct review if the record is
not sufficiently developed to allow for thoughtful consideration
of the claim. See id. at 646 ("We are left to guess at trial
counsel's thought processes . . . . When all is said and done, we
know little more than that trial counsel chose not to file a motion
to dismiss."); see also Leahy, 473 F.3d at 410 (declining to credit
the defendant's assertion that his trial counsel was simply unaware
of a key case in the absence of developed factual support for that
assertion).
We thus affirm Akoto's conviction on Count Five, without
prejudice to his ability to raise his claim of ineffective
assistance of counsel in a collateral proceeding should he wish to
do so. See 28 U.S.C. § 2255.
Akoto next argues that the district court constructively
amended the three substantive wire fraud counts charged in the
indictment (Counts Two though Four) in its jury instructions.
Akoto did not object to the jury instructions in the district
court, so our review is for plain error. See United States v.
Brandao, 539 F.3d 44, 57 (1st Cir. 2008). Under that standard,
Akoto must show "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [Akoto's] substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
- 12 - Valdés-Ayala, 900 F.3d 20, 36 (1st Cir. 2018) (quoting United
States v. George, 841 F.3d 55, 64 (1st Cir. 2016)). We conclude
that, reading the challenged instructions in context, no error
occurred.
Counts Two through Four alleged, in relevant part, that
Akoto and Quaye "devised and intended to devise and aided and
abetted each other in devising a scheme and artifice to defraud"
and, in furtherance of that scheme, "transmitted and caused to be
transmitted by means of wire communications, as more particularly
described below, in interstate and foreign commerce, certain
writings." The three counts were specifically charged as follows:
Count Description of Wire Location of Date of Wire Number Wire Two AKOTO e-mail sent to Sent to February 14, monitored e-mail District of 2013 account requesting New Hampshire 200 MOI Three AKOTO e-mail sent to Sent to February 16, monitored e-mail District of 2013 account requesting New Hampshire MOI "that wld pass" Four AKOTO e-mail sent to Sent to February 19, monitored account District of 2013 requesting "new info New Hampshire that is almost 9 or 6 months old."
In the jury instructions, the district court defined the
term "interstate wire communication," in relevant part, as
follows:
An "interstate wire communication" includes a telephone communication from one state to another, as well as an email transmission or
- 13 - other internet communication. It also includes the electronic filing of a tax return with the Internal Revenue Service from one state to another.
The district court also instructed the jury on aider and abettor
liability as to Counts Two through Four.
Akoto argues that the instruction that an interstate
wire communication includes "the electronic filing of a tax
return," given in conjunction with the aiding and abetting
instruction, "permitted the jury to convict [Akoto on Counts Two
through Four] upon a finding that he aided and abetted any co-
conspirator in electronically filing any tax return despite the
fact that those counts were expressly premised on specific emails."
(Emphasis omitted.) He contends that this amounted to an
impermissible constructive amendment to the indictment.4
"A constructive amendment occurs when the charging terms
of an indictment are altered, either literally or in effect, by
prosecution or court after the grand jury has last passed upon
them." Brandao, 539 F.3d at 57 (quoting United States v. Pierre,
484 F.3d 75, 81 (1st Cir. 2007)). "The prohibition on constructive
amendment exists to preserve the defendant's Fifth Amendment right
to indictment by grand jury, to prevent re-prosecution for the
same offense in violation of the Sixth Amendment, and to protect
4 In his reply brief, Akoto disclaims any separate challenge based on the aiding and abetting instruction.
- 14 - the defendant's Sixth Amendment right to be informed of the charges
against him." Id. In assessing whether a district court's jury
instructions constructively amended the indictment, we evaluate
the challenged instructions not in isolation but in the context of
the entire charge. See United States v. McBride, 962 F.3d 25, 33
(1st Cir. 2020); United States v. Lopez-Cotto, 884 F.3d 1, 9-11
(1st Cir. 2018).
Taken in context, the district court's definition of
"interstate wire communication" did not constructively amend the
indictment and did not amount to error, let alone plain error.
The district court began by instructing the jurors that
they "should not single out any one instruction, but instead apply
these instructions as a whole to the evidence in the case."
Turning to the substantive instructions, the district court told
the jury that it would explain "the elements of the substantive
crime of wire fraud" before explaining conspiracy, "because [the
conspiracy] instructions will be better understood if the
substantive counts have been explained first." The district court
then explained that Counts Two through Four "allege that [Akoto]
. . . devised and intended to devise, and aided and abetted another
in devising, a scheme and artifice to defraud, and for obtaining
money and property by means of materially false and fraudulent
pretenses, representations, and promises" and "[i]n furtherance
of, and for the purpose of executing such schemes and artifice to
- 15 - defraud . . . transmitted and caused to be transmitted by means of
wire communications, as more particularly described below, in
interstate and foreign commerce, certain writings." The district
court then read the description of the three specific emails
charged for Counts Two through Four verbatim from the indictment.
The district court then provided definitions. The
district court defined terms such as "scheme," "defraud," and aider
and abettor liability. The district court also provided the
definition of "interstate wire communication" discussed above.
The district court went on to explain Count One,
conspiracy to commit wire fraud. The court referred the jury back
to its earlier discussion of wire fraud before turning to the
conspiracy-specific elements of the count: "As I instructed you
earlier, section 1343 of Title 18 makes it unlawful to commit wire
fraud and provides that . . . ." The court provided definitions
for terms like "conspiracy" and "overt act," but did not repeat
the substantive wire fraud definitions it had previously given,
including the definition of "interstate wire communication."
The district court defined the substantive elements of
wire fraud only once and had the jury use that definition for both
the substantive wire fraud counts and the conspiracy to commit
wire fraud count. The court sensibly noted that the filing of a
tax return could be a wire communication, because Count One alleged
that such filings were overt acts in furtherance of the conspiracy.
- 16 - This definition did not shift the theory of the case as to Counts
Two through Four. Indeed, the jury instructions on those counts
described the specific email which served as the basis for each
count.
The challenged jury instruction did not constructively
amend the indictment and was not error, let alone plain error.
See McBride, 962 F.3d at 33 (rejecting constructive amendment
challenge after reviewing jury instructions as a whole);
Lopez-Cotto, 884 F.3d at 10-11 (same).
C.
Akoto's final contention on appeal is that the district
court erred in calculating the loss amount attributable to his
conduct during sentencing. Akoto makes two arguments. First, he
asserts that there is not sufficient evidence connecting him to
the 310 fraudulent tax returns on which the district court based
its loss calculations. He argues that the fact that PII used in
these fraudulent returns was found in the conspiracy's email
accounts is insufficient, because other fraudsters may have had
access to this same PII.5 Second, Akoto contends that the district
court should have used the same loss amount for him as for Quaye,
which would have resulted in a 12-level (rather than 14-level)
5 Akoto points to the facts that Ngo sold PII to at least 1,300 individuals around the world, that Ngo often resold the same fullz to multiple individuals, and that at least 13,673 fraudulent tax returns were filed using information from the fullz.
- 17 - increase in his total offense level and potentially a shorter
sentence.
"'In a fraud case resulting in financial loss, the
defendant's guideline sentencing range is determined in part' by
the amount of loss." United States v. Flete-Garcia, 925 F.3d 17,
28 (1st Cir. 2019) (quoting United States v. Naphaeng, 906 F.3d
173, 179 (1st Cir. 2018)). The loss amount "is the greater of
actual loss or intended loss," with intended loss being "the
pecuniary harm that the defendant purposely sought to inflict."
USSG § 2B1.1 cmt. n.3(A). "Since intended loss normally subsumes
actual loss, intended loss is often the greater of the two."
Flete-Garcia, 925 F.3d at 28.
District courts have "considerable discretion in
determining what evidence should be regarded as reliable in making
findings as to the amount of loss." Id. And a district court's
loss calculations "need not be precise: the sentencing court need
only make a reasonable estimate of the range of loss." Id.; accord
USSG § 2B1.1 cmt. n.3(C). For example, a district court can
estimate loss by looking to factors like "[t]he approximate number
of victims multiplied by the average loss to each victim" and "the
scope and duration of the offense." USSG § 2B1.1 cmt. n.3(C).
The government bears the burden of proving the loss
amount by a preponderance of the evidence. Flete-Garcia, 925 F.3d
- 18 - at 28. We review the district court's factual findings as to the
loss amount for clear error. Id. at 26, 32-33.
Here, the district court accepted the government's
submission that Akoto and his coconspirators had filed at least
310 fraudulent tax returns seeking $1,326,633 in refunds, $551,601
of which was paid out. The government reached these figures
through a multistep process. First, the IRS examined emails in
three email accounts that the trial evidence established were used
in the conspiracy (kwa2kg@yahoo.com, kwa22kg@yahoo.com, and
nana2kg@gmail.com).6 The IRS flagged any PII found in these
emails, and then determined whether this PII had been used in tax
returns. If so, the IRS took further steps to identify whether
these tax returns were in fact fraudulent, such as by comparing
the wage information reported on the return with wage information
reported to the IRS by employers. This process identified the 310
fraudulent returns that utilized PII found in the email accounts
used in the conspiracy.7 The government provided Akoto with a list
6 There was evidence that the second two accounts were also controlled by Akoto. For example, Quaye testified that nana2kg@gmail.com was one of Akoto's accounts (in addition to kwa2kg@yahoo.com), and that Akoto identified himself by placing "2kg" in the usernames of his accounts. The government did not seek to directly establish Akoto's control over the second two accounts, presumably because the evidence showed that he controlled the first account and that, at the least, the second two accounts were used by coconspirators to further the conspiracy. 7 The IRS initially identified at least 490 fraudulent tax returns that utilized PII found in these email accounts, amounting to $2,363,349 in requested refunds and $665,728 in paid refunds.
- 19 - of these 310 returns, including the tax return ID number, the names
and Social Security numbers used, the tax year, the bank
information used, the refund amount requested, and the refund
amount paid. The total refund amount fraudulently requested was
$1,326,633, and the total refund amount paid was $551,601. Akoto
did not challenge any of these specific fraudulent returns as not
being associated with the conspiracy.
Based on these figures, the district court determined
that the intended loss, and thus the amount of loss, was
$1,326,633. Because this loss amount was over $550,000, it
resulted in a 14-level increase in Akoto's total offense level.
See USSG § 2B1.1(b)(1).
As to Akoto's first challenge, we conclude that the
district court did not clearly err in determining that the 310
fraudulent returns were tied to Akoto and his coconspirators by a
preponderance of the evidence.
Each of the 310 returns at issue utilized PII found in
the conspiracy's email accounts. And the methodology the
government used to identify these 310 returns was virtually
identical to that which we approved in Flete-Garcia.8 In that
However, after further consideration the government opted for a more conservative loss amount figure based on the 310 tax returns. 8 We focus on Flete-Garcia's treatment of the $5 million in intended loss resulting from tax returns that the conspirators in that case filed but which were rejected by the IRS. See 925 F.3d at 31-33. The government was able to substantiate the $7.7
- 20 - case, as here, the government took PII possessed by the
conspirators, identified tax returns that utilized this
information, determined whether the returns were in fact
fraudulent, then prepared summary charts cataloging the losses.
See id. at 31-32. In affirming the district court's loss
calculation, we emphasized the fact that "the record shows with
conspicuous clarity that the IRS used the PII" possessed by the
coconspirators "to identify the suspect tax returns." Id. at 32.
The fact that unrelated fraudsters may also have
possessed some of this PII does not render the loss amount clearly
erroneous so long as there is sufficient evidence tying Akoto to
the loss. Indeed, Akoto concedes that the government did not have
to "eliminate the possibility" that an unrelated culprit filed
some of the fraudulent returns at issue. Flete-Garcia is again
instructive. There, we held that the district court did not
clearly err in accepting a $5 million intended loss figure even
though one of the defendant's coconspirators had "admitted to doing
some 'freelancing,'" including by selling lists of PII to others,
and certain tax returns in the government's summary charts could
million actual loss figure in Flete-Garcia by reviewing the conspirators' bank accounts for evidence of tax-refund checks. Id. at 29. Such an approach to actual loss was not viable in this case because Akoto and his coconspirators structured their scheme to conceal receipt of the proceeds (by routing the refunds to prepaid debit cards in others' names and then making withdrawals in cash).
- 21 - be read to have been filed by individuals outside of the
defendant's conspiracy. Id. (noting Flete-Garcia's argument that
the addresses and W-2 forms associated with some returns pointed
toward other culprits). We reasoned that "the [district] court
reasonably credited the government's explanation that [the
freelancer's] separate activities were not included in the loss
calculation" and that, viewing the record as a whole, there was no
clear error. Id.; see id. at 32-33. The mere possibility that
others possessed the PII at issue was not dispositive.
So too here. The fact that the conspiracy possessed the
PII used in the fraudulent returns is itself strong evidence of
culpability. See United States v. Clayton, 108 F.3d 1114, 1118-
19 (9th Cir. 1997) (holding that the fact that the defendant
possessed 29 stolen phone ID numbers and had illegally cloned at
least two of them "support[ed] the district court's inference that
he was responsible for the loss associated with the remaining
stolen numbers found in his possession"). And there was also
additional evidence beyond this fact of possession which tied Akoto
and his coconspirators to the fraudulent returns.
To begin, Akoto overstates the potential for overlap
between the PII found in the conspiracy's email accounts and PII
possessed by unrelated fraudsters. Ngo sold PII to individuals
around the world and often resold the same fullz. But Ngo
maintained a total inventory of more than 176,000 fullz; not all
- 22 - of his clients necessarily possessed the fullz found in the
conspiracy's email accounts, which constituted a tiny fraction of
Ngo's total inventory. And Ngo sold fullz between 2007 and 2013,
whereas Akoto was charged based on conduct between 2011 and 2013.
All 310 of the fraudulent tax returns at issue were for tax years
2010 through 2012 (corresponding to calendar years 2011 to 2013),
the time period when Akoto and his coconspirators were actively
filing such returns.
Further, Akoto's practice was to specifically request
new information that would work for the scheme. He asked Ngo for
"fresh one[s] that no one has" and "the newest info that you have."
In November 2011, he asked for information "for 2011." In April
2012, he asked for "2011 and 2012, if possible." His goal was to
obtain information that "would pass" for purposes of the fraud.
Ngo testified that Akoto wanted to purchase "up-to-date," newer
information, and that newer fullz were less likely to have been
sold to many other purchasers. And Agent O'Neill testified that,
in the context of this investigation, he understood "fresh ones"
to mean "PII that ha[d] been recently stolen or acquired and not
sold to anyone else." Fullz that had already been used by other
fraudsters would not work for purposes of Akoto's fraud scheme, so
he specifically requested newer fullz that "would pass."
We add a final point. As in Flete-Garcia, the district
court here "was operating with a substantial cushion." 925 F.3d
- 23 - at 32. The court found that the amount of loss was $1,326,633.
Any loss amount above $550,000 would have led to the same 14-level
increase in Akoto's offense level. See USSG § 2B1.1(b)(1). So to
demonstrate reversible error, Akoto must convince us that roughly
$775,000 -- or almost sixty percent of the loss amount attributed
to him by the district court -- was the product of clear error.
See Flete-Garcia, 925 F.3d at 32. He has not done so.9
9 Akoto directs our attention to United States v. Cabrera, 172 F.3d 1287 (11th Cir. 1999), a case in which the defendant was prosecuted for knowingly possessing telephone cloning equipment. Id. at 1289. At sentencing, the government offered a loss amount based on the electronic serial number/mobile identification number ("ESN/MIN") combinations found in Cabrera's possession. Id. at 1290-91. The Eleventh Circuit rejected this approach. Reasoning that "[m]ultiple unauthorized users often use the same ESN/MIN combinations simultaneously" and "sellers provide the same ESN/MIN combinations to multiple buyers," the Eleventh Circuit held that, to attribute telephone cloning fraud loss to a defendant, the government must "provide evidence specifically linking the amount of fraud loss to the defendant's cloning activities." Id. at 1292; see also id. 1293-94. It is first worth noting that the Ninth Circuit reached the opposite conclusion as Cabrera on similar facts. See Clayton, 108 F.3d at 1118-19. In addition, our case is distinct from Cabrera in an important way: while in Cabrera, the government's loss amount was based on ESN/MIN combinations that it found "on Cabrera's handwritten list," "computer" and "computer disks," 172 F.3d at 1293, here, the government's loss amount is based exclusively on PII that Akoto exchanged by email, often with coconspirators. It is fair to presume, then, that Akoto intended this PII to be used in the scheme, and therefore "intended" the "loss" that would result from its successful use. See also Flete-Garcia, 925 F.3d at 31 (approving intended loss amount based on PII that defendant "gave" to coconspirator). Thus, even if we were to agree with Akoto that the government did not sufficiently tie him to the fraudulent returns to support its "actual loss" calculation, the government has certainly done enough to support its "intended loss" calculation, which is sufficient to establish the "loss amount" for the purposes of sentencing. See USSG § 2B1.1
- 24 - As to Akoto's second argument, we conclude that the
district court did not clearly err by declining to adopt Quaye's
$364,758 loss amount as the loss amount attributable to Akoto.
The government calculated the loss attributable to each defendant
using the same multi-step methodology. The difference was that
the universe of emails associated with Akoto was simply broader.
For Quaye, the government limited its review to emails exchanged
between Quaye's email address and Akoto's email address, whereas
for Akoto, the government reviewed emails in his kwa2kg@yahoo.com
account and in the two other accounts he corresponded with to
advance the conspiracy (accounts with which Quaye did not
correspond). And the government persuasively contends that this
difference in scope reflects Akoto's deeper involvement in the
conspiracy -- as evidenced by, for example, his initial recruitment
of Quaye into the scheme and his more extensive connections with
coconspirators.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
cmt. n.3(A) ("[L]oss is the greater of actual loss or intended loss.").
- 25 -