United States v. Igboba

• Decision Date: 02 July 2020
• Docket Number: No. 19-1116,19-1116
• Citation: 964 F.3d 501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oghenevwakpo IGBOBA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

964 F.3d 501

UNITED STATES of America, Plaintiff-Appellee,

v.Oghenevwakpo IGBOBA, Defendant-Appellant.

No. 19-1116

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 2, 2020

ON BRIEF: Gary W. Crim, Dayton, Ohio, for Appellant. Christopher M. O'Connor, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: COLE, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.

OPINION

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 supervised 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 U.S.S.G. § 2B1.1(b)(1), it failed to distinguish between the loss caused by his individual conduct and that caused by the entire conspiracy. Second, Defendant asserts that the district court erred in applying a two-level sophisticated-means enhancement, id. , § 2B1.1(b)(10), because the means he used did not qualify as sophisticated.

For the reasons set forth below, 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 counts: one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 286 ; one count of wire fraud, in violation of 18 U.S.C. § 1343 ; eight counts of making false, fictitious, or fraudulent claims to a United States agency, in violation of 18 U.S.C. § 287 ; and eight counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), (b), and (c)(5).

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 U.S.S.G. § 2B1.1(b)(1)(J) because his offense resulted in intended loss in the range of $3.5 million to $9.5 million—specifically, $4,257,674.06. The PSR further applied a two-level sentence enhancement pursuant to § 2B1.1(b)(2)(A)(i) because the offense involved ten or more victims. Finally, it recommended an additional two-level enhancement pursuant to § 2B1.1(b)(10), which applies where the defendant relocated the scheme to another jurisdiction to avoid detection by law enforcement, a substantial portion of the scheme was committed outside of the United States, or the offense otherwise involved sophisticated means.

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 losses" 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.

First, LaFramboise discussed a government-compiled spreadsheet that listed attempted and actual tax refunds lost by the Treasury Department due to Defendant's criminal conduct and identified the evidence used to connect Defendant to those refunds. Second, LaFramboise testified about a document entitled "How to file tax refunds" that was found on a thumb drive in Defendant's apartment. (Sent'g Hr'g Tr., R. 155 at PageID ##1380–81.) This document directed readers to use a virtual private network ("VPN") and a "[c]lean email ... created while VPN is active" when they file returns. (Id. ) Next, LaFramboise discussed several emails sent or received by lee.su60@yahoo.com, one of Defendant's email addresses. These included an email from that account that instructed another individual on how to buy taxpayers’ PII online by accessing the dark web using the internet browser Tor. Another email, sent from the Lee Su email address to Defendant's codefendant, indicated the use of a Somalian website to generate social security numbers. A third was sent to the Lee Su address by oghenevwakpoigboba@yahoo.com, and included a list of sites on the dark web accessible only through the Tor browser. A fourth had the subject line "Workdone9" and listed taxpayers’ PII and sums of money. (Id. at ##1374–75.) LaFramboise confirmed that this email was one of several similar messages sent by Igboba's codefendant to the Lee Su email address. The last email was sent from Lee Su to Igboba's codefendant and listed cryptocurrency sums and other email addresses. Finally, LaFramboise identified one of Defendant's bank statements showing that Defendant's debit card was used to purchase VPN service.

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 crime. He also explained that tax refunds were channeled to multiple bank accounts, whose owners would then write checks to Defendant. LaFramboise further attested that Defendant funneled refunds through bank accounts associated with shell companies, including two limited liability companies called Fingerprint Store and Bubbly Fashion, neither of which had any legitimate business purpose or physical or online presence at the relevant time. He also noted that Defendant used cryptocurrency to make payments in the course of the conspiracy. Finally, he testified that a substantial portion of the scheme was committed outside the United States, in particular because multiple members of the conspiracy lived outside the country.

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...