Exavier v. United States

• Decision Date: 28 October 2021
• Docket Number: 20-cv-62172-BLOOM
• Parties: MAURICE EXAVIER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

MAURICE EXAVIER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 20-cv-62172-BLOOM

United States District Court, S.D. Florida

October 28, 2021

ORDER DENYING MOTION TO VACATE

BETH BLOOM, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court upon Petitioner Maurice Exavier's (“Petitioner”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. [1] (“Motion”). The Government filed a Response to the Motion, ECF No. [9] (“Response”), with supporting exhibits, ECF Nos. [9-1], [9-2], [9-3], [9-4] [9-5], [9-6], [9-7], [9-8], [9-9], [9-10], [9-11], [9-12] [9-13], [9-14], [9-15], [9-16], [9-17], [9-18]. Petitioner filed a Reply, ECF No. [13] (“Reply”), with a supporting exhibit, ECF No. [13-1]. The Court has carefully considered the Motion, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below the Motion is denied.

I. BACKGROUND

Petitioner, who is presently incarcerated at the Miami Federal Correctional Institution, asks the Court to vacate, set aside, or correct his sentence in No. 16-cr-6007. See generally ECF No. [1]. The Court construes Petitioner's Motion liberally due to his pro se status. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Petitioner and his two co-defendants, Carline Maurice and Jimmy Alexandre, were charged by Indictment with 22 separate counts. CR-ECF No. [3].^[1] Petitioner was charged with conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349 (Count 1), conspiracy to commit identity fraud in violation of 18 U.S.C. §§ 1028(f) and 1028(a)(7) (Count 2), 15 counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts 3-17), and 5 counts of aggravated identity theft under 18 U.S.C. § 1028A (Counts 18-22). Id. at 1-11.

The Offense Conduct and Trial.

The Eleventh Circuit previously summarized the background offense conduct and trial as follows:

Exavier and Maurice were principals of Broward Financial Services, LLC (“BFS”), Advance Tax and Accounting Services, Inc. (“ATAS”), and Advance Tax and Accounting Services 2 (“ATAS2”). All three companies provided tax preparation services. Alexandre worked as a tax preparer for a separate business called “Mr Cash and Associates” (“Mr. Cash”). The government alleges that through these businesses, defendants arranged to file false tax returns on behalf of deceased individuals and have refund checks deposited into bank accounts that Exavier and Maurice controlled.

To facilitate electronic filing, the Internal Revenue Service (“IRS”) assigns individual tax preparers a Preparer Tax Identification Number (“PTIN”). Similarly, the IRS assigns tax preparation businesses an Electronic Filing Identification Number (“EFIN”). Both the EFIN and PTIN are specific to that business or individual, and cannot be transferred or reassigned. When a tax preparation business files an electronic return, it must include both the EFIN for the business and the PTIN for the individual tax preparer.

In 2003, the IRS issued an EFIN to BFS. In March of 2008, the IRS issued a PTIN to Exavier so that he could file tax returns for BFS clients. In 2009, in addition to tax preparation services, BFS obtained a state license as a money services business to offer check cashing services for tax preparation clients. The EFIN for BFS became inactive in November of 2010, and the IRS suspended its authorization to file tax returns electronically.

In July of 2010, Exavier and Maurice established ATAS, with Maurice as president and Exavier as vice president. The IRS issued an EFIN to ATAS. On September 10, 2010, a Florida corporation called The Tax Doctors of Broward County reorganized to become ATAS2, with the same business address as ATAS. On September 30, 2010, the IRS issued an EFIN to ATAS2.

In early 2011, ATAS electronically filed 158 income tax returns seeking $536, 430 in refunds for deceased individuals. In this same period, ATAS2 electronically filed 312 returns for deceased individuals claiming $1, 069, 752 in refunds. All of these refunds were filed under EFINs for ATAS and ATAS2 and Maurice's PTIN. Each return included the correct name, birth date, and social security number of the decedent, but listed false information regarding employment, income, contact information, tax credits, deductions, and dependents. The IRS did not actually owe refunds on any of these returns.

In transactions involving a paid tax preparer, a taxpayer can direct the IRS to deposit the refund in the bank account of a designated third party. The third party pays the tax preparer directly, then deducts a processing fee and pays the balance to the taxpayer. ATAS and ATAS2 used Santa Barbara Tax Products Group (“SBTPG”) to process refunds and pay tax preparation fees. SBTPG sent blank checks to ATAS and ATAS2 and when it received refunds from the IRS, authorized them to print cashier's checks for the taxpayers. The government claimed that defendants used this arrangement so that Maurice and Exavier could deposit refund checks for deceased individuals into accounts which they controlled.

On January 19, 2011, after reviewing nine tax returns that had been filed for deceased individuals under the ATAS EFIN, SBTPG terminated its relationship with ATAS. Other than a few refund checks that issued before it discovered the fraud, SBTPG did not actually issue refunds for the fraudulent returns that ATAS and ATAS2 had filed. SBTPG did deposit tax preparation fees into their bank accounts, however, with ATAS receiving approximately $54, 457 and ATAS2 receiving $245, 569. Of the $54, 457 which ATAS received, $4, 000 was traced to Maurice and $2, 000 to Exavier, with the balance largely used to pay “1099 commissions” to various unspecified individuals. Of the $245, 569 which ATAS2 received, $10, 000 was transferred to Maurice through checks, $59, 000 was transferred to Exavier through checks, $5, 000 was transferred to a BFS bank account, and nine checks totaling $20, 350 were made payable to cash. The balance apparently remained in the ATAS2 account or was not directly traceable to defendants.

Alexandre worked as a tax preparer for Mr. Cash in early 2011. He received permission from the company's owner, Yanel Laroche, to file electronic tax returns for his “friends, ” i.e., tax preparers who had lost their EFINs but who nevertheless wished to service some 1, 000 clients. Between January 28 and March 3, 2011, Alexandre filed 363 tax returns electronically under Mr. Cash's EFIN and his own PTIN. Of those 363 tax returns, 345 sought refunds amounting to $1, 708, 910 in the names of deceased individuals. Like the fraudulent returns which ATAS and ATAS2 filed, Alexandre's returns contained the correct names, birth dates, and social security numbers of the decedents, but listed false information regarding employment, income, contact information, tax credits, deductions, and dependents. For Alexandre's returns, Mr. Cash used SBTPG to process refunds and pay tax preparation fees. In March of 2011, SBTPG contacted Laroche to alert him that tax returns had been filed for “dead people” under Mr. Cash's EFIN. Laroche discovered that Alexandre had prepared all of those tax returns. When SBTPG detected the fraud, it had already authorized checks for many of the refunds claimed in those returns. Among them, SBTPG had authorized $555, 939 in refunds on 161 checks that were printed in the Mr. Cash office and deposited into a BFS business checking account that listed Exavier and Maurice as authorized signatories. Alexandre, who did not have a physical office at Mr. Cash, was the only individual who had picked up refund checks that SBTPG issued for the fraudulent returns. SBTPG paid $965, 585 in refunds that the IRS funded for the 345 fraudulent tax returns that Alexandre prepared in early 2011.

Approximately 97 percent of the checks deposited into the BFS business checking account in the first quarter of 2011 were tax refund checks. At trial, IRS Special Agent Bradley Cohen testified that in addition to the 161 refund checks related to Alexandre's returns, BFS deposits included 491 refund checks totaling $1, 785, 683 from returns filed by tax preparers other than defendants, ATAS, ATAS2, or Mr. Cash. Of this amount, $639, 610 was transferred to another BFS account which listed Maurice and Exavier as signatories. From that account, checks totaling $57, 250 were paid to Maurice, $40, 500 to Exavier, $19, 000 to Exavier's wife, $4, 000 to ATAS, and $360, 298 to cash. Of the checks made payable to cash, $28, 000 was traced to a joint account that belonged to Exavier and his wife. Agent Cohen did not opine on the legitimacy of all of the refund checks from other tax preparers, but he analyzed 100 of the 491 refunds. He found that more than 60 of the refund checks were for deceased individuals and that 18 of them were for incarcerated individuals, two of whom were serving life terms.

Agent Cohen testified that documents from the Office of Financial Regulation had listed BFS as a check cashing and money transmitter business. Agent Cohen testified that in November of 2009, when Exavier applied for a Florida business license, he represented that his check cashing operation was limited to cashing checks for tax clients. Agent Cohen testified that in February of 2012, when he went to visit the principal place of business which BFS listed on its annual report, he did not see any sign which represented that check cashing services were offered there. Agent Cohen testified that from 2010 through 2016, BFS moved several times to and from the most recent address on record with the State of Florida (2033 University Drive, Sunrise, Florida) and where ATAS and ATAS2 were located (930

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