United States v. Pierre

• Citation: 870 F.3d 845
• Decision Date: 01 September 2017
• Docket Number: No. 16-2797.,16-2797.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frantz PIERRE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

870 F.3d 845

UNITED STATES of America, Plaintiff-Appellee,

v.Frantz PIERRE, Defendant-Appellant.

No. 16-2797.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2017

Filed: September 1, 2017

James Sanderson Alexander, David Genrich, Joseph H. Thompson, Joseph H. Thompson, Lolita A. Velazquez-Aguilu, Assistant U.S. Attorneys, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff–Appellee.

Robert W. Owens, Jr., Owens Law, LLC, Bloomington, MN, for Defendant–Appellant

Frantz Pierre, Pro se.

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 court¹ 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 months' imprisonment. The court sentenced Pierre to 210 months' imprisonment, with all but 36 months to run concurrently with the Florida sentence.

II.

Pierre argues first that the district court erred by denying his motion to suppress his financial records, and by denying his motion to dismiss the indictment on double-jeopardy grounds. A valid guilty plea, however, waives all suppression issues not expressly reserved by a conditional plea, United States v. Freeman , 625 F.3d 1049, 1052 (8th Cir. 2010), and waives a defendant's "independent claims relating to the deprivation of constitutional rights that occurred prior to" pleading guilty, Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). This waiver covers Pierre's claim for suppression of evidence based on the statute or the Constitution.

The valid guilty plea also bars an appeal based on double jeopardy, unless "the face of the record" at the time the plea was entered shows that the district court did not have the power to enter the second conviction or to impose sentence. United States v. Broce , 488 U.S. 563, 569, 575-76, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). The indictment in the Minnesota case describes on its face a conspiracy that is separate from the conspiracy in Florida. United States v. Pierre , 795 F.3d 847, 849-52 (8th Cir. 2015). Pierre also relies on statements made by the government in court documents filed after the first appeal. Assuming that Pierre did not waive reliance on materials other than the indictments by pleading guilty, cf. United States v. Quinones , 906 F.2d 924, 927 (2d Cir. 1990), these court documents do not establish a violation of double jeopardy.

Pierre first cites a sentence from government's briefs in his Eleventh Circuit appeal stating that the "overall scheme" spanned at least from 2010 to 2012, and was moved to Minnesota after it was uncovered in south Florida. The phrasing is imprecise, but it is not inconsistent with the existence of two separate conspiracies that constituted what the government attorney called the "overall scheme." The brief's reference to the period "from 2010 to 2012" does not say that both conspiracies were underway during that entire period.

Pierre also points to two comments from the government's sentencing brief concerning one of Pierre's Minnesota co-defendants. In the first, the government remarked that the co-defendant participated in a "large, multi-state tax fraud scheme." The reference to multiple States is not inconsistent with a separate conspiracy charged in Minnesota; that offense involved some actions (such as filing of tax returns) that were taken in Florida. See Pierre , 795 F.3d at 851. Pierre also cites the government's references to "Pierre and a group of Miami-based co-conspirators" illegally obtaining social security numbers, and "Pierre and other co-conspirators" using those numbers to prepare and file fraudulent tax returns. This discussion is not inconsistent with the government's theory of separate conspiracies: Pierre and his Florida-based co-conspirators acquired the social security numbers, while Pierre and his Minnesota-based co-conspirators used the numbers to file fraudulent tax returns by opening phony tax-preparation businesses and bank accounts in Minnesota.

The face of the record does not show that Pierre's prosecution in Minnesota placed him in jeopardy for the same offense twice. His double-jeopardy claim therefore fails or is barred by his guilty plea.

III.

Pierre also raises five challenges to his sentence. We review the district court's interpretation and application of the guidelines de novo and its factual findings for clear error. United States v. Petruk , 836 F.3d 974, 976 (8th Cir. 2016).

First, Pierre argues that the district court erred when it applied an increase for a vulnerable victim. USSG § 3A1.1(b)(1) calls for a two-level increase if the defendant knew or should have known that a victim of the offense was a vulnerable victim. A vulnerable victim includes a person who is "otherwise particularly susceptible to the criminal conduct." USSG § 3A1.1, comment. (n.2).

The district court did not clearly err when it found that Pierre's incarcerated victims were vulnerable. The evidence supported a finding that Pierre knew or should have known that incarceration made them particularly susceptible to others using their identities to procure fraudulent tax refunds. Pierre complains that a vulnerable victim is a "person," USSG § 3A1.1, comment. (n.2), while incarcerated victims are a "class of persons," and he argues that the increase was thus unwarranted. But that the same circumstance made all incarcerated victims vulnerable does not make the adjustment inapplicable. Pierre also points out that not all of the victims were incarcerated, but the increase applies as long as one or more victims was vulnerable. United States v....