Baldwin: Rejecting Sufficiency challenges

In U.S. v. Baldwin, No. 13-12973 (Dec. 17, 2014), the Court affirmed the convictions and sentences of defendants convicted of the unauthorized use of personal identifying information to obtain fraudulent tax refunds. The Court rejected a number of challenges to the sufficiency of the evidence, relying on evidence that the fraudulent returns were submitted from the defendant’s addresses, the fraudulent activity took place within their residences, and one defendant was captured on video making an ATM withdrawal from a card that had been loaded with the proceeds of fraudulent returns. The Court rejected the argument that a constructive amendment occurred when the district court instructed the jury that “scrivener’s errors” in the last digits of the account numbers explained a discrepancy between the number charged in the indictment and the evidence at trial. The Court recognized that it might have been erroneous to allow the jury to convict as long as it found that a defendant “had used any means of identification belonging to any person.” But here the indictment charged the defendant with using names, and those charges were proven at trial. Consequently, the district court did not allow a shift in theory regarding the essential elements of the crime. The Court also rejected challenges to the sentences, finding sufficient evidence that the amount of the loss was reasonably foreseeable. The Court also affirmed the restitution order, finding that a defendant “agreed fully to participate in the broader scheme, rather than to engage in only a small handful of withdrawals.” Finally, the Court rejected the argument that the U.S.S.G. § 2T guidelines, applicable to fraudulent tax returns, instead of the § 2B guidelines, applicable generally to fraud, should have applied. The Court noted that the offense involved more than filing fraudulent tax returns, but stealing identities.