United States v. Alland Philidor, Willman Philidor, Nos. 12-13679, 12-13724
Appeals from the United States District Court for the Southern District of
Florida
(May 29, 2013)
Panel: Tjoflat, Wilson and Anderson, Circuit Judges.
Per Curiam: Affirmed
In these consolidated appeals, the Eleventh Circuit reaches the rather
startling conclusion that district courts can infer, based on common sense
and ordinary human experience, that the Internal Revenue Service verifies
identifying information, like Social Security numbers, before issuing a tax
refund. The Court also holds – in the context of the §2B1.1(b)(2)(C)
enhancement for number of victims, in which the definition of “victim”
includes a person whose means of identification was used unlawfully – that
“person” means an actual individual, i.e., not fictitious, regardless of
whether the individual is alive or deceased.
Alland Philidor and his brother Willman Philidor pleaded guilty to
conspiracy to steal government funds and to theft of government funds for
their participation in a scheme that involved submitting fraudulent tax
returns to the Internal Revenue Service using stolen Social Security
numbers, receiving refund checks from the federal government, and
depositing these proceeds in various bank accounts of corporate entities
controlled by them.
The PSI indicated that there were thousands of victims whose Social
Security numbers were fraudulently used by the Philidors. Accordingly, the
PSI recommended that the six-level enhancement under USSG §2B1.1(b)(2)(C)
be applied to their base offense level because the offense involved 250 or
more victims. The PSI also noted, however, that the government had only
positively identified twenty-six of the taxpayer victims.
The Philidors objected to the statements in the PSI concerning the number
of victims and the six-level enhancement. Although they conceded that the
government’s discovery materials identified more than 250 Social Security
numbers that were used to file over 250 fraudulent tax returns for which
they received proceeds, the Philidors argued that the government failed to
meet its burden to show that the offense involved 250 actual, living
victims. The district court overruled the objection.
On appeal, the Eleventh Circuit held that the district court did not
clearly err in finding that there were 250 or more victims affected by the
Philidors’ crime. The Court wrote that the undisputed portions of the PSI
indicated that the Philidors’ bank statements listed over 250 Social
Security numbers and that these numbers correspond to tax refunds issued
based on fraudulently submitted tax returns. The Court found that, based on
the fact that the Internal Revenue Service issued refunds for tax returns
listing those numbers, the district court made the legitimate inference
that the Social Security numbers corresponded to actual persons.
The Eleventh Circuit noted that it had previously said, in the context of
government-issued identification, that it is not necessary to present proof
that the government verifies an individual’s identity before it issues a
driver’s license or passport, because it is reasonable to conclude, “based
on ordinary human experience,” that the government “routinely obtains an
applicant’s identity to verify the authenticity of that identity.” In the
Phildors case, the Court found, the district court could infer, based on
common sense and ordinary human experience, that the Internal Revenue
Service verifies identifying information, like Social Security numbers,
before issuing a tax refund. The Court thus concluded that the fact that
the Internal Revenue Service paid the refunds to the Philidors indicated
that the Social Security numbers used to procure those refunds were
associated with real people, and thus the district court’s conclusion was
therefore not clearly erroneous.
Finally, the Eleventh Circuit held that the district court did not err in
applying the § 2B1.1(b)(2)(C) enhancement without first finding that the
victims were living. A victim in this context is a person whose means of
identification was used unlawfully, and a “means of identification” is
limited to “an actual (i.e., not fictitious) individual.” USSG §2B1.1
comment. (n.1). The Court reasoned that “because ‘i.e.’ is an abbreviation
for ‘that is,’ the plain meaning of the language used by Congress [sic] was
that ‘not fictitious’ was the exclusive definition for ‘actual.’”
Accordingly, the Court concluded, the plain meaning of the phrase “actual”
does not distinguish between living and deceased persons.
The full text of the decision can be found here: