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Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, â
Plaintiff-Appellee, â
â
â
v. > Nos. 17-2020/18-1106/1137
â
â
CHRISTOPHER A. GANDY (17-2020); ANTHONY R. â
GANDY (18-1106); SHARON GANDY-MICHEAU â
(18-1137), â
Defendants-Appellants. â
â
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:15-cr-20338âJudith E. Levy, District Judge.
Argued: May 1, 2019
Decided and Filed: June 7, 2019
Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Gary W. Crim, Dayton, Ohio, for Appellant in 17-2020. Deborah A. Solove,
Westerville, Ohio, for Appellant in 18-1106. Daniel R. Hurley, UNITED STATES
ATTORNEYâS OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Gary W. Crim, Dayton,
Ohio, for Appellant in 17-2020. Deborah A. Solove, Westerville, Ohio, for Appellant in 18-
1106. Andrew P. Avellano, Columbus, Ohio, for Appellant in 18-1137. Daniel R. Hurley,
UNITED STATES ATTORNEYâS OFFICE, Detroit, Michigan, for Appellee.
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 2
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Anthony Gandy, his brother Christopher
Gandy, their sister Sharon Gandy-Micheau, and Sharonâs husband Durand Micheau sought tax
refunds for 21 separate fictitious trusts that they created. The defendantsâ scheme was to submit
fictitious tax returns to the Internal Revenue Service (IRS) for the purpose of claiming refunds
for nonexistent excess withholding. They were successful in obtaining refund checks based upon
many of these returns, receiving over $360,000 in ill-gotten money. The defendants were
convicted of several crimes, including mail fraud, conspiracy to commit mail fraud, aggravated
identity theft, conspiracy to commit identity theft, and illegal monetary transactions.
Anthony, Christopher, and Sharon now appeal, arguing that (1) insufficient evidence
supports Sharonâs convictions, (2) insufficient evidence supports the finding that Anthony and
Sharon knew that they were using the names and personal identifying information of real people,
(3) Anthony and Christopher were deprived of the effective assistance of counsel because their
state-bar grievances against their attorneys created conflicts of interest, (4) the indictment was
duplicitous regarding the aggravated-identify-theft charges and the district court failed to cure
this defect by issuing a specific unanimity jury instruction, (5) the courtâs aiding-and-abetting
jury instruction was legally incorrect, and (6) insufficient evidence supports the courtâs
aiding-and-abetting jury instruction. For the reasons set forth below, we AFFIRM all aspects of
the district courtâs judgment.
I. BACKGROUND
A. Factual background
The defendants created trust documents using their own names, their friendsâ names, or
the names of identity-theft victims as trustees, successor trustees, and beneficiaries. They then
obtained an Employer Identification Number (EIN) from the IRS for each trust. Using these
EINs, they submitted fictitious IRS Form 1041s, the form used for income-tax returns for estates
and trusts. These tax returns falsely claimed that substantially more income had been withheld
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 3
from each trust than was due in tax liability, and that the trust was accordingly due a refund in
the amount of the excess withholding.
On at least 14 occasions, the IRS relied on the veracity of the signed returns, which were
submitted under penalty of perjury, and issued refund checks to the fictitious trusts. The checks
were generally mailed to Post Office (P.O.) Boxes that the defendants had obtained. Once they
received the checks, the defendants deposited the funds into bank accounts that they had created
for the trusts, or at supermarkets or check-cashing businesses in Detroit that charged high fees.
All told, the defendants requested $1,425,548 in refunds, the IRS issued refund checks totaling
$939,103.05, and the defendants netted $360,469.05 from those checks. The defendants were
not able to obtain the full $939.103.05 because several of the banks closed the trust accounts
before the defendants were able to withdraw all the funds. In addition, the IRS seized two
checks sent to a P.O. Box at a UPS store because the owner of the store alerted the authorities
about the suspicious checks.
The defendants used their own identities in the early days of the scheme. In June 2012,
for example, a Form 1041 was submitted to the IRS on behalf of the Sharon Trust Fund.
Sharonâs sister Pamela Gandy signed the return and sought a refund of $33,856 for excess
withholding. Sharon was listed as the trustee of the fund and the return was mailed by Anthony.
Furthermore, the return address was listed as a P.O. Box that was obtained by Sharon using her
real driverâs license. Sharon also used her real identification to cash the refund check at a
supermarket in Detroit.
The defendants then recruited family, friends, and acquaintances to lend their personal
information for use in the scheme. For instance, Christopher and his fiancée, Deyana Wagner,
submitted a return on behalf of a fictitious C&D Trust. They had the check sent to a P.O. Box
rented by Anthony, and then cashed the $35,051.80 check at a check-cashing store in Detroit.
Similarly, Anthony recruited his longtime girlfriend, Sydona Robinson, to submit a
fraudulent return. After Anthony established a trust in Robinsonâs name using her real personal
identifying information, he submitted a Form 1041 that claimed a refund of $66,629. Anthony
named his friend Derrick McCoy as a trustee and used a P.O. Box that he controlled as the return
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 4
address. McCoy and Anthony deposited the refund check, which Robinson claimed that she
never saw, into an account at Fifth Third Bank.
Anthony also had McCoy set up a fictitious trust. A Form 1041, submitted by Anthony,
claimed that McCoyâs trust was due a refund of $38,986. The refund check was mailed to
another P.O. Box controlled by Anthony. McCoy and Anthony cashed the check in Detroit,
paying a $1,500 fee. According to McCoy, Anthony kept almost all the money for himself.
Anthony similarly brought his friend Darry Poole into the scheme, falsely telling Poole
that he would help Poole with his taxes. Instead, Anthony used Pooleâs personal information to
create the Darry Poole Trust, and he then submitted a Form 1041 on behalf of the trust. Anthony
listed himself as the trustee and claimed that the trust was due a $34,888 refund for excess
withholding. The IRS sent a refund check for that amount to a P.O. Box controlled by Anthony,
who cashed the check without giving any of the funds to Poole.
Anthony also induced his friend Aaron Maddox to participate in the scheme. Maddox
testified that Anthony had him rent a P.O. Box, which was listed as the return address for several
trusts. Anthony prepared the paperwork to set up a trust in Maddoxâs name and claimed a refund
of $58,386 for the trust, but no funds were ever sent by the IRS. Maddoxâs name was used for
other fictitious trusts as well, including the Capital One Investment Trust and the Aspen
Investment Trust.
Christopher also recruited friends into the scheme. For instance, he falsely told his friend
Brandon Bradley that he could help Bradley get government money to repair houses in Detroit.
Bradley gave Christopher his personal information, and Christopher created the Brandon Bradley
Trust, seeking a refund of $34,231. They received the refund check and cashed it at a local
check-cashing store, paying a fee of between $4,000 and $5,000. Bradley kept $5,000 for
himself and Christopher kept the rest of the money.
Christopher and Anthony jointly recruited Shanel Seay, who had been friends with both
brothers for some time, into the fraudulent scheme. The brothers set up a trust in Seayâs name
and submitted a return seeking a refund of $36,550. No refund was issued for this trust, but the
brothers found other ways for Seay to help with the scheme. For example, they named Seay as
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 5
the trustee for a fictitious Deshawntia Moorer Trust. The Gandy brothers successfully obtained a
refund check for this trust, and Seay opened a bank account for the trust and deposited the refund
check into the bank account. Christopher gave Seay the documents needed to open the bank
account and deposit the check, and Christopher and Sharon both accompanied Seay to the bank.
Shortly thereafter, Anthony and Christopher directed Seay to withdraw the money from the
trustâs bank account in a series of withdrawals.
The defendants also used Seay to help with another fraudulent trust. Christopher falsely
told his friend Randi Hardy that he could help her get money to promote her music career. He
then used Hardyâs personal information to set up a fictitious trust and filed a return for the trust,
seeking a refund of $83,597. Hardy denied signing the return, but she did admit to helping cash
the refund check. The defendants had Seay accompany Hardy and Hardyâs cousin, who was
listed as the trustee, to the bank to deposit the refund check. Seay opened a bank account for the
trust and deposited the refund check into the account, but she testified that the Gandys kept
almost all the funds for themselves.
In order to run the fraudulent scheme, the defendants had to keep track of the
documentation for 21 separate trusts, obtain and track EIN numbers for each trust, complete and
file a Form 1041 seeking a refund for each trust, obtain P.O. Boxes to use as the return addresses
for the refund checks, open bank trust accounts, and deposit the refund checks. Sharon rented at
least three P.O. Boxes in her name. Anthony rented several P.O. Boxes himself and controlled
several others that he had friends rent in their own names.
Sharon kept digital and written records for many of the fictitious trusts. During a search
of her house, law-enforcement officers found two notebooks containing names, addresses, and
identifying information for several identity-theft victims. They also found additional information
regarding dozens of other stolen identities. Moreover, the law-enforcement officers conducted
trash pulls at Sharonâs house to confirm that the defendants were running a tax-fraud criminal
enterprise. Through these thrash pulls, they discovered that the defendants had ordered a âFor
Deposit Onlyâ stamp for one of their fraudulent trust accounts. The stamp purported to represent
the signature of Herbert Coleman White, whose house in Detroit was robbed in 2012.
Law-enforcement officers also found Whiteâs driverâs license, Social Security card, and other
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 6
personal identifying information during their search of Sharonâs house. The defendants used
Whiteâs name and personal information in connection with several of the fictitious trusts that
they created in order to obtain fraudulent tax-refund checks.
A number of the names and personal information used during the scheme in fact
belonged to people who had their wallets or purses stolen in the Detroit area. The identity-theft
victims whose information the defendants used include Deshawntia Moorer, Kjuan Jones, Brandi
Shorter, Alania Curry, Holly Sochocki, Rhonda Nolen, Danisha Smith, and Lia Turla. Trusts in
the names of Moorer and Nolen were established by the defendants, and the defendants
successfully obtained fraudulent tax refunds for these trusts. The defendants also set up trusts in
Curryâs and Shorterâs names and filed fraudulent tax returns seeking refunds. And Jones and
Sochocki were identified as trustees of certain trusts. None of these identity-theft victims knew
that their names and personal identifying information were being used in the defendantsâ
fraudulent scheme.
B. Procedural background
Anthony, Christopher, and Sharon were indicted on multiple counts arising out of their
scheme to obtain fraudulent tax refunds on behalf of these fictitious trusts. Durand Micheau
(Sharonâs husband), Seay, and McCoy were also indicted. Seay reached an agreement to
cooperate with the government and testified during the trial. Micheauâs case was severed. The
Gandy siblings and McCoy were tried together before a jury. McCoy was acquitted, but
Anthony, Christopher, and Sharon were convicted on several of the counts charged in the
indictment. Anthony was sentenced to 80 monthsâ imprisonment and Christopher and Sharon
were each sentenced to 72 monthsâ imprisonment. The district court explained that Anthonyâs
term of imprisonment was longer because of his criminal history. All three defendants and
Durand Micheau were also ordered to pay restitution, jointly and severally, in the amount of
$360,469.05âthe amount of ill-gotten gains they collectively received.
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 7
II. ANALYSIS
A. Sufficient evidence in the record supports Sharonâs convictions.
We begin with Sharonâs argument that there is insufficient evidence in the record to
support the verdict against her. At trial, Sharonâs counsel did not renew her motion for a
judgment of acquittal at the close of the evidence. See Fed. R. Crim. P. 29. We therefore must
determine âonly whether the trial resulted in a âmanifest miscarriage of justice.ââ See United
States v. Williams, 612 F.3d 417, 423 (6th Cir. 2010) (quoting United States v. Khalil, 279 F.3d
358, 368 (6th Cir. 2002)). A manifest miscarriage of justice means that the record is ââdevoidâ of
evidence of guilt.â Id. (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998)).
Sharon was convicted of mail fraud, conspiracy to commit mail fraud, aggravated identity
theft, conspiracy to commit identity theft, and illegal monetary transactions. She argues
generally that none of the convictions can stand because the record is devoid of evidence that she
had the intent to defraud anyone. More specifically, she argues that there was no evidence
demonstrating that she knew that the trusts she helped set up would be used for illicit purposes.
We are not persuaded that the record is devoid of evidence of Sharonâs guilt. Among
other things, she personally cashed a check from the IRS for $33,856 at a supermarket in Detroit.
The check was made out to the Sharon Trust Fund, and she knew the nine-digit EIN assigned to
the trust by the IRS. This refund check was issued because of a tax return filed by the trust and
signed by Sharonâs sister that falsely claimed that the trust had $33,856 in earnings withheld
despite the fact that the trust had no taxable income. And Sharon did more than just cash refund
checks. She rented P.O. Boxes used to obtain some of the refund checks and went to the bank to
assist in setting up fraudulent trust accounts on multiple occasions.
In addition, the evidence found in Sharonâs house constitutes proof regarding her
knowledge that the refund checks that she cashed were fraudulently obtained. Law-enforcement
officers found her notebooks containing information for several of the fictitious trusts and
fraudulent returns. They also conducted trash pulls, finding a stamp in the name of Herbert
Coleman White, an identity-theft victim whom Sharon did not know. Furthermore,
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 8
law-enforcement officers found Whiteâs Social Security card and driverâs license, as well as the
personal identifying information of dozens of other people, in Sharonâs house.
Although there was no direct evidence proving Sharonâs intent, the jurors heard ample
circumstantial evidence from which they could conclude that she knew that the trusts were
created for an illicit purpose. â[I]ntent to defraud can be proven by circumstantial evidence and
by inferences drawn from the scheme itself.â United States v. Parkes, 668 F.3d 295, 302 (6th
Cir. 2012) (quoting United States v. Isaiah, 434 F.3d 513, 519â20 (6th Cir. 2006)). â[W]e have
never questioned the sufficiency of circumstantial evidence in support of a criminal conviction,
even though proof beyond a reasonable doubt is required.â Desert Palace, Inc. v. Costa, 539
U.S. 90, 100 (2003). âAnd juries are routinely instructed that â[t]he law makes no distinction
between the weight or value to be given to either direct or circumstantial evidence.ââ Id.
(alteration in original) (quoting 1A Kevin F. OâMalley, Jay E. Grenig & William C. Lee, Federal
Jury Practice and Instructions: Criminal § 12.04 (5th ed. 2000)). Such an instruction was
provided in the present case.
B. The record is not devoid of evidence that Anthony and Sharon knew that their scheme
used the names and personal information of real people.
Anthony and Sharon next challenge their convictions on counts 38 and 41 of the
indictment, which charged them with aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1). They argue that the record is devoid of evidence proving that they knew that
they were using the names and personal identifying information of real people. Because
Anthony and Sharon failed to renew their motions for a judgment of acquittal at the close of the
evidence, we review their challenge under the manifest-miscarriage-of-justice standard. See
Williams, 612 F.3d at 423.
A conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1) requires proof
of the following elements: (1) the defendant committed a specified predicate felony; (2) the
defendant knowingly transferred, possessed, or used a means of identification of another person
without lawful authority; (3) the defendant knew that the means of identification belonged to
another person; and (4) the transfer, possession, or use was during and in relation to the predicate
felony. Sixth Circuit Pattern Jury Instr. 15.04. (âNonaggravatedâ identity theft under 18 U.S.C.
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 9
§ 1028(a)(7) requires proof of nearly identical elements. But § 1028A(c) enumerates the
predicate felonies for aggravated identity theft, whereas, under § 1028(a)(7), âany unlawful
activity that constitutes a violation of Federal law, or that constitutes a felony under any
applicable State or local law,â is a predicate offense. Section 1028A(a)(1) also provides for a
mandatory minimum sentence of two yearsâ imprisonment, to be served consecutively with
sentences imposed for convictions on other counts. 18 U.S.C. § 1028A(a)(1), (b).)
The predicate felonies in the present case are mail fraud and conspiracy to commit mail
fraud, both of which are enumerated as predicate felonies under § 1028A(c). For the crime
charged in count 38, the defendants used the names and personal identifying information of
Rhonda Nolen and Holly Sochocki. And for the crime charged in count 41, the defendants used
the names and personal identifying information of Deshawntia Moorer and Kjuan Jones. But
Anthony and Sharon argue that there is no evidence in the record proving the third element of
aggravated identity theftâthat they knew that they were using the names and personal
identifying information of real people.
The government can use circumstantial evidence to demonstrate that a defendant knew
that he or she was using means of identification that belonged to another person. âUnder
[18 U.S.C. § 1028A], the government [is] required to prove beyond a reasonable doubt that [the
defendant] knew that the means of identification that he used belonged to another person. The
government need not have direct evidence of knowledge; circumstantial evidence can be
sufficient.â United States v. Soto, 720 F.3d 51, 55 (1st Cir. 2013) (citation omitted).
Taking such circumstantial evidence into account, we conclude that the record is not
devoid of evidence demonstrating that Anthony and Sharon knew that they were using the names
and personal identifying information of real people. This evidence includes the two notebooks
found in Sharonâs house that had personal identifying information of identity-theft victims. She
also had some of these victimsâ original identification documents. And her trash contained
documents and other items demonstrating that she and her husband were using these stolen
identities in the fraudulent-tax-refund scheme. In total, law-enforcement officers recovered
information in Sharonâs house relating to almost 100 different identity-theft victims.
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 10
As for Anthony, he listed Rhonda Nolen and Brandi Shorter as authorized users of the
P.O. Boxes associated with the Rhonda Nolen Trust. He used the driverâs license numbers of
Nolen and Shorter in order to open these P.O. Boxes. And law-enforcement officers found
personal identifying information for both women in Sharonâs house. The defendants repeatedly
used identify-theft victimsâ real names throughout the scheme. They put these victimsâ names
on the false IRS 1041 tax-return forms, on the refund checks that they fraudulently caused the
IRS to issue, on the P.O. Boxes to which the checks were sent, and on the bank accounts into
which the checks were deposited.
In United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the defendant similarly
argued that the government failed to prove that she knew that she was using the identity of a real
person in committing aggravated identify theft. The Eleventh Circuit affirmed Holmesâs
conviction, holding that her willingness to subject a stolen Social Security card to government
scrutiny established that she knew that the Social Security card belonged to a real person. Id. at
1258. And the court also held that Holmesâs success in obtaining a driverâs license and passport
in the victimâs name showed that she knew that the identifying information used to obtain those
documents belonged to another individual. Id.
Similarly, in this case, the jury could have found that Anthony and Sharon were confident
that they were using the names and personal identifying information of real people because they
subjected the names used in their scheme to scrutiny by the IRS, the United States Postal
Service, and the banks. Furthermore, utilizing the analysis in Holmes, the defendantsâ success in
using the stolen personal identifying information to create trusts, rent P.O. Boxes, and open bank
accounts shows that they knew that the personal identifying information belonged to real people.
The defendants, moreover, did not use personal identifying information from only
identity-theft victims. They also used the names and personal identifying information of their
friends and family in committing their fraudulent scheme. Anthony recruited his friends Darry
Poole, Aaron Maddox, and Derrick McCoy, as well as Anthonyâs longtime girlfriend Sydona
Robinson, for their personal identifying information. Christopher also recruited others, including
his friends Brandon Bradley and Randi Hardy, as well as his fiancée Deyana Wagner. As the
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 11
government argues, this demonstrates that the defendants knew that they had to use the names
and personal identifying information of real people in order for their scheme to succeed.
In sum, the government put forth circumstantial evidence from which the jury could have
concluded beyond a reasonable doubt that Anthony and Sharon knew that they were using the
names and personal identifying information of real people. Nor have the defendants rebutted the
governmentâs evidence in any meaningful way. They do not dispute that the names and personal
identifying information that they used did, in fact, belong to real people. And significantly, they
offer no explanation as to how they could have obtained such information without knowing that
it belonged to other individuals. We therefore conclude that the record is not devoid of evidence
showing that Anthony and Sharon knew that they were using the names and personal identifying
information of real people.
C. Anthonyâs and Christopherâs state-bar grievances against their attorneys did not create
conflicts of interest that prevented the attorneys from providing effective assistance of
counsel.
We now move on to Anthonyâs and Christopherâs argument that their attorneys did not
provide effective assistance of counsel because the Gandy brothers each filed state-bar
grievances against them. To start, we provide the context for these state-bar grievances.
The trial in this case did not begin until roughly a year and a half after the indictment was
issued. Each continuance had been agreed upon by counsel, and the parties filed appropriate
stipulations under the Speedy Trial Act. About a month before trial, the defendants filed a pro se
document titled âObjections to Stipulations to Continue Trial,â in which they complained that
they had not personally agreed to the continuances. This document was purportedly signed by
Anthony, Christopher, Sharon, Durand Micheau, Derrick McCoy, and Shanel Seay.
The district court overruled the objections on the ground that the defendants were not
permitted to proceed pro se because they were represented by counsel. It also noted that the
continuances had been agreed to by the parties. Anthony and Christopher then each tried to fire
their respective attorneys and sought the appointment of new attorneys. The court conducted a
hearing on the matter and ultimately concluded that there was no basis for the substitution of
counsel.
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 12
Then, the week before trial, Anthony and Christopher filed grievances against their
attorneys with the State Bar of Michigan. In these filings, the Gandy brothers each claimed that
they required new counsel in order to preserve their objections under the Speedy Trial Act.
Anthony and Christopher followed up by filing motions for the substitution of counsel the day
before the trial was set to begin, claiming that they were being denied the effective assistance of
counsel due their attorneysâ failure to raise their speedy-trial objections. At the same time,
counsel for Anthony and Christopher each moved to withdraw, claiming that the state-bar
grievances had created a conflict of interest between the attorneys and their clients.
The district court conducted another hearing on the matter. Christopher testified during
the hearing that he âasked [his attorney] to file [the motion to dismiss based on the speedy-trial
objection] and [the attorney] didnât file it, and that was [Christopherâs] issue with [his attorney].â
Anthony and Christopher both testified that their only complaint with their respective attorneys
was that the attorneys did not further litigate the speedy-trial objections, which the district court
had already overruled. In fact, Anthony testified that his attorney was otherwise âan excellent
attorney.â
The district court found that there was no impairment in the defendantsâ ability to
effectively work with their attorneys. Furthermore, the court repeated its conclusion that the
speedy-trial objections had no merit. The court also noted that the state-bar grievances were
â100 percent frivolousâ and contrived by the defendants in order to avoid trial. In addition, the
court concluded that counselâs statements that their feelings had been hurt and that their pride
had been wounded were nothing more than âtheatrics.â The court ultimately determined that
counsel had continued to work cooperatively and communicate extensively with their clients
even while these motions were pending. It therefore denied Anthonyâs and Christopherâs
motions to substitute new counsel and denied the attorneysâ motions to withdraw.
Anthony and Christopher now argue that the state-bar grievances created a conflict of
interest that caused them to be denied the effective assistance of counsel. The Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), announced the standard for criminal defendants
claiming ineffective assistance of counsel. âFirst, the defendant must show that counselâs
performance was deficient.â Id. at 687. Counselâs performance is deficient when it â[falls]
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 13
below an objective standard of reasonableness.â Id. at 688. âSecond, the defendant must show
that the deficient performance prejudiced the defense.â Id. at 687.
We use a modified version of the Strickland framework when the
ineffective-assistance-of-counsel claim is based on an alleged conflict of interest. United States
v. Kilpatrick, 798 F.3d 365, 374â75 (6th Cir. 2015). Under this modified standard, a defendant
must point to specific instances in the record and make a factual showing that the attorney and
the defendant have inconsistent interests. Id. Proving a conflict of interest requires the
defendant to show that his attorney had competing obligations and chose to favor one interest
over another, to the detriment of the representation of the defendant. Mickens v. Taylor,
535 U.S. 162, 171 (2002). More specifically, the defendant must show that his attorneyâs
performance was compromised as a result of a competing obligation. Id.
Anthony and Christopher have failed to show that their attorneys had a conflict of interest
because the state-bar grievances did not create conflicting obligations. The district court found
that the grievances were frivolous and that the defendantsâ speedy-trial objections lacked merit.
Claims by the attorneys that their feelings were hurt are not enough to create a conflict of
interest, and the court dismissed as hyperbole the attorneysâ assertions that they could not exert
the âpassionâ necessary to represent their clients. The court also found that there was no real
breakdown in the attorney-client relationship that prevented the attorneys from providing
effective assistance. Anthony and Christopher were both able to communicate with their
attorneys to assist them in preparing for trial.
Furthermore, if the filing of state-bar grievances was in itself sufficient to create a
conflict of interest that would prevent attorneys from providing effective representation, then
criminal defendants could habitually abuse this rule. Any defendant in a criminal case would be
able to manufacture a frivolous argument against his or her attorney, file a state-bar grievance,
and have the district court substitute new counsel. See United States v. Burns, 990 F.2d 1426,
1438 (4th Cir. 1993) (noting that a ruling for a defendant claiming ineffective assistance of
counsel as a result of a meritless state-bar grievance âwould invite criminal defendants anxious
to rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on
the eve of trialâ).
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 14
And even if the grievances in question here had merit, they did not create a conflict of
interest because the grievances did not establish any competing obligations for the attorneys. If
anything, they aligned the attorneysâ interests with those of their clients and incentivized the
attorneys to work even harder. The attorneys must have recognized that if their clients were
convicted at trial, the alleged failure to pursue the speedy-trial objections would be highlighted.
They must have similarly recognized that an acquittal for their clients would render the
grievances moot. See, e.g., United States v. Leggett, 81 F.3d 220, 227 (D.C. Cir. 1996) (â[A]n
attorney fearing an ineffective assistance of counsel claim has an incentive to do his best, not the
contrary.â).
Because we conclude that Anthonyâs and Christopherâs state-bar grievances against their
attorneys did not create a conflict of interest, we need not address whether the alleged conflict
compromised the attorneysâ representation of their clients. But, in short, we note that Anthony
and Christopher have failed to show that any of the alleged deficiencies by their attorneys were
caused by what they deem to be a conflict of interest.
D. There was no plain error with respect to duplicity in the indictment or the lack of a
specific unanimity jury instruction regarding the aggravated-identity-theft charges.
Anthonyâs next argument, joined by Sharon, challenges the aggravated-identity-theft
counts in the indictment on duplicity grounds and challenges the aggravated-identity-theft jury
instructions on unanimity grounds. First, Anthony argues that counts 38 and 41 of the
indictment are duplicitous because the government charged several discrete violations in each
count. âAn indictment is duplicitous if it sets forth separate and distinct crimes in one count.â
United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007) (quoting United States v. Davis, 306
F.3d 398, 415 (6th Cir. 2002)). Second, he argues that the district court failed to give a
unanimity jury instruction regarding the aggravated-identity-theft charges. These arguments
raise the same substantive issue, so we will address them together. See id. (â[T]he primary
concern [with a duplicitous indictment] is that a defendant may be deprived of his right to a
unanimous jury verdict.â).
Anthony and Sharon did not raise the duplicity challenge to the indictment before the
district court. They also did not request a specific jury instruction on unanimity for the
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 15
aggravated-identity-theft charges. We therefore review these arguments under the plain-error
standard. Id. at 445 (â[W]hen a defendant raises a challenge to a duplicitous indictment for the
first time on appeal . . . [and w]here the defendant does not object to the district courtâs
instructions to the jury, review is limited to plain error.â). Under the plain-error standard, âwe
must consider whether there was plain error that affects substantial rights and that, in our
discretionary view, seriously affects the fundamental fairness, integrity, or public reputation of
judicial proceedings.â United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (citing
Johnson v. United States, 520 U.S. 461, 466 (1997)).
Anthony argues that the indictment is duplicitous regarding counts 38 and 41, and that
the jury instructions failed to cure this defect. Specifically, he contends that each of these counts
alleged more than one predicate offense and more than one victim. Count 38 refers to the
victims as Individuals C and Dâlater identified as Rhonda Nolen and Holly Sochocki. And
count 41 refers to the victims as Individuals H and Iâlater identified as Deshawntia Moorer and
Kjuan Jones. Anthony relies primarily on United States v. Duncan, 850 F.2d 1104 (6th Cir.
1988), in support of his argument that the verdict must be unanimous regarding the predicate
offense and the victim.
This court held in Duncan that a jury verdict must be unanimous as to which false
statement violated 26 U.S.C. §§ 7206(1) and 7602(2), statutes that prohibit the making and
preparing of a tax return containing a materially false statement. Id. at 1113. We also held that
the distinct court was required to use a specific unanimity jury instruction when faced with the
genuine risk of a nonunanimous verdict. Id. at 1113â14. The problem with Duncan, however, is
that this court in United States v. Schmeltz, 667 F.3d 685, 688 (6th Cir. 2011), noted that Duncan
had been abrogated by Schad v. Arizona, 501 U.S. 624 (1991). In Schad, the Supreme Court
recognized âa long-established rule of the criminal law that an indictment need not specify which
overt act, among several named, was the means by which a crime was committed.â Id. at 631.
The Court in Schad further noted as follows:
We have never suggested that in returning general verdicts in such cases the
jurors should be required to agree upon a single means of commission, any more
than the indictments were required to specify one alone. In these cases, as in
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litigation generally, âdifferent jurors may be persuaded by different pieces of
evidence, even when they agree upon the bottom line. Plainly there is no general
requirement that the jury reach agreement on the preliminary factual issues which
underlie the verdict.
Id. at 631â32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,
concurring) (footnotes omitted)). Because Duncan has been abrogated, Anthony has not pointed
to any binding precedent that establishes that each victim of identity theft must be the subject of
a separate charge or that a jury verdict must be unanimous regarding the victim of identity theft.
Furthermore, based on the evidence presented at trial, no reasonable juror could have
found that Anthony and Sharon used the name and personal information of Rhonda Nolen but
not of Holly Sochocki, or vice versa, because the two names were used together on the same
instruments. The Form 1041 submitted for the Rhonda Nolen Trust, for instance, identified
Holly Sochocki as the trustee. And the refund check listed both Nolen and Sochocki.
The same is true for count 41 regarding Deshawntia Moorer and Kjuan Jones. For the
Deshawntia Moorer Trust, the Form 1041 listed Deshawntia Moorer and Kjuan Jones on
successive lines. And the refund check also listed both names. Because no reasonable juror
could have found that one name was used but not the other, there was no risk of a nonunanimous
verdict regarding the multiple victims named in each count. See United States v. Kakos, 483
F.3d 441, 446 (6th Cir. 2007) (observing that, where the defendant was charged in a single count
with knowingly receiving both a stolen trailer and the meat contained in the trailer, his argument
that some jurors might have concluded that he knew only that the trailer was stolen, whereas
others might have concluded that he knew only that the meat was stolen, was inconsistent with
the evidence). Accordingly, there was no plain error on duplicity grounds regarding the
indictment naming multiple victims in counts 38 and 41, and the district court was not required
to issue a specific unanimity instruction on this issue.
We will now address Anthonyâs argument that the indictment was duplicitous because
counts 38 and 41 listed multiple predicate felonies. Each count alleged that the crimes of
aggravated identity theft were committed âduring and in relation to the offenses of conspiracy to
commit mail fraud and mail fraud.â
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Even assuming that the district court erred in not providing a specific unanimity
instruction for the aggravated-identity-theft counts regarding the predicate felonies, there was no
issue with respect to unanimity. The jury unanimously found both Anthony and Sharon guilty of
conspiracy to commit mail fraud, which was one of the predicate felonies for aggravated identity
theft. Anthony was acquitted of the predicate substantive-mail-fraud offenses in counts 10, 14,
28, and 31. So we know from the verdict that the jury unanimously believed that the only
predicate offense that Anthony was guilty of is conspiracy to commit mail fraud.
True enough, Sharon was convicted of the substantive-mail-fraud offenses in counts 10
and 28 for the Nolen Trust. But that does not present an issue regarding whether the juryâs
verdict was unanimous for the aggravated-identity-theft charges in counts 38 and 41 because the
jury unanimously believed that Sharon committed the predicate offenses of both mail fraud and
conspiracy to commit mail fraud. We therefore have no concern that some jurors found Sharon
guilty of only the predicate offense of mail fraud, whereas others found her guilty of only the
predicate conspiracy offense. The jury found her guilty of both offenses. In sum, Anthony and
Sharon were not âdeprived of [their] right to a unanimous jury verdict.â See Kakos, 483 F.3d at
443.
E. The district court did not commit plain error regarding its aiding-and-abetting jury
instruction for aggravated identity theft by not specifying that a defendant must
willfully cause another person to commit every element of aggravated identity theft.
This brings us to the first of Anthonyâs arguments, joined by Sharon, challenging the
district courtâs jury instruction regarding aiding-and-abetting liability. Anthony contends that the
court erred in its jury instruction because it did not specify that a defendant must have knowledge
that another person would use a real identity-theft victimâs personal information.
Specifically, Anthony argues that, under Rosemond v. United States, 572 U.S. 65 (2014),
the district court must instruct the jury that aiding-and-abetting liability applies only if the
defendant takes an affirmative act in furtherance of the underlying offense with the intent to
facilitate that offenseâs commission. See id. at 71, 76. The defendant, Anthony contends, must
have knowledge that another person will commit each element of the crime in order to be found
guilty. See id.
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Rosemond concerned aiding-and-abetting liability under 18 U.S.C. § 924(c), which
criminalizes using a firearm âduring and in relation toâ a drug-trafficking crime or a crime of
violence. The Supreme Court held that âintent must go to the specific and entire crime charged,â
i.e., âthe full scope (predicate crime plus gun use) of § 924(c).â Id. at 76. Anthony argues that
the same reasoning applies in the present case because aggravated identity theft under 18 U.S.C.
§ 1028A(a)(1) is also a compound crime that requires the commission of a criminal actâ
transferring, possessing, or using a means of identification of another person without lawful
authorityââduring and in relation toâ a predicate offense. Applying the principles articulated in
Rosemond to the present case, Anthony argues that the jury instructions improperly failed to
specify that he could be found guilty of aiding and abetting only if he knew that another person
would use a real identity-theft victimâs personal information.
If an objection to a jury instruction was not preserved before the district court, we review
the instruction under the plain-error standard, âconsidering whether âthe instructions, when taken
as a whole, were so clearly wrong as to produce a grave miscarriage of justice.ââ United States
v. Wood, 364 F.3d 704, 708 (6th Cir. 2004) (quoting United States v. Sanderson, 966 F.2d 184,
187 (6th Cir. 1992)). Anthony argues that his objection was preserved, but before the district
court he challenged only the sufficiency of the evidence to support an aiding-and-abetting
instruction. That argument is raised again on appeal. See below, Part II.F. But none of the
defendants argued before the district court that the aiding-and-abetting instruction itself was
legally incorrect. Accordingly, we review the district courtâs instruction under the plain-error
standard.
The district court instructed the jury on aiding-and-abetting liability for aggravated
identity theft as follows:
First, that the defendant caused any person to commit the act of knowingly using
without lawful authority a means of identification of another individual;
Second, if the defendant had committed the act, it would have been the crime of
Aggravated Identity Theft;
Third, that the defendant willfully caused the act to be done.
Proof that the defendant may have known about the crime, even if he or she was
there when it was committed, is not enough for you to find him or her guilty. You
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may consider this in deciding whether the government has proved that he or she
caused the act to be done, but without more it is not enough. What the
government must prove is that the defendant willfully did something to cause the
act to be committed.
The second element negates Anthonyâs objection based on Rosemond because the district
court had already instructed the jury on the crime of aggravated identity theft using the proper
elements. Among those elements was the requirement âthat the defendant knew the means of
identification belonged to another person.â Accordingly, the jury instructions as a whole were
sufficiently clear that, in order for the jury to find Anthony or Sharon guilty of aggravated
identity theft under an aiding-and-abetting theory of liability, it would have to find that he or she
willfully caused another person to use someone elseâs identification without lawful authority,
knowing that the identification used belonged to someone else. We thus find no plain error in
the aiding-and-abetting jury instruction.
F. Sufficient evidence justified the district courtâs aiding-and-abetting jury instruction for
aggravated identity theft.
This leads us to Anthonyâs next argument, also joined by Sharon, challenging the
sufficiency of the evidence to support the district courtâs aiding-and-abetting jury instruction.
The government acknowledges that this objection was preserved, so we review the courtâs
decision to include the instruction under the abuse-of-discretion standard. United States v.
Eaton, 784 F.3d 298, 306â07 (6th Cir. 2015). âUnder this standard, we âreview the instructions
as a whole, in order to determine whether they adequately informed the jury of the relevant
considerations and provided a basis in law for aiding the jury in reaching its decision.ââ Id.
(quoting United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008)).
Anthony argues that he had no role in the tax returns, the EIN numbers, or the trust
documents regarding the Rhonda Nolen and Deshawntia Moorer Trusts. But the evidence shows
otherwise. For the Rhonda Nolen Trust, for instance, Anthony rented a P.O. Box in November
2012 and listed Nolen as an authorized recipient. That same day, somebody prepared a
fraudulent tax return for the trust using Nolenâs forged signature and sent the return to the IRS.
The fraudulent return requested that a refund check be sent to the P.O. Box opened by Anthony.
Anthony went to the bank with Christopher when Christopher set up the bank account for the
Nos. 17-2020/18-1106/1137 United States v. Gandy et al. Page 20
Nolen Trust. Then, when the check arrived in the P.O. Box rented by Anthony, Anthony and
Christopher took the check to the bank to deposit it into the account that they had opened.
Anthony points out that the surveillance photo from the bank depicts him departing
carrying a sheaf of papers, which he claims was a newspaper. But when somebody enters a bank
empty handed, opens a trust account, then leaves carrying a sheaf of papers, the most logical
inference is that these papers relate to the new account. A reasonable jury could conclude from
these facts that Anthony either prepared the false return, forged Nolenâs signature, and mailed
the return to the IRS himself, or that he caused another person to commit these acts. In sum, the
district court did not abuse its discretion in deciding to use an aiding-and-abetting instruction
with regard to count 38 because Anthony would be liable whether he prepared the false tax
return himself or whether he caused another to do so.
Evidence in the record also supports the aiding-and-abetting instruction regarding count
41, the aggravated-identity-theft count relating to the Deshawntia Moorer Trust. As with the
Rhonda Nolen Trust, Anthony procured the P.O. Box to which the refund check for the Moorer
Trust was sent. He recruited Poole to help with this task. The Moorer Trust designated Seay as
the trustee, and she testified that Anthony and Christopher were responsible for her involvement
in the criminal scheme. Seay was accompanied by Christopher and Sharon when she took the
check bearing Moorerâs and Kjuan Jonesâs names to the bank to deposit it. And she testified that
Anthony demanded that she make withdrawals from the account, with the money going to him.
A reasonable juror could find that one of the defendants caused somebody else to create and mail
the fraudulent IRS return for the Moorer Trust. The district court therefore did not abuse its
discretion in instructing the jury on aiding-and-abetting liability under 18 U.S.C. § 2(b) for the
count 41 aggravated-identity-theft charge.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM all aspects of the district courtâs
judgment.