Pre-Conspiracy Victim Tax Returns Are Intrinsic Evidence in RICO Tax-Refund Fraud; Generic PSI “Objections for Appeal” Do Not Preserve Loss Challenges

I. Introduction

In United States v. Dickenson Elan (11th Cir. Mar. 6, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed Dickenson Elan’s conviction and 135-month sentence for RICO conspiracy under 18 U.S.C. § 1962(d). The government’s theory was that Elan and others formed a racketeering enterprise operating multiple sham tax-preparation businesses that used stolen personal identifying information (“PII”) to file fraudulent federal tax returns and obtain refunds.

On appeal, Elan raised four principal issues:

  1. Whether the district court improperly admitted certain taxpayers’ 2014 returns (and one taxpayer’s 2016 return) as relevant evidence.
  2. Whether the evidence was insufficient to prove he knowingly agreed to a RICO conspiracy.
  3. Whether the district court overstated loss and wrongly applied the 22-level enhancement under U.S.S.G. § 2B1.1(b)(1)(L).
  4. Whether the 135-month sentence was substantively unreasonable because the court did not reduce it in light of his expected removal to Haiti.

II. Summary of the Opinion

The Eleventh Circuit affirmed across the board. It held that (1) the 2014 returns of identity-theft victims were properly admitted as intrinsic evidence because unauthorized returns were later filed in those same names as part of the charged scheme, and the 2016 return was admissible (under plain-error review) as evidence the conspiracy re-used stolen taxpayer information; (2) the trial record contained ample (indeed, “not much short of overwhelming”) evidence that Elan knowingly agreed to the enterprise’s objectives and participated through emails, leases, IP/location data, and identifiers (EFIN/PTIN); (3) the loss finding exceeded $25 million without clear error, particularly because Elan failed to dispute PSI facts with the required specificity; and (4) the low-end guideline sentence was substantively reasonable, and the district court was not required to vary downward due to immigration consequences.

III. Analysis

A. Precedents Cited

1. Evidentiary Standards: Discretion, Intrinsic Evidence, Rules 403/404(b), and Plain Error

  • United States v. Dodds: supplied the baseline abuse-of-discretion standard for evidentiary rulings and the appellate lens for Rule 403 (“maximize probative value and minimize undue prejudice”), plus the harmless-error principle that even erroneous rulings must affect substantial rights to warrant reversal. The Elan panel used Dodds to frame both deference and prejudice analysis.
  • United States v. Ramirez and United States v. Bradberry: reinforced that abuse-of-discretion review governs Rule 404(b) and Rule 403 rulings. Although the panel ultimately treated the challenged returns as intrinsic rather than classic 404(b) extrinsic acts, these cases anchored the review posture.
  • United States v. Edouard and United States v. Brown: defined the four-part framework for plain-error review (error; plain; affects substantial rights; and discretionary correction only if fairness/integrity is harmed). This controlled the taxpayer’s 2016 return issue because Elan did not object below.
  • United States v. Harding: provided the Eleventh Circuit’s modern articulation of intrinsic evidence—evidence arising from the same series of transactions, completing the story, or “inextricably intertwined.” The panel applied Harding directly to approve admission of “pre-conspiracy” returns as contextual proof of how later fraudulent filings deviated from legitimate filings.
  • United States v. Lopez and United States v. Kent: informed Rule 403’s “extraordinary remedy” framing and clarified “unfair prejudice” as an improper-basis risk. The panel’s conclusion implicitly treated the probative value (showing identity theft mechanics and reuse of data) as comfortably outweighing prejudice.
  • United States v. Cross: supplied the specific proposition that evidence predating a conspiracy is not categorically barred if relevant. This case helps explain the doctrinal bridge between “pre-conspiracy” timing and “intrinsic” relevance in schemes that build on earlier legitimate records.

2. Sufficiency of the Evidence and RICO Conspiracy Elements

  • United States v. Beach, United States v. Williams, United States v. Farley, and United States v. Guevara: collectively provided the de novo standard for Rule 29 and the high deference to jury verdicts, including that circumstantial and direct evidence are weighed the same. These cases structured the panel’s insistence that reversal is appropriate only if no reasonable juror could convict.
  • Salinas v. United States: supplied the core federal rule for § 1962(d) liability—agreement is central, and the government need not prove each conspirator personally committed substantive racketeering acts to establish conspiracy. The panel used Salinas as the controlling Supreme Court authority on what must be proven for RICO conspiracy.
  • United States v. Graham, United States v. Abbell, and United States v. Gonzalez: refined the Eleventh Circuit’s “touchstone” approach: liability turns on an agreement to the overall objective (or alternatively agreement to commit two predicate acts), and the overall-objective route does not require proof of two personally agreed predicate acts. Gonzalez specifically supports proving agreement via circumstantial evidence of shared knowledge/participation in the same racketeering enterprise.
  • United States v. Hano, United States v. Lebowitz, United States v. Rivera, and United States v. Ramirez-Chilel: defined the appellate posture toward credibility determinations and the permissibility of treating a defendant’s disbelieved testimony as substantive evidence of guilt. The panel leaned on these cases to reject Elan’s effort to relitigate credibility, emphasizing contradictions between his denials and digital/email evidence.

3. Loss, Relevant Conduct, and Objections to the PSI

  • United States v. Woodard and United States v. Rodriguez-Lopez: supplied clear-error review and the “definite and firm conviction” benchmark for overturning loss findings.
  • United States v. Dupree and United States v. Jews: addressed when courts may rely on Guidelines commentary. The panel noted that, consistent with Jews, commentary reliance was unobjectionable because neither party disputed the commentary’s validity here.
  • United States v. Wheeler: supported attributing the conspiracy’s total loss to defendants who were actively involved in furthering the overall objective—an important bridge from “multiple entities” to a single loss calculation.
  • United States v. Bradley, United States v. Stein, United States v. Campbell, and United States v. Ford: together framed the loss methodology: the government must prove loss by a preponderance; the court may reasonably estimate using varied methods; judges have leeway; but may not speculate and must rely on reliable, specific evidence. The panel invoked this suite to validate the district court’s loss approach in a multi-year, multi-entity refund-fraud scheme.
  • United States v. Pierre, United States v. Bennett, and United States v. Horn: emphasized what materials can support loss (trial evidence, undisputed PSI facts, sentencing hearing evidence) and the procedural requirement that PSI challenges must be made with “specificity and clarity.” The panel treated Elan’s statement that he objected “only for purposes of… appeal” as a paradigmatic non-specific objection under Bennett, leaving PSI facts effectively undisputed.

4. Substantive Reasonableness and Immigration Consequences

  • United States v. Moran and United States v. Almedina: reinforced that sentencing findings can rest on undisputed PSI facts and that when two permissible interpretations exist, the district court’s choice is not clearly erroneous.
  • Gall v. United States and United States v. Tome: set the deferential abuse-of-discretion standard for substantive reasonableness and place the burden on the challenger.
  • United States v. Irey: supplied the tripartite definition of substantive unreasonableness (ignoring key factors, over-weighting improper factors, or clear judgment error).
  • United States v. Shabazz and United States v. Rosales-Bruno: underscored appellate deference to district courts’ weighing of § 3553(a) factors and recognized that courts may give greater weight to some factors than others. This deference is what allowed the panel to accept that the district court could consider removal consequences but was not required to treat them as mitigating.
  • United States v. Dougherty: supported the notion that a sentence far below the statutory maximum is an indicator of reasonableness—here, reinforcing affirmation of a low-end guideline sentence.

B. Legal Reasoning

1. Why the 2014 and 2016 Tax Returns Were Admissible

The opinion’s core evidentiary move is characterizing “pre-conspiracy” legitimate tax returns not as propensity evidence, but as intrinsic evidence that completed the story of the charged identity-theft refund scheme. The 2014 returns were probative because, during the conspiracy period, unauthorized returns were filed in those same taxpayers’ names. The earlier legitimate returns helped explain how the scheme operated (what information was stolen, what changed in later filings, and how fraud could be detected).

For the 2016 return, reviewed only for plain error, the court accepted the government’s rationale that the exhibit showed the enterprise re-used stolen taxpayer information across years. That use-based connection—rather than timing—made the evidence relevant and prevented a finding of “plain” error.

2. RICO Conspiracy: Agreement and Participation Through Digital and Operational Links

Applying Salinas v. United States and Eleventh Circuit agreement doctrine from United States v. Graham, the panel focused on the “touchstone” question: did Elan knowingly agree to the enterprise’s overall objective (or, alternatively, agree to commit two predicate acts)?

The court highlighted a dense web of circumstantial proof:

  • Emails tying Elan to the sham entities (including account credentials and communications about operations).
  • Leases signed by Elan for office locations used by entities filing fraudulent returns, including his day-to-day presence at one location.
  • IP and location data connecting filings to the leased premises and to identifiers associated with Elan.
  • Association with key participants and shared PII pipelines (including the creation and use of an email account used to store stolen PII).
  • EFIN/PTIN linkages to entities used to file claims exceeding $1 million in refunds via one EFIN alone.

Credibility precedents mattered because Elan testified and denied incriminating emails/phone links, but the government demonstrated those emails were present in his inboxes at trial. Under United States v. Rivera and United States v. Lebowitz, the jury could treat disbelieved testimony as affirmative evidence of guilt. The panel thus refused to disturb the jury’s resolution of contradictions.

3. Loss Enhancement: Procedural Default via Non-Specific PSI Objections and Substantive Attribution Through Relevant Conduct

The Guidelines issue turned on two pillars: (1) procedure—whether Elan properly disputed the PSI’s loss facts, and (2) substance—whether the multi-entity, multi-year losses were within relevant conduct attributable to him.

Procedurally, the panel treated Elan’s statement that he objected to PSI facts “only… for appeal” as a blanket denial that fails under United States v. Bennett. As a result, the court could treat the PSI’s loss calculation as undisputed sentencing fact.

Substantively, the opinion accepted that Elan’s connections to multiple sham firms and their coordinated use of stolen PII placed the resulting losses within U.S.S.G. § 1B1.3(a)(1)(B) relevant conduct—scope, furtherance, and foreseeability—especially given his operational role (leases, daily management, email credential transfers, debit card/prepaid card mechanics). The panel also cited United States v. Wheeler for the proposition that active furtherance of the overall objective supports attributing the conspiracy’s total loss.

4. Substantive Reasonableness: Immigration Consequences Are Discretionary, Not Mandatory Mitigation

The court affirmed a low-end guideline sentence under Gall v. United States deference, emphasizing the district court’s balancing: despite findings of perjury and massive economic loss, the court credited mitigating considerations such as lack of criminal history and family impact.

On the specific argument about hardship from removal to Haiti, the panel’s key holding is functional rather than formulaic: a district court may consider immigration consequences “for or against” a lower sentence, but it does not abuse its discretion by declining to vary downward on that basis. In short, removal consequences are a permissible consideration, not a required mitigating factor.

C. Impact

Although designated “not for publication,” the decision is a practical roadmap for refund-fraud/RICO prosecutions and sentencings in four ways:

  1. Intrinsic-evidence framing for pre-conspiracy records: Legitimate prior-year tax returns of identity-theft victims can be admitted to “complete the story” where later unauthorized returns are central to the scheme. This reduces reliance on Rule 404(b) and the attendant propensity concerns.
  2. Digital-corroboration sufficiency: The opinion illustrates how emails, leases, IP data, and identifier linkages (EFIN/PTIN) can collectively establish a knowing agreement to a RICO enterprise’s objective, even if the defendant tries to compartmentalize across multiple shell entities.
  3. PSI objection practice is outcome-determinative: The reaffirmed Bennett rule—objections must be specific and clear—signals that “preserving for appeal” language is not a substitute for litigating PSI facts. This has major consequences for loss-driven enhancements under § 2B1.1.
  4. Removal hardship is discretionary: Defendants facing deportation can argue mitigation, but this opinion underscores that appellate courts will rarely second-guess a district court’s choice not to vary on that ground, particularly where the sentence sits at the low end of the guideline range.

IV. Complex Concepts Simplified

  • Intrinsic evidence vs. Rule 404(b): Rule 404(b) limits “other acts” evidence used to show character/propensity. “Intrinsic” evidence is different: it is part of the same story of the charged conduct—context that helps the jury understand what happened.
  • Rule 403 balancing: Even relevant evidence can be excluded if it is substantially more prejudicial than helpful. “Unfair prejudice” means the evidence tempts the jury to decide for an improper reason (not simply that the evidence is damaging).
  • Plain error review: If you did not object at trial, you must show an obvious legal mistake that likely changed the outcome—and even then, the appellate court corrects it only to protect the judiciary’s fairness/integrity.
  • RICO conspiracy (§ 1962(d)): The crime is the agreement to pursue the enterprise’s racketeering objective. The government can prove agreement through circumstantial evidence; not every conspirator must know every detail or every other conspirator.
  • EFIN/PTIN (tax-filing identifiers): EFINs and PTINs are numbers used to electronically file returns and identify preparers. In refund-fraud cases, linking these identifiers to a defendant can connect them to large volumes of fraudulent filings.
  • Loss under U.S.S.G. § 2B1.1: The court uses the greater of actual or intended loss and needs only a reasonable estimate. In conspiracies, a defendant can be responsible for co-conspirators’ losses if within the jointly undertaken activity’s scope, in furtherance, and reasonably foreseeable.
  • PSI (Presentence Investigation Report): A sentencing report containing offense conduct and guideline calculations. If a defendant does not object clearly and specifically to facts in the PSI, courts may treat them as admitted for sentencing.
  • Substantive reasonableness: Appellate courts do not resentence. They ask only whether the district court’s balancing of § 3553(a) factors was within the range of reasonable choices.

V. Conclusion

United States v. Dickenson Elan reinforces four central points: (1) pre-conspiracy victim tax returns can be admitted as intrinsic evidence to explain identity-theft refund fraud and show reuse of stolen information; (2) a RICO conspiracy conviction can rest on layered circumstantial proof of agreement—emails, leases, IP/location data, and filing identifiers—coupled with jury credibility findings; (3) loss-driven guideline enhancements are difficult to overturn where the defendant fails to challenge PSI facts with the required specificity; and (4) immigration removal consequences may be considered at sentencing, but a district court is not compelled to vary downward on that basis.