                Case: 15-13825        Date Filed: 11/21/2016      Page: 1 of 3


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-13825
                               ________________________

                     D.C. Docket No. 1:14-cr-00208-WSD-RGV-1

UNITED STATES OF AMERICA,
                                                                           Plaintiff-Appellee,

                                             versus

PHYLLIS GRANT,
a.k.a. Phyllis Williams,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (November 21, 2016)

Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and
CHAPPELL,* District Judge.




__________
*Honorable, Sheri Polster Chappell, United States District Judge for the Middle District of
Florida, sitting by designation.
              Case: 15-13825     Date Filed: 11/21/2016    Page: 2 of 3




PER CURIAM:

      We have had the benefit of oral argument, and have carefully studied the

briefs and relevant parts of the record. We conclude that the judgment of the

district court shall be affirmed. We conclude that the district court did not abuse

its discretion in excluding certain parts of the proposed testimony of Dr.

Schwenke. Fed.R.Evid. 704(b) provides: “In a criminal case, an expert witness

must not state an opinion about whether the defendant did or did not have a mental

state or condition that constitutes an element of the crime charged or of a defense.

Those matters are for the trier of fact alone.” The excluded testimony was an

“opinion about whether the defendant did or did not have a mental state … that

constitutes an element of the crime charged.

      Defendant’s challenge to the district court’s enhancement of her offense

level under Guideline §2B1.1(b)(2)(C) is without merit. That Guideline provides

for a six-level enhancement if the conspiracy involved more than 250 victims.

Assuming arguendo, as defendant urges, that the term “victim” does not include a

person who allows his or her personal information to be used in a fraudulent tax

return, there was ample evidence to support the district court’s finding that there

were more than 250 victims. More than 350 fraudulent returns were received in

the post office boxes which defendant opened and at defendant’s own personal

address – all addresses which defendant knowingly permitted Henry to use in his
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fraudulent return scheme. Defendant’s argument that the term “victim” should not

include individuals who willingly allowed their personal identification information

to be used – i.e., were complicit – is based on the evidence that defendant provided

to Henry the personal identification information about several of her relatives who

may have been complicit in the charged conspiracy. However, there was ample

evidence to support the district court’s finding that the number of such possibly

complicit individuals could not have reduced the more than 350 fraudulent returns

proven to less than the 250 victims necessary to support the six-level enhancement.

      Other arguments of defendant on appeal are without merit and warrant no

discussion. The judgment of the district court is

      AFFIRMED.




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