Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.

§ 286. Conspiracy to defraud the Government with respect to claims

Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim, shall be fined under this title or imprisoned not more than ten years, or both.¹

1. For the felony offenses set forth in sections 286 and 287, the maximum permissible fine is $250,000 for individuals and $500,000 for corporations. Alternatively, if the offense has resulted in pecuniary gain to the defendant or pecuniary loss to another person, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss. 18 U.S.C. § 3571.

22.02 TAX DIVISION POLICY

22.02[1] Policy

Title 18 false claims and false claims conspiracy charges are among the non-Title 26 statutes traditionally used in tax prosecutions that involve fraudulent refund schemes. Tax charges under these statutes often are brought against a defendant who filed multiple fictitious income tax returns claiming refunds of income tax in the same year, particularly when the defendant personally received and retained some or all of the proceeds.

Many false refund claim cases could also be charged using 26 U.S.C. § 7206(1) or (2) (false returns),² or 18 U.S.C. § 1001 (false statements), § 1341 (mail fraud) or § 1343 (wire fraud). Section 287 is preferred to Section 7206 when the defendant pocketed the refund proceeds, because restitution for Title 18 offenses is more readily available than for Title 26 offenses. See 18 U.S.C. § 3663(a)(1). Also see Chapter 44, infra, for a full discussion of restitution for criminal tax offenses.

2. The statute of limitations for offenses under 26 U.S.C. § 7206(1) & (2) is six years. See 26 U.S.C. § 6531(3) & (5).

When a schemes involves many false claims, the prosecutor should consider mail fraud or wire fraud charges if they yield strategic advantages. Such situations may include cases in which conspiracy is not a viable charge; when a fraud-scheme charge would ensure the admission of all relevant evidence; or when a fraud-scheme charge would serve as a predicate for the government to charge money laundering, to pursue asset forfeiture or to seek full restitution.

If the tax return preparer willfully created a fraudulent refund return for an undercover agent and actually filed the false return by mail or electronic filing, it may be strategically useful to charge the defendant with a substantive offense for filing the undercover agent’s return because the defendant will have no basis to attack the credibility of the undercover agent. The preparer may be prosecuted under 18 U.S.C. § 287 for filing the undercover agent’s false return.

22.02[2] Authorization of Grand Jury Investigations in False Claim Cases

The Assistant Attorney General has delegated to United States Attorneys the authority to authorize grand jury investigations of false and fictitious claims in cases where an individual (other than a return preparer as defined in Section 7701(a)(36) of the Internal Revenue Code) for a single tax year, has filed or conspired to file multiple tax returns on behalf of himself or herself, or has filed or conspired to file multiple tax returns in the names of nonexistent taxpayers or in the names of real taxpayers who do not intend the returns to be their own, with the intent of obtaining tax refunds to which the individual is not entitled.³ See USAM 6-4.122(D), 6-4.243; Tax Division Directive No. 96.

3. Cases involving schemes that recruit real individuals to file returns in their own names and under their correct Social Security numbers do not fall within the terms of the delegation of authority and must be referred to the Tax Division for authorization of the grand jury investigation.

These are known as “direct referral” cases, because the IRS is authorized to refer the case directly to the United States Attorney. However, in all direct referral cases, a copy of the letter requesting a grand jury investigation must be sent to the Tax Division.

22.03 GENERALLY

The purpose of 18 U.S.C. § 287 is to protect the government from false, fictitious, or fraudulent claims.⁴ United States v. Montoya, 716 F.2d 1340, 1344 (10th Cir. 1983).

4. The United States Attorneys’ Manual (USAM) contains a general explanation of 18 U.S.C. § 287. USAM 9-42.001 & Criminal Resource Manual 921, 922.

22.04 18 U.S.C. § 287 -- ELEMENTS

In order to establish a violation of 18 U.S.C. § 287, the following elements must be proved beyond a reasonable doubt:

1. The defendant made or presented a claim to a department or agency of the United States for money or property;

2. The claim was false, fictitious or fraudulent;

3. The defendant knew at the time that the claim was false, fictitious or fraudulent.

Johnson v. United States, 410 F.2d 38, 46 (8th Cir. 1969); United States v. Computer Science Corp., 511 F. Supp. 1125, 1134 (E.D. Va. 1981), rev’d on other grounds, 689 F.2d 1181 (4th Cir. 1982); see also United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (holding that the signing and filing of a false tax return claiming a refund constituted a false claim under 18 U.S.C. § 287); United States v. Miller, 545 F.2d 1204, 1212 n.10 (9th Cir. 1976) (same), abrogated on other grounds by Boulware v. United States, 128 S. Ct. 1168, 1180 (2008).

22.04[1] Claim Against the United States

To establish a violation of Section 287, the government must prove that the defendant filed or caused to be filed a claim against the United States, or any department or agency of the United States, for money or property. United States v. Neifert-White Co., 390 U.S. 228, 233 (1968); Johnson v. United States, 410 F.2d 38, 44 (8th Cir. 1969); United States v. Mastros, 257 F.2d 808, 809 (3d Cir. 1958) (per curiam). A tax return seeking a refund is a claim against the United States. United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982). Proof that a return was filed may include the IRS transcript of the account in which the refund claim was made. See United States v. Bade, 668 F.2d 1004, 1005 (8th Cir. 1982) (per curiam). Note, however, that it has been held that a taxpayer who attempts to pay taxes with a bad check has not filed a claim against the United States. See United States v. McBride, 362 F.3d 360, 369-71 (6th Cir. 2004). In McBride, the Sixth Circuit reasoned that, “[b]ecause [the defendant] never received any advance payments from the government to which he was not entitled, nor could his action of sending the IRS a bad check have possibly elicited any payment from the government, he cannot, as a matter of law, be found liable under § 287.” Id. at 371-72.

Although the language of the statute would appear to require that the government receive the claim, it does not require that the defendant present it directly to the government. For example, in United States v. Blecker, 657 F.2d 629 (4th Cir. 1981), the Fourth Circuit held that presentation of a claim to an intermediary authorized to accept the claim for presentation to the government satisfied the “presentation” requirement of Section 287:

[T]here was substantial evidence that [the corporate defendant] submitted invoices for hourly rates based on falsified resumes with knowledge that [the company employing the corporate defendant] would seek reimbursement for the payment of the invoices from the GSA. This evidence amply supported the government’s charge that [the corporate defendant and the individual defendant, who was its president,] violated section 287 by submitting false claims to the government through an intermediary, and we find that theory of prosecution to be consonant with the language and meaning of the false claims statute.

Id. at 634.

Tax return preparers and electronic return originators should be considered intermediaries, and should not be characterized as “agents” of the IRS. See United States v. Hebeka, 89 F.3d 279, 283-84 (6th Cir. 1996); Blecker, 657 F.2d at 634; United States v. Catena, 500 F.2d 1319, 1322 (3d Cir. 1974). The defendant need not be the person who actually filed the claim for refund. See 18 U.S.C. § 2; see also Blecker, 657 F.2d at 633; Scolnick v. United States, 331 F.2d 598 (1st Cir. 1964). The offense is complete on the filing of the claim with the government. The statute does not require that the government pay or honor the claim. Thus, violations of Section 287 are chargeable even if the government has not lost money because of the false or fictitious claim. United States v. Coachman, 727 F.2d 1293, 1302 (D.C. Cir. 1984); United States v. Miller, 545 F.2d 1204, 1212 n.10 (9th Cir. 1976), abrogated on other grounds by Boulware v. United States, 128 S. Ct. 1168, 1180 (2008).

22.04[2] False, Fictitious, or Fraudulent Claim

22.04[2][a] False, Fictitious, or Fraudulent

Section 287 is phrased in the disjunctive. Thus, charges under the statute may be based on proof that a claim submitted to the government is either false, fictitious, or fraudulent. United States v. Murph, 707 F.2d 895, 896-97 (6th Cir. 1983) (per curiam) (“[T]he government may prove and the trial judge may instruct in the disjunctive form used in the statute.”); United States v. Blecker, 657 F.2d 629, 634 (4th Cir. 1981); United States v. Irwin, 654 F.2d 671, 683 (10th Cir. 1981), overruled on other grounds by United States v. Daily, 921 F.2d 994, 1004 & n.11 (10th Cir. 1990); United States v. Milton, 602 F.2d 231, 233 n.5 (9th Cir. 1979); United States v. Maher, 582 F.2d 842, 847 (4th Cir. 1978). The conduct proscribed by Section 287 has been defined as follows:

A claim is false or fictitious within the meaning of § 287 if untrue when made, and then known to be untrue by the person making it or causing it to be made. A claim is fraudulent if known to be untrue, and made or caused to be made with the intent to deceive the Government agency to whom submitted.

Irwin, 654 F.2d at 683 n.15 (internal quotation marks omitted) (quoting Milton, 602 F.2d at 233 & n.6). A return may be false or fictitious under the statute if the facts and figures used on the return are fictitious even though the taxpayer might be entitled to a refund if a true return were filed. For example, an individual who recruits others to file false returns based on fictitious reports of wages and withholding (Forms W-2) could be charged under Section 287 even if the recruited taxpayers were legally entitled to refunds. See United States v. Gieger, 190 F.3d 661, 666-67 (5th Cir. 1999); United States v. Leahy, 82 F.3d 624, 634 n.11 (5th Cir. 1996) (contractor violated Section 286 even though the false claims were irrelevant to the total amount paid by the government to the contractor). Similarly, a return may be false under Sections 286 and 287 if the defendant files a correct return in the name of another taxpayer in an attempt to obtain for himself or herself the refund that is due to the other taxpayer. See, e.g., Kercher v. United States, 409 F.2d 814, 818 (8th Cir. 1969) (“What Kercher was trying to do . . . was to lay claim . . . to what were claims of the taxpayers against the government. Therein lies the falsity and § 287 has appropriate application.”).

22.04[2][b] Materiality

Section 287 does not specifically require that a claim be false as to a “material” matter. Several circuits have expressly held that materiality is not an essential element of § 287 and need not be alleged in an indictment charging a violation of that statute. See United States v. Logan, 250 F.3d 350, 358 (6th Cir. 2001); United States v. Upton, 91 F.3d 677, 684-685 (5th Cir. 1995); United States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir. 1984), overruled on other grounds by United States v. Ali, 68 F.3d 1468 (2d Cir. 1995). However, the Eighth Circuit has held that materiality is an element of § 287, and the Fourth Circuit has suggested as much in dictum. See United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983); United States v. Snider, 502 F.2d 645, 652 n.12 (4th Cir. 1974). Note that in those circuits that have held that materiality is an element of Section 287, the issue must be submitted to the jury. See United States v. Gaudin, 515 U.S. 506, 522-23 (1995).

In United States v. Neder, 527 U.S. 1, 20-25 (1999), the Supreme Court held that materiality is an element of the mail fraud, wire fraud, and bank fraud statutes, despite the fact that the term “materiality” was not mentioned in any of them.⁵ The Court noted that the term “defraud” had a settled meaning at common law that included the requirement of materiality and that the inference was that Congress meant to incorporate the established meaning of that term. Id. at 22. Thus, applying Neder, a court may read the term “fraudulent” in Section 287 to require that the claim be material and that this question be submitted to the jury. See United States v. Foster, 229 F.3d 1196, 1196 & n.1 (5th Cir. 2000) (while expressly not deciding the issue, the Fifth Circuit reads Neder to require a materiality instruction and states that “the better practice would be to give the instruction in a § 28[7] false claim offense”).⁶ But even assuming that Neder supports the conclusion that materiality is an element of a Section 287 charge that the defendant made a fraudulent claim for a refund (but see Neder, 527 U.S. at 23 n.7), it would seem that the holding of Neder could be avoided by a charge that the defendant filed a false claim for a refund, omitting any reference in the charge to “fraudulent.”

For further discussion of materiality, see Section 12.08, supra.

5. In United States v. Wells, 519 U.S. 482, 490-94 (1996), the Supreme Court laid out the approach a court should follow in determining whether a statute requires proof of a particular item as an element of the offense.

6. In addressing “materiality” in the criminal tax context, the Supreme Court stated in Neder that “a false statement is material if it has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed,’” and the Court noted that several courts had determined that “any failure to report income is material.” Neder, 527 U.S. 16 (citations omitted). The Court concluded that, under either formulation, no jury could reasonably find that the defendant's failure to report substantial amounts of income on his tax returns was not a material matter. Id. Applying Neder to a § 287 prosecution for filing false claims for tax refunds involving so-called “black tax returns,” the Fifth Circuit concluded, similarly to Neder, that the defendant's three false statements (each seeking a refund of “black taxes” in the amount of $43,209) were material to the tax refund claims. Foster, 229 F.3d at 1197. The court stated, “[T]here is no doubt that the amounts claimed in the ‘black tax returns’ that [the defendant] assisted with were as material as they were unjustified. The huge scope of IRS’s processing and review activities makes it inevitable that a sensible threshold of materiality must be applied to irregularities planted in tax refund claims. Were it not so, taxpayers would be encouraged to take advantage of IRS's practical inability to review each return individually.” Id.

22.04[3] Knowledge -- Intent -- Willfulness

Section 287 requires the government to prove that a false claim against the government was made, “knowing such claim to be false, fictitious, or fraudulent . . . .” A Section 287 indictment should allege such knowledge, and the proof that the defendant knew the return was false is part of the government’s burden of proof. United States v. Holloway, 731 F.2d 378, 380-81 (6th Cir. 1984).⁷

7. Although the element of knowledge can sometimes be established through proof of “willful blindness,” care should be exercised in seeking and framing appropriate jury instructions. See Section 8.08[4], supra.

It is not necessary to allege willfulness in the indictment. The term “willfully” is not used in § 287 and is not “an essential element” of § 287. United States v. Irwin, 654 F.2d 671, 682 (10th Cir. 1981).

The circuits vary, however, on the proof of intent necessary to convict for a violation of Section 287. In United States v. Maher, 582 F.2d 842, 847 (4th Cir. 1978), the Fourth Circuit approved a jury instruction stating that, under § 287, criminal intent “could be proved by either a showing that the defendant was aware he was doing something wrong or that he acted with a specific intent to violate the law.” In United States v. Milton, 602 F.2d 231, 234 (9th Cir. 1979), the court held that no instruction on “intent to defraud” is necessary where a false claim is charged (because it is not an element of the offense), but left open whether an “intent to deceive” is an element of a charge of submitting a “fraudulent” claim. Id. at 233 n.7. The Eighth Circuit, in Kercher v. United States, 409 F.2d 814, 817 (8th Cir. 1969), did not draw a distinction between false and fraudulent claims, but held without elaboration that § 287 requires proof of criminal intent.

22.05 18 U.S.C. § 286 -- ELEMENTS

Chapter 23 of this Manual discusses the law of conspiracy in detail. This section addresses only those aspects of 18 U.S.C. § 286 that differ from the general conspiracy to defraud statute, 18 U.S.C. § 371. For a further discussion of the differences between § 286 and § 371, see United States v. Lanier, 920 F.2d 887, 891-95 (11th Cir. 1991).

The courts of appeals have reached slightly different conclusions as to the elements of a § 286 offense. The Sixth Circuit has held that the necessary elements are: “(1) the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim’s falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy.” United States v. Dedman, 527 F.3d 577, 593-94 (6th Cir. 2008). In contrast, the Fifth Circuit has held that, in order to establish a violation of § 286, the government need only prove “that the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; that the claim was false, fictitious, or fraudulent; and that the defendant knew at the time that the claim was false, fictitious, or fraudulent.” United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996).

The crime proscribed by § 286 is entering into an agreement to defraud the government in the manner specified. In order to convict, the government must prove that the defendant agreed to engage in a scheme to defraud the government⁸ and knew that the objective of the scheme was illegal. The government need not charge or establish an overt act undertaken in furtherance of the conspiracy in order to prove a violation of § 286 because, unlike § 371, an overt act is not an element of a § 286 conspiracy. See Dedman, 527 F.3d at 594 n.7; Lanier, 920 F.2d at 892.⁹ The government must also prove that the conspirators agreed to defraud the government by obtaining the payment of false claims against the government. There is no requirement that the coconspirators actually obtained the payment or that the government prove that any steps were taken to consummate the filing of a false claim, so long as the existence of the agreement can be proved. Cf. United States v. Coachman, 727 F.2d 1293, 1302 (D.C. Cir. 1984). As a practical matter, the proof in § 286 cases generally does not differ from proof in § 371 tax cases, because in most false claims conspiracy cases, the existence of the agreement will be proved by acts that were undertaken in furthering the conspiracy or in consummating the attempt to obtain payment of the claim.¹⁰

8. See discussion of United States v. Neder, 527 U.S. 1 (1999), supra, § 22.04[2][b].

9. The Eleventh Circuit has suggested that § 286 has an overt act requirement. See United States v. Gupta, 463 F.3d 1182, 1194 (11th Cir. 2006). However, Gupta derives the overt act requirement from a case involving a conspiracy under 18 U.S.C. § 371, rather than 18 U.S.C. § 286. See Gupta, 463 F.3d at 1194 (quoting United States v. Suba, 132 F.3d 662, 672 (11th Cir. 1998)).

10. There is a sample section 286 indictment included in the forms in this Manual.

22.06 VENUE

The general venue statute provides that a prosecution can be brought in any district where an offense was begun, continued, or completed. 18 U.S.C. § 3237(a). Venue has been found proper where the claim was made or prepared or where the claim was presented to the government, see United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996); United States v. Massa, 686 F.2d 526, 528 (7th Cir. 1982); United States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981), and where the claim was acted upon, see Fuller v. United States, 110 F.2d 815 (9th Cir. 1940). In electronic filing cases, venue may be proper in the district in which the false return was submitted to a preparer or electronic originator, in addition to the districts in which it was prepared or filed with the IRS.

Venue may be proved either by direct or circumstantial evidence. It need only be established by a preponderance of the evidence, not by proof beyond a reasonable doubt. Proof of venue, although an essential element of the government's proof, has been held to be more akin to jurisdiction than to a substantive element of the crime. Therefore, where venue is not disputed, it may be ruled on by the court as a matter of law and need not be submitted to the jury with an instruction. Massa, 686 F.2d at 530-531. See Chapter 6, supra, for a general discussion of venue, and § 23.09, infra, for a discussion of venue for conspiracy charges.

22.07 STATUTE OF LIMITATIONS

Section 3282 of Title 18 provides a five-year statute of limitations for crimes for which a period of limitations is not otherwise specified. Section 6531(1) of the Internal Revenue Code, however, provides a six-year statute of limitations “for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner.” That statute provides the statute of limitations period for conspiracies to defraud the United States brought under 18 U.S.C. § 371. See § 23.08, infra. That six-year limitations period may well apply to Section 286 and 287 cases, but the Tax Division is not aware of any case law on that point. The safer course is to bring false claims cases within five years of the commission of the offense. The plain language of § 6531(1), however, provides an argument for a six-year limitations period in cases that have not been or cannot be indicted within the five-year period.

22.08 THE MECHANICS OF A FALSE RETURN

In general, most false return schemes are based on Forms W-2 that are false or fictitious. The paper refund fraud schemes generally involve one individual filing multiple false returns on which refunds are claimed to be due. Typically, a fictitious Form W-2 showing income tax withheld in excess of the computed tax liability is used to generate the false refund claim. In some instances, the Form W-2 may show a real employer and the proper employer identification number (EIN), while in other schemes both the employer and the identification number are fictitious. Although less common, some false returns are based on a fictitious Schedule C (reporting the income of a self-employed individual) or a false corporate income tax return (Form 1120) and fictitious quarterly estimated tax returns.

In some schemes, the individual or individuals involved obtain a list of names and Social Security numbers (SSN) of persons who probably will not file income tax returns, and use those names and SSNs on the fictitious returns. In other instances, the name and SSN of the “taxpayer” are fictitious. The fictitious refunds generally are all directed to a common address or a mail drop. Such schemes are relatively simple and do not present unusual problems in developing sufficient facts to prosecute those responsible. Once the targets have been identified and linked to the false returns, prosecution is usually straightforward.

Electronic Filing (ELF) schemes are typically larger and more organized, and involve more participants (usually 3 to 7) than a false paper return scheme. Recruiters, or “runners,” recruit individuals to act as “taxpayers.” One or more of the participants prepare false W-2s (and, in some cases, the false return as well) for each “taxpayer,” using the “taxpayer’s” real name and SSN. The false Forms W-2 generally show an amount of income that would entitle the “taxpayer” to claim the Earned Income Credit as part of the refund. (The Earned Income Credit is a refundable credit for low-income taxpayers. It offsets tax liability and the portion of it that exceeds the tax due is payable directly to the taxpayer.)

If only Forms W-2 were prepared, a recruiter, or runner, escorts each “taxpayer” to a tax return preparer's office, where the “taxpayer” requests a return to be prepared from the phony W-2s and other information supplied by the runners. If the participants in the scheme prepared a complete return, the runner escorts the “taxpayer” to an Electronic Return Originator (ERO), where the return is filed using the “taxpayer’s” name and SSN. In either case, the “taxpayer” applies for a refund anticipation loan. When the proceeds of the loan are available (usually within one or two days), the runner and the “taxpayer” pick up the check and cash it at a check cashing service. The “taxpayer” receives a portion of the loan amount (usually $400 to $500) and the participants split the remainder of the funds. Many false claims for refund are just under the maximum refund anticipation loan limit (generally under $5,000). ELF schemes may involve as few as one or two returns, or as many as hundreds of returns and over $1,000,000 in false claims. One scheme involved 23 individuals and false claims exceeding $2 million over a period of several months. Other schemes have also exceeded $1 million in false claims.¹¹

11. It appears that 18 U.S.C. § 287 cannot be used in ELF cases in which the return preparer or ERO has not transmitted the return to the IRS. Section 287 punishes those false claims that an individual “makes or presents” to the government, but does not punish attempts. Where the preparer or ERO has notified the IRS of a suspicious return and has not transmitted that return, the individual(s) who attempted to file the return should be charged with making a false statement in a matter within the jurisdiction of the IRS, in violation of 18 U.S.C. § 1001. A false statement punishable under § 1001 need not be submitted directly to the government. See, e.g., United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir. 1985); United States v. Blecker, 657 F.2d 629, 634 (4th Cir. 1981).

22.09 SENTENCING GUIDELINES CONSIDERATIONS

The Sentencing Guidelines generally base a criminal sentence on the total harm caused by the defendant’s conduct. Guidelines Section 1B1.3(a)(2) provides that the enhancement for monetary loss from theft or a scheme to defraud includes the aggregate of losses intended or caused by “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” USSG §1B1.3(a)(2). In false claims cases, the defendant should be held accountable for the total amount of false or fictitious refunds claimed by the defendant and any coconspirators.

Preferably, an indictment should not be sought until the scope of the scheme has been sufficiently developed so that at the time of sentencing there will be enough information to demonstrate to the court the full scope of the defendant's conduct. If an arrest or indictment is necessary before the investigation is completed, the prosecutor and agents should continue to develop evidence about additional false returns.

If the total amount of loss cannot be precisely calculated, the prosecutor should seek to hold the defendant accountable for a reasonable estimate, perhaps based on an extrapolation from known evidence.