US v. Anthony Miller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00023-jpj-pms-1 Copies to all parties and the district court/agency. [998417242] [09-4461, 09-4462]

US v. Anthony Miller

Doc. 0

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4461 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY R. MILLER, a/k/a Tony Miller, Defendant - Appellant.

No. 09-4462 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CATHERINE MILLER, Defendant - Appellant.

Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00023-jpj-pms-1; 1:08-cr-00023-jpjpms-2) Submitted: August 12, 2010 Decided: September 2, 2010

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Dockets.Justia.com

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 2

Affirmed by unpublished per curiam opinion. David L. Scyphers, SCYPHERS & AUSTIN, PC, Abingdon, Virginia, for Appellants. Julia C. Dudley, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 3

PER CURIAM: Anthony Miller was convicted following a jury trial of two counts to of of making the 42 false statements affecting disability ("SSA") count in of

insurance violation

Social U.S.C.

Security

Administration (2006), and

§ 408(a)(3)

one

concealing events affecting his continued right to disability insurance in violation of 42 U.S.C. § 408(a)(4) (2006).

Catherine Miller, his wife, was convicted of one count of making false statements to the SSA, also in violation of 42 U.S.C. § 408(a)(3). Anthony Miller was sentenced to six months in

prison, while Catherine Miller was sentenced to fifteen months in prison. On appeal, the Millers raise five issues: there was sufficient evidence to sustain their (1) whether convictions;

(2) whether the district court erred in admitting documents from Anthony Miller's SSA file; (3) whether the district court erred in admitting investigatory notes taken during an interview with the Millers; (4) whether the district court erred in admitting evidence from outside the chronological scope of the indictment; and (5) whether the district court erred in excluding evidence of the Millers' pending SSA appeal. For the reasons that

follow, we affirm.

3

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 4

I. "A

Sufficiency of the Evidence challenging the sufficiency of the

defendant

evidence faces a heavy burden." F.3d 233, 245 (4th Cir. 2007).

United States v. Foster, 507

This court reviews a sufficiency

of the evidence challenge by determining whether, viewing the evidence in the light most favorable to the government, any

rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. F.3d 515, 519 (4th Cir. 2005). evidence, and United States v. Collins, 412 We review the both direct and all

circumstantial

accord

Government

reasonable inferences from the facts shown to those sought to be established. (4th Cir. 2008). United States v. Harvey, 532 F.3d 326, 333

In reviewing for sufficiency of the evidence,

we do not review the credibility of the witnesses, and we assume that the jury resolved all contradictions in the testimony in favor of the Government. 440 (4th Cir. 2007). We United States v. Kelly, 510 F.3d 433, will uphold the jury's verdict if

substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. F.3d at 244-45. Here, the Government introduced substantial evidence that Anthony and Catherine Miller made false statements to the SSA. In October 2004, Anthony Miller wrote to the SSA and Foster, 507

stated that he was unable to do more for his business, Tony 4

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 5

Miller

Construction,

than

"give

some

advice

occasionally."

Later, in a 2006 interview with an SSA claims representative, the Millers each stated that Catherine Miller did all of the work in the company. In a later interview with SSA Office of

Inspector General Agent Paul Ragland, the Millers stated that "it is not correct that Catherine Miller does all the work." While Catherine Miller disputes this account of their interview with Agent Ragland, the jury was entitled to make a credibility determination and conclude that Agent Ragland was credible when he testified as to his interview with the Millers. In addition, the Government introduced the testimony of numerous witnesses who described Anthony Miller taking an active role in the running of the construction business;

engaging in a broad range of activities such as making repairs to homes, negotiation of contracts, and supervision of

employees.

Though Anthony Miller does have a life-threatening

brain tumor that has caused him significant vision impairments, the jury had sufficient evidence before it to determine that he was still actually working. While the Millers introduced

testimony from a vocational expert who determined that based on Anthony Miller's perform, the disability, was there to was no job that he could as

jury

free

reject

that

opinion

contradicted by the testimony of Government's witnesses who saw Anthony Miller actually performing significant work. 5

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 6

In addition, the Government introduced evidence that Anthony Miller knew he was under an obligation to inform the SSA if he was able to work while he was receiving disability

insurance benefits, and that he did not do so. The evidence was thus more than sufficient to show that Anthony and Catherine Miller made false statements to the SSA, and that Anthony Miller was able to work and failed to disclose that information to the SSA.

II.

Admissibility of SSA Documents

Through the testimony of James Horton, an SSA Acting District Manager, the Government admitted several documents from Anthony Miller's SSA file, including Anthony Miller's 1994 SSA application, his 2004 work activity report, and his tax returns for 2002 through 2005. The Millers argue that Horton's

testimony was insufficient to authenticate these documents and they should have been excluded. The authentication requirement may be met by "evidence sufficient to support a finding that the matter in question is what its proponent claims." illustration, the rule Fed. R. Evid. 901(a). that public By way of may be

provides

records

authenticated by providing evidence that the record is from the public office where items of that nature are kept. Evid. 901(b)(7). Fed. R.

Here, the district court had ample evidence 6

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 7

that Anthony Miller's social security filings were kept at the SSA as a matter of course. Horton, though not the custodian of

the records, testified that he received them from another SSA office, and that they are in the custody of the SSA office. Horton's testimony was sufficient to authenticate the documents from Anthony Miller's SSA file. For the first time on appeal, the Millers argue that introduction of the documents was improper in light of the Sixth Amendment's U.S. 36 Confrontation and the Clause, recent Crawford Supreme 129 S. v. Washington, decision 2527 the 541 in

(2004), v.

Court Ct. for

Melendez-Diaz However, the

Massachusetts, were not

(2009). of

documents

prepared

purpose

proving some fact at trial, and are therefore not testimonial within the meaning of the Confrontation Clause. 541 U.S. at 51. Thus, this argument fails. See Crawford,

III. Admissibility of Agent Ragland's Notes The district court, over the Millers' objection,

admitted the notes that Agent Ragland took during his interview with the Millers. notes. At trial, Ragland testified that he took

Catherine Miller testified that she did not see Ragland The district court admitted rebuttal testimony.

taking notes during the interview. the notes into evidence during

Ragland's

Ragland's notes are probative here, not necessarily for their 7

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 8

content,

but

for

their

value

to

the

jury

in

weighing

the

credibility of witnesses as to a disputed fact, i.e., whether notes were taken during Ragland's interview with the Millers. We do not see a basis for excluding the notes under Fed. R. Evid. 403, as the notes' prejudicial effect did not

substantially outweigh their probative value. *

IV.

Evidence Outside the Scope of the Indictment

The Millers argue that the district court improperly allowed witnesses to testify as to work allegedly performed in 2002, prior to the date listed in Count Four of the indictment. Evidence of events prior to 2003 was relevant and admissible, even though Count Four of the indictment alleged crimes that took place in 2003 and later. The Millers' conduct prior to

2003 was at issue at trial, given that the allegedly false work history reports were generated in response to the Millers' 2002 tax return. relevant to Evidence that Anthony Miller was working in 2002 is show that the Millers' numerous claims that The

Catherine Miller did all the work in 2002 were false.

The case cited by the Millers as a basis for exclusion, United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), is inapplicable. Al-Moayad dealt with an undercover informant whose notes were taken after the fact and admitted for the truth of their content, not as evidence that notes were taken. 8

*

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 9

district court did not err in admitting testimony that Anthony Miller worked in 2002 and earlier.

V.

Admissibility of Evidence of the Millers' Pending SSA Appeal The Millers argue that the district court erred in

refusing

to

admit

evidence

that

they

had

an

appeal

pending

before the SSA on the issue of whether Anthony Miller's Social Security evidence disability may be benefits excluded by or should if be suspended. probative of unfair the time, Relevant value is

"its

substantially confusion of

outweighed the of issues, undue

danger

prejudice, or by

misleading waste of

jury, or

considerations

delay,

needless

presentation of cumulative evidence." The district court was

Fed. R. Evid. 403. within its prerogative to

exclude evidence of the Millers' pending SSA appeal on the basis of Fed. R. Evid. 403. Whether the Millers had an appeal pending

before the SSA at the time of trial was of no moment to the ultimate materially issues false in the case: to whether the SSA the Millers made

statements

and

whether

Anthony The

Miller failed to disclose the fact that he was working.

district court could have properly concluded that evidence of this sort was likely to confuse the jury and unduly delay the trial. 9

Case: 09-4461 Document: 32

Date Filed: 09/02/2010

Page: 10

We therefore affirm the district court's judgment. dispense with oral argument because the facts and

We

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

10