Miller, II v. United States of America
Filing
65
ORDER denying 1 Motion to vacate/set aside/correct sentence (2255); denying as moot 33 Motion for summary judgment; denying as moot 61 Motion for summary judgment; denying as moot 62 Motion for Evidentiary Hearing; denying as moot 63 Motion for Discovery. The Clerk of the Court is directed to enter judgment and close the file. Signed by Judge Marcia Morales Howard on 1/8/2015. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM RAYMOND MILLER, II,
Petitioner,
vs.
Case No.:
3:12-cv-1044-J-34PDB
3:08-cr-411-J-34PDB
UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on Petitioner William Raymond Miller, II’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 1, Motion to
Vacate)1 and Memorandum of Law and Points of Authorities (Doc. 3, Memorandum), both
filed on September 21, 2012. The United States filed a Response in Opposition on June
3, 2013. (Doc. 25, Response). Miller filed a Reply to the Government’s Response on
July 17, 2013. (Doc. 31, Petitioner’s Reply).
Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255
Proceedings2, the Court has considered the need for an evidentiary hearing and
1
Citations to Miller’s criminal case file, United States of America v. William Raymond Miller, II, 3:08cr-411-J-34PDB, are denoted as “Crim. Doc. ___.” Citations to Miller’s civil § 2255 case file, 3:12-cv-1044J-34PDB, are denoted as “Doc. ___.”
2
Rule 8(a) of the Rules Governing Section 2255 Proceedings expressly requires the Court to review
the record, including any transcripts and submitted materials, to determine whether an evidentiary hearing
is warranted before deciding on a § 2255 motion.
1
determines that an evidentiary hearing is not necessary to resolve the merits of this action.
See Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (indicating that an
evidentiary hearing on a § 2255 petition is not required when the petitioner asserts
allegations that are affirmatively contradicted by the record or patently frivolous, or if in
assuming the facts that he alleges are true, he still would not be entitled to any relief);
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (concluding that a
petitioner’s ineffective assistance claim can be dismissed without an evidentiary hearing
when the petitioner alleges facts that, even if true, would not entitle him to relief); Dickson
v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district court
need not conduct an evidentiary hearing if it can be conclusively determined from the
record that the petitioner was not denied effective assistance of counsel.”); Patel v. United
States, 252 F. App’x 970, 975 (11th Cir. 2007).3
For the reasons set forth below, Miller’s Motion to Vacate, Correct, or Set Aside
his sentence is due to be denied.
I.
Background
Between 2005 and 2008, Miller issued fake surety bonds with a total face value of
more than $530 million. (Crim. Doc. 13, Plea Agreement at 23). In the process, Miller
defrauded businesses out of $22.5 million in premiums and other charges that he
3
Although the Court does not rely on unpublished opinions as precedent, they may be cited
throughout this Order as persuasive authority on a particular point. Rule 32.1 of the Federal Rules of
Appellate Procedure expressly permits the Court to cite to unpublished opinions that have been issued on
or after January 1, 2007. Fed. R. App. P. 32.1(a).
2
demanded in exchange for the fraudulent bonds. Id. In order to deceive and induce his
victims into buying the fake bonds, Miller would sometimes misrepresent that the bonds
were authorized and written by surety bond companies who are registered with the United
States Treasury Department (“T-listed”), including such companies as Fidelity National
Casualty and Property Insurance Company (“Fidelity National”) and American ReInsurance Company. Id. at 20. In other instances, Miller issued surety bonds through
two other companies, First Florida Captive Holdings Corporation or AMS Capital Holdings
Corporation, without claiming that the companies were “T-listed” entities. Miller’s scheme
began to unravel when some of his victims attempted to make claims on the bond
coverage they thought they had purchased, only to learn that the bonds Miller had issued
them were worthless.
On November 20, 2008, the United States charged Miller by Information with one
count of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and one count of mail fraud,
in violation of 18 U.S.C. §§ 1341 and 2. (Crim. Doc. 1, Information). Miller waived
indictment (Crim. Doc. 6, Crim. Doc. 11, Waivers of Indictment), and on December 11,
2008, pled guilty to both charges pursuant to a written plea agreement. (Crim. Doc. 13,
Plea Agreement).
As part of the Plea Agreement, Miller affirmed that he voluntarily pled guilty, free
from coercion and without reliance on any promises or benefits other than those set forth
in the Plea Agreement itself. Id. at 15. The Plea Agreement advised Miller that each
offense charged was punishable by a maximum sentence of up to 20 years in prison, a
3
fine of $250,000, or both, and that the Court could also order Miller to pay restitution to
his victims. Id. at 2, 11-12. Additionally, the Plea Agreement laid out in detail the assets
Miller would forfeit to the government, including his ill-gotten gains of $22.5 million,
several pieces of real property, four cars, and funds located in various bank accounts. Id.
at 6-9. The Plea Agreement specified, however, that the assets subject to forfeiture were
not limited to those listed, and that the government could pursue substitute assets if the
government could not locate the listed assets. Id. at 6, 10. The forfeiture of assets
provision contained a hand-written modification, initialed by all parties, stating “[t]he
Government (USA) agree[d] to allow [Miller’s] wife to remain in family home (Timber
Creek Ct., Clarksville, MD) and will not force a sale; and will negotiate for her to buy out
[the government’s] interest.” Id. at 6.
In exchange for Miller’s guilty plea, the United States Attorney’s Office agreed to
recommend a sentence at the low end of whatever the Court calculated Miller’s advisory
sentencing range to be under the United States Sentencing Guidelines (“Guidelines”). Id.
at 5. The government also agreed to recommend a two level downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1(a), and to move for a third level
adjustment if Miller qualified under U.S.S.G. § 3E1.1(b). Plea Agreement at 4. The
government further agreed not to charge Miller with any other offenses of which it was
then aware, and to consider whether any cooperation Miller provided would warrant
further downward departures under either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553 if
4
completed prior to sentencing, or under Fed. R. Crim. P. 35 if completed after sentencing.
Plea Agreement at 5-6.
Miller agreed that the Plea Agreement would bind only the United States Attorney’s
Office for the Middle District of Florida, and not “other federal, state, or local prosecuting
authorities.” Id. at 14-15. He further agreed that the Plea Agreement would not bind the
Court, that the Court alone would determine his sentence, and that if the Court rejected
any part of the Plea Agreement, Miller could not withdraw his guilty plea. Id. at 13. Miller
also waived the right to directly appeal or collaterally attack his sentence, unless (1) the
sentence exceeded the applicable Guidelines range as determined by the Court, (2) the
sentence exceeded the statutory maximum, (3) the sentence violated the Eighth
Amendment to the Constitution, or (4) the government first appealed. Id. at 14. In the
Plea Agreement, Miller acknowledged that he understood the nature of the offenses to
which he was pleading guilty, and that he pled guilty because he was in fact guilty. Id. at
15, 16. Finally, Miller agreed that the Plea Agreement “constitutes the entire agreement
between the government and the defendant with respect to the aforementioned guilty
pleas and no other promises, agreements, or representations exist or have been made
to the defendant or defendant’s attorney with regard to such guilty plea.” Id. at 16. Miller
initialed each page of the Plea Agreement, including each page of the factual basis
attached to it, indicating his understanding and assent. See id., generally.
Miller appeared before a United States Magistrate Judge to enter his guilty plea.
(Crim. Doc. 24, Plea Tr.). During the plea colloquy, Miller, who was under oath, assured
5
the Court that he understood the charges and the provisions of his Plea Agreement. Miller
and his attorney each told the Court that they had reviewed the Information filed by the
government and discussed it at length.
Id. at 17.
The Court itself reviewed the
Information and explained the charges, which alleged that Miller violated federal law by
using interstate wire and mail communications to carry out his fraudulent bond scheme,
during which he impersonated T-listed insurance companies, see id. at 19-27, and Miller
assured the Court that he understood, see id. at 27. The government advised that Miller’s
maximum potential sentence was 40 years in prison, a fine of up to $500,000, or both,
plus the possibility of up to $500 million in restitution. Id. at 29-30. Miller confirmed that
he understood this as well. Id. at 30-31. The Court also reviewed with Miller each of the
23 specific assets listed in the Information’s forfeiture provision, which mirrored those
listed in the Plea Agreement. See Plea Tr. at 31-33; compare Information at 8-10 with
Plea Agreement at 6-9, and Miller stated that he understood the forfeiture provision as
well, see Plea Tr. at 34.
During the plea colloquy, the Court explained to Miller the rights that he would give
up by pleading guilty, including any defenses to his conduct, and Miller stated that he
understood that waiver. Id. at 58-64. The Court then discussed with him the provision of
the Plea Agreement by which he waived the right to directly appeal or collaterally
challenge his sentence. Id. at 64. After Miller expressed some concern about being
unable to appeal if he received the maximum potential sentence, the Court assured Miller
that he was free to take additional time to consider the waiver if he needed it. Id. at 646
66, 70. However, Miller assured the Court that he was prepared to proceed. The Court
also reviewed the appeal waiver, explaining that pursuant to the Plea Agreement, Miller
waived the right to directly appeal or collaterally attack his sentence, subject to the limited
exceptions listed in the agreement. Id. at 71. In doing so, the Court explained what it
meant to collaterally attack a sentence under § 2255. Id. at 73-74. Miller stated that he
understood his rights to directly appeal or collaterally attack his sentence, and that he
knowingly and voluntarily waived them. Id. at 71-75.
Before completing the plea colloquy, Miller assured the Court that he had been
given plenty of time to review the charges against him, to talk to his lawyers (of which he
had four), and that he was satisfied with his legal representation. Id. at 75-76. After the
Court reviewed the forfeiture provision in the Plea Agreement a second time, Miller
confirmed that he understood it and accepted it knowingly and freely. Id. at 84-88. Miller
then confirmed that he was pleading guilty to both counts because he was in fact guilty,
and further admitted the truth of the charges after the government read the factual basis.
Id. at 98-105. Miller also acknowledged his guilt after the Court read the elements of the
offenses, including that he used FedEx and a telephone communication to further his
scheme to defraud. Id. at 105-10.
Importantly, Miller affirmed that nobody had coerced him to plead guilty. Id. at 112.
Miller declared under oath that nothing had been said to him or his attorney that caused
him to plead guilty, other than what appeared in the Plea Agreement. Id. Miller confirmed
that he had read the Plea Agreement in its entirety and discussed it with his lawyer, and
7
that it was his own independent decision to enter into it. Id. at 113. Miller stated that no
one had threatened, forced, coerced, or intimidated him into accepting the terms of the
Plea Agreement, and that he did so voluntarily. Id. at 114. Miller also told the Court that
nobody made him any promises other than those contained in the Plea Agreement. Id.
Lastly, Miller, his counsel, and the government told the Court that no agreement, promise,
or understanding had been made to Miller other than what had been stated on the record.
Id. at 115.
At the conclusion of the plea colloquy, the Court found that Miller pled guilty
knowingly and freely, aware of both his rights and the consequences of pleading guilty.
Id. at 116-17. Miller agreed with the Court’s findings. Id. at 117. The magistrate judge
forwarded a report recommending that the Court accept Miller’s guilty plea pursuant to
the Plea Agreement, which the Court accepted and adopted. (Crim. Doc. 18, Report and
Recommendation; Crim. Doc. 26, Acceptance of Guilty Plea).
At sentencing, the Court calculated Miller’s guidelines range to be 97 to121 months
in prison.
(Crim. Doc. 79, Sentencing Tr. I at 25). The Court sentenced Miller to
concurrent terms of 121 months in prison for each charge, explaining that Miller had
participated in fraudulent schemes throughout the country since 1992, brazenly continued
his criminal conduct after law enforcement confronted him, and had committed fraud in
Maryland for which he never paid restitution. (Crim. Doc. 80, Sentencing Tr. II at 46-56).
Following a separate hearing, the Court ordered Miller to pay $3.2 million in restitution to
the victims of his crimes. (Crim. Doc. 127, Amended Judgment).
8
After his sentencing, Miller filed two pro se motions to withdraw and to vacate his
guilty plea, making various arguments that his sentence was erroneous and that the
government had breached his Plea Agreement. This Court struck the motions without
considering them on the merits because the Court did not have authority under the
Federal Rules of Criminal Procedure to grant vacatur of a guilty plea after sentencing.
(Crim. Doc. 178, Order). Miller appealed and the Eleventh Circuit affirmed the Court’s
denial of Miller’s pro se motions. United States v. Miller, 432 F. App’x 952 (11th Cir. 2011)
(“Miller I”). Noting that Miller did not express a desire to withdraw his guilty plea until after
the Court had already sentenced him, the Eleventh Circuit affirmed this Court’s finding
that it lacked jurisdiction to grant a vacatur or withdrawal of Miller’s guilty plea. Miller I,
432 F. App’x at 954. Many of the claims that were the subject of those pro se motions
are now the subject of the instant § 2255 motion.
Miller, with the assistance of counsel, also appealed his conviction and sentence
to the Eleventh Circuit Court of Appeals, both of which the court affirmed in a separate
opinion. United States v. Miller, 432 F. App’x 955 (11th Cir. 2011) (“Miller II”). Miller
raised five issues: (1) that the government failed to recommend a sentence at the low end
of his guidelines range, in violation of a provision of his Plea Agreement; (2) that the
Court’s order directing him to pay restitution violated his Plea Agreement; (3) that his
sentence was based on false and erroneous testimony; (4) that the Court incorrectly
calculated the loss amount caused by his fraud, resulting in “unfair and unreasonable”
punishment; and (5) that the Court erroneously struck a Rule 35(a) motion that Miller had
9
filed seeking a reduced sentence. Id. at 957. The court of appeals rejected Miller’s
contentions that the government’s statements at the sentencing hearing, his sentence at
the high end of the guidelines range, or the Court’s restitution order breached the Plea
Agreement. Id. at 959-60. The court also found that Miller entered into a valid sentenceappeal waiver, that his sentencing challenges were barred, and that his sentence did not
violate the Eighth Amendment. Id. at 960-61. Finally, the court of appeals affirmed the
Court’s decision to strike Miller’s pro se Rule 35(a) motion. Id. at 961.
After the Eleventh Circuit ruled, Miller requested a rehearing, which the Eleventh
Circuit denied on August 22, 2011. Miller did not request certiorari review by the Supreme
Court. Therefore, Miller’s conviction and sentence became final on November 20, 2011,
upon the expiration of the 90-day period for filing a petition for a writ of certiorari.
Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002). Miller had one year
from that date, or until November 20, 2012, to file a motion to vacate under 28 U.S.C. §
2255(f)(1). Miller filed his Motion to Vacate on September 21, 2012, and his Motion is
therefore timely.
II.
Miller’s Motion to Vacate
Miller raises eight grounds for relief in his Motion to Vacate: (1) counsel rendered
ineffective assistance by failing to communicate a plea offer; (2) counsel rendered
ineffective assistance by negotiating a “faulty and erroneous” plea agreement; (3) counsel
rendered ineffective assistance at sentencing; (4) counsel rendered ineffective assistance
by failing to hire experts to properly investigate his case; (5) the government breached
10
the Plea Agreement in various ways; (6) the government lied or committed fraud on the
Court, including by providing false testimony at the sentencing hearing; (7) there was a
conflict of interest within the United States Attorney’s Office; and (8) the Court lacked
jurisdiction to convict and sentence him. Memorandum at 2. The Court will address each
ground in turn.4
III.
Opinion
Pursuant to Title 28, United States Code, Section 2255, a person in federal custody
may move to vacate, set aside, or correct his sentence. Section 2255 permits such
collateral challenges on four specific grounds: (1) the imposed sentence was in violation
of the Constitution or laws of the United States; (2) the court did not have jurisdiction to
impose the sentence; (3) the imposed sentence exceeded the maximum authorized by
law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C
§2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that
are so fundamentally defective as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979).
A petitioner’s challenge to his sentence based on a Sixth Amendment claim of ineffective
4
Miller’s Motion to Vacate and supporting Memorandum totaled over 110 pages, with facts related
to some of the legal arguments scattered across different sections. Occasionally, facts that were more
relevant to one ground were alleged in a section on a different ground. The Court has attempted to organize
the Order to best address each of the arguments Miller has raised. Additionally, Miller makes a few
conclusory arguments in his Motion to Vacate that he does not adequately address in his Memorandum.
Conclusory arguments, unsupported by specifics, do not warrant an evidentiary hearing. Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (“A petitioner is not entitled to an evidentiary hearing… when
his claims are merely conclusory allegations unsupported by specifics...”) (emphasis in original) (internal
citations and quotations omitted). Accordingly, the Court focuses on those grounds which Miller properly
pursues.
11
assistance of counsel is normally considered in a collateral attack. United States v.
Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
As noted, Miller waived his right to direct and collateral review as part of his Plea
Agreement, with limited exceptions not applicable here. See Plea Agreement at 14. A
petitioner’s right to directly or collaterally challenge his sentence may be barred if he
effectively waived that right pursuant to a plea agreement. Williams v. United States, 396
F.3d 1340, 1341-42 (11th Cir. 2005), cert. denied, 546 U.S. 902 (2005) (holding that
petitioner’s valid sentence-appeal waiver made pursuant to a plea agreement precluded
him from collaterally attacking his sentence later on a claim of ineffective assistance of
counsel during sentencing). Nevertheless, a sentence-appeal waiver will not bar certain
ineffective assistance of counsel claims from being considered pursuant to § 2255. When
a petitioner alleges that the ineffective assistance of counsel undermines the validity or
voluntariness of the plea or waiver itself, such as a claim that counsel coerced or
misadvised petitioner prior to entry of the plea, then the sentence-appeal waiver will not
bar a court from hearing the claim on the merits. See Baird v. United States, 445 F. App’x
252, 254 (11th Cir. 2011) (per curiam) (noting that despite a sentence-appeal waiver,
collateral attack through an ineffective assistance claim is permitted when “the movant
challenges the knowing and voluntary nature of the plea”)5; see also Cowart v. United
5
In Baird, the Eleventh Circuit addressed the merits of the petitioner’s ineffective assistance claim
challenging the validity of both his plea and sentence-appeal waiver. See Baird, 445 F. App’x at 253-54.
The petitioner alleged that he unknowingly and involuntarily entered a guilty plea due to his counsel’s failure
to properly explain to him the terms of his waiver in his plea agreement. Id. The court held that the petitioner
was not entitled to relief because he did not show sufficient prejudice, namely, that there was a reasonable
probability he would not have pleaded guilty if counsel had explained the terms of the waiver. Id. (finding
12
States, 139 F. App’x 206, 207-08 (11th Cir. 2005) (per curiam) (holding that a sentenceappeal waiver that only expressly limits a petitioner from collaterally challenging his
“sentence” does not bar an ineffective assistance claim that challenges the validity of his
plea or the sentence-appeal waiver itself). Therefore, despite the presence of a sentenceappeal waiver, the Court will address the merits of a § 2255 petitioner’s claim of ineffective
assistance if it challenges the validity of the plea or waiver. Id.
Additionally, challenges to a court’s subject matter jurisdiction survive a sentenceappeal waiver. Both the United States Supreme Court and the Eleventh Circuit Court of
Appeals have explicitly recognized that challenges to a court's subject matter jurisdiction
cannot be waived, forfeited, or procedurally barred. United States v. Cotton, 535 U.S.
625, 630 (2002) (stating that subject matter jurisdiction can never be forfeited or waived
because it involves a court's power to hear a case); United States v. Peter, 310 F.3d 709,
712 (11th Cir. 2002) (jurisdictional error “can never be waived by parties to litigation”).
The Eleventh Circuit Court of Appeals has previously determined that Miller
entered into a valid sentence-appeal waiver. Miller II, 432 F. App’x at 960. Thus, the
Court will not revisit the validity of that waiver. Because the Court does not find that the
government has breached the Plea Agreement for the reasons stated below, Miller’s
waiver of the right to collaterally challenge his sentence has continued force here.
However, because some of Miller’s claims challenge the validity of his guilty plea or the
Court’s subject-matter jurisdiction, the Court will review those claims on the merits.
that the petitioner’s decision to plead guilty was primarily driven by the government’s agreement not to
forfeit his property, and that counsel’s explanation of the waiver would not have deterred his plea.).
13
A. Grounds one through four: ineffective assistance of counsel
As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255
petitioner must demonstrate both: (1) that his counsel’s conduct amounted to
constitutionally deficient performance, and (2) that his counsel’s deficient performance
sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the
petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the
Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at
1036.
The petitioner must show, in light of all the circumstances, that counsel’s
performance fell outside the “wide range of professionally competent assistance.” Id. To
satisfy the second requirement, i.e. that counsel’s deficient performance prejudiced the
defendant, the petitioner must show that there is a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different. Id. at 1036-37
(citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two
prongs of deficient performance and prejudice, the Court considers the totality of the
evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary,
“there is no reason for a court… to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes an insufficient showing
on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir.
2002) (“We need not discuss the performance deficiency component of [petitioner’s]
14
ineffective assistance claim because failure to satisfy the prejudice component is
dispositive.”).
To succeed on a claim that a guilty plea made pursuant to a plea agreement was
obtained as the result of the ineffective assistance of counsel, a § 2255 movant must
show that trial counsel’s advice “fell below an objective standard of reasonableness” and
“that there is a reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57,
59 (1985) (citations omitted).
1. Ground One: Failure to communicate plea offer
Miller’s first claim is that counsel failed to communicate a plea offer, thereby
rendering ineffective assistance under Missouri v. Frye, 132 S. Ct. 1399 (2012).
Specifically, Miller contends that the government made two plea offers – the one he
received, plus a previous one about which counsel failed to inform him. In support of this
contention, Miller points to an email dated Wednesday, July 16, 2008, from prosecutor
Russell Stoddard to defense counsel Danny Onorato which reads:
Danny, I’m putting the final touches on the information and plea agreement.
I will have these for you no later than Friday.
(“Appx 1” to Motion to Vacate). A month and a half later, on September 2, 2008, the
prosecutor mailed the plea offer that Miller ultimately accepted to another one of Miller’s
attorneys, Mark MacDougall. (See Doc. 25-10, Cover Letter to Plea Offer). Based on
this sequence of events, Miller argues that there were two separate plea offers – one in
July 2008 and another one in September 2008. In response, the United States asserts
15
that while plea negotiations were under way in July 2008, these negotiations culminated
only in a single plea offer – the same one Miller ultimately accepted. Response at 10.
Miller infers too much from the July 2008 email. This single email, even when
combined with the fact that a plea offer was sent to a different lawyer more than a month
after the “Friday” as promised, is simply insufficient to support the claim that the
government made an earlier plea offer which Miller’s attorneys failed to communicate.
The existence of plea negotiations with attorney Onorato in July 2008 is entirely
consistent with the government’s submission of a proposed plea agreement to attorney
MacDougall on September 2, 2008, especially taking into account ordinary business
delays. Indeed, the cover letter itself to the government’s plea offer, dated September 2,
2008, referred MacDougall to the enclosed “original” copies of the Plea Agreement and
Waiver of Indictment. (Doc. 25-10, Cover Letter to Plea Offer). Moreover, the fact that
the prosecutor told Onorato that he intended to forward a finalized plea agreement on
Friday, July 18, 2008, does not mean he actually did so. Indeed, despite having obtained
his entire case file from his prior attorney, Miller provides no evidentiary support for his
contention that the prosecutor actually forwarded a plea offer to his lawyer in July or at
any time other than September 2008. See Memorandum at 7; see also exhibits attached
to Motion to Vacate. Accordingly, the July 2008 email offers little support for a finding
that the United States made two separate plea offers and that Miller’s lawyers failed to
communicate one of them. Absent any evidence that the government actually made two
16
different offers, Miller has not demonstrated that counsel performed deficiently by failing
to communicate a prior plea offer. Miller’s allegation is bare conjecture.
Additionally, even if the prosecutor did forward a plea offer to Onorato in July 2008,
Miller points to no evidence indicating that the terms of that offer were any different from
the terms which Miller ultimately accepted. Because there is no indication that such a
prior offer contained different or more favorable terms, Miller has not demonstrated
prejudice. See Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012) (“In these circumstances
a defendant must show that but for the ineffective advice of counsel there is a reasonable
probability…that the conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact were imposed.”).
“A petitioner is not entitled to an evidentiary hearing… when his claims are
merely conclusory allegations unsupported by specifics...” Tejada, 941 F.2d at 1559
(emphasis in original) (internal citations and quotations omitted). Moreover, a district
court need not hold an evidentiary hearing if the petitioner’s allegations are “patently
frivolous,” “based on unsupported generalizations,” or “affirmatively contradicted by the
record.”
Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989).
Miller’s
contention that his counsel failed to communicate a prior plea offer to him, based only on
an inference drawn from the July 16, 2008 email, is speculative at best. Therefore, no
evidentiary hearing is warranted and the claim is due to be denied.
17
2. Ground Two: Negotiating a “faulty and erroneous plea agreement”
Miller contends that counsel rendered ineffective assistance with regard to his Plea
Agreement because (1) the Plea Agreement contained factual errors and counsel
misrepresented the terms of the agreement to him; (2) counsel failed to advise him that
he could withdraw his guilty plea; (3) counsel failed to memorialize certain promises in
the Plea Agreement; (4) the Plea Agreement did not benefit him, and (5) counsel should
have advised him of the option to enter an open plea.
Motion to Vacate at 7;
Memorandum at 7-10.
a. Errors of material facts and misrepresentations concerning the
Plea Agreement
Miller is vague about what errors of material facts found their way into the Plea
Agreement, or how the alleged factual errors prejudiced him.6 Miller is also vague about
how counsel misrepresented or inadequately explained the terms of the Plea Agreement.
Indeed, the only misrepresentation Miller identifies with specificity is that counsel
allegedly told him “that the plea agreement was limited to the T-listed fraud.”7 Id. at 8.
6
Miller does state that “false information” in the Plea Agreement caused him to “ple[a]d to something
he didn’t do – and every stage of the ‘criminal process’ that followed suit based on flawed document [sic]
was also based on incorrect information.” Memorandum at 8. The contention that “false information” in the
Plea Agreement caused him to plead guilty “to something he didn’t do” is entirely inconsistent with Miller’s
sworn statements during his plea colloquy that he reviewed the factual basis and the charges, and admitted
their truth.
7
It is not clear what Miller means when he claims his attorney misrepresented that the scope of his
Plea Agreement was “limited to” the fraud of T-listed companies. Miller pled guilty to two counts, both of
which were, in fact, based on Miller’s fraud in issuing fake surety bonds in the name of Fidelity National –
a T-listed surety bonder. See Plea Agreement at 22-23. In that respect, there was no “misrepresentation”
if counsel told Miller that his Plea Agreement was “limited to” the fraud of T-listed companies. If Miller
means that his counsel misrepresented that his restitution or sentencing liability was limited to fraud
involving T-listed companies, that belief should have been dispelled by the Plea Agreement and the plea
colloquy for reasons discussed below.
18
Miller alleges that he would not have pled guilty had he understood he could be held
accountable for the fraudulent bonds he issued in the name of non-T-listed surety bond
companies. Id. at 12. It is unclear whether Miller is referring to his accountability for
restitution as to the fraud related to non-T-listed companies or the inclusion of bonds
issued in the names of non-T-listed sureties in determining his offense level under the
Guidelines. In an abundance of caution the Court will address both.
In determining whether a guilty plea was knowing and voluntary, the essential
considerations are whether (1) the guilty plea was made free from coercion; (2) the
defendant understood the nature of the charges; and (3) the defendant knew and
understood the consequences of his guilty plea. United States v. Mosley, 173 F.3d 1318,
1322 (11th Cir.1999). The record before the Court conclusively shows that each of these
considerations is satisfied.
First, the record refutes Miller’s allegation that his attorney allowed factual errors
to slip into the Plea Agreement. Miller told the Court, under oath, during the plea hearing
that he had reviewed the charges, the factual basis of his guilty plea, and the Plea
Agreement in its entirety, and that he understood and accepted them. Plea Tr. at 17, 27,
100-10, 112-13. In addition, the Court reviewed the charges, penalties, factual basis,
waivers, and other terms of the Plea Agreement with Miller, and Miller stated under oath
that he understood each. Id. at 19-31, 71-75, 58-98, 99-110. Miller further assured the
Court that he voluntarily accepted the terms of the Plea Agreement, free from coercion or
threats. Id. at 112-14. Miller’s conduct as it pertained to both T-listed and non-T-listed
19
companies was specifically included in the factual basis. Plea Agreement at 20-23. Miller
admitted the truth of the factual basis after hearing it read to him, and confirmed before
the Court that he had in fact committed the acts alleged in the Information. Plea Tr. at
99-110. If there were any factual errors in the Plea Agreement, Information, or factual
basis, Miller both fails to identify them and to explain why he told the Court, under oath,
that the charges and the factual basis were true and that he understood the various
provisions of his Plea Agreement when questioned about each one.
The record also refutes Miller’s contention that he pled guilty as a result of false
representations about his potential liability for restitution. Notably, the Court informed
Miller at the plea hearing that his restitution liability could exceed $500 million – the
cumulative face value of all of the fraudulent bonds he issued – and Miller stated that he
understood. Plea Tr. at 29-31. Miller’s maximum potential restitution liability could not
possibly have reached that amount if he truly believed that his liability under the Plea
Agreement was limited only to fraud involving T-listed surety bond companies, because
as Miller himself has stated, “[t]he ‘T-listed’ bonds represented a very small percentage”
of his fraud. Memorandum at 11. Miller nevertheless pled guilty after affirming in open
court that he understood his maximum potential restitution liability could exceed $500
million.8
8
Although the two criminal charges to which Miller pled guilty involved T-listed surety bonders, the
Court’s statutory authority to order restitution to victims of uncharged conduct is well-established where the
uncharged conduct is part of the same scheme, conspiracy, or pattern of criminal activity. United States v.
Brown, 665 F.3d 1239, 1252 (11th Cir. 2011); see also United States v. Valladares, 544 F.3d 1257, 126870 (11th Cir. 2008). As Miller’s conduct in issuing fake surety bonds in the name of non-T-listed companies
was part of the same scheme to which he pled guilty, the Court had authority to order restitution to the
victims who received fake surety bonds in the name of both T-listed and non-T-listed companies.
20
With regard to the calculation of his sentencing guidelines, Miller has not shown
that he pled guilty relying on the belief that the Court would not consider his conduct
involving bonds issued in the name of non-T-listed companies, or that he believed he was
assured any sort of lenience in sentencing. To the contrary, Miller’s Plea Agreement
specifically stated the following under a section titled “Sentencing Information”:
The United States reserves its right and obligation to report to the Court and
the United States Probation Office all information concerning the
background, character, and conduct of the defendant, to provide relevant
factual information, including the totality of the defendant’s criminal
activities, if any, not limited to the count(s) to which defendant pleads, to
respond to comments made by the defendant or defendant’s counsel, and
to correct any misstatements or inaccuracies. The United States further
reserves its right to make any recommendations it deems appropriate
regarding the disposition of this case, subject to any limitations set forth
herein, if any.
Plea Agreement at 12 (emphasis added). During his plea hearing, the government
informed Miller that he faced a maximum sentence of up to 40 years in prison, and Miller
confirmed he understood that. Plea Tr. at 29-31. Miller also told the Court that he had
discussed the Sentencing Guidelines with his attorney. Id. at 89. The Court warned Miller
that nobody could predict his sentence or what his Guidelines range would be until his
presentence report (“PSR”) was prepared, and even then that the Court could vary
Similarly, the Court did not err in calculating the loss amount from Miller’s fraud, for purposes of
U.S.S.G. § 2B1.1, based on uncharged conduct involving fake surety bonds issued in the name of non-Tlisted companies. United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007) (quoting United States v.
Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006)) (“[I]n calculating the amount of loss, the Guidelines require
a district court to take into account ‘not merely the charged conduct, but rather all “relevant conduct,” in
calculating a defendant’s offense level.’”).
21
upward from the Guidelines. Id. at 89-91. Additionally, the Court advised Miller that he
could not count on the sentencing estimates of his attorney:
THE COURT:
So you understand that anything your lawyer or anyone
else had told you about the guideline application to
your case is only an estimate and that, if incorrect, it
will not be grounds for allowing you to withdraw your
guilty plea?
THE DEFENDANT: Oh yes, I understand that.
Id. at 90. Miller also told the Court that he did not plead guilty depending on any off-therecord promises or agreements. Id. at 114. Thus, not only had the Court notified Miller
that his sentence could be as high as 40 years, but he pled guilty knowing that uncharged
criminal conduct could influence his sentence, and that nobody could predict precisely
what the ultimate sentence would be.
The Court sentenced Miller to a term of
imprisonment of 10 years and one month – well within the range of possible sentences
he knew he could receive.
Under these circumstances, Miller has not shown that he pled guilty under a false
impression about his potential restitution or sentencing exposure, even if his attorney did
not advise him that his fraud involving the non-T-listed companies could affect his
penalties. Miller’s own signed Plea Agreement notified him that “criminal activities”
outside of what he pled guilty to could affect his sentence.
The Court’s extensive
discussion made clear that his sentence was unpredictable, could be as high as 40 years,
and could include restitution up to the $500 million face value of all the fraudulent bonds
he issued, yet Miller still pled guilty.
22
When a court accurately advises a defendant at a plea colloquy of the terms of a
plea agreement and the hazards of sentencing, and the defendant still decides to
proceed, the court’s advice cures the effect of inconsistent advice by defense counsel.
See e.g., United States v. Wilson, 245 F. App’x 10, 12 (11th Cir. 2007) (“During the plea
colloquy, the district court itself explained to Wilson – in detail – the consequences of the
plea agreement, range of punishment, and sentencing contingencies before accepting
Wilson’s guilty plea. Thus, any failure on the part of Wilson’s counsel to clearly explain
the possible punishment was cured by the district court.”); Gambrel v. United States, 2013
WL 3934205 at *11 (S.D. Ga. July 30, 2013) (“So long as the Rule 11 court correctly
advises a defendant of the minimum and maximum penalties he faces as a result of
pleading guilty, a petitioner fails to establish prejudice by alleging that counsel gave
erroneous advice about the sentence he might receive or the possibility for enhancements
under the Sentencing Guidelines.”); United States v. Shedrick, 493 F.3d 292, 299 (3d Cir.
2007) (affirming denial of § 2255 claim that counsel was ineffective for failing to advise
petitioner of “the potential for enhancement or upward departure” where such failure was
“corrected by the written plea agreement and the detailed in-court plea colloquy, both of
which accurately stated [petitioner's] potential sentence.”).
Because the Court
exhaustively discussed with Miller nearly every aspect of his decision to plead guilty –
including not only the operation of the Sentencing Guidelines and his potential
punishment, but also his waiver of certain rights and the fact that the Court was free to
reject sentencing recommendations without Miller being allowed to withdraw his plea –
23
and Miller consistently stated that he understood, Miller has not shown that he would not
have pled guilty but for the allegedly erroneous advice regarding the non-T-listed
companies.
Therefore, even assuming the truth of Miller’s allegation that counsel
misrepresented the terms of the Plea Agreement, Miller’s claim fails to satisfy Strickland’s
prejudice prong in light of his decision to plead guilty following the Court’s thorough plea
colloquy.
Moreover, “the representations of the defendant, his lawyer, and the prosecutor at
[a guilty plea] hearing, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 73–74 (1977).
Indeed, “[t]he subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible.” Id. at 74. Miller made sworn
declarations to the Court that he understood the charges, the possible penalties, the Plea
Agreement, and that he admitted the truth of the factual basis even after the Court
independently reviewed these matters with him. Miller’s claims that factual errors and
misrepresentations caused his guilty plea to be unintelligent are incredible in light of his
sworn statements during the plea colloquy. After review of the record, the Court readily
concludes that Miller has not produced evidence to rebut the strong presumption that his
guilty plea was an intelligent choice and that his sworn declarations at the plea colloquy
were true.
24
b. Counsel’s alleged failure to advise Miller that he could withdraw
his guilty plea
The record similarly establishes the absence of prejudice with regard to counsel’s
alleged failure to advise Miller that he could withdraw his guilty plea. Miller states that he
had “reservations” about pleading guilty, and his attorneys rendered ineffective
assistance by failing to inform him that he could attempt to withdraw his guilty plea before
sentencing. Memorandum at 10.
During Miller’s plea hearing, the Court patiently explained to him that he did not
have to proceed with his guilty plea if he did not want to, but Miller told the Court that he
wanted to proceed. Plea Tr. at 64-70. Having pled guilty after an exhaustively thorough
colloquy, Miller would have faced a formidable barrier if he sought to withdraw his guilty
plea. Had Miller attempted to do so, the Court would have considered whether (1) Miller
had the close assistance of counsel, (2) the plea was knowing and voluntary, (3) judicial
resources would be conserved, and (4) the government would be unduly prejudiced.
United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988). The Eleventh Circuit
has instructed that the first two factors are the most significant. See United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). Because the record establishes
that Miller pled guilty following a proper and complete Rule 11 colloquy where he assured
the Court under oath that it was his own free decision to plead guilty, he enjoyed the close
assistance of counsel (actually four attorneys), and he displayed a clear understanding
of the consequences of his plea, he has shown no possibility that a motion to withdraw
his plea would have been granted. Indeed, Miller points to no evidence in the record that
25
would have supported a withdrawal of his guilty plea. As such, Miller did not suffer
prejudice from his attorneys’ failure to advise him about the possibility of withdrawing his
guilty plea.
c. Counsel’s alleged failure to memorialize certain promises in the
Plea Agreement
The record also conclusively refutes Miller’s claim that counsel failed to
memorialize in the Plea Agreement certain promises made by the government. Miller
stated under oath that nothing had been said to him or his attorneys that caused him to
plead guilty other than what appeared in the Plea Agreement. Id. at 112. The Court also
asked Miller whether he pled guilty based on any promises other than those contained in
the Plea Agreement itself, see id. at 114, and Miller said no. Id. In addition, Miller and
his attorney told the Court that there were no understandings, promises, or agreements
between himself, his attorneys, or the government other than what was stated on the
record. Id. at 115. Thus, Miller’s sworn affirmations that there were no agreements or
promises other than those in the Plea Agreement refute his claim that counsel failed to
memorialize certain promises in the agreement. Even if counsel did fail to include certain
promises in the agreement, Miller’s sworn declarations that he did not plead guilty in
reliance on any off-the-record promises would preclude a finding of prejudice as well.
d. Counsel’s alleged failure to negotiate a more favorable plea
agreement
Miller’s contention that counsel rendered ineffective assistance because the Plea
Agreement was not favorable to him lacks merit. The fact that, in hindsight, Miller believes
26
he did not get “enough” simply provides no basis for habeas relief. Undoubtedly, the right
to the effective assistance of counsel extends to the plea bargaining process. See
Cooper, 132 S. Ct. at 1384. The Supreme Court has found that an attorney performed
deficiently in plea-bargaining where his representation deprived the defendant of the
ability to make an intelligent choice, such as where counsel altogether failed to
communicate a plea offer to his client, Frye, 132 S. Ct. at 1408, or where counsel advised
his client to reject a plea offer based on patently incorrect legal advice, Cooper, 132 S.
Ct. at 1383 (counsel told defendant that because he shot victim below the waist,
prosecution would not be able to prove he committed assault with intent to murder).
However, Miller points to no authority establishing that counsel performs deficiently in the
plea bargaining process simply because, in hindsight, the terms of the bargain were not
as good as some hypothetical alternative. To the contrary, the Supreme Court has
cautioned (1) that “[t]he object of an ineffectiveness claim is not to grade counsel's
performance[,]” Strickland, 466 U.S. at 697, and (2) that in considering such a claim,
courts must eliminate the distorting effects of hindsight and evaluate counsel’s choices
“as of the time of counsel’s conduct.” Id. at 690. As such, the Supreme Court has
emphasized that the need for deference to defense counsel’s judgment is especially
acute in the plea bargaining context. Premo v. Moore, 131 S. Ct. 733, 741 (2011) (“The
art of negotiation is at least as nuanced as the art of trial advocacy and it presents
questions farther removed from immediate judicial supervision.”).
27
Nevertheless, even if his claim is considered on the merits, the record refutes it.
The record reflects that counsel negotiated a number of benefits for Miller under the Plea
Agreement. First, the government agreed to recommend a sentence at the low end of
his Guidelines range as calculated by the Court. Plea Agreement at 5. Second, the
government agreed to recommend a two-offense-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), plus an additional offense level reduction under
U.S.S.G. § 3E1.1(b) if Miller qualified. Plea Agreement at 4. Third, the government
agreed to bring no further charges against Miller based on any criminal conduct of which
it was then aware. Id. at 3. Finally, the government agreed to consider any substantial
assistance Miller was able to offer. Id. at 5-6.
The Court will not invalidate a plea agreement simply because, in retrospect, a
petitioner is disappointed that his attorney did not extract even more favorable
concessions from the government. As the Seventh Circuit has explained, “[t]o allow an
otherwise valid plea agreement to be undone because the defendant did not obtain
‘enough’ of a benefit would undermine the efficacy of such agreements by permitting the
defendant to obtain the benefit of the bargain without suffering the detriment.” United
States v. Williams, 184 F.3d 666, 670 (7th Cir. 1999). “This ‘is the one outcome that
would be most destructive of the plea agreement process’ as ‘[d]efendants must take the
bitter with the sweet.’” Id. (quoting United States v. Wenger, 58 F.3d 280, 283 (7th Cir.
1995)). Nearly every defendant could complain that counsel could have negotiated even
better terms, but if every such plea agreement were invalidated it would eviscerate the
28
utility of the plea system. Accordingly, the Court declines Miller’s invitation to revisit the
substance of his plea agreement and speculate about whether counsel could have gotten
more.
Miller told the Court, under oath, that he understood the terms of his Plea
Agreement, the consequences of pleading guilty, as well as the penalties and forfeitures
he faced, that he was satisfied with his attorneys, and then proceeded to plead guilty.
Miller knowingly and voluntarily accepted the plea offer, and the Court will not entertain
his complaints now because he has buyer’s remorse.9
e. Failing to advise Miller of the option to enter an open plea
Miller also alleges that he was worse off under the Plea Agreement than if he had
gone to trial, and that his attorney rendered ineffective assistance by failing to advise him
that he could enter an open plea, i.e. a guilty plea without a plea agreement.
Memorandum at 8.
Where a petitioner alleges that counsel performed deficiently by not advising him
of the option to enter into an open plea, the petitioner must show a reasonable probability
that he would have actually taken advantage of that option. Cf. Frye, 132 S. Ct. at 1409
(for a petitioner to establish prejudice from an attorney’s failure to communicate an
expired plea offer, he must show a reasonable probability that he would have actually
accepted the offer). If a petitioner would not have entered an open plea anyway, however,
he cannot show that he suffered prejudice from not being informed of the choice. Here,
Miller has not demonstrated the necessary prejudice.
9
Notably, Miller points to no evidence supporting a conclusion that his counsel or any attorney could
have obtained an agreement by the government to a plea under more favorable terms.
29
Even assuming that counsel failed to advise Miller of the option to plead guilty
without a plea agreement, Miller has not shown a reasonable probability that he would
have actually done so. Significantly, Miller does not even allege that he would have
entered a guilty plea without a plea agreement. Instead, he simply complains that counsel
failed to advise him of the option. Moreover, he fails to suggest how such a course of
action would have been more favorable for him. To the contrary, as discussed above,
the record reflects that by pleading guilty pursuant to the Plea Agreement, Miller obtained
a variety of benefits, including the government’s agreement to negotiate for Miller’s wife
to keep the family home. Elsewhere in his Motion to Vacate, Miller himself acknowledges
that the government’s agreement to not force a forfeiture of the family home was a major
incentive for him to accept the Plea Agreement. See Memorandum at 15-19. On this
record, Miller has failed to show a reasonable probability that he would have pled guilty
without any of the benefits of a plea agreement had he been given the option.
3. Ground Three: Ineffective assistance at sentencing10
10
All of the claims raised in this ground are also barred by Miller’s sentence-appeal waiver, which the
Eleventh Circuit has already held to be valid. Miller II, 432 F. App’x at 960. A valid sentence-appeal waiver
can preclude a petitioner from collaterally attacking his sentence, including collaterally attacking the
sentence based on the ineffective assistance of counsel. Williams, 396 F.3d at 1341-42. Miller’s waiver of
collateral review explicitly covers attacks on his sentence. Plea Agreement at 14. Now, Miller aims to
challenge his sentence by raising claims of ineffective assistance of counsel at sentencing. See
Memorandum at 10-13. Therefore, these claims are squarely within the scope of Miller’s waiver of collateral
review, and could be dismissed as barred by his Plea Agreement.
However, the Court declines to rely exclusively on the sentence-appeal waiver in light of the policy
announced by the Department of Justice on October 14, 2014, directing federal prosecutors to no longer
enforce appeal waivers against claims of ineffective assistance of counsel.
See
http://pub.bna.com/cl/DOJwaiverpolicy.pdf. Although the government in this case has not revoked its
reliance on Miller’s sentence-appeal waiver, the Court in an abundance of caution will address the claim on
the merits.
30
Miller contends that counsel provided ineffective assistance at sentencing.
Specifically, he claims that his attorneys abandoned him because they were allegedly
laboring under a conflict of interest after Miller was no longer able to pay them. As a
result, Miller contends that his attorneys failed to argue for mitigation of the loss amount;
failed to “investigate and take action to assure that factually accurate information was
presented to the court”; failed to raise alleged breaches of the Plea Agreement; and failed
to advise him on how to terminate the attorney-client relationship so that Miller could
represent himself. See Memorandum at 10-13, 50-57.
To show a denial of the right to the effective assistance of counsel based on an
alleged conflict of interest, a petitioner must show that (1) his counsel labored under an
actual conflict of interest, and (2) that this conflict “actually affected” counsel’s
performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Reynolds v. Chapman, 253
F.3d 1337, 1342 (11th Cir. 2001). Miller fails on the second prong, because the record
reflects that counsel zealously advocated on Miller’s behalf.
A team of three lawyers represented Miller at sentencing.
Miller’s attorneys
submitted a 28-page sentencing memorandum in which counsel argued that a three-year
sentence was appropriate for Miller. (Crim. Doc. 55, Sentencing Memorandum at 25). In
support, counsel objected to the application of the abuse-of-trust enhancement under
U.S.S.G. § 3B1.3, which had been included in the presentence report. Counsel for Miller
capably argued the issue and the Court ultimately sustained the objection.
See
Sentencing Tr. I at 7-24. Counsel’s success in eliminating the two-level abuse-of-trust
31
enhancement alone reduced Miller’s Guidelines range from 121 to 151 months in prison
(2009 Guidelines range for criminal history category I, offense level 32) to 97 to 121
months in prison (the range for criminal history category I, offense level 30). Counsel
further urged the Court to sentence Miller below his Guidelines range, arguing that a
sentence within the Guidelines range would be disproportionate relative to the sentences
given similarly situated defendants. In support of that argument, counsel identified and
discussed 14 cases where fraud defendants received sentences below Miller’s Guidelines
range.
Sentencing Memorandum at 7-10.
Counsel also attempted to argue that,
considering the nature and circumstances of Miller’s offense under 18 U.S.C. §
3553(a)(1), Miller deserved a sentence well below his advisory Guidelines range because
he did not abscond with all of the money he had fraudulently obtained. Rather, counsel
identified five instances where Miller returned the bond premiums of purchasers whose
surety bonds were rejected, three instances where Miller paid claims, and other ways in
which Miller attempted to run his surety bond companies like legitimate businesses, such
as by hiring actuaries and requiring his clients’ subcontractors also to be surety-bonded
to reduce the risk of loss. Sentencing Memorandum at 11-15. Finally, counsel argued
that Miller’s personal characteristics warranted a lower sentence.
The attorneys
discussed Miller’s unstable childhood; how his father physically abused him; how Miller
wanted to provide for his family and prove his worth to his father; how Miller was active in
certain charities; and how Miller cooperated with the government after the FBI launched
its investigation. Miller’s attorneys submitted 162 pages of documents supporting the
32
Sentencing Memorandum, including eight letters from friends and colleagues attesting to
Miller’s character. See Crim. Doc. 55-16, Letters of Support.
Miller’s team of lawyers continued their zealous advocacy at the sentencing
hearing. In addition to successfully objecting to the abuse-of-trust enhancement, counsel
argued in favor of mitigating the loss amount attributable to Miller’s fraud. See Sentencing
Tr. II at 21-24, 26. Counsel argued that (1) the government had only identified and
presented 23 of Miller’s 50 victims, and (2) that Miller returned millions of dollars in
fraudulently collected premiums, and therefore the true loss amount of Miller’s fraud was
between $6 million and $8 million, rather than $22.5 million. Counsel also reiterated that
Miller tried to cooperate with the government, id. at 27, 30; that he had a difficult
childhood, id. at 18-20; and that Miller was generous to his community, id. at 30.
The record is replete with evidence that Miller’s attorneys vigorously represented
him at sentencing. There is simply no support for the contention that Miller suffered from
the ineffective assistance of counsel because of a conflict of interest, or that his attorneys
abandoned him. If Miller’s attorneys did not make all of the arguments Miller wanted them
to make, the record reflects that they had strategic concerns about how such arguments
would compromise Miller’s ability to obtain a lower sentence. “Appx” 4 to Motion to Vacate
(“As we have discussed, some of the position[s] you wish to take will undermine your
ability to earn a departure under Rule 35”; “We discussed the fact that if we made many
of the arguments that you and Joy advanced, that you would risk losing acceptance of
responsibility points.”). Ultimately, counsel’s valiant efforts to obtain a low sentence
33
simply could not overcome the overwhelming evidence that Miller executed a calculated
and carefully planned fraudulent scheme, after years of participating in other fraudulent
schemes. The mere fact that a certain defense was unsuccessful does not prove that
counsel was ineffective. Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010).
The record further refutes each of Miller’s specific allegations of ineffective
assistance.
a. Failure to contest the loss amount
Contrary to Miller’s allegation that his attorneys failed to contest the loss amount,
counsel did argue that the Court should consider reducing the loss figure.
See
Sentencing Tr. II at 21-24, 26; see also “Appx” 3, 4 to Motion to Vacate. While counsel
acknowledged that Miller admitted to collecting $22.5 million in fraudulent premiums, they
argued that the actual loss amount was closer to $6 million to $8 million after refunds and
payments that Miller disbursed. What Miller fails to recognize, however, is that contesting
the loss amount for Guidelines purposes could have jeopardized any credit Miller would
receive for acceptance of responsibility under U.S.S.G. § 3E1.1, if not proving altogether
meritless. Counsel therefore did not perform unreasonably by not pursuing this line of
defense further.
Application Note 3(E) to U.S.S.G. § 2B1.1 permits an offset to the loss amount for
money returned to victims before the offense is detected. Miller, though, has failed to
show that he actually qualified for such an offset. First, messages between Miller’s
lawyers and the prosecutor reflect that the government was prepared to contest a number
34
of Miller’s alleged “refunds” as bogus, pointing to one particular example where Miller
claimed to have issued a $400,000 refund, but the victim only received $62,000. “Appx
12” to Motion to Vacate. Thus, had Miller pursued a reduction of the loss amount, he
would have risked tainting his credibility, and jeopardized a reduction of three offense
levels for acceptance of responsibility. Credit for acceptance of responsibility requires
“clearly” accepting responsibility, U.S.S.G. § 3E1.1(a), which would be put into question
were Miller to advance specious arguments in support of loss mitigation. As reducing the
loss amount from over $20 million to under $20 million would only result in a two-offenselevel Guidelines reduction anyway, see U.S.S.G. § 2B1.1, Miller would simply have risked
worsening his position by compromising a three-level-reduction for acceptance of
responsibility to gain a two-level reduction for a lower loss amount.
Second, an offset under U.S.S.G. § 2B1.1 is permitted only if money or property is
returned before the offense is detected, which is the earlier of (1) when the crime was
discovered by a victim or government agency, or (2) when the defendant knew or
reasonably should have known that the offense was detected or about to be detected by
a victim or government agency. U.S.S.G. § 2B1.1, Application Note 3(E). Miller has
provided no evidence that he refunded moneys or paid claims in the time required.
Therefore, he has failed to show that he would actually have qualified for an offset of the
loss amount.
Because Miller has failed to show that pursuing a reduction of the loss amount
would have been meritorious, he cannot establish that counsel performed ineffectively at
35
sentencing by not expending greater effort to contest the loss amount. See Lancaster v.
Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (a court may credit as professionally
reasonable counsel’s decision not to raise what he reasonably believes to be a meritless
legal issue).
b. Failure to ensure that “factually accurate information was
presented to the court”
Similarly, Miller has failed to establish ineffective assistance based on his lawyers’
alleged failure to “take action to assure that factually accurate information was presented
to the court” at sentencing. There appear to be two instances in which Miller alleges
counsel failed to ensure “accurate information” was presented to the Court: (1) the failure
to correct allegedly false testimony at the sentencing hearing from Fidelity National CEO
Mark Davey, Memorandum at 53, and (2) the failure to correctly detail Miller’s legal history
with the Maryland Insurance Administration, id. at 54-56. Both allegations are frivolous.
As to witness Mark Davey, Miller presents no evidentiary support for the assertion that
Davey committed perjury or spoke falsely at the sentencing hearing.11 Thus, it is not true
11
Davey testified that in 2007, Miller misled investigators into believing that he had a bona fide
contract with Fidelity National to issue surety bonds in the company’s name. Sentencing Tr. I at 32-40.
Davey remarked: “Mr. Miller was so confident and convincing to these investigators, these investigators
returned to my office and attempted to tell me that I didn’t know what I was talking about…Only a true
criminal can sit across the desk from law enforcement officials and continue the fraud under these
circumstances.” Id. at 36. Miller thinks that Davey’s account was proven false when the prosecutor
allegedly said “… and it was only after we shut Mr. Miller down and took all of his records and all of his
business equipment and all of his computers [in April 2008] that he decided to come and talk to the
government.” Memorandum at 36. Not only is the alleged quote from the prosecutor absent from the
portion of the record Miller cites, but even as Miller phrases it, the statement does not mean Davey testified
falsely, for Miller twists the meaning of “talk to the government.” By “talk to the government,” the context
clearly refers to cooperation, not that Miller literally never “talked” to an officer of the government before
April 2008. Moreover, the essence of Davey’s testimony – that Miller brazenly lied to investigators about
having a bona fide contract with Fidelity National – remains undisputed. Thus, Miller’s contention that the
Court based his sentence on false testimony is untrue and meritless.
36
that counsel performed deficiently by failing to correct “false testimony.” As to Miller’s
legal battle with the Maryland Insurance Administration, Miller himself points out that the
Court learned of his true history there through the Court’s sua sponte efforts, and that the
status of the case was inconsistent with counsel’s representations.12 Memorandum at
55. However, Miller was not prejudiced by defense counsels’ unfamiliarity with the legal
history of the Maryland Insurance Administration litigation. The Court did not increase
Miller’s sentence because his attorneys were not aware of the fact that the Maryland
Insurance Commissioner had entered a final order against Miller. Unfortunately for Miller,
his true history with the Maryland Insurance Administration was entirely unfavorable to
him, and nothing counsel could have said would have changed that history. Thus, even
if Miller’s attorneys were inadequately prepared to discuss the Insurance Administration
litigation, it did not harm Miller or otherwise affect the outcome of the sentencing
proceeding.
c. Not advising Miller on withdrawing from the case
Miller’s attorneys did not perform ineffectively by not advising Miller on his options
for having them withdraw from the case either, because there is no indication that Miller
directed them to do so, or that he wished to represent himself at sentencing. At most,
12
Beginning at least as early as 2004, Miller was the subject of an investigation by the Maryland
Insurance Administration for fraudulent insurance schemes he had carried out in that state. In August 2007,
the Maryland Insurance Administration issued a ruling against Miller. In January 2008, the state court
overseeing the Maryland Insurance Administration matter vacated the Insurance Administration’s order and
remanded the case. Miller’s counsel represented to the Court that the case “basically died” after that.
Sentencing Tr. II at 5. However, the Court discovered itself that in December 2008, the Insurance
Administration reaffirmed its order finding that Miller had defrauded Maryland businesses, and that Miller
had not appealed that final order. Id. at 7.
37
Miller suggested in a single, intemperate email that his attorneys ought to withdraw if they
couldn’t “all agree on the right approach” to the sentencing hearing, which did not amount
to a specific instruction to cease representing him. See Appx. 2-4 to Motion to Vacate.
Counsel responded by explaining that they did not think it wise to follow some of Miller’s
suggestions for litigating the case, and that nobody had misrepresented anything to him,
as well as by assuring Miller that they would remain in contact. See Appx. 4 to Motion to
Vacate. Shortly thereafter, Miller expressed his gratitude to three of his attorneys and his
confidence in the “chemistry” developing among them. See Appx. 5, 6 to Motion to
Vacate. Thus, the record refutes any contention that Miller’s lawyers denied him the right
to self-representation by ignoring a specific instruction to withdraw.13
d. Not objecting at sentencing to breaches of the Plea Agreement
Finally, Miller’s team of lawyers did not perform deficiently by failing to raise alleged
breaches of the Plea Agreement at the sentencing hearing. As discussed below, the
government did not do anything that was inconsistent with any promise actually contained
in the Plea Agreement. For that reason, arguments that the government breached the
Plea Agreement would have proven meritless. Accordingly, Miller’s allegations that his
lawyers rendered ineffective assistance at sentencing fails based on a record that
thoroughly demonstrates his lawyers ardently and capably advocated for him.
13
What is more, the voluminous record of correspondence between Miller and his lawyers, and their
professional representation after Miller intemperately suggested they should withdraw, contradicts Miller’s
previous claim that his attorneys were eager to “abandon” him because he could no longer afford to pay
them. See Memorandum at 52, 56-57; see also supra at 31-34.
38
4. Ground Four: Failing to hire experts to investigate Miller’s companies
Miller contends that counsel gave ineffective assistance by failing to hire auditors
and forensic accounting experts to investigate the financial circumstances of his
companies. Id. at 14-15. The record refutes this claim.
The Supreme Court has described the standard applicable where a petitioner
claims that counsel’s inadequate investigation caused him to plead guilty:
[W]here the alleged error of counsel is a failure to investigate or discover
potentially exculpatory evidence, the determination whether the error
“prejudiced” the defendant by causing him to plead guilty rather than go to
trial will depend on the likelihood that discovery of the evidence would have
led counsel to change his recommendation as to the plea. This assessment,
in turn, will depend in large part on a prediction whether the evidence likely
would have changed the outcome of a trial.
Hill, 474 U.S. at 59. No absolute duty exists to investigate particular facts or a certain line
of defense.
Rather, under Strickland, counsel need only conduct a reasonable
investigation to fall within the wide range of competent assistance. Chandler v. United
States, 218 F.3d 1305, 1317 (11th Cir. 2000). Indeed, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
Miller does not suggest what information a financial investigation would have
yielded, except that it would have shown that his company allegedly had enough capital
to cover claims made against the fake bonds. Memorandum at 14-15. However, counsel
was aware of this line of argument – and did pursue it at sentencing. (See Crim. Doc. 15,
Miller’s Sentencing Memorandum at 11-13). Counsel argued, based on 2006 and 2007
39
reports prepared by an actuarial consulting firm, that Miller’s company maintained capital
to pay claims, and that hiring the actuarial firm and maintaining some capital cushion
reflected a measure of scrupulousness on Miller’s part that should mitigate his sentence.
See id.; see also Sentencing Tr. II at 22, 33-34. Counsel therefore did not neglect a
financial investigation of Miller’s companies, as Miller alleges.
Spending any more time investigating the financial ability of Miller’s companies to
pay claims would have been simply irrelevant. The United States did not charge Miller
with running an under-capitalized company, though even defense counsel conceded that
Miller’s operation would not have been considered properly collateralized by many
regulatory standards.
Sentencing Tr. I at 18; see also Crim. Doc. 55, Sentencing
Memorandum at 12. Rather, Miller’s fraud was in the act of taking money through
deceptive misrepresentations about the reliability of the worthless paper he issued
(regardless of whether or not he advertised that his own company was a T-listed surety
bonder), which Miller calculated would induce people to entrust their money to him, and
in using the facilities of interstate commerce to further the scheme. See United States v.
Hasson, 333 F.3d 1264, 1270-71 (11th Cir. 2003) (discussing the elements of wire fraud);
see also Pattern Crim. Jury Instr. 11th Cir. OI 50.1 (2010) (pattern jury instructions for
mail fraud). As a result of his fraud, many businesses lost contracts with state, local, and
federal government agencies once it was discovered that their projects were not properly
bonded, and still others failed to receive the coverage for which they paid many thousands
of dollars. Thus, the point of the investigation Miller thinks his attorneys should have
40
conducted, i.e. examining whether Miller’s operation could have paid claims as ably as
any other insurance company, is simply irrelevant to the elements of mail and wire fraud.
Nor would any further financial investigation have aided Miller under the Sentencing
Guidelines. There is no offense level reduction for running a fraudulent operation that
had the ability to reimburse claims. What matters is that Miller did take millions of dollars
in fraudulent premiums (after engaging in other fraudulent schemes for years before), and
harmed his victims by doing so.
Because an attorney has no duty to undertake pointless and legally irrelevant
investigations, Miller has not shown that his attorneys’ investigation was unreasonable.
The record reflects that Miller’s counsel undertook a reasonable investigation of the
financial circumstances of his fake-surety-bond operations in pursuit of mitigation at
sentencing, although it was legally irrelevant to the ultimate question of guilt. Therefore,
Miller has failed to show that additional financial investigation would have changed
counsel’s advice that Miller should plead guilty. See Hill, 474 U.S. at 59. Miller has also
failed to show that further investigation into his scams’ finances would have yielded any
evidence or argument that might have reduced his sentence.
B. Ground Five: The government’s alleged breaches of the Plea Agreement
Miller’s primary contention in Ground Five is that the government breached his
Plea Agreement. As Miller puts it, “[t]he government failed to keep promises made which
induced Miller to plead guilty. These breaches rendered Millers’ [sic] plea involuntary and
41
unknowing, as he would not have pled guilty had he known that the government had no
intention of keeping the promises it made to Miller…” Memorandum at 15.
“[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). The record
here shows either that the alleged promises which Miller contends the government
breached were not part of the Plea Agreement, or if they were that the government did
not commit a breach. The Court will address each in turn.14
1. The family home
Pursuant to a handwritten modification of the Plea Agreement’s asset forfeiture
provision, the government agreed to allow Miller’s wife to remain in the family home, not
to force a sale of the home, and to negotiate with the wife for her to buy out the
government’s interest in the property.15 Plea Agreement at 6. In a prematurely filed
motion to vacate (Crim. Doc. 146, Motion to Vacate Guilty Plea), Miller contended that
the government breached that provision of his Plea Agreement when his bank initiated
foreclosure proceedings in late 2009. Miller speculated that the government interfered
14
Miller correctly points out in his Reply that the Eleventh Circuit Court of Appeals did not address
the breaches of the plea agreement that he currently alleges. Reply at 16-19; Doc. 31-2, Sukhia Affidavit;
see also Miller I, 432 F. App’x 952; Miller II, 432 F. App’x 955. Thus, the claims are not procedurally barred
as having already been resolved. Miller is also correct that his alleged breaches were outside the appellate
record, so they could not have been raised on direct appeal. Indeed, this Court instructed Miller to raise
the issues in a § 2255 motion. Therefore, the Court will address the claims on the merits.
15
Miller and his wife, Bonnie Pauza-Miller, owned a house at 6917 Timber Creek Court, Clarksville,
Maryland, as tenants by the entirety. The home was listed as an asset subject to forfeiture in the
Information, Miller’s Plea Agreement, and the Judgment (Crim. Doc. 64, Judgment).
42
with a loan modification that he was seeking on the house, an allegation the government
denied. (Crim. Doc. 170, Government’s Response to Wife’s Notice of Claim and Legal
Interest in Property at 2-3). The Court dismissed Miller’s Motion to Vacate Guilty Plea for
lack of jurisdiction, and instructed Miller to raise the claim in a § 2255 motion. (Crim. Doc.
178, Order at 2). Miller thus raises that claim in the current § 2255 motion. He also adds
the contention that the government breached the Plea Agreement by failing to negotiate
with his wife for the purchase of the government’s interest in the family home.
Memorandum at 16-19.
The record refutes Miller’s contention that the government breached its agreement
to not force a sale of the Miller family home. First, as Miller himself has stated, it was the
mortgagee-bank that initiated foreclosure proceedings on the family home, not the
government. See “Appx 32” to Motion to Vacate, November 18, 2009 letter to AUSA’s
Stoddard and Glober. Miller’s allegation that the bank instituted foreclosure proceedings
because the government interfered with him obtaining a loan modification is bare,
unsubstantiated speculation for which he provides no evidence. Indeed, there is no
indication that the government was responsible for, or played any role in, the initiation of
the foreclosure proceedings. Such speculative and conclusory allegations do not warrant
an evidentiary hearing, much less any relief. See Tejada, 941 F.2d at 1559.
Second, Miller points to no evidence showing that the government breached its
agreement to negotiate with Miller’s wife for her to purchase the government’s interest in
the home. Although Miller contends that the government opposed his wife’s attempts to
43
assert her claim of interest in the property, this claim is false. In February 2009, the
government sent Miller’s wife a Notice of Forfeiture via certified mail, which advised her
that to assert a claim or legal interest in any of the forfeited properties she must file a
petition with the clerk of court for the Middle District of Florida within 30 days of receipt of
the Notice. See Crim. Doc. 211. The return receipt reflects Miller received the Notice at
the family home. (See Crim. Doc. 211-1, Return Receipt). However, Miller’s wife did not
submit a claim or attempt to contact the government.
Government’s Letter to Wife).
(See Crim. Doc. 211-3,
Over a year later, in March 2010, the government
contacted Miller’s wife a second time to initiate negotiations for the purchase of the
government’s interest in the home. See id. In April 2010, Miller’s wife filed a much belated
(and untimely) Notice of Claim and Legal Interest in Property (Crim. Doc. 167, Claim),
which the government opposed as to most of the properties. (Crim. Doc. 211). However,
despite the tardiness of the claim, the government specifically stated it did not oppose
Miller’s wife’s claim of interest in the family home at 6917 Timber Creek Court, Clarksville,
Maryland. Id. at 11.
Although the United States conceded there may have been “a misunderstanding
about which party would initiate such negotiations,” it insists that
the United States has taken no actions whatsoever with regard to [Miller’s
wife] being requested or required to move out of her home. As a matter of
fact, as soon as the United States learned a foreclosure action was pending,
it informed the mortgage company that such an action was not permissible
during the pendency of a forfeiture action.
44
Id. at 2-3. Ultimately, the United States and Miller’s wife agreed that the wife would
consent to entry of a Final Judgment of Forfeiture on Miller’s one-half interest in the
property, after which the government would execute the proper documents to transfer the
interest to Miller’s wife, subject to a lien by Chase Home Finance. (Crim. Doc. 243,
Stipulation at ¶ 12).16 This Court’s Final Judgment of Forfeiture as to Defendant’s Interest
in Real Property (Crim. Doc. 252) incorporated that agreement. Id. at 4. On or about
June 27, 2011, the United States Marshals Service filed papers releasing the
government’s interest in the family home to Miller’s wife (Crim. Doc. 257, U.S. Marshals
285 Form), consistent with Miller’s Plea Agreement and the Court’s Final Judgment of
Forfeiture. Miller’s wife then sold the Timber Creek property in August 2011 and received
the proceeds. See Memorandum at 21.
The record establishes that the United States upheld its part of the bargain and
transferred Miller’s forfeited interest to his wife. If foreclosure proceedings were initiated
against Miller’s home in late 2009, Miller has failed to show that it was precipitated by the
government. Moreover, the government contacted Miller’s wife twice in order to prompt
her to assert any legal interest she had in properties subject to forfeiture, and ultimately
settled with her over the house. Miller has not shown that the government breached the
Plea Agreement with regard to the family home.
16
The forfeiture of the defendant’s one-half interest to the government, followed by the government’s
transfer of that interest to the defendant’s spouse, is the ordinary procedure followed where the government
agrees to allow a defendant’s spouse to maintain the defendant’s forfeited interest in a property. Here, the
fact that the United States took the intermediate step of causing Miller to forfeit his one-half interest in the
property prior to transferring that interest to Miller’s wife does not mean that the government breached its
part of the Plea Agreement with regard to the family home, only that it followed ordinary procedure before
ceding that interest to Miller’s wife. See Response at 19-20.
45
2. Miller’s wife’s Wachovia bank account
Miller contends that the government breached his Plea Agreement by failing to
return to his wife all of the funds in a Wachovia bank account containing $51,272.07.
Memorandum at 19-22. Pursuant to a stipulation, the government returned $40,000 to
Miller’s wife, and Miller’s wife consented to forfeiture of the remaining $11,272.07.
Stipulation at ¶ 11. That bank account was among the assets Miller agreed to forfeit
pursuant to his Plea Agreement, and was included in the Court’s Judgment.
Plea
Agreement at ¶ A.10.v; Judgment at 9. Despite this fact, the United States returned
$40,000 to Miller’s wife. Nothing in the Plea Agreement required the government to do
so. Indeed it made no promise to return any part of those funds either in the Plea
Agreement or at Miller’s plea hearing. And, Miller assured the Court under oath that he
did not plead guilty based on any promises, agreements, or understandings other than
those discussed on the record or in the Plea Agreement. Plea Tr. at 112-15. Therefore,
Miller has not shown that a promise to remit any portion of the Wachovia account
proceeds to his wife was part of the inducement to plead guilty, or that the partial return
of the funds constituted a breach of his Plea Agreement.
3. Miller’s Tax Refunds
Miller contends that the government breached an agreement to not pursue his tax
refunds to satisfy his restitution or forfeiture obligations.
Memorandum at 22-25.
Specifically, Miller contends he is due tax refunds of $32,987 and $138,659, that he has
not received these refunds, and that the United States has taken these funds in breach
46
of his Plea Agreement. This claim is without merit. First, Miller’s Plea Agreement only
binds the United States Attorney’s Office for the Middle District of Florida, and explicitly
advises that it does not bind other agencies. Plea Agreement at 14-15. That the IRS –
a distinct agency from the United States Attorney’s Office for the Middle District of Florida
– has not returned Miller’s tax refunds does not ipso facto demonstrate a breach of the
Plea Agreement by the United States Attorney’s Office. Second, no promise to allow
Miller to keep his tax refunds appears in the Plea Agreement or on the record of his plea
hearing, and Miller affirmed to the Court that he relied on no promises other than those
so recorded.
Third, according to Miller’s own emails, any discussion regarding tax
refunds did not occur until May or June, 2009 (see “Appx 5” to Motion to Vacate), several
months after he pled guilty. Thus, such a promise could not have induced Miller to plead
guilty, and if the government did breach a promise regarding tax refunds it would not be
grounds to vacate Miller’s guilty plea. Accordingly, this claim lacks merit.17 18
17
The forfeiture provision of Miller’s Plea Agreement also contains a substitute assets clause,
permitting the government to pursue any other assets worth up to the total value of the forfeited assets if
the United States cannot locate or recover the forfeited properties. Plea Agreement at 10-11. Miller’s
forfeiture resulted in a personal money judgment of $22.5 million. (Crim. Doc. 61, Personal Money
Judgment). At the latest count, Miller’s forfeitures only covered $993,273.44, leaving an unpaid balance of
a little more than $21 million. (Crim. Doc. 292, Notice of Partial Satisfaction of Personal Money Judgment).
Thus, the United States would have the right to seize Miller’s tax refunds as a substitute asset in order to
satisfy his outstanding forfeiture and restitution obligations.
18
Miller cites In re Arnett, 804 F.2d 1200 (11th Cir. 1986), in support of the proposition that the
government breached his Plea Agreement. Memorandum at 61-62. In Arnett, the Eleventh Circuit found
that the United States breached a plea agreement where the prosecutor informed the defendant that the
government only sought forfeiture of the $3,000 in cash found on the defendant’s person at his arrest, and
would not seek forfeiture of the defendant’s farm in North Carolina. Arnett, 804 F.2d at 1202. The
government’s promise to not seek forfeiture of the defendant’s North Carolina property was an important
factor in the defendant’s decision to plead guilty. Id. After the defendant pled guilty, the government sought
forfeiture of the farm, and the Eleventh Circuit found that the government breached the defendant’s plea
agreement in doing so.
47
4. Interference with the Upper Hudson Holdings-Robert Berman matter
Miller contends that the government promised to assist him in recovering money
allegedly owed to him by a former business partner, Robert Berman, and Upper Hudson
Holdings, LLC. Memorandum at 25-26. He claims that the government interfered with
his right of recovery by sending an “intimidating” letter to the attorneys working on the
lawsuit between Miller and Upper Hudson. Id. at 26. The United States Attorney’s Office
sent a letter in March of 2009 reminding the parties that pursuant to 18 U.S.C. § 223219,
the United States sought to recover funds in Berman’s possession that were derived from
Miller’s fraud.
See “Appx 54” to Motion to Vacate.
The government breached no
promises or agreements by sending the letter. No promise appears either in Miller’s Plea
Agreement or in the record of his plea hearing in which the United States promised to
assist Miller in recovering funds from Berman or Upper Hudson. Moreover, the United
States’ letter to the attorneys involved in the civil lawsuit between Miller and Upper
The instant case is distinguishable from Arnett. First, the government in Arnett breached the plea
agreement because it sought to increase the total amount of the defendant’s forfeiture by pursuing his farm
after he had already forfeited the agreed-upon $3,000. Here, it would not increase the total amount of
Miller’s forfeiture for the government to seize Miller’s tax refunds – or any other asset – because he still has
an unpaid balance of over $21 million in forfeitures. Second, the government in Arnett sought forfeiture of
a property that was uniquely special to the defendant, and the defendant specially relied on the
government’s promise not to seek forfeiture of his farm in deciding to plead guilty. Here, there is no
indication that Miller’s tax refund or any other asset (other than the Timber Creek Court property) was of
unique value to Miller such that he pled guilty in special reliance on the belief that the asset would not be
forfeited.
19
“Whoever, before, during, or after any search for or seizure of property by any person authorized
to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise
takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take
any action, for the purpose of preventing or impairing the Government's lawful authority to take such
property into its custody or control or to continue holding such property under its lawful custody and control,
shall be fined under this title or imprisoned not more than 5 years, or both.” 18 U.S.C. § 2232(a).
48
Hudson was consistent with the United States’ right to pursue substitute assets in
satisfaction of his forfeiture and restitution obligations reflected in the Plea Agreement.
Therefore, Miller has not shown how the United States breached his Plea Agreement by
communicating its intent to the attorneys involved in the civil litigation between Miller and
Upper Hudson Holdings, LLC.
5. Failure to recommend sentence reduction in exchange for grand jury
testimony
Sometime in early 2009 – after having already pled guilty – Miller agreed to provide
grand jury testimony for the United States Attorney’s Office for the Northern District of
New York, which was investigating certain individuals in Syracuse, New York for public
corruption. Memorandum at 29-30. In exchange for his grand jury testimony, the United
States Attorney’s Office for the Northern District of New York agreed “to make a strong
recommendation to the AUSA in Florida (Stoddard), that Miller be given consideration for
the filing of a motion for sentence reduction…” Id. at 29. Miller also claims that this
agreement was made with the “blessing” of the United States Attorney’s Office for the
Middle District of Florida, thereby making that office a party to the agreement. Motion to
Vacate at 18. Miller alleges that the United States Attorney’s Office for the Northern
District of New York never made the sentencing recommendation, and thus, both offices
breached his Plea Agreement. Id.
The critical flaw in Miller’s argument is that any agreement with the United States
Attorney’s Office in New York to recommend a motion for a reduced sentence came after
he pled guilty, and therefore it could not have induced Miller to plead guilty in the first
49
place. Thus, Miller cannot rely on this ground to vacate his guilty plea. Additionally, Miller
pled guilty based on an agreement between himself and the United States Attorney’s
Office for the Middle District of Florida. If Miller had another agreement with another
prosecuting agency, and that prosecuting agency breached that agreement, it would not
be grounds for Miller to rescind the Plea Agreement he made with the Middle District of
Florida office.
Miller also is not entitled to compel the United States Attorney’s Office, either for
the Northern District of New York or for the Middle District of Florida, to file a Rule 35
motion for a reduced sentence. Whether the government should move to reduce a
defendant’s sentence pursuant to Fed. R. Crim. P. 35(b) is a matter of discretion, for “Rule
35 imposes no duty upon the government to so move.” United States v. Turner, 183 F.
App’x 877, 878 (11th Cir. 2006) (citing Wade v. United States, 504 U.S. 181 (1992)). A
district court may only review a prosecutor’s decision to refuse a Rule 35 motion where
the refusal was based on an unconstitutional motive, such as the defendant’s race or
religion. See Wade, 504 U.S. at 185-86. Miller has alleged no such motive as the reason
why a Rule 35 motion has not been filed, and no unconstitutional motive is apparent.
Accordingly, the Court lacks authority to review the United States Attorney’s Office’s
refusal to file a Rule 35 motion on Miller’s behalf.
6. The government has not given Miller credit toward his forfeiture and
restitution obligations for seizures and asset sales
At the time Miller filed his Motion to Vacate, the government had not yet filed a total
account of assets seized from Miller and the revenues derived from their liquidation. As
50
such, Miller contends that the government breached the Plea Agreement by not giving
Miller credit toward his forfeiture and restitution obligations for the sale of seized assets.
This complaint has subsequently been rendered moot. On February 24, 2014, the United
States filed a Notice of Partial Satisfaction of Personal Money Judgment (Crim. Doc. 292),
reflecting assets seized and how much credit applied to Miller’s personal money judgment
from each asset. The Notice indicates that Miller’s money judgment has been satisfied
to the extent of $993,273.44 based on the seizure and liquidation of 18 assets, with an
outstanding balance of $21,506,726.56. Id. Miller has pointed to no evidence that the
Notice is inaccurate or that the government has obtained any other assets for which he
has not been given credit. Rather, the record shows that the United States has been
crediting Miller’s obligations for the assets sold.20 Thus, this claim fails.
7. The government promised that Maryland authorities would not prosecute
Miller if he pled guilty
Next, Miller claims that the United States told Miller that it was in communication
with Maryland authorities, and relayed to him that Maryland would not prosecute Miller
“for any matters rising from the administrative case that Miller was fighting with the
Maryland Insurance Administration” if he pled guilty to federal criminal charges.
Memorandum at 32-34. The State of Maryland subsequently indicted Miller in January,
20
Even if the government had not been applying sales to Miller’s forfeiture or restitution obligations,
the appropriate remedy would be to order the government to provide an accounting and to credit Miller’s
unpaid balance accordingly. Vacatur of Miller’s guilty plea would be an unwarranted and extreme remedy.
51
2011, and Miller pled guilty to a single misdemeanor.21 Id. at 33. Miller thus contends
that the United States breached the Plea Agreement when Maryland indicted him.
A few provisions of Miller’s Plea Agreement are relevant in evaluating this
allegation. First, the United States agreed not to prosecute Miller for any other federal
offenses of which it had knowledge at the time Miller pled guilty. Plea Agreement at 3.
The Plea Agreement was silent on Miller’s liability for state criminal charges. Second,
Miller’s Plea Agreement affirmatively stated that it would bind only the United States
Attorney’s Office for the Middle District of Florida, and “cannot bind other federal, state,
or local prosecuting authorities…” Id. at 14 (emphasis added). Notably, neither the Plea
Agreement nor Miller’s plea hearing reflect any promise on the part of the United States
that no other state or local authority would prosecute Miller for conduct related (or
unrelated) to his federal charges. Miller’s Plea Agreement also stated that there were no
promises or understandings outside of the written Plea Agreement, id. at 16, and Miller
affirmed as much to the Court under oath. Plea Tr. at 112-15. The foregoing reflects that
the United States made no commitment that the State of Maryland would not bring
criminal charges against Miller, nor did Miller rely on any such an assurance in pleading
guilty. Because Miller has failed to show that the United States made the promise he
alleges it broke, he has failed to show a breach of his Plea Agreement.
21
Miller fails to identify the offense charged in the State of Maryland. The indictment could have been
for any myriad of offenses not related to the charges before the Court, which would not be a breach of the
Plea Agreement.
52
C. Grounds Six and Seven: Alleged fraud on the Court and conflict of
interest within the United States Attorney’s Office
Miller alleges in Ground Six that the United States committed fraud on the Court
by (1) presenting false testimony from Fidelity National CEO Mark Davey at his
sentencing hearing, and (2) misrepresenting during restitution proceedings that all
matters of restitution had been resolved.22 Memorandum at 35-39. In Ground Seven,
Miller alleges that there was an undisclosed conflict of interest within the United States
Attorney’s Office because the former United States Attorney for the Middle District of
Florida had obtained employment with Fidelity National, one of the victims of Miller’s
fraud. Miller further alleges that the prosecutor in his case had an inappropriate lunch
meeting with that former United States Attorney where the two discussed his case.23
22
Miller does not have standing to vacate his conviction or sentence based upon the government’s
incorrect representation in a restitution stipulation that all restitution matters had been resolved. See Crim.
Doc. 102, Petition to Intervene by Hansen Information Technologies; Crim. Doc. 131, Restitution Tr. at 511. Although the government inaccurately represented that it had resolved all restitution matters despite
leaving out a victim, Hansen Information Technologies, such a misrepresentation would only have benefited
Miller by reducing his restitution liability. Miller has utterly failed to show how such a misrepresentation
would have injured him.
23
Miller specifically alleges that the lunch meeting was a violation of 18 U.S.C. § 207, which restricts
former employees of the federal government from communicating with or appearing before the courts or
other federal agencies in connection with any matter in which that ex-employee was personally and
substantially involved, or which was pending under the ex-employee’s official responsibility during a oneor two-year period preceding the ex-employee’s departure from the federal government. In particular, §
207 requires that for such a communication or appearance to be illegal, it must be made “with the intent to
influence” the outcome of a matter.
There is no indication that the ex-United States Attorney ever communicated with a member of the
federal government “with the intent to influence” any aspect of Miller’s case, so a claim of a § 207 violation
is unsubstantiated at the outset. Moreover, § 207 by its terms regulates only individuals who are former
employees of the federal government, not the government itself. If a § 207 violation occurs at all, by
definition it is committed by an ex-employee and not by the government. Put another way, a violation of 18
U.S.C. § 207 creates a criminal cause of action by the United States against a former employee, not a
cause of action by a third-party convict (such as Miller) against the government. Therefore, a § 207 violation
by a private citizen would not establish wrongdoing by the government that would warrant habeas relief.
Thus, even if the ex-United States Attorney had violated § 207, that does not establish that the government
violated Miller’s rights.
53
Essentially, Miller alleges that the government violated Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose what he
thinks was impeachment evidence and false testimony.
To the extent Miller raises these two grounds as an attempt to challenge his
sentence, they are barred by a valid waiver of collateral review. Indeed, Miller raised a
similar issue on direct appeal when he argued that his sentence was erroneously
influenced by false testimony from another one of his victims, the CEO of a construction
company. See Miller II, 432 F. App’x at 958. The Eleventh Circuit held that the claim was
barred by a valid sentence-appeal waiver. Id. at 960. In the same way, Miller’s claims
alleging fraud on the Court and a conflict of interest within the prosecutor’s office are
barred by his collateral review waiver insofar as he raises them to challenge the length of
his sentence.
To the extent Miller raises these two grounds to challenge the validity of his guilty
plea itself, he has failed to show how either one rendered his plea unknowing or
involuntary. To be valid, a guilty plea must be (1) made free from coercion (2) by a
defendant who understood the nature of the charges and (3) the consequences of his
guilty plea. Mosley, 173 F.3d at 1322. The factual allegations in Ground Six are based
on the government’s conduct at Miller’s sentencing and restitution hearings, and therefore
could not have influenced his decision to plead guilty. Thus, nothing in Ground Six
54
provides reason to doubt the validity of Miller’s guilty plea or Plea Agreement.24 Nor has
Miller shown any nexus between the “conflict of interest” alleged in Ground Seven and
how that undermines the free and intelligent nature of his guilty plea. As discussed at
length earlier in this opinion, Miller pled guilty knowingly and voluntarily. He has failed to
show how the fact that the former United States Attorney had become employed by one
of the companies he defrauded rendered his decision to plead guilty an unknowing or
involuntary act. Miller’s factual guilt has been established by his voluntary admission of
the truth of the factual basis and the charges against him. Accordingly, Miller’s claims for
relief in Grounds Six and Seven fail to support vacatur of his guilty plea.25
D. Ground Eight: Jurisdiction
Finally, Miller contends that the Court lacked subject matter jurisdiction to convict
and sentence him for violations of the federal mail and wire fraud statutes, 18 U.S.C. §§
1341 and 1343, respectively.
24
Notably, the misrepresentations made by the government to the Court actually benefited Miller, as
the prosecutor was leaving out a victim for purposes of restitution because Miller objected to the claim and
it was unclear to the prosecutor whether the victim’s claim had merit. Restitution Tr. at 5-12, 14-23, 31-41.
25
Miller, as a matter of course, adds in Grounds Six and Seven that counsel also rendered ineffective
assistance by failing to object to fraud on the Court and the alleged conflict of interest. To the extent Miller
complains that counsel failed to object to inaccurate statements at his sentencing hearing, the Court has
already concluded in Ground Three that counsel did not perform deficiently at sentencing, and that no
evidence exists that any witness committed perjury at the hearing. To the extent Miller complains that
counsel performed deficiently in his restitution hearing, such a claim is not cognizable in a motion to vacate
under 28 U.S.C. § 2255, as collateral relief does not provide relief from a monetary judgment. Mamone v.
United States, 559 F.3d 1209, 1211 (11th Cir. 2009). Finally, to the extent Miller complains counsel gave
ineffective assistance by not objecting to the alleged conflict of interest between the prosecution and one
of the victims, he has failed to show how such a failure either affected his sentence or rendered his guilty
plea unknowing or involuntary.
55
1. Reverse Preemption
Miller argues that “[t]he federal government has no jurisdiction to prosecute
matters that pertain to a violation of any insurance law of a state or commonwealth of the
United States.” Memorandum at 42. Because Miller’s fraud exclusively involved selling
fake surety bonds, he believes his conduct should be regulated only by state insurance
laws. Although Miller does not refer to the statute, his jurisdictional argument apparently
relies on the McCarran-Ferguson Act, codified at 15 U.S.C. §§ 1011-1015.26 The law
provides that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede
any law enacted by any State for the purpose of regulating the business of insurance, or
which imposes a fee or tax upon such business, unless such Act specifically relates to
the business of insurance…” 15 U.S.C. § 1012(b). The consequence of McCarranFerguson, whereby state insurance laws supersede incompatible federal laws that were
not specifically designed to regulate insurance, has become known as “reverse
preemption.” See Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237, 1248 (11th Cir. 1999).
Reverse preemption is unavailing to Miller. The McCarran-Ferguson Act does not
completely “cede the field of insurance regulation to the States, saving only instances in
which Congress expressly orders otherwise.” Humana Inc. v. Forsyth, 525 U.S. 299, 308
(1999). As the Supreme Court explained, “[w]hen federal law does not directly conflict
with state regulation, and when application of the federal law would not frustrate any
declared state policy or interfere with a State’s administrative regime, the McCarran
26
Recognizing that Miller is a pro se litigant, the Court has tried to liberally construe his petition. See
Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991).
56
Ferguson Act does not preclude its application.”
Id. at 310 (emphasis added).
In
Humana, the Court upheld a private federal RICO action in the face of a McCarranFerguson challenge where the plaintiff sued an insurer for treble damages for corrupt
practices, even though state law provided for a similar remedy. The Supreme Court noted
that “RICO’s private right of action and treble damages provision appears to complement
Nevada’s statutory and common-law claims for relief,” and reasoned that “[b]ecause
RICO advances the State’s interest in combating insurance fraud, and does not frustrate
any articulated Nevada policy,” McCarran-Ferguson did not bar the RICO suit. Id. at 31314.
Just as private RICO actions complement state insurance regulatory schemes, so
too do federal laws criminalizing mail and wire fraud. States have a strong interest in
preventing fraud, and nothing about 18 U.S.C. §§ 1341 or 1343 conflicts with, impairs, or
frustrates the ability of the States to regulate the business of insurance. Indeed, the
prosecution of those who commit fraud by wire or mail, even in connection with insurance,
complements and promotes the interest of the States in protecting the integrity of their
insurance markets. Other courts have reached the same conclusion. See e.g., United
States v. Blumeyer, 114 F.3d 758, 768 (8th Cir. 1997) (McCarran-Ferguson Act does not
preempt prosecution for mail and wire fraud in connection with insurance fraud); United
States v. Cavin, 39 F.3d 1299, 1305 (5th Cir. 1994) (no conflict between federal charges
for conspiracy to defraud and state insurance regulatory scheme); United States v.
Sylvanus, 192 F.2d 96, 100 (7th Cir. 1951), cert. denied 342 U.S. 943 (1952) (McCarran57
Ferguson Act did not preclude federal prosecution of president of insurance company for
mail fraud). Thus, Miller’s “reverse preemption” challenge to his federal convictions for
mail and wire fraud lack merit.27
2. Defective information
Miller contends that the Court lacked jurisdiction to preside over his conviction and
sentence because the “Criminal Information and Factual Basis contained structural
defects which failed to meet the elements, as required under the wire fraud statute, and
the government knowingly misrepresented this fact to the court, and to Miller’s counsel.”
Memorandum at 43. The Information and the factual basis of Miller’s Plea Agreement
stated that Miller committed wire fraud by directing one of his attorneys, C. Allan Reeve28,
to place a phone call to Fidelity National’s CEO, whereby he falsely represented through
a phone conversation that a fictional employee of Fidelity National had authorized Miller
to issue surety bonds in the company’s name. See Plea Agreement at 22. The purpose
of the phone call and misrepresentation, according to the government, was to “lull” Fidelity
National into not initiating an investigation against Miller, all in furtherance of Miller’s
scheme to defraud. Miller claims he has now discovered that there never was a phone
27
The Court adds that Miller could have brought this claim on appeal, but failed to do so. Such claims
are considered procedurally defaulted, and may not be raised for the first time in a § 2255 motion. Lynn v.
United States, 365 F.3d 1225, 1234 (11th Cir. 2004). The Court considered the claim because Miller tied
it to the Court’s subject matter jurisdiction, and challenges to a court’s subject-matter jurisdiction cannot be
waived or defaulted. Cotton, 535 U.S. at 630. However, a number of courts have also held that the
McCarran-Ferguson Act does not create jurisdictional limits. Blumeyer, 114 F.3d at 768; United States v.
Robertson, 158 F.3d 1370, 1371 n.1 (9th Cir. 1998); Cavin, 39 F.3d at 1305. Therefore, if McCarranFerguson is not jurisdictional, then Miller’s reverse preemption claim not only lacks merit, but it also does
not survive procedural default.
28
Reeve himself is not accused of any wrongdoing.
58
“conversation” between his attorney and Fidelity’s CEO, but only that his attorney made
the statement (which Miller directed him to make) in a voicemail. Memorandum at 44.
Therefore, Miller’s contention boils down to the argument that the wire fraud statute would
not apply to a voicemail as opposed to a person-to-person telephone conversation.29
Memorandum at 44 (“A voice mail message does not satisfy the essential elements or
the jurisdictional requirements necessary to sustain a wire fraud violation.”).
This
contention is frivolous.
The federal wire fraud statute makes it a crime for anyone to transmit or cause to
be transmitted “by means of wire, radio, or television communication in interstate or
foreign commerce, any writings, signs, signals, pictures, or sounds” for the purpose of
executing a scheme or artifice to defraud. 18 U.S.C. § 1343. A voicemail left by phone
is as much a “signal” or “sound” sent by “wire, radio, or television communication” as a
person-to-person telephone conversation. Thus, the fact that Miller’s attorney left a
“lulling” voicemail for Fidelity’s CEO, rather than having a person-to-person telephone
conversation, in no way lessens the applicability of the federal wire fraud statute.
Accordingly, Miller’s jurisdictional challenge fails.
3. Whether the Court erred in calculating the Guidelines loss amount based
on conduct over which the Court would lack jurisdiction
29
Miller does not contest Congress’ constitutional power to criminalize wire fraud, nor could he.
“Telephones and cellular telephones are instrumentalities of interstate commerce,” which Congress has the
authority to regulate pursuant to the Commerce Clause. United States v. Evans, 476 F.3d 1176, 1180 (11th
Cir. 2007).
59
After pleading guilty and admitting to the Court that he committed fraud, Miller now
claims that “[t]he court was without proper jurisdiction to punish Miller for what amount to
possible violations of state insurance regulations.” Motion to Vacate at 27; see also Appx
61 to Motion to Vacate. In his argument, Miller does not dispute that he committed fraud
to the extent that he misrepresented that some surety bonds were underwritten by Tlisted companies.
Nevertheless, Miller argues that the Court had no jurisdiction to
consider in sentencing him the fact that he also issued bonds in the name of AMS Capital
Holdings, a North Carolina corporation, where he did not purport them to be authorized
by T-listed companies. Specifically, Miller contends that the government was wrong to
characterize AMS’s surety scheme as being fraudulent because it was unlicensed,
explaining that until 2008, North Carolina law did not require surety bonders to be licensed
by the Department of Insurance. Motion to Vacate at 27; see also “Appx 61” to Motion to
Vacate. Thus, Miller contends there was nothing fraudulent about AMS issuing surety
bonds to contractors without an insurance license.
Miller previously challenged the Court’s calculation of the loss amount on direct
appeal. There, the Eleventh Circuit rejected Miller’s loss amount challenge as barred by
a valid sentence-appeal waiver. Miller II, 432 F. App’x at 960. “It is long settled that a
prisoner is procedurally barred from raising arguments in a motion to vacate his
sentence… that he already raised and that we rejected in his direct appeal.” Stoufflet v.
United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (internal citation omitted). Therefore,
Miller’s second attempt to challenge the Guidelines loss amount is not only barred by a
60
valid sentence-appeal waiver, it is procedurally barred as having already been raised and
rejected on direct appeal.
Recasting his challenge to the loss amount as jurisdictional is unavailing. “[I]n
calculating the amount of loss, the Guidelines require a district court to take into account
“not merely the charged conduct, but rather all ‘relevant conduct,’ in calculating a
defendant's offense level.” United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007)
(quoting United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006)). “’[S]entencing
courts may consider both uncharged and acquitted conduct in determining the
appropriate sentence.’”
Hamaker, 455 F.3d at 1336 (quoting United States v.
Hasson, 333 F.3d 1264, 1279 n. 19 (11th Cir. 2003)); see also United States v. Behr, 93
F.3d 764, 765-66 (11th Cir.1996) (even conduct that took place outside a relevant statute
of limitations period may be factored into the loss calculation for sentencing purposes).
Indeed, “relevant conduct” for purposes of the Sentencing Guidelines includes conduct
over which a federal court would not have jurisdiction to convict the defendant. United
States v. Speelman, 431 F.3d 1226, 1232 (9th Cir. 2005) (collecting cases); 18 U.S.C. §
3661 (providing that courts at sentencing must be able to consider without limitation all
information about defendants' “background, character, and conduct”); see also U.S.S.G.
§ 1B1.3(a)(1)(A) (instructing the courts, in applying the Guidelines, to consider “all acts
and omissions committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant.”). Thus, even assuming the truth of Miller’s argument
that the district court would have lacked jurisdiction to convict him for fraudulent conduct
61
to the extent he issued surety bonds in North Carolina, the Court was authorized to
consider that conduct and include it in the loss amount as relevant conduct.30
Moreover, Miller’s activities through AMS, even when he did not purport the
company to be authorized to issue sureties for T-listed companies, was without question
“relevant.” Miller’s argument that North Carolina law did not require surety bonders to be
licensed by the Department of Insurance until 2008 is a red herring, as it does not change
the fraudulent nature of AMS’s operations. Even in those instances where Miller did not
misrepresent that his company was T-listed, he nevertheless induced his victims to
believe his company provided reliable bonds by misrepresenting that he was a permitted
surety bonder under the Federal Acquisition Rules.31 See “Appx 63” to Motion to Vacate.
Additionally, Miller marketed his surety bonds to contractors. Even if North Carolina law
did not categorically require surety bonders to be licensed by the Department of Insurance
until 2008, North Carolina law did establish standards for surety bonds tendered by
contractors.
Surety bonds tendered by contractors had to be issued by “a surety
30
The Court notes that Congress’ authority to punish fraudulent conduct perpetrated by mail and wire
derives from its authority to regulate the use of the facilities of interstate commerce, irrespective of whether
the fraudulent scheme itself would contravene state law. United States v. Mandel, 591 F.2d 1347, 135859 (4th Cir.) on reh'g, 602 F.2d 653 (4th Cir. 1979) (vacating on other grounds). Miller’s premise, that the
Court would not have jurisdiction to sentence him for mail and wire fraud because AMS Capital Holdings
was not required to be a licensed insurer under North Carolina law, is itself flawed.
31
This representation too was deceptive. Strictly speaking, the Federal Acquisition Rules (“F.A.R.”)
do not authorize surety bonders. F.A.R. Sections 28.203, 28.203-1, and 28.203-2 require that for an
individual surety to be acceptable, the individual surety must pledge a security interest in approved assets.
Acceptable assets include unencumbered real property, irrevocable letters of credit issued by a federally
insured financial institution, stocks traded on a national U.S. stock exchange, or cash. F.A.R. § 28.2032(b). Miller has never contended that he securitized his surety bonds as required by F.A.R. Thus, even as
to bonds for which he did not misrepresent a link to T-listed companies, he misrepresented the integrity of
the surety bonds by implying they met the standards established by F.A.R.
62
authorized to transact surety business in North Carolina pursuant to G.S. 58 Articles 7,
16, 21, or 22,” and the surety had to “maintain a rating from A.M. Best, or its successor
rating organization, of either Superior (A++ or A+) or Excellent (A or A-).” 21 N.C. Admin.
Code 12.0204. Miller represented to contractors that his surety bonds were valid for their
projects, but the bonds did not meet the requirements set forth under the North Carolina
Administrative Code. As a consequence, contractors who received bonds through AMS
received notifications that their surety bonds were no good. See e.g., Restitution Tr. at
112. Thus, Miller’s conduct through AMS was still relevant fraudulent conduct appropriate
for the Court’s consideration in calculating the loss amount.
Having reviewed all of Miller’s claims of error, the Court has found each to be
barred or to lack merit. The magnitude of Miller’s fraud and the evidence against him
were both substantial. Miller was represented by four capable attorneys, and he decided
to plead guilty following an exhaustively thorough Rule 11 plea colloquy. Miller has not
demonstrated that the government broke any promises that were part of the inducement
to plead guilty, nor do any of his remaining claims of error justify vacating a knowing and
voluntary guilty plea.
Miller’s Motion to Vacate is therefore due to be denied and
judgment is due to be entered in favor of the government.32
32
Miller has also filed two pro se motions for summary judgment (Docs. 33, 61). For the same
reasons discussed in determining that judgment is due to be entered in favor of the government, Miller’s
motions for summary judgment are due to be denied as well.
63
IV.
Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
If Miller seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. This Court should issue a certificate of
appealability only if the petitioner makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253 (c)(2). To make this substantial showing, Miller
"must demonstrate that reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues
presented were 'adequate to deserve encouragement to proceed further,'" Miller-El v.
Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where a district court has rejected a petitioner's constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that "jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a certificate of appealability.
As such, and in accordance with the Rules Governing Section 2255 Cases in the
United States District Courts, it is hereby
64
ORDERED:
1. Petitioner William Raymond Miller, II’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Doc. 1, Motion to Vacate) is DENIED. Petitioner
William Raymond Miller, II’s Pro Se Motions for Summary Judgment (Docs. 33 and 61),
Motion for Evidentiary Hearing (Doc. 62) and Motion for Discovery (Doc. 63) are DENIED
AS MOOT.
2. The Clerk shall enter judgment in favor of the United States and against William
Raymond Miller, II.
3. The Clerk shall further terminate all pending motions and close the file.
4. If Miller appeals the denial of the petition, the Court denies a certificate of
appealability. Because this Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall
serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of January, 2015.
lc 19
Copies:
Counsel of record
Pro se party
65
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