United States v. Miller

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30105
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES E. MILLER,

Defendant-Appellant.

Appeal from the United States District Court
For the Western District of Louisiana
(CR 94 50066 02)
(August 23, 1995)

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM*:

Charles E. Miller ("Miller") was convicted of one count of

conspiracy to defraud the United States by filing false claims, in

violation of 18 U.S.C. § 286, and five counts of filing false

claims, in violation of 18 U.S.C. §§ 287 and 2. Miller was

*
Local Rule 47.5 provides:
"The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
indicted with his wife, Janice M. Miller (Janice), who pleaded

guilty to all six counts and one additional count. The case

involves a scheme to obtain money by filing false income tax

returns.

Miller moved for a judgment of acquittal at the close of the

Government's case and at the close of all evidence. After

considering Miller's objections to the Pre-Sentencing Report

("PSR"), the district court sentenced him to 41 months

imprisonment, three years supervised release, and ordered him to

make restitution of $9,365.75, jointly with Janice. Miller filed

a timely notice of appeal.

I. Sufficiency of the Evidence

Miller argues that there was insufficient evidence to support

his conspiracy conviction. In reviewing the sufficiency of the

evidence, this court must determine whether any reasonable trier of

fact could have found that the evidence established guilt beyond a

reasonable doubt. United States v. Martinez, 975 F.2d 159, 160-61

(5th Cir. 1992), cert. denied, 113 S. Ct. 1346 (1993). Reasonable

inferences are construed in accordance with the jury's verdict.

Id. at 161. The jury is solely responsible for determining the

weight and credibility of the evidence. Id. This court will not

substitute its own determination of credibility for that of the

jury. Id. The scope of appellate review remains the same whether

the evidence is direct or circumstantial. United States v.

Lorence, 706 F.2d 512, 518 (5th Cir. 1983).

A. Conspiracy Count

2
 Miller was convicted under 18 U.S.C. § 286. To prove a

person's involvement in a conspiracy to defraud under 18 U.S.C. §

286, the Government must establish: "(1) that there was a

conspiracy to defraud the United States; (2) that the defendant

knew of the conspiracy and intended to join it; and (3) that the

defendant voluntarily participated in the conspiracy." United

States v. Okoronkwo, 46 F.3d 426, 430 (5th Cir. 1995), petition for

cert. filed, (U.S. May 18, 1995) (No. 94-9465) and petition for

cert. filed, (U.S. May 22, 1995) (No. 94-9366). Miller does not

challenge the falsity of the returns or that a conspiracy existed.

"Participation in a conspiracy need not be proven by direct

evidence: a conspirator's knowledge and intent can be shown by

circumstantial evidence, and a common purpose and plan may be

inferred from a development and collocation of circumstances."

Okoronkwo, 46 F.3d at 431 (internal citations and punctuation

omitted). Once the Government has produced evidence of a

conspiracy, only "slight" evidence is needed to connect an

individual to that conspiracy. United States v. Duncan, 919 F.2d

981, 991 (5th Cir. 1990), cert. denied, 500 U.S. 926 (1991).

Miller was also convicted under 18 U.S.C. § 287, which

prohibits a person from presenting a claim to any department or

agency of the United States "knowing such claim to be false,

fictitious, or fraudulent." 18 U.S.C. § 287; Okoronkwo, 46 F.3d at

430. Proof of knowledge and intent "may arise by inference from

all of the facts and circumstances surrounding a transaction."

3
United States v. Aubrey, 878 F.2d 825, 827 (5th Cir.), cert.

denied, 493 U.S. 922 (1989).

Tower Financial Services processed electronic tax returns and

advanced Refund Anticipation Loans (RAL) through Bank One. Seven

individuals testified that Janice approached them about filing

their 1991 tax returns. Generally, Miller drove them and Janice to

Tower Financial to complete a tax return and other paperwork.

Janice filled out the tax returns, but on one occasion told Miller

what to write on a return. In each instance, the tax returns

contained false information about income earned in 1991, falsely

named an employer, and named nonexistent dependent children or

falsely indicated that older children were born in 1991. The

purpose was to claim earned income credit, which is intended for

low income wage earners with more than one child living with them.

Glen W. Finister testified that Miller and Janice picked him

up and took him to Tower Financial. Miller waited in the car while

Finister and Janice went into the building and filled out the

return. Miller drove and accompanied Finister to pick up and cash

the check. Miller was in the car when Janice took the money from

Finister and gave him some back. Miller and Janice then dropped

Finister off at home.

James Lewis Miles testified that Miller sat on the couch while

Janice got information from Miles for his tax return. Miller drove

Miles and Janice to Tower Financial. Miller waited in the car

while they submitted the paperwork which Janice had already

completed. Miller picked up Miles and drove him to pick up and

4
cash the check. In the car, Janice took the money and returned a

portion of the proceeds to Miles.

Burney Collins and Mary Hunter testified that Miller did not

have anything to do with filing their returns.

Wallace E. Johnson testified that Miller drove him and Janice

to Tower Financial. Miller stayed in the car while Janice filled

out the paperwork. Janice told Johnson that she needed his social

security number to help Miller get his tax return. Miller alone

drove Johnson to pick up the check. Miller asked Johnson for the

check. Miller then picked up Janice, and the two drove Johnson to

cash the check. Miller waited in the car while they cashed the

check. They returned to the car where Janice, in the front seat

with Miller, counted out money, kept most of it, and returned some

to Johnson.

Ora L. Brock testified that Miller came with Janice to pick up

Brock to pick up the check. Miller stayed in the car while Brock

and Janice got the check. Miller and Janice drove Brock to cash

the check.

Alvin Mack testified that he talked to Miller and Janice about

filing a tax return. Janice told Miller to show Mack where to sign

the forms. Miller filled out or helped Mack fill out a return.

When Mack told Miller and Janice that an agent had come to his

house, Miller told Mack either that he did not have to talk or not

to talk to the agent.

In sum, Miller was more than merely present. There is

sufficient evidence from which a rational jury could conclude that

5
Miller had knowledge of and participated in the preparation of

fraudulent tax returns.

B. Substantive Counts

Miller asserts in conclusional terms that his conviction on

all counts should be reversed based on insufficient evidence. A

party to a conspiracy may be held liable for the substantive

offenses of a co-conspirator as long as the acts were reasonably

foreseeable and done in furtherance of the conspiracy regardless of

whether he had knowledge of or participated in the substantive

acts. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946);

United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994), cert.

denied, 115 S. Ct. 1835 (1995); United States v. Maceo, 947 F.2d

1191, 1198 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992). The

evidence supports Miller's conspiracy conviction and the conclusion

that it was foreseeable that Janice would file fraudulent claims

outside of Miller's presence.

II. Brady Violations

Miller argues that the Government failed to turn over tax

returns filed by Miller and copies of memoranda of interviews

conducted by Internal Revenue Service Special Agent Mitch Kugle, in

violation of Brady v. Maryland, 373 U.S. 83 (1963).

A. Tax Returns

To show a Brady violation, Miller must show that 1) the

prosecution suppressed or withheld evidence, 2) the evidence was

favorable, and 3) the evidence was material to the defense. United

States v. Stephens, 964 F.2d 424, 435 (5th Cir. 1992). "The

6
evidence is material if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different." Id. at 435-36 (internal

quotation and citation omitted).

Miller filed a subpoena duces tecum to Special Agent Kugle for

all tax returns filed by Charles Miller for the past five years.

He asserts that, although the IRS promised to send copies of

Miller's returns, none was ever produced.

Miller seeks to have the case remanded for an in camera review

of the Government files to determine whether Miller had filed tax

returns in the past five years. Miller relies heavily on this

Court's decision in United States v. Buford, 889 F.2d 1406 (5th

Cir. 1989). Miller argues that the theory of his defense was that

his wife performed unlawful acts and he was merely present on some

occasions. He claims that without the requested tax returns, he

was unfairly prejudiced, as was the defendant in United States v.

Buford, supra, because the jury was more likely to believe that he

aided and abetted others to file fraudulent returns if he had not

paid his own taxes.

The Government distinguishes Buford on its facts. In Buford,

a tax-evasion case, Buford testified that he had not failed to file

income tax returns. 889 F.2d at 1407-08. To impeach Buford, the

Government introduced a certificate derived from information in

Buford's Individual Master File (IMF) which showed that he failed

to file returns. Id. The Government did not allow Buford to

7
examine his IMF to evaluate the accuracy of the information

contained in the certificate. Id.

In the instant case, the Government did not assert that

Miller's personal income tax return contained false or fraudulent

information. The truth or falsity of Miller's returns was not in

question. Buford is inapposite.

Miller has not shown how his tax returns for the five years

preceding the trial were material to his defense, how their

production would have changed the outcome of the case, or that the

failure to produce them undermined the integrity of the trial. See

United States v. Masat, 948 F.2d 923, 932 (5th Cir. 1991), cert.

denied, 113 S. Ct. 108 (1992). Miller has not shown a Brady

violation.

B. Davenport Interview Transcript

Miller argues that he sought copies of memoranda of interviews

conducted by Internal Revenue Service Special Agent Mitch Kugle,

specifically the interview of Hunter Davenport. He argues that he

could have used this memorandum for impeachment evidence of the

Government's witness, Betty Brooks.

"The Jencks Act requires that after a Government witness has

testified, the Government must produce any `statement' of the

witness that the Government possesses. The statute defines

`statement' in relevant part as `a written statement made by said

witness and signed or otherwise adopted or approved by him.'"

United States v. Ramirez, 954 F.2d 1035, 1038 (5th Cir.) (citations

omitted), cert. denied, 112 S. Ct. 3010 (1992). The underlying

8
purpose of the Jencks Act "is solely to enable the defense to

impeach a government witness by bringing any such variances to the

attention of the jury during cross-examination." United States v.

Prieto, 505 F.2d 8, 11 (5th Cir. 1974).

"[A]gent's interview notes are not `statements' of the witness

under § 3500(e) unless the witness `signed or otherwise adopted or

approved the report,' 18 U.S.C. § 3500(e)(1), or the notes were

`substantially verbatim reports' of the witness interview, 18

U.S.C. § 3500(e)(2)." United States v. Pierce, 893 F.2d 669, 675

(5th Cir. 1990) (citation omitted). "The district court's

determination of this issue is a fact question that will not be

overturned unless it is clearly erroneous." United States v.

Hogan, 763 F.2d 697, 704 (5th Cir. 1985).

This issue is meritless. Miller was allowed to, and did,

review the Government files, which included the memoranda in

question. There is no indication that Davenport adopted or

approved the memorandum of his interview with Agent Kugle.

Moreover, Miller asserts that he wanted this memorandum to impeach

Brooks. He does not argue that he sought it to impeach Davenport.

This purpose does not fall within the purview of the Jencks Act.

See Prieto, 505 F.2d at 11.

III. Sentencing

The PSR recommended the following adjustments to Miller's base

offense level: (1) a three-level increase because the loss

exceeded $10,000 pursuant to U.S.S.G. § 2F1.1(b)(1)(D); (2) a two-

level increase because the offense involved more than minimal

9
planning; and (3) a three-level adjustment for his role in the

offense as a manager or supervisor pursuant to § 3B1.1(b). The PSR

computed Miller's total offense level as 14, with a criminal

history category of V, resulting in a guideline imprisonment range

of 33 to 41 months.

Miller filed objections to the PSR, challenging these

adjustments. The district court adopted the factual statements and

recommendations of the PSR, sentencing Miller to 41 months

incarceration.

This Court reviews the application of the Sentencing

Guidelines de novo and the district court's findings of fact for

clear error. United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.

1992), cert. denied, 113 S. Ct. 2365 (1993). A sentence imposed

under the Guidelines will be upheld if it is the result of the

correct application of the Guidelines to factual findings that are

not clearly erroneous. United States v. Zuniga, 18 F.3d 1254, 1261

(5th Cir.), cert. denied, 115 S. Ct. 214 (1994). A factual finding

is not clearly erroneous if it is plausible in light of the record

read as a whole. Id.

A. Role in the Offense

1. Manager or Supervisor

Miller argues that the district court erred in applying

§ 3B1.1(b) and that the court should have applied § 3B1.2. The

district court found that Miller's role in the conspiracy was that

of a manager, a finding of fact reviewed for clear error. Zuniga,

18 F.3d at 1261.

10
 Under § 3B1.1(b) a defendant's base offense level is increased

by three levels "[i]f the defendant was a manager or supervisor

(but not an organizer or leader) and the criminal activity involved

five or more participants or was otherwise extensive." To qualify

for the adjustment the defendant must have been the organizer,

leader, manager, or supervisor of one or more participants. §

3B1.1, comment (n.2). For purposes of § 3B1.1, the sentencing

court must examine the "contours of the underlying scheme." United

States v. Mir, 919 F.2d 940, 945 (5th Cir. 1990). Accordingly, an

increase for a managerial role does not depend on the specific role

of the defendant in the offense of conviction; rather, the increase

is based on the defendant's role in conduct encompassed within the

scope of the offense of conviction and any relevant conduct.

United States v. Eastland, 989 F.2d 760, 769 & n.18 (5th Cir.),

cert. denied, 114 S. Ct. 246, and cert. denied, 114 S. Ct. 443

(1993). Factors the sentencing court should consider include

the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.

§ 3B1.1(b) comment (n.4). The defendant's role in a criminal

activity for the purposes of § 3B1.1 may be deduced inferentially

from available facts. United States v. Manthei, 913 F.2d 1130,

1135 (5th Cir. 1990).

11
 The PSR reported that Miller assisted Janice and participated

in the crime by assisting the movement of other participants to

carry out acts in furtherance of the conspiracy, that he was

present when the other participants committed overt acts in

furtherance of the conspiracy, and that he shared in the fruits of

the crime. Given the factors relevant to determining a defendant's

role in the offense, the district court's finding that Miller acted

as a manager or supervisor is not clearly erroneous.

If the defendant objects to the findings in the PSR, the

Government must establish the factual predicate "by a preponderance

of relevant and sufficiently reliable evidence." United States v.

Elwood, 999 F.2d 814, 817 (5th Cir. 1993). Miller, citing Elwood,

argues that the conclusional statement in the PSR that his role is

deemed that of a manager was not reliable. Elwood does not support

Miller's argument. In Elwood, the Government found that Elwood was

an organizer or leader under § 3B1.1(a) based solely on the

conclusions of the DEA and the prosecutor. 999 F.2d at 817. The

Court held that, although the PSR generally bears sufficient

indicia of reliability to be considered evidence by the district

court, "[b]ald, conclusionary statements do not acquire the patina

of reliability by mere inclusion in the PSR." Id. at 817-18; see

United States v. Patterson, 962 F.2d 409, 414-15 (5th Cir. 1992).

The PSR's conclusion that Miller was a manager was based on

trial testimony. Miller did not demonstrate that the information

contained in the PSR is materially untrue. See United States v.

12
Shipley, 963 F.2d 56, 59 (5th Cir.), cert. denied, 113 S. Ct. 348

(1992).

2. Fewer than Five Participants

Miller also argues that the application of § 3B1.1(b) was

inappropriate because there were fewer than five participants in

the conspiracy. He argues that there was a series of several

different conspiracies involving fewer than 5 people, not one

ongoing conspiracy. He argues that after Janice returned part of

the RAL money to the tax filer, that particular conspiracy was

over.

Miller's argument lacks merit. Section 3B1.1(b) provides for

a 3-level increase for managers or supervisors if "the criminal

activity involved five or more people or was otherwise extensive."

Miller was convicted of conspiracy and five substantive acts

committed in furtherance of the conspiracy. The district court did

not err in finding that the "criminal activity" involved five or

more people.

Miller notes parenthetically that "it is questionable whether

or not Mary Hunter was involved as a knowing participant." Because

Miller did not adequately brief this issue, this Court will not

address the question. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Miller does not

argue that the other tax filers were not knowing participants.

Thus, even if Hunter was not a knowing participant, Miller's

sentence would not be affected.

3. Minor Participant

13
 Because the PSR described him as an "assistant" to Janice,

Miller argues that the district court misapplied the guidelines in

refusing to grant a reduction in his offense level under

§ 3B1.21 for his minimal or minor role in the overall conspiracy.

The gravamen of Miller's argument is that there was no evidence

that he ever exhibited knowledge of the scope or structure of the

organization involved. He is essentially challenging the

sufficiency of the evidence to prove an element of the conspiracy

conviction, as discussed above. This he cannot do through a

sentencing challenge. The district court's finding that Miller was

not entitled to an adjustment for being a minor participant in the

conspiracy is not clearly erroneous. See United States v.

Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989), cert. denied, 495

U.S. 923 (1990).

B. Loss Calculation

The district court found that the amount of loss exceeded

$10,000, but was less than $20,000, and increased Miller's offense

level by three points pursuant to § 2F1.1(b)(1)(D).

Miller concedes he was involved with $7934 in losses (to Brock,

Finister, Johnson, Miles, and Mack), and argues that only two

points should have been added to his base offense level. Miller

1
A district court must reduce a defendant's offense level
by four levels if it determines that he is a minimal participant
in the offense for which he was convicted, or by two levels if
the defendant was a minor participant. § 3B1.2; see United
States v. Gadison, 8 F.3d 186, 197 (5th Cir. 1993). The
defendant bears the burden of proving that his role in the
offense was minor or minimal. United States v. Brown, 7 F.3d
1155, 1160 n.2 (5th Cir. 1993).

14
argues that the amount of loss should not include uncharged

offenses, specifically that of Collins and Mack.2 Miller also

argues that amount of loss should not include Hunter and Collins

because Miller was not involved with their fraudulent filings.

Miller's argument concerning the Hunter losses is meritless.

Miller was convicted of this offense, and the loss was properly

attributable to him. The district court's calculation of the

amount of loss is a factual finding, reviewed by this Court for

clear error. United States v. Chappell, 6 F.3d 1095, 1101 (5th

Cir. 1993), cert. denied, 114 S. Ct. 1232, 1235 (1994). A

defendant may be held liable for the substantive acts of a co-

conspirator if the acts were relevant conduct, i.e., reasonably

foreseeable conduct done in furtherance of the conspiracy. See §

1B1.3(a)(1)(B); United States v. Lghodaro, 967 F.2d 1028, 1030 (5th

Cir. 1992). Under the guidelines, conduct is relevant to an

offense if there is "sufficient similarity and temporal proximity

to reasonably suggest that repeated instances of criminal behavior

constitute a pattern of criminal conduct." United States v.

Bethley, 973 F.2d 396, 401 (5th Cir. 1992) (internal quotations and

citations omitted), cert. denied, 113 S. Ct. 1323 (1993); see also,

§ 1B1.3(a)(2) (conduct is relevant if it is "part of the same

course of conduct or common scheme or plan as the offense of

conviction").

2
Because Miller concedes that he was involved in the Mack
losses, this Court does not address this issue.

15
 The fraudulent tax filing by Janice and Collins followed the

same pattern as the other filings carried out in furtherance of the

conspiracy. The district court properly considered the Collins

filing as relevant conduct. The district court's finding regarding

the amount of loss is not clearly erroneous.

C. More than Minimal Planning

The district court found that the offense involved more than

minimal planning and increased Miller's offense level by two points

pursuant to § 2F1.1(b)(2)(A). Miller argues that this was

erroneous because the government was unable to prove planning on

the part of Charles Miller.

The commentary to § 2F1.1 cross-references the commentary to

§ 1B1.1 for a definition of "more than minimal planning." § 2F1.1

comment (n.1). The guidelines define "more than minimal planning"

as "more planning than is typical for commission of the offense in

a simple form." § 1B1.1 comment (n.1(f)). It "is deemed present

in any case involving repeated acts over a period of time, unless

it is clear that each instance was purely opportune." Id.

Miller's argument is without merit. The fraudulent electronic

tax filings "involved repeated acts over a period of time," and

were not simply crimes of opportunity. See § 1B1.1, comment

(n.1(f)). The district court's finding that the offense involved

more than minimal planning is not clearly erroneous.

AFFIRMED.

16