United States v. David Miller
2013 U.S. App. LEXIS 22062
| 6th Cir. | 2013Background
- Miller formed Fellowship Investors, LLC to buy land; solicited investors but raised only $675,000 of the estimated $900,000 needed. To cover the shortfall he sought a $337,500 loan to DEMCO from First Bank and pledged Fellowship's purchased property as collateral.
- First Bank required a written member resolution authorizing DEMCO to pledge Fellowship property; a resolution containing false statements (that all members were present and unanimously authorized the pledge) was prepared, signed by Fellowship secretary Wellons (based on Miller-provided member names), and later bore Miller’s signature.
- At closing on May 30, 2007, Miller signed the Note and Deed of Trust, creating the bank security interest; he obtained $112,500 more than the stated fundraising need and later transferred those funds to unrelated accounts.
- Miller re-signed or otherwise executed documents post-closing (including a July 23, 2007 faxed resolution and a re-signing of the Note on August 27, 2007) and renewed the DEMCO loan in August 2008 despite no longer owning Fellowship.
- Indicted on two counts of false statements to a bank (§1014) (Counts One and Four) and two counts of aggravated identity theft (§1028A) (Counts Two and Three), Miller was convicted by a jury; the Sixth Circuit affirmed Count One but reversed Counts Two–Four, vacated the sentence, and remanded.
Issues
| Issue | Government's Argument | Miller's Argument | Held |
|---|---|---|---|
| Prejudicial variance / unanimity re: Count One (§1014) | No material variance: a single false statement (lack of authority) was alleged and proved across documents and occasions; jury need only general unanimity instruction. | Prosecution presented multiple acts/dates; absence of a specific unanimity instruction risked nonunanimous verdict (plain error). | No variance; no plain error in omitting a specific unanimity instruction; conviction on Count One affirmed. |
| Whether Miller “used” another’s name under §1028A (Counts Two & Three) | Miller employed Foster’s and Lipson’s names to procure the loan; “use” should be read broadly to include employing names to one’s benefit. | §1028A requires more than lying about others’ actions—use means impersonation, acting on another’s behalf, passing oneself off, or otherwise appropriating an identity. | Ambiguity in “uses”; applying noscitur a sociis/ejusdem generis and rule of lenity, §1028A does not cover Miller’s conduct; convictions reversed. |
| Whether renewing/modifying the loan constituted a new “false statement” under §1014 (Count Four) | Renewal can rely on prior false statements and thus be a new §1014 violation if bank relied on prior misrepresentations. | The renewal instrument contained no new factual assertion that Miller had authority; at most it incorporated legal effect of prior documents. | Renewal agreement did not contain a factual false statement capable of true/false determination; conviction on Count Four reversed. |
Key Cases Cited
- Smith v. United States, 508 U.S. 223 (construction of undefined statutory term by ordinary meaning)
- Watson v. United States, 552 U.S. 74 (contextual interpretation of statutory language)
- Bailey v. United States, 516 U.S. 137 (interpretive caution regarding the verb “use”)
- Beals v. United States, 698 F.3d 248 (variance doctrine and prejudice requirement)
- Damra v. United States, 621 F.3d 474 (when specific unanimity instruction is required)