United States v. Richard Anthony Miller

adequate re- given Department’s expressed peti- sponse the concerns arising after grounds the sixti-

tion based on day, Department think that the

eth we do not denying petition unreasonably

acted rulemaking.

[******]

Although court acted on the the district and we conclude that

merits as to all claims jurisdiction as ‍​‌‌‌​​​​​‌​​‌​‌‌‌​​‌​​​​‌​​​​‌​‌​​​​​‌‌‌​‌​‌​​‌‌‍to those court lacked existing grounds

claims based on within

days promulgation repromulgation or rule, we have “discrеtion to NOY

uphold summary judgment legal under a applied

theory from that different court,

trial rest the affirmance on

ground finds record.” Ass’n

Planned Parenthood Utah (D.C.Cir. Schweiker, n. 23

1983) (internal quotations and citations omit

ted). therefore affirm district court’s We dismissing

judgment all counts. America, Appellee,

UNITED STATES MILLER, Anthony Appellant.

Richard

No. 93-3113. Appeals,

United States Court of Columbia Circuit.

District 12, 1995.

Argued Oct. 12, 1995.

Decided Dec. Secretary.”). record made before the or on the hear such complaint solely petition HENDERSON, KAREN LeCRAFT Judge: Circuit Anthony appeals his Richard convic- tions on one count of bank fraud and one Finding count of access device fraud. error, reversible we affirm both сonvictions. conviction, appeal On from a we must light view the evidence ‍​‌‌‌​​​​​‌​​‌​‌‌‌​​‌​​​​‌​​​​‌​‌​​​​​‌‌‌​‌​‌​​‌‌‍in the most favorable government, allowing the benefit of may all reasonable inferences that be drawn permitting from the evidence and weight credibility determine the and Sobin, evidence. United States v. — denied, 1423, (D.C.Cir.), cert. U.S. (1995); 133 L.Ed.2d 244 S.Ct. Butler, (D.C.Cir.), 205, 116 (1991). L.Ed.2d 164 Sо viewed following the evidence reveals the facts. employed Miller was as an aide District City of Columbia Council member Wilhelmi- na February Rolark from 1991 until he re- signed February During on time, occasionally he cashed checks for Ro- lark, Riggs drawn her account at National (Riggs) Bank and made out to Miller. He did so in last December 1991. Burns, E. Allen Assistant Federal Public April acquired 1991 Rolark a new auto- cause, Defender, argued appellant. for (ATM) mated teller machine card from Kramer, Defender, A.J. Federal Public Riggs, lost, replace one she had and select- Jaffee, on the H. brief. Neil Assistant Fed- four-digit personal ed a new identification Defender, DC, Washington, eral en- Public (PIN) number to access her account appearance. tered an the card. Her recollection at trial was un- Hertzer, A. Lisa Assistant United States designated certain but she believed that she cause, Attorney, argued appellee. digits the last four of her home or car tele- Holder, Jr., Attorney, Eric H. United States phone her number as new PIN and that she Fisher, Tourish, Jr., and R. Thomas John J. stored the new card one of three locations Sarrafan, Sherri L. Evans and F. Sima Assis- at her home office customarily where she Attorneys, tant kept important were on the personal items. She was cer- Black, brief. Thomas C. Assistant United tain that she never used the card herself or DC, Attorney, Washington, States entered an authorized Miller to do so. appearance. In March Rolark noticed number of electronic withdrawals listed on her last two SILBERMAN, Before: SENTELLE and Riggs. Riggs bank statements and notified HENDERSON, KAREN LeCRAFT Circuit investigation conducted an and discovered Judges. electronic withdrawals had been January made between 26 and March Opinion for the court filed Circuit $11,100. totaling During investiga- Judge KAREN LeCRAFT HENDERSON. tion, Theisen, Lyle Rolark met with J. Separate concurring security opinion Riggs еmployee, filed and was shown Judge photographs by security SENTELLE. taken cameras at time inserted card of several withdraw- Each the locations times personal her four- into an and entered photo- man als. identified the She code, digit represented Riggs he that he consequence, Miller.1 he was graphs as As authority Ro- had to withdraw funds from one count each of and indicted on arrested account, just previously rep lark’s as he had § 13442 in of 18 U.S.C. bank fraud violation presented resented each time he a bank tell in 18 fraud violation of and of access device argues one of her checks. Miller 1029(a)(2).3 er with by a § was He convicted U.S.C. making with unauthorized electronic to six jury of both counts and was sentenced akin check-kiting drawals is to which other suspended, imprisonment, and three months’ cannot, itself, by circuits have found consti years’ appeals his convictions probation. He Seе, e.g., mail v. tute fraud. United States grounds. on several (7th 425, Cir.), Doherty, 969 F.2d 427-28 607, First, 113 121 argues his fraud 506 U.S. Miller bank (1992); Me there L.Ed.2d 542 conviction should be reversed because (5th deles, Cir.1990); F.2d that he committed 195 was insufficient evidence Bonnett, charged F.2d 1456-57 offense as States each element was Cir.1989). (10th analogy inapt. find the jury. makes it unlawful We to Section 1344 (1) in, alternatively, underlying rationale those hold “a scheme The courts’ participate to institution,” any ings is that “a does not ‘make to a 18 U.S.C. cheek defraud financial (2) 1344(1), any representation § to the state of account [an or “a scheme obtain as securities, balance,’ funds, credits, assеts, and hence cannot be moneys, holder’s] by, Doherty, as or false.” property or or under characterized true other owned institution, of, 427 (quoting financial F.2d at Williams v. United custody or control a States, 284-85, pretenses, 458 U.S. 102 S.Ct. means of false or fraudulent (1982)). 1344(2). 3091-92, § like- representations, promises,” 73 L.Ed.2d or id. court, howеver, initially charged representation regarding made wise The district request- account jury only on elements of a section balance Rolark’s when he 1344(2)violation, instructing govern the various electronic withdrawals.4 ed do, however, Ro- proving “that the he did was to enter ment bore burden of What PIN, knowingly а acts as a sort of electronic executed lark’s which defendant authorizing money signature or an ATM to release to obtain the owned scheme funds. did Ro- available That he so without under control of the financial institution knowledge pretenses, rep permission or is tantamount false or fraudulent lark’s means of resentations, cashing forged signature— promises.” Jury a check with a or Instruction (Tr. 2) sec- expressly we have held violates Transcript at 41. Miller contends conduct Sayan, any he ever See United States v. there was no evidence made tion (D.C.Cir.1992) (forged en- required F.2d “misrepresentation” as affirmative charge. disagree. checks “constitute court’s We dorsements district (a) Riggs camera each ATM Whoever— 1. maintains a hidden every photograph three transactions location seconds. to five (2) knowingly defraud intent in or one or more unauthorized traffics uses provides: sеction This during any one-year period, and access devices executes, attempts knowingly Whoever or ag- anything of value such conduct obtains execute, a scheme or artifice— $1,000 during period; gregating or more institution; (1) to defraud a financial or funds, (2) moneys, cred- to obtain assets, securities, its, property or other owned shall, foreign affects or if offense interstate of, by, custody or under the or control finan- commerce, provided punished in subsec- institution, by means of false or fraudulent cial (c) of tion this section. representations, promises; pretenses, or 1029(a)(2). U.S.C. $1,000,000 impris- be fined not than or shall years, not more than 30 or both. oned fact, dispensed would not 4.In § 1344. 18 U.S.C. money Tran- the account. See more (Tr. 1) script Testimony provides: 33-36. 3. This section charge beyond which of ment of the offense a reasonable misrepresentations persuasive Reading Tr. 2 at 40-41. pretenses”). Nor do we find doubt. See false whole, therefore, as a we do not Briggs, States v. instructions Miller’s reliance on United Cir.1991), believe the court’s isolated misstatement was 226-27 which Whoie, plain error. found that a defendant who the Fifth Circuit Cf. (D.C.Cir.1991) (no plain unauthorized wire transfers from ordered govern- error in failure to instruct employers’ her bank accounts had violat- disproving ment bore burden of inducement far “[s]o section because as the ed entrapment in- to overcome defense where discloses, Briggs sparse record made no ex- structions, whole, considered as made clear statements, plicit reрresentations, false or proving bore burden of de- promises carrying out her scheme.” 939 doubt). guilt beyond fendant’s reasonable Briggs The court was careful to F.2d at 226. “precisely ef- [the defendant] note that how in Miller next asserts the court erred fected is unclear” and further these transfers charging jury money in that obtained falsely observed that “where the defendant violation of the bank fraud statute can be represents acting that she is under her em- “owned or under control of the financial ployer’s authority, have little trou- we would institution,” (2), 2 Only Tr. at 41. subsection concluding squarely that conduct is ble such argues, permits obtaining he conviction for prohibited by the Id. at 227. statute.” control, money merely under the bank’s Here, course, exactly (1) of we know how Miller requires actually while subsection it that accomplished us- light be owned the bank. of our withdrawals — sup- ing Rolark’s PIN to communicate his supported conclusion that the evidence Mil- posed authority to do so—and we have no (2), ler’s conviction under subsection and Mil- concluding trouble this conduct falls within ler’s own insistence that his bank fraud con- proscription. the statute’s upheld, all, only viction can be if at subsection, argument that we conclude this aspects challenges three of the Miller next weight may has lost whatever it otherwise instructions, jury district court’s none of have ‍​‌‌‌​​​​​‌​​‌​‌‌‌​​‌​​​​‌​​​​‌​‌​​​​​‌‌‌​‌​‌​​‌‌‍had. which reversible error. constitutes reason, reject For a similar we Miller’s judge Miller first asserts the district charging claim that the district in court erred by telling erred evidence “[t]he pretenses” suрport that “false can a bank in person the case did not establish (2) fraud conviction. Subsection of the bank actually only was defrauded but statute, fraud under which Miller must be defraud,” accused acted intent to Tr. 2 convicted, assumed to expressly have been 42, thereby improperly relieving gov criminalizes schemes to obtain bank funds proving ernment of its burden of the element “by pretenses.” means of false or fraudulent of intent to defraud. Because Miller failed to Thus, challenged there was no error object to the instruction trial we review it instruction. plain only error and reverse if it was prejudiciаl, miscarriage justice Finally, argues that is if “a of that the dis admitting, objec would otherwise result.” United States v. trict court erred over his (D.C.Cir.1995) tions, Boyd, (quot testimony “legal 54 F.3d 872 Theisen’s to two con Olano, clusions,” ing namely 507 that Miller’s withdrawals 1770, 1779, they L.Ed.2d 508 “affected interstate commerce” and that (1993)). may language While the cites constituted bank fraud. See Christiansen v. Co., improperly suggested have intent had been National Savs. & Trust 683 F.2d established, (D.C.Cir.1982) (“The sufficiently duty we do not think it [legal] to issue prejudiced plain Miller to constitute error. conclusions devolve on the courts [sic] instructions, lay Elsewhere in legal the court conclusions are inadmissible in evi dence.”) (citations omitted). jurors made it clear to the “intent to To the extent necessary may defraud” was one of the elements that the former isolated statement proved to be improper, given and that the bore been it was harmless affirmatively the burden proving lengthy each ele- witness’s and uncontroverted testi- scope impliedly to be touching ATM mitted could said mony regarding the interstate Newman, falsely representing himself to have con- See United States transactions. Jacobs, (1st Cir.1995); Hygh v. 49 F.3d sent to touch the victim. None these (2d Cir.1992); representation, F.2d Torres things seems me to be a Oakland, County criminally false let alone a one. Cir.1985).5 testimony, for the latter As Sayan, I do not States v. read United opinion given legal but as Theisen’s (D.C.Cir.1992), upon by relied factually why Riggs only explain conduct majority, contrary compel result. The $11,000 investigation and credited ed its Sayan forgeries discussion of the case account, to ... wit: “because of sufficiency government’s involved the of the fraud what was determined evidence to a conviction of bank lar- use of her ATM card.” Tr. the unauthorized 2113(b). ceny in violation of 18 U.S.C. The 1 at 74. gist portion quoted by majority, reasons, preceding appellant’s For the contеxt, forgeries seems me to be are convictions writing together with the other check behav- Affirmed. Sayan ior committed the defendant together sufficient evidence to constituted SENTELLE, Judge, concurring in unlawfully a that had conclusion she the result: away with the intent to “takfen] carr[ied] join majority in its affirmancе I cannot the purloin” I do not steal or bank funds. read Miller’s conviction on the basis of of question Sayan coming grips as the 1344(2). subsection, § That Ias read U.S.C. forged signature standing even of whether a it, elementally making requires of a false the misrepresen- make a alone is sufficient to out pretensе, representation or or fraudulent 1344(2), § tation in of let alone to violation theory in case promise. The this is require that other conduct even farther re- Miller, by entering PIN into the making representation from the of a moved ATM, falsely represented that he had falls within that statute. authority ac- to draw funds from Rolark’s I majority, persuasive do find Unlike theory an count. This seems to assume that Briggs, Miller’s reliance on United States supposed a set of facts is act consistent with (5th Cir.1991), cert. supposed set of facts is representing that — denied, -, 1016, 122 113 S.Ct. U.S. true, true; not the “im- indeed because is (1993). case, as in this L.Ed.2d representаtion” is one. I plied a false see one, government’s would evidence have why theory would cover reason this same not supported a conclusion that the defendant range imaginable a of conduct as such wide by a bank —in the transfer of funds ordered rep- to criminalize under this and other false order, that ease transfer this case wire beyond far resentation statutes conduct what held, The operations. ATM Fifth Circuit body, contemplating or a legislative citizen a act in- rightly, I that “the bare believe statute, conceivably expect these could is structing a to transfer funds not a exаmple, encompass. per- a statutes For Therefore, representation____” factual puts key in a could said to son who a lock be misrepresenta- be circuit held cannot a “it authority that he has the impliedly represent tion, any representation, or kind of authority, open If he that lock. lacks false (emphasis at representation.” Id. only conse- he becomes liable ordering I how original). do not see illegal quences entry but also for hav- his representation machine is more representation. ing made a false As with too, So, ordering I would therefore hold wire. illegal entry, the same for theft. assaults, consistently Fifth that evi- committing unper- with the person "yes” question you responded explained length to the "Now After he how ATMtransac- 5. goes require indicated that when ATM transaction transmission of information to tions process switching this that the transaction itself which is locаted in the "central station States,” Tr. 1 part Theisen affects interstate commerce?” midwestern of such an order does not make out a dence § violation of join my colleagues in

I nonetheless would

upholding the conviction of Miller. Because 1344(2), §

I not convict unlike would

my colleagues, question I would reach the sufficiency ‍​‌‌‌​​​​​‌​​‌​‌‌‌​​‌​​​​‌​​​​‌​‌​​​​​‌‌‌​‌​‌​​‌‌‍of the evidence under 18 and hold the evidence tо

U.S.C. appellant

sufficient. To convict under this

subsection, required

prove recognizable “a scheme formed with

the intent to defraud a financial institution.” LeDonne, 1418, 1425 — Cir.1994), (1995).

115 S.Ct. 130 L.Ed.2d 498 I see

nothing in the statute or in authoritative

interpretations requiring of it

scheme defrauds the institution of funds it opposed

owns as to funds which its inter-

est is as a trustee or bailee. That the fraud account, particular op-

is directed at a

posed general to the funds and credits of the

bank, my should not view affect the suffi-

ciency of the evidence.

Thus, conviction, I would affirm the but

the basis of section rather

LOS SMSA LIMITED ANGELES

PARTNERSHIP, Appellant,

FEDERAL COMMUNICATIONS

COMMISSION, Appellee, Communications,

Leonard

Inc., Intervenor. 95-1307,

Nos. 95-1320. Appeals, States Court

District of Columbia Circuit. Ingle, ‍​‌‌‌​​​​​‌​​‌​‌‌‌​​‌​​​​‌​​​​‌​‌​​​​​‌‌‌​‌​‌​​‌‌‍Deputy John E. Associate General

Dec. Counsel, appellee Federal Communica- tions Commission. Conley,

Theresa Fenelon and Michael A. Sutro, Pillsbury, Washington, Madison &

Case Details

Case Name: United States v. Richard Anthony Miller

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 12, 1995

Citation: 70 F.3d 1353

Docket Number: 93-3113

Court Abbreviation: D.C. Cir.