U.S. v. Miell
| Decision Date | 27 September 2010 |
| Docket Number | No. CR 07–101–MWB.,CR 07–101–MWB. |
| Citation | 744 F.Supp.2d 904 |
| Parties | UNITED STATES of America, Plaintiff,v.Robert MIELL, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Alfredo G. Parrish, Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fishe, Andrew J. Dunn, Parrish Kruidenier Moss Dunn Montgomery Boles & Gribble, LLP, Des Moines, IA, Curtis Blood, Blood Law Office, Collinsville, IL, for Defendant.
In Little Dorrit (1855–57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry. Although this defendant's properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters' damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims. His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters' damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired. The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury 1 and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant's conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses.
Much of my rationale for an upward variance in this case is based on defendant Robert Miell's personal characteristics and offense conduct. Therefore, I begin with those aspects of this case.
Defendant Robert Miell makes only general objections to the recitation of the “Offense Conduct” in the Second Final And Amended Presentence Investigation Report (Final PSIR)(docket no. 291), ¶¶ 17–78, and no objections at all to the recitations of his “Criminal History” or “Offender Characteristics,” id. at ¶¶ 138–157. His general objections to the “Offense Conduct” are that the “allegations” are far beyond the factual basis to which he pleaded guilty on January 2, 2009; that he disputes the accuracy and reliability of the information used to enhance his sentence under an advisory guidelines scheme; that enhancement of his sentence based on any evidence or allegations that have not been tested in court through cross-examination is a violation of due process and the Fifth and Sixth Amendments of the United States Constitution; and that any enhancement to his sentence based on the allegations in these paragraphs should be proved by the prosecution beyond a reasonable doubt.
Were Miell's legal objections to the “Offense Conduct” portions of the Final PSIR matters of first impression, I might be inclined to agree with him, particularly to the extent that facts upon which the sentencing court relies should be proved beyond a reasonable doubt, or at least by clear and convincing evidence, not merely by the greater weight or preponderance of the evidence. At bottom, given that proof beyond a reasonable doubt is the bedrock of the nation's state and federal criminal justice system, it strikes me as fundamentally unfair to enhance a defendant's sentence based upon factual findings by only a preponderance of the evidence. While large sums of money routinely change hands in our civil justice system based upon a mere preponderance of the evidence, this minimal burden is a very slim reed by which to deprive a defendant of his liberty. Nevertheless, Miell's legal objections are not questions of first impression, but matters upon which well-settled law is contrary to his positions.
As the probation officer notes, pertinent United States Sentencing Guidelines authorize wide-ranging consideration of information relevant to sentencing against a relaxed standard of proof. See, e.g., U.S.S.G. § 1B1.3, Relevant Conduct (Factors that Determine the Guideline Range), directs that the Base Offense Level, specific offense characteristics, cross references in Chapter Two, and adjustments in Chapter Three, shall be determined on the basis of: all acts and omissions committed, aided, abetted, counseled, commanded, inducted, procured, or willfully caused by the defendant, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the...
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...or abusive childhood or the compulsion of an expensive addiction—is simply a crime of greed.” United States v. Miell, 744 F.Supp.2d 904, 955, 2010 WL 3853155, at *49 (N.D.Iowa Sept. 27, 2010). Nearly as disturbing is the fact that VandeBrake fails to believe that he was motivated by greed.4......
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...to U.S.S.G. § 3B1.3, cmt. (n. 1), and relevant precedent of the Eighth Circuit Court of Appeals on the abuse-of-trust enhancement. 744 F.Supp.2d 904, 943–44 (N.D.Iowa 2010). In Miell, I held that “the upward adjustment for abuse of a position of trust” applied where the defendant “used his ......
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United States v. Vandebrake
...suffered a deprived or abusive childhood or the compulsion of an expensive addiction—is simply a crime of greed.” United States v. Miell, 744 F.Supp.2d 904, 955 (N.D.Iowa 2010). Nearly as disturbing is the fact that VandeBrake fails to believe that he was motivated by greed. Instead, VandeB......
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