U.S. v. Miell

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Citation: 744 F.Supp.2d 904
• Docket Number: No. CR 07–101–MWB.,CR 07–101–MWB.
• Parties: UNITED STATES of America, Plaintiff,v.Robert MIELL, Defendant.
• Decision Date: 27 September 2010

744 F.Supp.2d 904

UNITED STATES of America, Plaintiff,
v.
Robert MIELL, Defendant.

No. CR 07–101–MWB.

United States District Court, N.D. Iowa, Cedar Rapids Division.

Sept. 27, 2010.

[744 F.Supp.2d 905]

Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

[744 F.Supp.2d 906]

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.

MEMORANDUM OPINION AND ORDER REGARDING SENTENCING MARK W. BENNETT, District Judge.

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                ¦TABLE OF CONTENTS¦
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I. INTRODUCTION 907
                

 A. Factual Background 907
                

 1. The burden of proof and scope of information 907
                 2. Defendant's personal characteristics 910
                 3. Operation of the defendant's businesses 912
                 4. Offense conduct 915
                

 a. The insurance fraud scheme 915
                 b. The damage deposit fraud scheme 916
                 c. Perjury 920
                 d. False tax returns 923
                 e. Evidentiary support for Miell's objections 924
                

 5. Other deceptive conduct 924
                

 a. The false claim of an IRS audit 924
                 b. Other deceptive conduct not considered relevant 925
                 conduct
                

 B. Procedural Background 926
                

 1. Charges, guilty pleas, and convictions 926
                 2. Post–trial proceedings 927
                

 a. Revocation of release 927
                 b. The first sentencing hearing 927
                 c. Filings and proceedings between sentencing hearings 928
                 d. The second sentencing hearing 930
                 e. Post–hearing matters 930
                

II. LEGAL ANALYSIS 931
                

 A. The Methodology For Determination Of A Sentence 931
                 B. Determination Of The Guideline Sentence 933
                

 1. Miell's guidelines objections 933
                 2. Analysis 934
                

 a. Edition of the Sentencing Guidelines 934
                 b. Grouping 934
                 c. Amount of loss 935
                

 i. Group 1 loss 936
                 ii. Group 2 loss 937
                

 iii. Group 4 loss 939
                

 d. Number of victims 940
                 e. Sophisticated means 940
                 Substantial interference with the administration of
                 f. justice 941
                 g. Abuse of a position of trust 942
                 h. Obstruction of justice 945
                 i. Acceptance of responsibility 947
                

 3. Guidelines calculations 949
                

 a. Group 1 949
                 b. Group 2 949
                 c. Group 3 949
                 d. Group 4 950
                

 4. The Total Offense Level 950
                 5. Criminal history calculation 950
                 6. Advisory guidelines range calculation 950
                

 C. Determination Of Whether To Depart Or Vary 951
                 D. Consideration Of The § 3553(a) Factors 952
                

 1. The nature and circumstances of the offense 953
                 2. The history and characteristics of the defendant 955
                 3. The need for the sentence imposed 956
                 The kinds of sentences available and the sentencing ranges
                 4. for similar offenses 957
                 5. Any pertinent policy statement 959
                 6. The need to avoid unwarranted disparities 959
                 7. The need to provide restitution 960
                 8. Summary 960
                

III. CONCLUSION 960
                

[744 F.Supp.2d 907]

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.

I. INTRODUCTION A. Factual Background 1. The burden of proof and scope of information

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

[744 F.Supp.2d 908]

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 course of attempting to avoid detection or responsibility for that offense; U.S.S.G. § 1B1.3, comment. (backg'd) (providing that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guidelines sentencing range. The range of information that may be considered at sentencing is broader than the range of information upon which the applicable sentencing range is determined.”); U.S.S.G. § 1B1.4 (Information to be Used in Imposing Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines), states, “In determining the sentence to impose within the guidelines range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.”); U.S.S.G. § 6A1.3, comment (“In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. See 18 U.S.C. § 3661); U.S.S.G. § 6A1.3, comment (indicating, further, that “[t]he Commission believes use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of the case.”). So, too, does a controlling statute. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States

[744 F.Supp.2d 909]

may receive and consider for the purpose of imposing an appropriate sentence.”).

Finally, applicable case law is contrary to Miell's positions. See United States v. Watts, 519 U.S. 148, 154, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (holding that a lower evidentiary standard at sentencing permits sentencing court's consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399–401, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (noting that sentencing courts have traditionally considered a wide range of information without the procedural protections of a criminal trial, including information concerning criminal conduct that may be the subject of a subsequent prosecution); Nichols v. United States, 511 U.S. 738, 747–48, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (noting that district...