U.S. v. Miller

• Decision Date: 01 July 2008
• Docket Number: No. 06-4583.,06-4583.
• Citation: 531 F.3d 340
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn Joseph MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

531 F.3d 340

UNITED STATES of America, Plaintiff-Appellee, v. Shawn Joseph MILLER, Defendant-Appellant.

No. 06-4583.

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2008.

Decided and Filed: July 1, 2008.

ARGUED:

Amy B. Cleary, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Justin J. Roberts, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Amy B. Cleary, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Justin J. Roberts, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Following a jury trial, defendant Shawn Joseph Miller was found guilty on two counts of committing wire fraud, in violation of 18 U.S.C. § 1343, two counts of money laundering, in violation of 18 U.S.C. § 1957, and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). Thereafter, the district court sentenced Miller to an above-Guidelines term of 125 months of imprisonment.

Miller now appeals, raising four claims: (1) his constitutional right to a fair trial was abridged when he was forced to wear an electronic stun belt during trial; (2) the district court erred in failing to sua sponte order a mental competency hearing; (3) the evidence offered against him at trial was insufficient to support the jury's finding of guilt on the witness tampering charge; and (4) his sentence was substantively unreasonable. For the reasons set forth below, we affirm Miller's convictions and order a limited remand for resentencing for the purpose of correcting Miller's term of supervised release.

I.

Miller operated two Ohio corporations, McClure, Becker & Associates, Inc. and McClure, Becker & Ramono Financial, Inc. (collectively "McClure Becker"), that purported to be engaged in the business of purchasing and selling credit card debt portfolios to brokers and collection agencies. In conducting this business, McClure Becker maintained a checking account with First Merit Bank in Sheffield, Ohio. Miller was a signatory on the account.

Between September 2002 and December 2003, Miller used McClure Becker to defraud others by selling non-existent and fraudulent debt portfolios. Miller offered for sale to debt brokers and collection agencies what purported to be credit card portfolios of consumer debtor accounts. These portfolios were later revealed to be fraudulent, as the supposed debtors did not have debt with the credit card companies, did not live where stated in the portfolio, or Miller did not own the portfolios that he sold.

After receiving wire transfer payments in exchange for the sale of the fraudulent portfolios, Miller converted the funds into cash and cashier's checks through the First Merit account. Miller then mostly used these funds for personal use, including gambling vacations to Las Vegas and Windsor, Ontario. However, when confronted with the fraudulent nature of his portfolios by clients, Miller occasionally used the proceeds in a manner consistent with a "ponzi scheme," applying funds received from subsequent brokers to pay off previous clients.

The FBI began investigating Miller in April 2004. Miller apparently learned of the investigation and, in July 2005, met with Sherry Lynn Rains, an employee of First Merit Bank who opened McClure Becker's account with the bank.¹ Miller warned Rains that if she talked to anyone about the investigation, "including the FBI," he would sue her for defamation of character. Miller also stated to Rains that the FBI was not looking into his business. Rains informed Miller that she had spoken with the FBI in December 2003 and that she had no other information to provide investigators.

After the filing of a criminal complaint, Miller was arrested. Because of Miller's criminal history, the court placed Miller on house arrest with electronic monitoring. The court appointed counsel to represent Miller. On June 1, 2006, the Grand Jury returned a five-count superseding indictment, charging Miller with two counts of committing wire fraud, in violation of 18 U.S.C. § 1343, two counts of money laundering, in violation of 18 U.S.C. § 1957, and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). On July 21, 2006, Miller filed a pro se motion to remove his court-appointed counsel and to hire a new attorney. After Miller's then-counsel acknowledged in a pretrial hearing on the motion that Miller had refused to meet with him, Miller hired a new attorney, and the trial was continued to August 28, 2006.

Six days before trial, Miller violated the conditions of his pretrial release by returning to his home three and one-half hours later than permitted and giving misleading information to his pretrial services officer. Consequently, the court revoked Miller's bond pending trial.

At a pretrial hearing on August 28, Miller complained about the quality of the representation he was receiving from his newly-hired counsel. Counsel for Miller then stated that he was unable to represent Miller:

Your Honor, for purposes of the record, if you will just wait a moment, your Honor, I have to look out for my welfare at this point. The Defendant and I just had a meeting, which deteriorated to a very violent nature.

* * *

I was hoping while he sat in jail he would come to his senses but obviously has not. He is hostile to me. I cannot under the ethical situation even sit at the same trial table with him. So I have all the evidence here that he needs. I can give it to him and let him represent himself.

Despite the attorney's protestations, the district court denied the attorney's request to be removed as counsel. Regarding defendant, the district judge directed that "the Marshals will take whatever precautions they think are appropriate."

The Marshals Service determined that the use of an electronic restraint system was necessary and received permission from the district court to employ upon Miller a stun belt during trial. The Marshals provided notice to Miller regarding the use of the stun belt, instructing him that the "System if activated contains 50,000 volts of electricity" which can result in "Immobilization causing you to fall to the ground," the "Possibility of self-defecation," and the "Possibility of self-urination." The instructions provided further that the system would not be activated "simply for consulting with your legal counsel," but that it could be triggered by any of the following actions: "hostile movement or attempted assault," "tampering with the System," "attempt to escape custody," or "intentional attempt to avoid constant visual contact by the Deputy." Miller raised no objections to the use of the stun belt.²

Following a three-day trial, the jury found Miller guilty on all five counts charged in the indictment. The Presentence Investigation Report ("PSR") calculated an advisory Guidelines range of 84 to 105 months of imprisonment, based on Miller's offense level score of 22 and criminal history category VI. The PSR noted further that the maximum term of imprisonment under 18 U.S.C. § 1343 for the wire fraud counts was 20 years.

At the sentencing hearing, the government sought a sentence of 105 months of imprisonment. The court, citing Miller's criminal history and propensity for fraud, sentenced Miller to an above-Guidelines term of 125 months of imprisonment on counts one and two, and a term of 120 months on counts three through five, running concurrently.

Miller now timely appeals his convictions and sentences.

II.

Miller first argues that his constitutional right to a fair trial was denied when the district court forced him to wear a stun belt restraint during trial. Specifically, Miller contends that the court erred by failing to hold a hearing and make factual findings regarding the need for the physical restraint. The government argues that because Miller received sufficient notice of the limited number of actions that could trigger the stun belt and that the stun belt was never visible to the jury, he was not prejudiced by the use of the stun belt. We agree with Miller that the district court abused its discretion in failing to hold a hearing and make factual findings regarding the need for the stun belt. However, after our review for plain error, we hold that error requiring reversal did not occur.

A.

We review the district court's decision to impose physical restraints on defendant for an abuse of discretion. Kennedy v. Cardwell, 487 F.2d 101, 107 (6th Cir.1973). Further, any error in requiring defendant to be restrained is subject to harmless error review. Ruimveld v. Birkett, 404 F.3d 1006, 1012 (6th Cir.2005); Lakin v. Stine, 431 F.3d 959, 963 (6th Cir.2005); see also Bell v. Hurley, 97 Fed. Appx. 11, 16 (6th Cir.2004). Where the defendant fails to object to an error at trial, we review for plain error. FED. R. CR. P. 52(b); United States v. Christman, 509 F.3d 299, 307 n. 3 (6th Cir.2007).

B.

The use of physical restraints, such as a stun belt, during trial and the sentencing phase implicates a defendant's right to due process. Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). Deck, and the bulk of federal cases discussing the use of physical restraints during trial and sentencing, involved traditional methods of securing the accused, such as handcuffs and shackles. Nevertheless, we now conclude that the "same fundamental issues are implicated in the decision of the district court" to restrain a defendant through the use of a stun belt. United States v. Waagner, 104 Fed.Appx. 521, 526 (6th Cir.2004). Accordingly, we hold that "`a decision to use a stun belt must be subjected to at least the same close judicial scrutiny required for the imposition of other physical restraints.'" Id. (quoting Gonzalez v. Pliler, 341 F.3d 897, 901 (9th Cir.2003)). Further, we caution that such "physical restraints should be used as rarely as possible." United...