United States v. Miller, 16-1679

Decision Date05 March 2018
Docket NumberNo. 16-1679,16-1679
Parties UNITED STATES of America, Plaintiff–Appellee, v. Ryan MILLER, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Georgia N. Alexakis, Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.

Thomas W. Patton, Attorney, Peoria, IL, Colleen McNichols Ramais, Attorney, Urbana, IL, Office of the Federal Public Defender, for DefendantAppellant.

Ryan Miller, Pro Se.

Before Bauer, Rovner, and Sykes, Circuit Judges.

Bauer, Circuit Judge.

Defendant-appellant, Ryan Miller, entered into a written plea agreement with the government and pleaded guilty to mail fraud affecting a financial institution, in violation of 18 U.S.C. § 1341, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Miller now appeals on the grounds that the indictment failed to specify proper means of identification; that the district court improperly applied two points to his criminal history calculation under U.S.S.G. § 4A1.1(d) for committing the charged crimes while under a criminal justice sentence; and that the district court improperly mandated participation in the inmate financial responsibility program ("IFRP").

I. BACKGROUND

Between July 2007 and December 2009, Miller obtained and possessed identifying information for a number of individuals without their knowledge or consent. Miller possessed at least some personal identifying information, including names, addresses, birth dates, and social security numbers for over 200 individuals in a notebook. Miller knew this information belonged to at least one actual person and that he lacked authorization to have this information.

Miller used this personal identifying information to open credit card accounts with financial institutions, falsely representing that these individuals had applied for cards. To receive the fraudulently obtained credit cards, Miller opened mailboxes at UPS stores in the Chicago area under the victims’ names. Miller then used these fraudulently obtained credit cards to withdraw cash from ATMs.

From approximately October 2009 through February 2010, as part of a second scheme, Miller fraudulently obtained unemployment insurance benefits from the Texas Workforce Commission ("TWC"), an agency that administers unemployment insurance in Texas. Using personal identifying information belonging to other individuals, Miller submitted more than 600 fraudulent claims for unemployment insurance benefits to the TWC. In response to these submissions, TWC sent debit cards to the Chicago mailboxes Miller opened using personal identifying information he unlawfully possessed. Miller used these debit cards to withdraw money from ATMs.

II. PROCEDURAL HISTORY

On April 14, 2011, a grand jury returned a twelve-count indictment against Miller. In relation to his fraudulent credit card scheme, the grand jury charged Miller with conspiring to commit mail fraud, bank fraud, and identity theft, in violation of 18 U.S.C. § 371 (Count One); mail fraud, in violation of 18 U.S.C. § 1341 (Counts Two and Three); bank fraud, in violation of 18 U.S.C. § 1344 (Counts Four and Five); identity theft, in violation of 18 U.S.C. § 1028(a)(7) (Count Six); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count Seven). In relation to Miller’s fraudulent unemployment benefits scheme, the grand jury charged Miller with mail fraud, in violation of 18 U.S.C. § 1341 (Counts Eight, Nine, Ten, and Eleven), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count Twelve).

After releasing him on bond, the district court discovered Miller stole $13,750 from the correctional facility where he had initially been detained, prompting the district court to issue a bench warrant for his arrest. Miller fled to, and was later found, in the Dominican Republic in February 2015. Upon extradition to the Northern District of Illinois, Miller sought a bill of particulars in regards to Count Twelve and moved to dismiss Counts Six, Seven, and Twelve, for duplicity and lack of specificity. The district court denied these motions. The government then provided Miller with additional details regarding these three counts and amended the indictment to dismiss Count One and narrow the predicate offenses in Counts Six and Seven from mail fraud and bank fraud to solely mail fraud.

Relevant to the issues before us, Count Six of the original indictment alleged that Miller

knowingly possessed, without lawful authority, means of identification of another person, namely a notebook containing more than 200 names, dates of birth, and Social Security numbers for various persons, with the intent to commit and to aid and abet, and in connection with, unlawful activity constituting a violation of Federal law, namely mail fraud, in violation of Title 18, United States Code, Section 1341, and bank fraud, in violation of Title 18, United States Code, Section 1344

all in violation of § 1028(a)(7). Count Seven charged Miller with aggravated identity theft, in violation of § 1028A(a)(1), adopting the same language, but noting that the possession was "during and in relation to mail fraud as described in Count Two of this Indictment and bank fraud as described in Count Four of this Indictment." Count Twelve charged Miller with having "knowingly possessed, without lawful authority, means of identification of another person, namely names, dates of birth, and Social Security numbers for various persons, during and in relation to mail fraud as described in Count Eight of this Indictment," in violation of § 1028A(a)(1). The amended indictment only changed references to bank fraud from Counts Six and Seven.

On September 9, 2015, Miller pleaded guilty to Counts Two and Seven of the amended indictment, pursuant to a written conditional plea agreement with the government. As part of this agreement, the government promised to dismiss the remaining counts and Miller reserved his right to appeal the district court’s prior orders denying his motion to dismiss Counts Six, Seven, and Twelve of the original indictment. Furthermore, as part of the agreement, Miller admitted that his credit card scheme began no later than July 2007 and continued through December 2009. He also admitted that during this time frame, he "fraudulently obtained and possessed personal identifying information for individuals, including names, addresses, social security numbers, and birth dates without the knowledge and consent of the individuals." Miller reiterated this same time frame in his sentencing memorandum.

The district court sentenced Miller on March 18, 2016. The PSR calculated a base offense level of 13, with a criminal history of VII, which the district court adopted.

Because Miller had served two concurrent terms of imprisonment in Texas starting on May 1, 2008, the court assessed two of these criminal history points under U.S.S.G. § 4A1.1(d). This section calls for two criminal history points where "the defendant committed the instant offense while under any criminal justice sentence, including ... imprisonment." The probation officer and district court found that these sentences took place during the commission of the mail fraud scheme. Miller failed to object to the criminal history calculation prior to and during his sentencing hearing.

In regard to restitution, the district court stated, "[d]uring prison, the payment schedule will be through the [IFRP]." Miller never objected to the district court’s directive that payments toward restitution made during imprisonment "shall be made through [IFRP]."

III. DISCUSSION

On appeal, Miller contends that the original indictment failed to specify proper identification of the victims, thus failing to afford him proper notice of the charges made against him. He also argues the district court plainly erred in assessing two criminal history points under U.S.S.G. § 4A1.1(d) for committing the charged crimes while under a criminal justice sentence, and in ordering his participation in the IFRP. We address each one in turn.

A. Specificity of Identification in the Indictment

The sufficiency of an indictment is reviewed de novo . United States v. Nayak , 769 F.3d 978, 979 (7th Cir. 2014). An indictment is sufficient so long as it: "(1) states the elements of the offense charged; (2) fairly informs the defendant of the nature of the charge so that he may prepare a defense; and (3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same offense." United States v. McLeczynsky , 296 F.3d 634, 636 (7th Cir. 2002) (citing Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ). Additionally, "[i]ndictments are reviewed on a practical basis and in their entirety, rather than ‘in a hypertechnical manner.’ " United States v. Smith , 230 F.3d 300, 305 (7th Cir. 2000) (quoting United States v. McNeese , 901 F.2d 585, 602 (7th Cir. 1990) ).

Miller argues, in a "hypertechnical manner," that because the language in the statute makes it a crime to possess "a means of identification of another person," an allegation of a single means of identification is implicated. Thus, each count must identify a specific means of identification for a specific individual. We disagree.

Our sister circuit has addressed an issue nearly identical to the one at bar. In United States v. Stringer , the defendant contended his indictment was constitutionally defective due to its failure to identify a specific individual whose identification he used in his bank fraud scheme. 730 F.3d 120, 123 (2d Cir. 2013). That indictment alleged:

From in or about February 2007 up to and including in or about August 2007 ... [defendant] knowingly did transfer, possess, and use, without lawful authority, a means of identification of another person, to wit, one and more names, during and in relation to a felony enumerated in Title 18, United States Code, Section 1028A(c), to wit, the bank fraud
...

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