United States v. Miller

• Decision Date: 30 October 2013
• Docket Number: No. 12–6501.,12–6501.
• Citation: 734 F.3d 530
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Eugene MILLER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

734 F.3d 530

UNITED STATES of America, Plaintiff–Appellee,

v.David Eugene MILLER, Defendant–Appellant.

No. 12–6501.

United States Court of Appeals,Sixth Circuit.

Argued: Aug. 1, 2013.

Decided and Filed: Oct. 30, 2013.

ARGUED:Eli J. Richardson, Bass, Berry & Sims PLC, Nashville, Tennessee, for Appellant. Sandra G. Moses, United States Attorney's Office, Nashville, Tennessee, for Appellee. ON BRIEF:Eli J. Richardson, Bass, Berry & Sims PLC, Nashville, Tennessee, for Appellant. Sandra G. Moses, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant David Miller appeals his convictions by a jury of two counts of making false statements to a bank, in violation of 18 U.S.C. § 1014 (Counts One and Four), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts Two and Three). Miller argues that he is entitled to a reversal of all convictions because on Count One, he was subjected to a prejudicial variance at trial and the district court did not, sua sponte, give the jury a specific unanimity instruction; on Counts Two and Three, he did not “use” a means of identification under § 1028A; and on Count Four, he did not make a “false statement” under § 1014. For the reasons that follow, we affirm the conviction on Count One, reverse the remaining convictions, vacate Miller's sentence, and remand for further proceedings.

I.

Defendant Miller and his pastor William Wellons wanted to buy a parcel of real estate from a farmer as an investment property. Wellons negotiated with the farmer and agreed to purchase the land for a little over $790,000. The purchase was set to close on May 30, 2007.

Miller formed Fellowship Investors, LLC (“Fellowship”) to purchase the land and recruited investors to purchase investment units in the company. Miller calculated that Fellowship needed $900,000 in funding to cover the purchase price, costs related to acquiring the land, and expenses associated with Fellowship's management. Eight investment units valued at $112,500 each were established to raise the needed funds. Miller and Wellons did not purchase an investment unit. They nevertheless each acquired an ownership interest in Fellowship through their service to the company: Miller obtained a 19.5% interest because he was Fellowship's manager and Wellons obtained a 4.5% interest because he was Fellowship's secretary. Ultimately, Miller secured $675,000 in investments before the closing date.

Because Miller had not raised $900,000 before the closing, he approached First Bank to obtain a loan. Miller represented to Joe Stocker of First Bank that the David E. Miller Development Company, Inc. (“DEMCO”), one of Miller's real estate development companies, needed a $337,500 loan to purchase a piece of real property. Miller told Stocker that he wanted to purchase the property with cash, but had run out of time to secure investors prior to closing and planned to pay off the loan within six months with investor funds. First Bank agreed to loan $337,500 to DEMCO, with the property that Fellowship was going to acquire pledged as collateral.

Because DEMCO pledged Fellowship's property as collateral, First Bank required a written resolution from the members of Fellowship showing that they had authorized DEMCO to take such action. On May 24, 2007, First Bank sent a letter to the closing attorneys requesting that such a resolution be prepared before closing. The closing attorneys prepared a resolution, but it omitted a clause whereby the members of Fellowship specifically authorized DEMCO to pledge Fellowship property as collateral. First Bank supplied the necessary language, and the closing attorneys updated the resolution.

On May 25, 2007, the closing attorneys sent the updated resolution to First Bank, Wellons, and Miller's assistant for review. Wellons noticed that it was still incomplete because it did not list all members of Fellowship. He contacted Miller for the member list because he did not have that information. After Miller supplied Wellonswith the names of all Fellowship members, Wellons handwrote those names on the updated resolution, signed it as Fellowship's secretary, and faxed it to the closing attorneys.

The Fellowship resolution contained two false statements: (1) that all Fellowship members were present at a meeting, and (2) that at this nonexistent meeting, they unanimously voted to allow the property to be pledged as collateral for a $337,500 loan to DEMCO. When Wellons signed the resolution, he did not know these statements were false because he thought that Miller had spoken to all members of Fellowship about the DEMCO loan and that they all agreed to allow DEMCO to pledge Fellowship property as collateral. In truth, Fellowship's members, other than Miller and Wellons, believed that the property was being purchased free and clear of any encumbrances and they did not agree, nor would they have agreed if asked, to the property being pledged as collateral.

On May 30, 2007, the closing attorneys closed both Fellowship's purchase of the property and First Bank's loan to DEMCO. As Fellowship's “Authorized Signer” at the closing, Miller executed two agreements: (1) a Deed of Trust granting First Bank a security interest in the property and (2) a Multipurpose Note and Security Agreement, which included a Third Party Agreement pledging the property as collateral for DEMCO's loan (the “Note”). Because Miller had collected $675,000 from Fellowship's investors and $337,500 from First Bank, for a total of $1,012,500, he obtained $112,500 from the loan over and above the $900,000 that he told investors was needed to purchase the property. After the closing, $146,956.75 remained in Fellowship's account.¹

A few months later, First Bank conducted a review of the loan file and discovered that it did not contain a copy of the Fellowship resolution signed by both Wellons and Miller. First Bank eventually obtained from the closing attorneys a copy of the resolution, which had a heading indicating that it had been faxed from DEMCO on July 23, 2007. Miller does not deny that his signature is on that resolution or that First Bank required this resolution to close the loan. First Bank also required Miller to re-sign the Third Party Agreement in the Note on August 27, 2007, as Fellowship's “Manager,” rather than its “Authorized Signer,” so that all documents were consistent with Fellowship's Operating Agreement.

By August 2008, Miller had exchanged all of his ownership interests in Fellowship for satisfactions of debt from various creditors who were not involved with the Fellowship investment. Despite having no ownership interest in Fellowship, on August 5, 2008, Miller modified and renewed the DEMCO loan with First Bank. The modification and renewal agreement referenced the agreements Miller executed on May 30, 2007.

In July 2009, Miller advised Fellowship's member investors for the first time that he had taken out a $337,500 loan to pay for his investment in Fellowship and that Fellowship's property secured this “personal loan.” Three months later, law enforcement interviewed Miller regarding the Fellowship investment. Miller admitted he obtained a bank loan to fund his portion of the investment. Questioned about the resolution which authorized him to pledge Fellowship property as collateral for his loan, Miller stated that it was causing him “misery and grief among the fellow investors” and that its existence was a “mystery.” He admitted to providing the resolution to the bank but later denied knowledge of the document and continued to state it was a mystery. Miller also acknowledged that his failure to tell Fellowship investors about the mortgage was a “huge slip-up.”

On March 29, 2012, the government charged Miller in a second superseding indictment with two counts of making false statements to a bank (Counts One and Four), in violation of 18 U.S.C. § 1014, and two counts of aggravated identity theft (Counts Two and Three), in violation of 18 U.S.C. § 1028A. A jury found Miller guilty on all counts after a three-day trial. The district court sentenced Miller to twenty-one months of imprisonment on the false statement convictions, to run concurrently, and twenty-four months on the aggravated identity theft convictions, to run concurrently as to each other but consecutively as to the false statement convictions, for a total of forty-five months of imprisonment. The court also sentenced Miller to two years of supervised release and ordered him to forfeit $337,500. Miller timely appealed.

II.

Miller first argues that his conviction on Count One must be reversed due to a prejudicial variance regarding the date he made the false statement and, alternatively, because the district court did not, sua sponte, give the jury a specific unanimity instruction pertaining to the making of the false statement. We address each argument separately.

A.

Miller claims that a prejudicial variance occurred below because, although Count One charged that “on or about May 30, 2007,” he made a single false statement to First Bank, i.e., that he had the authority to pledge Fellowship's property as collateral for DEMCO's loan, the government presented evidence that Miller made this false statement in six different ways on four different dates.² The government responds that there was no variance because only one falsehood was alleged and proved at trial—that Miller falsely represented to First Bank, on three separate occasions, that he had the authority to pledge Fellowship's property as collateral for DEMCO's loan. ³

In general, we review the record de novo to determine whether a variance has occurred. United States v. Robinson, 547 F.3d 632, 642 (6th Cir.2008). However, where the issue is raised for the first time on appeal—as is the case here—we are limited to plain-error review. United States v. Kuehne, 547 F.3d 667, 682 (6th...