United States v. Miller

• Decision Date: 19 July 2022
• Docket Number: 20-4095, No. 20-4121
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. David Harris MILLER, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. David Harris Miller, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

41 F.4th 302

UNITED STATES of America, Plaintiff - Appellee,

v.David Harris MILLER, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.David Harris Miller, Defendant - Appellant.

No. 20-4095

No. 20-4121

United States Court of Appeals, Fourth Circuit.

Argued: May 3, 2022

Decided: July 19, 2022

ARGUED: Andrew Summer Levetown, LEVETOWN LAW LLP, Washington, D.C., for Appellant. Samantha Paige Bateman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Glenn F. Ivey, IV EY & LEVETOWN, Greenbelt, Maryland, for Appellant. G. Zachary Terwilliger, United States Attorney, Raj Parekh, Acting United States Attorney, Uzo E. Asonye, Assistant United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge King and Senior Judge Floyd joined.

WYNN, Circuit Judge:

David Harris Miller appeals from his convictions for conspiracy to commit fraud, conspiracy to launder money, and eight counts of mail or wire fraud. He argues that his trial was constitutionally defective, his indictment was constructively amended, his jury instructions prejudiced him, and his conviction for conspiracy to launder money must be reversed for lack of sufficient evidence. But his arguments—most of which were not properly preserved—are meritless. So, we affirm his convictions.

I.

On September 20, 2017, a grand jury indicted Miller on one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349 ("Count 1"); one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) ("Count 2"); four counts of mail fraud in violation of 18 U.S.C. §§ 1341 – 1342 ("Counts 3–6"); four counts of wire fraud in violation of 18 U.S.C. §§ 1342 – 1343 ("Counts 7–10"); and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)–(2) ("Counts 11–12"). The indictment also included a forfeiture notice for Miller's Fairfax, Virginia home and his Bethany Beach, Delaware vacation home.¹ Miller pleaded not guilty, and the case proceeded to trial.

After reviewing the Government's evidence at trial, Miller's evidence in defense, the trial's procedural history, and subsequent events, we conclude that Miller's trial was free from prejudicial error.

A.

In its case-in-chief, the Government called twenty-nine witnesses who testified that from 2011 to 2014, Miller worked as the General Counsel and Chief Compliance Officer at SkyLink Air and Logistic Support ("SkyLink"), a Canadian-based company with an office in Dulles, Virginia. During this period, Miller and his wife, Lynn Miller ("Lynn"), created two fake law firms, Federal Legal Associates and the Straile Group.

As a SkyLink employee, Miller began "exchanging" emails with fictitious individuals purportedly "employed" by these bogus firms. Many of the emails he supposedly received from these fake firms were later traced to the IP address for his Fairfax home. On several occasions, however, Miller sent messages from his own email addresses that were purportedly from employees at Federal Legal Associates or the Straile Group.

Emails from these fake firms often contained invoices for legal work allegedly performed for SkyLink. Templates for these invoices—complete with fake letterhead—were later discovered on Miller's SkyLink computer. Many of the submitted invoices referenced matters that had already been resolved. And there was no evidence that any SkyLink employee other than Miller ever saw any work product regarding these matters.

According to an expert witness, payments from SkyLink to these fake firms were wired to or deposited in bank accounts created by Lynn that ostensibly belonged to Federal Legal Associates and the Straile Group, as well as another bank account Lynn illicitly opened in the name of Miller's (legitimate) former employer, Federal Legislative Associates. On several occasions, Miller facilitated these transactions by hand delivering SkyLink checks to his wife so that she could deposit them. SkyLink ultimately paid out $368,350 to these fake entities before it discovered the expenditures and fired Miller on May 6, 2014.

Meanwhile, shortly before he became SkyLink's General Counsel, Miller—who has two children with autism—co-founded the Community College Consortium on Autism and Intellectual Disabilities ("the Consortium"). Miller and others purportedly formed this organization to help community colleges develop and fund programs for individuals with intellectual disabilities. For several years, Miller worked to solicit funding from colleges, Congress, and private individuals. All told, the Consortium raised over $783,000.

According to witnesses, Lynn was also intimately involved in the Consortium's work, and, as time went on, began taking on more of the day-to-day responsibilities for managing the organization. Eventually, Miller floated the idea of hiring Lynn as the Consortium's executive director on an unpaid basis. Though the other co-founders initially rejected the idea, Miller persisted until Lynn was hired. Once Lynn obtained control of the Consortium's bank account, she immediately began spending its funds on the Millers' personal expenses. In total, over a period of about four years, nearly 80% of the Consortium's assets—$619,025—were spent directly on personal expenses for the Millers or transferred to bank accounts they controlled—including the Federal Legal Associates and Straile Group accounts and the faux Federal Legislative Associates account.

Around the same time, Miller began "working on getting" Lynn selected as the treasurer for Virginia State Senator Richard Saslaw's reelection campaign (the "Saslaw Campaign"). J.A. 630.² Once she was selected for that position on a volunteer basis, Lynn got access to the campaign checkbook. Lynn used this checkbook to pay out over $633,000—about half of what Senator Saslaw raised during the 2013–14 campaign cycle—into the same three bank accounts mentioned above.³ When Senator Saslaw discovered these discrepancies, he terminated Lynn on September 5, 2014.

Government witnesses also testified at length about how the money siphoned from SkyLink, the Consortium, and the Saslaw Campaign was transferred and spent. An expert witness testified that once funds were deposited into bank accounts the Millers controlled, this money was generally shuffled between accounts, often by shifting it from the purported business accounts into the Millers' joint personal bank account. According to witnesses, there was "no reason" for shifting money between these accounts other than to hide that the Millers were paying bills with fraudulent proceeds. J.A. 982; see J.A. 1006–07, 1314–17.

The funds were then used for various personal expenditures. Some of these expenditures were for Miller's benefit alone, such as his country-club dues, child-support payments for a child from a previous relationship, and checks to his attorney. Other payments benefitted the Millers jointly, including mortgage payments for their Virginia home, private-jet rentals, and luxury vacations.

Due in part to this heavy spending, when SkyLink fired Miller, the balance in the Millers' joint bank account was $462.56 in the red. Neither Miller nor his wife held a paying job. Yet over the next four months, that joint account—kept afloat largely by transfers from the faux Federal Legislative Associates account—paid out over $165,000 to cover various personal expenses. Tens of thousands more, including a $25,000 mortgage payment, were paid out directly from the Federal Legislative Associates account during the same period.

B.

After the Government rested, Miller testified as the only witness in his defense.

On direct, Miller acknowledged creating Federal Legal Associates and the Straile Group while working for SkyLink. He stated that he created these entities for the betterment of SkyLink; specifically, he said that he wanted to help SkyLink research certain projects, but that such work was outside the scope of his employment responsibilities. So, he decided to start working under these entities on the side "to try to get the job accomplished," thinking that "the ends justified the means." J.A. 1471.28–29. Ultimately, he felt that he had "earned" the money SkyLink paid out to the fake firms. J.A. 1471.42.

Miller also claimed ignorance of the Consortium and Saslaw Campaign frauds because his wife managed the family finances, and he was "focused on doing [his] job." J.A. 1471.15. Though he acknowledged that some of the fraudulent proceeds from these entities went to pay for his own personal expenses, like child support, he stated that "Lynn just handled [those bills] automatically" and he "assumed" that "she would go forward and pay the expense." J.A. 1471.13. He also noted that at the time, he thought their family was in a good financial position because they had his $225,000-per-year SkyLink salary and low expenses.

On cross examination, however, he admitted that he had hatched a "deliberate" and "unethical" "scheme to deceive SkyLink" using bogus law firms, "fake communications," "fake individuals," and other falsities. J.A. 1471.91, 104, 110, 127. And while he initially claimed not to know where the money went or how it was spent, after further questioning he admitted knowing some details. For example, though he initially claimed he was unaware of the bank accounts Lynn opened for Federal Legal Associates and the Straile Group, he later acknowledged that he "intuitively" understood that funds paid out to these fake firms "had to be deposited somewhere." J.A. 1471.112; see also J.A. 1471.113 (acknowledging that he knew there was a bank account for Federal Legal Associates "[s]omewhere" because he delivered checks made out to that entity for his wife to deposit). Miller also conceded that he was...