Filed: Sep. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4461 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY R. MILLER, a/k/a Tony Miller, Defendant - Appellant. No. 09-4462 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CATHERINE MILLER, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00023-jpj-pms-1; 1:08-cr-00023-jpj- pms-2) Submitted: August 1
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4461 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY R. MILLER, a/k/a Tony Miller, Defendant - Appellant. No. 09-4462 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CATHERINE MILLER, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00023-jpj-pms-1; 1:08-cr-00023-jpj- pms-2) Submitted: August 12..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY R. MILLER, a/k/a Tony Miller,
Defendant - Appellant.
No. 09-4462
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CATHERINE MILLER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:08-cr-00023-jpj-pms-1; 1:08-cr-00023-jpj-
pms-2)
Submitted: August 12, 2010 Decided: September 2, 2010
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Scyphers, SCYPHERS & AUSTIN, PC, Abingdon, Virginia,
for Appellants. Julia C. Dudley, United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Anthony Miller was convicted following a jury trial of
two counts of making false statements affecting disability
insurance to the Social Security Administration (“SSA”) in
violation of 42 U.S.C. § 408(a)(3) (2006), and one count of
concealing events affecting his continued right to disability
insurance in violation of 42 U.S.C. § 408(a)(4) (2006).
Catherine Miller, his wife, was convicted of one count of making
false statements to the SSA, also in violation of 42 U.S.C.
§ 408(a)(3). Anthony Miller was sentenced to six months in
prison, while Catherine Miller was sentenced to fifteen months
in prison.
On appeal, the Millers raise five issues: (1) whether
there was sufficient evidence to sustain their convictions;
(2) whether the district court erred in admitting documents from
Anthony Miller’s SSA file; (3) whether the district court erred
in admitting investigatory notes taken during an interview with
the Millers; (4) whether the district court erred in admitting
evidence from outside the chronological scope of the indictment;
and (5) whether the district court erred in excluding evidence
of the Millers’ pending SSA appeal. For the reasons that
follow, we affirm.
3
I. Sufficiency of the Evidence
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). This court reviews a sufficiency
of the evidence challenge by determining whether, viewing the
evidence in the light most favorable to the government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. United States v. Collins,
412
F.3d 515, 519 (4th Cir. 2005). We review both direct and
circumstantial evidence, and accord the Government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey,
532 F.3d 326, 333
(4th Cir. 2008). In reviewing for sufficiency of the evidence,
we do not review the credibility of the witnesses, and we assume
that the jury resolved all contradictions in the testimony in
favor of the Government. United States v. Kelly,
510 F.3d 433,
440 (4th Cir. 2007). We will uphold the jury’s verdict if
substantial evidence supports it, and will reverse only in those
rare cases of clear failure by the prosecution.
Foster, 507
F.3d at 244-45.
Here, the Government introduced substantial evidence
that Anthony and Catherine Miller made false statements to the
SSA. In October 2004, Anthony Miller wrote to the SSA and
stated that he was unable to do more for his business, Tony
4
Miller Construction, than “give some advice occasionally.”
Later, in a 2006 interview with an SSA claims representative,
the Millers each stated that Catherine Miller did all of the
work in the company. In a later interview with SSA Office of
Inspector General Agent Paul Ragland, the Millers stated that
“it is not correct that Catherine Miller does all the work.”
While Catherine Miller disputes this account of their interview
with Agent Ragland, the jury was entitled to make a credibility
determination and conclude that Agent Ragland was credible when
he testified as to his interview with the Millers.
In addition, the Government introduced the testimony
of numerous witnesses who described Anthony Miller taking an
active role in the running of the construction business;
engaging in a broad range of activities such as making repairs
to homes, negotiation of contracts, and supervision of
employees. Though Anthony Miller does have a life-threatening
brain tumor that has caused him significant vision impairments,
the jury had sufficient evidence before it to determine that he
was still actually working. While the Millers introduced
testimony from a vocational expert who determined that based on
Anthony Miller’s disability, there was no job that he could
perform, the jury was free to reject that opinion as
contradicted by the testimony of Government’s witnesses who saw
Anthony Miller actually performing significant work.
5
In addition, the Government introduced evidence that
Anthony Miller knew he was under an obligation to inform the SSA
if he was able to work while he was receiving disability
insurance benefits, and that he did not do so.
The evidence was thus more than sufficient to show
that Anthony and Catherine Miller made false statements to the
SSA, and that Anthony Miller was able to work and failed to
disclose that information to the SSA.
II. Admissibility of SSA Documents
Through the testimony of James Horton, an SSA Acting
District Manager, the Government admitted several documents from
Anthony Miller’s SSA file, including Anthony Miller’s 1994 SSA
application, his 2004 work activity report, and his tax returns
for 2002 through 2005. The Millers argue that Horton’s
testimony was insufficient to authenticate these documents and
they should have been excluded.
The authentication requirement may be met by “evidence
sufficient to support a finding that the matter in question is
what its proponent claims.” Fed. R. Evid. 901(a). By way of
illustration, the rule provides that public records may be
authenticated by providing evidence that the record is from the
public office where items of that nature are kept. Fed. R.
Evid. 901(b)(7). Here, the district court had ample evidence
6
that Anthony Miller’s social security filings were kept at the
SSA as a matter of course. Horton, though not the custodian of
the records, testified that he received them from another SSA
office, and that they are in the custody of the SSA office.
Horton’s testimony was sufficient to authenticate the documents
from Anthony Miller’s SSA file.
For the first time on appeal, the Millers argue that
introduction of the documents was improper in light of the Sixth
Amendment’s Confrontation Clause, Crawford v. Washington, 541
U.S. 36 (2004), and the recent Supreme Court decision in
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
However, the documents were not prepared for the purpose of
proving some fact at trial, and are therefore not testimonial
within the meaning of the Confrontation Clause. See
Crawford,
541 U.S. at 51. Thus, this argument fails.
III. Admissibility of Agent Ragland’s Notes
The district court, over the Millers’ objection,
admitted the notes that Agent Ragland took during his interview
with the Millers. At trial, Ragland testified that he took
notes. Catherine Miller testified that she did not see Ragland
taking notes during the interview. The district court admitted
the notes into evidence during Ragland’s rebuttal testimony.
Ragland’s notes are probative here, not necessarily for their
7
content, but for their value to the jury in weighing the
credibility of witnesses as to a disputed fact, i.e., whether
notes were taken during Ragland’s interview with the Millers.
We do not see a basis for excluding the notes under Fed. R.
Evid. 403, as the notes’ prejudicial effect did not
substantially outweigh their probative value. *
IV. Evidence Outside the Scope of the Indictment
The Millers argue that the district court improperly
allowed witnesses to testify as to work allegedly performed in
2002, prior to the date listed in Count Four of the indictment.
Evidence of events prior to 2003 was relevant and admissible,
even though Count Four of the indictment alleged crimes that
took place in 2003 and later. The Millers’ conduct prior to
2003 was at issue at trial, given that the allegedly false work
history reports were generated in response to the Millers’ 2002
tax return. Evidence that Anthony Miller was working in 2002 is
relevant to show that the Millers’ numerous claims that
Catherine Miller did all the work in 2002 were false. The
*
The case cited by the Millers as a basis for exclusion,
United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), is
inapplicable. Al-Moayad dealt with an undercover informant
whose notes were taken after the fact and admitted for the truth
of their content, not as evidence that notes were taken.
8
district court did not err in admitting testimony that Anthony
Miller worked in 2002 and earlier.
V. Admissibility of Evidence of the Millers’ Pending SSA
Appeal
The Millers argue that the district court erred in
refusing to admit evidence that they had an appeal pending
before the SSA on the issue of whether Anthony Miller’s Social
Security disability benefits should be suspended. Relevant
evidence may be excluded if “its probative value is
substantially outweighed by danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
The district court was within its prerogative to
exclude evidence of the Millers’ pending SSA appeal on the basis
of Fed. R. Evid. 403. Whether the Millers had an appeal pending
before the SSA at the time of trial was of no moment to the
ultimate issues in the case: whether the Millers made
materially false statements to the SSA and whether Anthony
Miller failed to disclose the fact that he was working. The
district court could have properly concluded that evidence of
this sort was likely to confuse the jury and unduly delay the
trial.
9
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
10
