United States v. Miller

45 F. App'x 359
Court of Appeals for the Sixth Circuit·Decided August 15, 2002·No. No. 01-5581·Published·Cited by 6 cases

Opinion

PER CURIAM.

Appellant Melanie Miller appeals from the judgment of conviction and sentence imposed on one count of fraudulent use of an access device, in violation 18 U.S.C. § 1029(a)(5). She contends that the district court erred in imposing an enhancement for obstruction of justice and in denying a reduction for acceptance of responsibility. For the following reasons, we AFFIRM.

I.

In July 1999, the Navy Personnel Command at Millington, Tennessee conducted a fiscal oversight review of the Navy Memphis Flying Club and found numerous discrepancies. Miller, then the manager of the Flying Club, admitted to the Naval Criminal Investigative Services that she used two government credit cards assigned to the Flying Club for personal expenditures, but denied that she had embezzled funds. A naval audit of the Flying Club’s financial records uncovered Miller’s repeated misuse of the Flying Club’s funds.

The Navy audit also revealed that on February 22, 1999, the People’s National Bank of Millington, Tennessee issued a signature loan of $8,550.00 to Miller in the name of the Navy Memphis Flying Club. The stated purpose of the loan was to construct and repair the roof at the Flying Club. Miller, however, applied for and received the loan without consulting with the members or the Board of Directors. The Navy audit revealed that only $1,102 of the loan money was actually used for roof repairs and that the remainder was deposited into the Navy Memphis Flying Club’s account and used to cover up Miller’s other fraudulent activities.

Miller was indicted on two counts. Count I charged her with knowingly making a false statement to People’s National Bank for the purpose of influencing the [361]*361bank’s actions with the application for a loan, in violation of 28 U.S.C. § 1014. Count II charged Miller with fraudulent use of access devices issued to the Memphis Flying Club, in violation of 18 U.S.C. § 1029(a)(5). She pleaded guilty to Count II on August 28, 2000, and the district court entered an order accepting the guilty plea on September 12, 2000.

The probation office issued the presen-tence report on September 28, 2000. The presentence report recommended a two-point reduction for acceptance of responsibility and no enhancement for obstruction of justice. On October 2, 2000, the Government indicated that it had no objections to the facts contained in the presentence report, but wished to reserve its position on acceptance of responsibility and obstruction of justice until the defendant set forth her position on relevant conduct. On November 1, 2000, the probation office issued its first addendum to the presen-tence report. On December 4, 2000, Miller filed her response to the presentence report. She objected primarily to the offense conduct and relevant conduct sections of the report. The probation office filed a second addendum in response. On February 21, 2001, the Government advised the probation office that it considered Miller’s objections to be “an attempt to frivolously contest relevant conduct,” and requested that Miller be denied the two-level reduction for acceptance of responsibility. On February 22, 2001, the probation officer filed a third addendum. After responding to the individual objections, the probation officer agreed that “the defendant is now frivolously contesting relevant conduct” and that she should not receive the acceptance of responsibility reduction.

On February 28, 2001, Miller filed a second supplemental response to the pre-sentence report. It included the following objection:

Ms. Miller objects to the characterization of her attempts to gain a clear record as to how much she used of Navy Flying Club funds for her own personal use as “frivolous.” She is fully aware that she did wrong, and that her inability to keep accurate records has exacerbated the problem. She intends to continue to cooperate fully with the United States in ascertaining the exact amount she owes to the United States, both for sentencing purposes and for restitution purposes.

On March 2, 2001, the district court held a sentencing hearing regarding the amount of loss suffered and the amount of restitution due. Miller testified regarding several of the issues raised in her objections to the presentence report. On direct examination, Miller stated that she began working at the Navy Flying Club sometime between 1997 and 1998. She characterized her bookkeeping abilities as “lousy.” Miller reviewed the Government’s summary of the various amounts for which she was accountable. Miller testified that she knew she owed $5,042.95, but was unsure whether she owed on several other entries because there were no receipts for some of the charges. She did acknowledge, however, that she might possibly be responsible for the full amount. She also stated that she was “absolutely” guilty of “having taken the money.”

Next, Miller testified about the loan. She initially stated that she spoke with David Restor of Maintenance Plus, who provided her with an estimate on the roof repair. She stated that Don Litton of the Public Works Department had been trying to get the Navy to fix the roof for years but was unsuccessful. She then stated that: “I went ahead and applied for the loan because I spoke to Michael Lillo, a [362]*362couple other people on the board in passing. It was not a sit-down formal meeting, no. And we got the loan and began work.” Later, on cross-examination, Miller admitted that she did not have permission from the board or that of any officer to secure the loan for the roof repair. She stated: “I spoke to the treasurer about it, yes, but I don’t believe I had permission to do it as such. I don’t think I asked for permission to do it.” When asked by the Government whether she asked anybody for permission, she stated: “No, I discussed it. I did not ask for permission. I did not know I needed permission as the manager.”

Miller also testified that leftover money from the loan repairs was used to pay the Flying Club’s outstanding debts. Miller further stated that she deposited checks numbered 11403 and 11404, which had been issued on the contract phots for the Club, into the Club’s account. Finally, she indicated that she purchased money orders with her own funds to pay the Club’s debts because there was not enough money in the Club’s account to pay for them.

The Government introduced contrary evidence. Special Agent Rick Yell refuted Miller’s testimony that David Restor knew of the loan. Yell also indicated that Miller told the president of the Club, Sam Robinson, that the roof could be repaired with existing funds.

Daniel Cejka, the auditor of the Club’s accounts, also testified. He stated that the loan deposit concealed the misuse of the Club’s funds because it was presented as revenue rather than a loan, which would have been placed in accounts payable. The records introduced through Cejka also failed to reveal the deposits Miller claims she made into the accounts. Finally, Alicia Mrozowksi, the second auditor, testified that there were no records of any money order payments.

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United States v. Miller, 45 F. App'x 359 (6th Cir. 2002).

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