United States v. Adam Miller , 531 F. App'x 569 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0699n.06
No. 11-6412
FILED
Jul 30, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
ADAM M. MILLER, ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
Before: KEITH, CLAY, and KETHLEDGE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Defendant appeals his conviction by jury for aiding
and abetting possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841, and
conspiring to commit promotional money laundering, in violation of 18 U.S.C. §1956. He argues
that the evidence was insufficient to support either charge, that the indictment was constructively
amended to reflect concealment money laundering instead of promotional money laundering, and
that the prosecutor committed misconduct by eliciting overview testimony and testimony about his
criminal record.
Defendant also appeals his 168-month sentence, arguing that it is substantively unreasonable.
He contends that the district court impermissibly considered his decision to go to trial and put too
much weight on the factors of deterrence and the impact of drug trafficking on the local community
when it calculated Defendant’s sentence.
For the reasons that follow, we affirm Defendant’s convictions and sentence.
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Sufficiency of the Evidence
On appeal, Defendant argues that the evidence was insufficient to convict him of aiding and
abetting possession with intent to distribute oxycodone and conspiring to commit promotional
money laundering. We review a challenge to the sufficiency of the evidence by examining the
evidence in the light most favorable to the Government and drawing all inferences in the
Government’s favor in order to determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. United States v. Cecil, 615 F.3d 678, 691 (6th
Cir. 2010). Because the record contained sufficient evidence for a rational trier of fact to convict
Defendant of aiding and abetting possession with intent to distribute oxycodone and conspiring to
commit promotional money laundering, we affirm.
Defendant was indicted as part of a thirty-six member conspiracy to transport oxycodone
from Florida for distribution in Tennessee from 2007 until 2009. Nicholas Raffa was the leader of
the drug distribution ring and pleaded guilty to several charges stemming from the conspiracy. Raffa
and several other cooperating co-conspirators—including Joseph Lees, Dustin Royle, Justin
Murabito, and Pepper Dawson—testified for the Government at Defendant’s trial.
The co-conspirators stored money and pills in a safe in a residence on Triangle Road in
Johnson City, Tennessee. After Defendant witnessed co-conspirators Lees and Patrick Jannett get
arrested, he alerted Raffa about the arrests. As a result, Raffa flew to Tennessee to recover the safe.
Subsequently, Raffa and several other co-conspirators broke open the safe and recovered the
contents. After their arrests, Lees and Jannett agreed to cooperate with authorities.
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At trial, Lees testified that he told investigators that his girlfriend, Delilah Jimenez, had
delivered pills to a residence on Triangle Road in Johnson City. Lees participated in four recorded
phone calls on August 31, 2007. In the first call—after Defendant had witnessed Lees get
arrested—Defendant called Lees’s girlfriend to “make sure everything was okay.” During the call
Jimenez gave the phone to Lees. Lees asked Defendant if he had spoken to Raffa. Defendant
offered to put Dustin Royle on the phone, stating that Royle had been with Raffa that day. Lees
informed Defendant that someone had gone into his house. Defendant replied that it was “to get
[Lees’s] safe.”
During the second call, Lees asked Defendant where he could pick up his “shit.” Defendant
directed Lees to call a woman named Whitney and gave Lees a phone number. During the fourth
recorded call, Lees stated he was about to meet Whitney to retrieve the pills from the safe, but that
he needed to “get in touch” with Raffa because Lees did not have the keys to the safe. Defendant
replied that other co-conspirators had already broken the safe open and thrown it away and saved the
pills. Defendant asked Lees to leave some pills with Whitney for Defendant.
At trial cooperating co-conspirator Pepper Dawson also testified for the Government. She
testified that she drove Defendant to deposit or wire drug proceeds two or three times. Moneygram
and Western Union documentation in the record showed that someone named “Adam Miller” sent
$16,240 over eight transactions to Silas Nelson and Arnoldo Compean between July 10, 2008 and
August 14, 2008; Nelson and Compean were high level members of the conspiracy. Murabito also
testified that after purchasing pills from Defendant on one occasion, Defendant hired him to wire
$1,500 to Compean so that Defendant could “obtain more pills.”
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On appeal, Defendant argues that his recorded telephone conversations with Lees were
insufficient to show that he aided and abetted Raffa’s retrieval of oxycodone from Lees’s safe.
However, that argument artificially narrows the evidence that supports Defendant’s conviction for
aiding and abetting possession of oxycodone with intent to distribute.
To prove that Defendant aided and abetted a criminal offense, the Government must show
(1) an act by Defendant that contributes to the execution of the crime and (2) the intent to aid in the
crime’s commission. United States v. Bronzino, 598 F.3d 276, 279 (6th Cir. 2010). Defendant does
not dispute that he and Raffa were part of a conspiracy to both distribute oxycodone and possess
oxycodone with the intent to distribute it. Defendant only disputes that he aided and abetted
possession with intent to distribute oxycodone.
Defendant’s recorded phone calls with Lees were not the only evidence that Defendant aided
and abetted possession of oxycodone with intent to distribute. Raffa testified that he flew to
Tennessee to retrieve about 1,000 oxycodone pills from the safe because of Defendant’s alert that
co-conspirators Jannett and Lees had been arrested. Defendant does not dispute that he knew that
Raffa was part of a conspiracy to distribute oxycodone. Given that knowledge, on the basis of the
above evidence, a rational trier of fact could find that Defendant aided and abetted possession with
intent to distribute oxycodone by finding that he (1) contributed to Raffa’s possession of oxycodone
with (2) the intent to aid his distribution by alerting Raffa about Jannett and Lees’s arrests.
On appeal, Defendant also argues that the evidence was insufficient to prove that Defendant
conspired to commit promotional money laundering with the specific intent to promote Raffa’s
oxycodone operation. Instead, Defendant argues that his true animating purpose was to obtain
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oxycodone for his own personal use, not promote the conspiracy. While we recognize that
Defendant has a substance abuse problem and commend his demonstrated efforts toward recovery,
the evidence in this case was sufficient to support his conviction for conspiracy to commit
promotional money laundering.
To prove that Defendant conspired, the Government only needs to show “a tacit or material
understanding among the parties.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009). Direct
evidence is not necessary; the Government only needs to prove that he was “a party to the general
conspiratorial agreement.” United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986). To show
that Defendant committed promotional money laundering, the Government must prove that
Defendant (1) conducted a financial transaction with the proceeds of unlawful activity; (2) knew the
property involved was proceeds of unlawful activity; and (3) intended to promote that unlawful
activity. United States v. Warshak, 631 F.3d 266, 317 (6th Cir. 2010). Defendant only disputes that
he intended to promote the unlawful activity—oxycodone distribution—when he wired money.
The evidence indicates—and Defendant does not dispute—that he was sending large sums
of money to upper level co-conspirators in Florida, receiving large amounts of pills in return, and
distributing at least some of those pills. On the basis of that concession alone, a rational trier of fact
could find that Defendant had the specific intent to promote Raffa’s oxycodone operation. However,
there was additional evidence at trial of Defendant’s intent to promote oxycodone distribution:
Murabito testified that Defendant hired him to wire drug proceeds to “obtain more pills.”
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Constructive Amendment of the Indictment
Defendant argues that his Fifth Amendment right to be tried only for an indicted crime was
violated because the indictment was constructively amended. Defendant argues that count three of
the indictment was constructively amended from promotional money laundering to concealment
money laundering by references to the concealment variety of money-laundering during the
Government’s opening statement and Department of Justice financial investigator Agent Karl Oroz’s
trial testimony. The specific statements by the Government and Agent Oroz are discussed in the
analysis below.
We review de novo whether an indictment was constructively amended. United States v.
Smith, 320 F.3d 647, 656 (6th Cir. 2003). A constructive amendment happens “when the terms of
the indictment are in effect altered by the presentation of evidence and jury instructions which so
modify essential elements of the offense charged that there is a substantial likelihood that the
defendant may have been convicted of an offense other than that charged in this indictment.” United
States v. Solorio, 337 F.3d 580, 590 (6th Cir. 2003) (emphasis added).
First, Defendant complains of the Government’s opening statement that the money
laundering count involved “the placing of funds into a financial transaction so that once they travel
through a bank or some other financial transaction the funds look clean on the other side.” However,
opening statements do not constitute evidence. Further, the district court specifically instructed the
jury that statements by counsel are not evidence. In this case, the district court gave an instruction
that protected against—instead of aggravated—the statement about which Defendant complains.
We cannot say that there was a substantial likelihood that the jury convicted Defendant of
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concealment money laundering instead of promotional money laundering on the basis of one
statement by counsel on the first day of trial during a three-day trial followed by a curative
instruction.
Second, Defendant complains of Agent Oroz’s definition of money laundering that included
financial transactions designed to “promote the unlawful activity” or “to disguise or conceal” the
nature of the proceeds. Oroz’s statements about which Defendant complains were part of Oroz’s
initial general explanation of what constitutes money laundering. Later in his testimony that
pertained to the instant case, Oroz stated, “what was indicted here was the promotion of unlawful
activity, not the attempt to conceal.” Because Oroz specifically testified that the indictment only
included promotional money laundering and did not include concealment money laundering, we
cannot say that there was a substantial likelihood that the jury convicted Defendant of concealment
money laundering instead of promotional money laundering.
Prosecutorial Misconduct: Agent Oroz and Officer Commons
Financial investigator Agent Karl Oroz previously was a special agent with the IRS for
twenty-five years. At trial, Agent Oroz’s testimony included the following exchanges:
Q. Okay. Now you’ve heard testimony, you’ve been sitting in the Trial yesterday
and today, correct?
A. Yes, I have.
Q. And you’ve heard testimony about these wire transfers, correct?
A. Correct.
Q. Based on that testimony, in your experience what do these wire transfers
represent?
A. They’re proceeds from the pill distribution here in Tennessee that was going
down to Florida, and either Silas Nelson or Arnoldo Compean would eventually get
that money to Nick Raffa, or a percentage of that.
***
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Q. Now, you also heard testimony of Mr. Miller’s personal involvement in
transporting and selling pills, correct?
A. Yes.
Q. Do you have an opinion as to his knowledge as to where this money might
have come from?
A. I believe he had to know whether it came from the sale and distribution of the
Oxycodone pills.
Drug Enforcement Agency Task Force Officer Mike Commons participated in investigating
this conspiracy since 2007. At trial, Officer Commons’s testimony included the following
exchanges:
Q. Now, you’ve discussed some of the players in this case, and the different
types of players in a drug Conspiracy . Based upon your experience with this case,
and your investigation, where did Adam Miller fit into that? What type of player was
he?
A. He was, like a lot of these people, he was in and out. At the beginning he
handled the meetings, he was the original person that Nick Raffa was up here to meet
to start selling pills. When Nick first brought up the 80 milligram OxyContin to sell.
So he handled distribution at that point. Then, as I said, when Patrick Jannett got in
trouble Adam Miller kind of faded out, because he owed Nick Raffa money. Raffa
needed the money, he stopped trusting him, therefore he didn’t use him any more.
Towards the end he had to build that trust back up, and through Paul Seifert, Paul
convinced Nick Raffa,“Hey, let him start doing some of the transporting, and it will
show that the transport is good. Instead of paying him it will help offset what he owes
you,” and then Paul would take care of him, and then further on then Adam would
start selling. Paul would give him pills, and he would take care of selling them, or
distributing for Paul, or delivering for Paul.
Defendant argues that the Government committed prosecutorial misconduct by eliciting
overview and opinion testimony from Agent Oroz and Officer Commons regarding the ultimate issue
of his guilt.
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Defendant did not object to Oroz’s or Commons’s testimony in the district court; therefore,
we review for whether a plain error affected Defendant’s substantial rights. United States v.
McAuliffe, 490 F.3d 526, 530–31 (6th Cir. 2007).
Assuming arguendo that it was plain error to admit any of the testimony about which
Defendant complains, we cannot say that Defendant’s substantial rights were affected. The evidence
of Defendant’s guilt was overwhelming in this case. Given the strength of the evidence against
Defendant, his substantial rights would not have been affected by the erroneous admission of
overview opinion testimony.
Prosecutorial Misconduct: Chelsea Lewis
At trial, Defendant’s ex-girlfriend, Chelsea Lewis, testified. On appeal, Defendant complains
about the following exchange:
Q. Okay, and how did you separate from Mr. Miller?
A. Well, we, I called the cops on him for a Domestic Assault. One of
my, it was, he didn’t actually beat me up or anything, but he was just really
intoxicated, and came in, and we got in a fight, and then he said he was
leaving and I was going to just lock the door and let him go, but he wanted
back in, and then started punching the windows out, and blood was
everywhere, and I just freaked out and called the cops, and they arrested him
because he had kicked me, and they actually took a picture of where he had
kicked me. They said it was Domestic Assault and took him to jail, and I
went home with my parents at that point, and didn’t. . .
[Defense Counsel]: Objection . . .
At trial, Defendant objected to this line of questioning. The district court summarily overruled the
objection, agreeing with the Government that the testimony was relevant to the time line of the case.
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On appeal, Defendant argues that the Government committed prosecutorial misconduct for
eliciting testimony from Chelsea Lewis regarding a domestic assault charge she filed against
Defendant because that charge was unrelated to the conspiracy charge.
We review the district court’s decision to admit the testimony for an abuse of discretion
where a party objected to the testimony at trial. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716
(6th Cir. 1999). Prosecutorial misconduct occurs where the government makes improper statements
and the improper statements were flagrant and warrant reversal. United States v. Crayton, 357 F.3d
560, 572 (6th Cir. 2004).
The only question that the Government asked Lewis before she began describing the
domestic assault was, “How did you separate from Mr. Miller?” Lewis’s response about the
domestic assault was unprompted by the Government. We cannot say that the Government made
an improper statement or committed misconduct by asking Lewis how she separated from
Defendant.
Reasonableness of Sentence
At sentencing, the district court granted Defendant’s request for a two-level mitigating role
reduction. The district court found that Defendant’s guideline range was 168 to 210 months, based
on an offense level of 32 and criminal history category of IV. Defendant does not dispute that the
district court properly calculated the Guidelines range applicable to him. After the district court
calculated Defendant’s applicable Guidelines range, it discussed the fact that investigators and the
Government had spent two years pursuing thirty six arrests and convictions in this conspiracy. The
district court stated that § 3553(a) required it to impose a sentence that was sufficient but not greater
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than necessary to comply with that statute. The district court sentenced Defendant to the floor of the
applicable Guidelines range—168 months.
On appeal, Defendant argues that his sentence is substantively unreasonable because the
district court improperly put undue weight on his decision to go to trial, the need for general
deterrence, and the impact of drug trafficking on the local community. Defendant also argues that,
even if the three convictions remain undisturbed on appeal, he should receive a sentence between
fifty-seven and seventy-one months to eliminate sentencing disparities with respect to his co-
conspirators.
We review a district court’s sentencing decision under a deferential abuse-of-discretion
standard. United States v. Lumbard, 706 F.3d 716, 721 (6th Cir. 2013). A within-Guidelines
sentence is presumptively reasonable. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008).
The district court imposed on Defendant the lowest possible sentence in the advisory
Guidelines range after discussing the resources that went into prosecuting this conspiracy, the need
for general deterrence, and the impact of drug trafficking on the local community. Defendant cannot
rebut the presumption that his sentence was reasonable merely by alleging that he should have
received a sentence lower than the bottom end of his advisory range. See United States v. Dexta, 470
F.3d 612, 616 (6th Cir. 2006).
Defendant’s sentencing disparity argument does not rebut the presumption that his sentence
was reasonable because sentencing disparity concerns pertain to national disparities for similarly
situated defendants, not disparities between co-defendants. United States v. Conatser, 514 F.3d 508,
521 (6th Cir. 2008) (“[T]he need to avoid unwarranted sentence disparities among defendants with
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similar records who have been found guilty of similar conduct . . . concerns national disparities
between defendants with similar criminal histories convicted of similar criminal conduct—not
disparities between codefendants.”).
Because the evidence was sufficient to convict Defendant, the indictment was not
constructively amended, Defendant’s substantial rights were not affected by any prosecutorial
misconduct, and Defendant’s sentence was reasonable, we AFFIRM Defendant’s conviction and
sentence.