Court: Court of Appeals for the D.C. Circuit; December 12, 1995; Federal Appellate Court
Richard Anthony Miller appeals his convictions for bank fraud and access device fraud. The United States Court of Appeals for the District of Columbia Circuit, after considering the evidence in favor of the government, affirms the convictions. Miller, who worked as an aide to D.C. City Council member Wilhelmina Rolark, cashed checks drawn on her account and had access to her ATM card, which she did not authorize him to use. Following unauthorized electronic withdrawals totaling $11,100, Rolark reported the transactions to Riggs National Bank, leading to an investigation that identified Miller through security camera footage. He was indicted under 18 U.S.C. § 1344 for bank fraud and § 1029(a)(2) for access device fraud, convicted by a jury, and sentenced to six months' suspended imprisonment and three years' probation. Miller's appeal raises multiple arguments against the convictions.
Miller argues for the reversal of his bank fraud conviction, claiming insufficient evidence for each element of the offense as charged under 18 U.S.C. Sec. 1344. The statute prohibits participation in either a scheme to defraud a financial institution (Sec. 1344(1)) or obtaining property from a financial institution through false pretenses (Sec. 1344(2)). The district court instructed the jury solely on Sec. 1344(2), requiring the government to prove that Miller knowingly executed a scheme to obtain funds from Rolark's account using false pretenses. Miller contends there was no evidence of misrepresentation on his part. However, the court disagrees, stating that each time he used Rolark's ATM card and PIN, he represented to the bank that he was authorized to withdraw funds, akin to presenting a check. Miller's reliance on prior cases likening unauthorized withdrawals to check-kiting is deemed inapplicable, as those cases did not involve representations about account balances. Instead, by entering Rolark's PIN, Miller essentially forged an electronic signature, which constitutes misrepresentation and violates Sec. 1344(2). Miller's reference to a Fifth Circuit case, which found no explicit false representations in another unauthorized transfer case, is distinguished as the circumstances in his case clearly show he misrepresented his authority to access the funds. Moreover, Miller's challenges to the jury instructions do not warrant reversible error.
Miller contends that the district judge erred by instructing the jury that the evidence did not establish actual fraud but only intent to defraud, which he argues relieved the government of its burden to prove intent. Since Miller did not object to this instruction at trial, the review is for plain error, requiring a showing of prejudicial impact. Although the judge's language may have suggested that intent was established, the overall jury instructions clarified that intent to defraud was a necessary element, and the government had the burden of proof beyond a reasonable doubt. Thus, the isolated misstatement was not deemed plain error.
Miller also argues that the jury was incorrectly charged that money obtained in violation of the bank fraud statute could be merely under the control of a financial institution, asserting that only subsection (2) permits such a conviction. However, since the evidence supported his conviction under subsection (2) and he acknowledged this, this claim is weakened.
Furthermore, Miller claims the court erred by stating that "false pretenses" can support a bank fraud conviction. The court's instructions accurately reflected that subsection (2) criminalizes obtaining bank funds through false pretenses, negating any error.
Lastly, Miller objects to the admission of Theisen's testimony on two legal conclusions: that his withdrawals affected interstate commerce and constituted bank fraud. While the admission of such conclusions is generally improper, any error was deemed harmless given the comprehensive nature of Theisen's testimony regarding interstate ATM transactions. Theisen's reference to bank fraud was not presented as a legal opinion but was factual, explaining the rationale behind Riggs' investigation and action. Consequently, Miller's convictions are affirmed.
Circuit Judge Sentelle concurs in the result of upholding Miller's conviction but disagrees with the majority's reliance on 18 U.S.C. § 1344(2). He argues that this statute necessitates a false or fraudulent pretense, which he believes Miller did not establish by inputting Rolark's PIN at an ATM. Sentelle critiques the majority's interpretation as overly broad, suggesting it could criminalize a wide array of actions that do not constitute a false representation, such as using a key without authorization or touching someone without consent. He finds the precedent from United States v. Sayan, cited by the majority, inadequate in addressing whether a mere act, like signing a check, constitutes misrepresentation under § 1344(2).
Instead, Sentelle aligns with the Fifth Circuit's ruling in United States v. Briggs, which held that merely instructing a bank to transfer funds does not equate to making a factual representation. He concludes that Miller's ATM actions do not amount to a false representation under § 1344(2). Nevertheless, he supports the conviction based on § 1344(1), asserting that the government demonstrated a recognizable scheme to defraud a financial institution, regardless of whether the funds belonged to the bank or were held in trust. Consequently, he would affirm the conviction but under § 1344(1) rather than § 1344(2).
