Date: 03-07-2018

Case Style:

Case Number: 16-1679

Judge: Bauer

Court: United States District Court for Northern District of Illinois (Cook County)

Plaintiff's Attorney: Megan Cunniff Church, Nathalina A Hudson

Defendant's Attorney: Steven Allen Greenberg

Description: Defendant-appellant, Ryan Miller,
entered into a written plea agreement with the government
and pleaded guilty to mail fraud affecting a financial institution,
in violation of 18 U.S.C. § 1341, and aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). Miller now
appeals on the grounds that the indictment failed to specify
2 No. 16-1679
proper means of identification; that the district court improperly
applied two points to his criminal history calculation
under U.S.S.G. § 4A1.1(d) for committing the charged crimes
while under a criminal justice sentence; and that the district
court improperly mandated participation in the inmate
financial responsibility program (“IFRP”).
I. BACKGROUND
Between July 2007 and December 2009, Miller obtained and
possessed identifying information for a number of individuals
without their knowledge or consent. Miller possessed at least
some personal identifying information, including names,
addresses, birth dates, and social security numbers for over 200
individuals in a notebook. Miller knew this information
belonged to at least one actual person and that he lacked
authorization to have this information.
Miller used this personal identifying information to open
credit card accounts with financial institutions, falsely representing
that these individuals had applied for cards. To receive
the fraudulently obtained credit cards, Miller opened mailboxes
at UPS stores in the Chicago area under the victims’
names. Miller then used these fraudulently obtained credit
cards to withdraw cash from ATMs.
From approximately October 2009 through February 2010,
as part of a second scheme, Miller fraudulently obtained
unemployment insurance benefits from the Texas Workforce
Commission (“TWC”), an agency that administers unemployment
insurance in Texas. Using personal identifying information
belonging to other individuals, Miller submitted more
than 600 fraudulent claims for unemployment insurance
No. 16-1679 3
benefits to the TWC. In response to these submissions, TWC
sent debit cards to the Chicago mailboxes Miller opened using
personal identifying information he unlawfully possessed.
Miller used these debit cards to withdraw money from ATMs.
II. PROCEDURAL HISTORY
On April 14, 2011, a grand jury returned a twelve-count
indictment against Miller. In relation to his fraudulent credit
card scheme, the grand jury charged Miller with conspiring to
commit mail fraud, bank fraud, and identity theft, in violation
of 18 U.S.C. § 371 (Count One); mail fraud, in violation of 18
U.S.C. § 1341 (Counts Two and Three); bank fraud, in violation
of 18 U.S.C. § 1344 (Counts Four and Five); identity theft, in
violation of 18 U.S.C. § 1028(a)(7) (Count Six); and aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count
Seven). In relation to Miller’s fraudulent unemployment
benefits scheme, the grand jury charged Miller with mail fraud,
in violation of 18 U.S.C. § 1341 (Counts Eight, Nine, Ten, and
Eleven), and aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (Count Twelve).
After releasing him on bond, the district court discovered
Miller stole $13,750 from the correctional facility where he had
initially been detained, prompting the district court to issue a
bench warrant for his arrest. Miller fled to, and was later
found, in the Dominican Republic in February 2015. Upon
extradition to the Northern District of Illinois, Miller sought a
bill of particulars in regards to Count Twelve and moved to
dismiss Counts Six, Seven, and Twelve, for duplicity and lack
of specificity. The district court denied these motions. The
government then provided Miller with additional details
4 No. 16-1679
regarding these three counts and amended the indictment to
dismiss Count One and narrow the predicate offenses in
Counts Six and Seven from mail fraud and bank fraud to solely
mail fraud.
Relevant to the issues before us, Count Six of the original
indictment alleged that Miller
knowingly possessed, without lawful authority,
means of identification of another person, namely a
notebook containing more than 200 names, dates of
birth, and Social Security numbers for various
persons, with the intent to commit and to aid and
abet, and in connection with, unlawful activity
constituting a violation of Federal law, namely mail
fraud, in violation of Title 18, United States Code,
Section 1341, and bank fraud, in violation of Title 18,
United States Code, Section 1344
all in violation of § 1028(a)(7). Count Seven charged Miller with
aggravated identity theft, in violation of § 1028A(a)(1), adopting
the same language, but noting that the possession was
“during and in relation to mail fraud as described in Count
Two of this Indictment and bank fraud as described in Count
Four of this Indictment.” Count Twelve charged Miller with
having “knowingly possessed, without lawful authority,
means of identification of another person, namely names, dates
of birth, and Social Security numbers for various persons,
during and in relation to mail fraud as described in Count
Eight of this Indictment,” in violation of § 1028A(a)(1). The
amended indictment only changed references to bank fraud
from Counts Six and Seven.
No. 16-1679 5
On September 9, 2015, Miller pleaded guilty to Counts Two
and Seven of the amended indictment, pursuant to a written
conditional plea agreement with the government. As part of
this agreement, the government promised to dismiss the
remaining counts and Miller reserved his right to appeal the
district court’s prior orders denying his motion to dismiss
Counts Six, Seven, and Twelve of the original indictment.
Furthermore, as part of the agreement, Miller admitted that his
credit card scheme began no later than July 2007 and continued
through December 2009. He also admitted that during this time
frame, he “fraudulently obtained and possessed personal
identifying information for individuals, including names,
addresses, social security numbers, and birth dates without the
knowledge and consent of the individuals.” Miller reiterated
this same time frame in his sentencing memorandum.
The district court sentenced Miller on March 18, 2016. The
PSR calculated a base offense level of 13, with a criminal
history of VII, which the district court adopted. Because Miller
had served two concurrent terms of imprisonment in Texas
starting on May 1, 2008, the court assessed two of these
criminal history points under U.S.S.G. § 4A1.1(d). This section
calls for two criminal history points where “the defendant
committed the instant offense while under any criminal justice
sentence, including … imprisonment.” The probation officer
and district court found that these sentences took place during
the commission of the mail fraud scheme. Miller failed to object
to the criminal history calculation prior to and during his
sentencing hearing.
In regard to restitution, the district court stated, “[d]uring
prison, the payment schedule will be through the [IFRP].”
6 No. 16-1679
Miller never objected to the district court’s directive that
payments toward restitution made during imprisonment “shall
be made through [IFRP].”
III. DISCUSSION
On appeal, Miller contends that the original indictment
failed to specify proper identification of the victims, thus
failing to afford him proper notice of the charges made against
him. He also argues the district court plainly erred in assessing
two criminal history points under U.S.S.G. § 4A1.1(d) for
committing the charged crimes while under a criminal justice
sentence, and in ordering his participation in the IFRP. We
address each one in turn.
A. Specificity of Identification in the Indictment
The sufficiency of an indictment is reviewed de novo. United
States v. Nayak, 769 F.3d 978, 979 (7th Cir. 2014). An indictment
is sufficient so long as it: “(1) states the elements of the offense
charged; (2) fairly informs the defendant of the nature of the
charge so that he may prepare a defense; and (3) enables him
to plead an acquittal or conviction as a bar against future
prosecutions for the same offense.” United States v. McLeczynsky,
296 F.3d 634, 636 (7th Cir. 2002) (citing Hamling v.
United States, 418 U.S. 87, 117 (1974)). Additionally, “[i]ndictments
are reviewed on a practical basis and in their entirety,
rather than ‘in a hypertechnical manner.’” United States v.
Smith, 230 F.3d 300, 305 (7th Cir. 2000) (quoting United States v.
McNeese, 901 F.2d 585, 602 (7th Cir. 1990)).
Miller argues, in a “hypertechnical manner,” that because
the language in the statute makes it a crime to possess “a
No. 16-1679 7
means of identification of another person,” an allegation of a
single means of identification is implicated. Thus, each count
must identify a specific means of identification for a specific
individual. We disagree.
Our sister circuit has addressed an issue nearly identical to
the one at bar. In United States v. Stringer, the defendant
contended his indictment was constitutionally defective due to
its failure to identify a specific individual whose identification
he used in his bank fraud scheme. 730 F.3d 120, 123 (2d Cir.
2013). That indictment alleged:
From in or about February 2007 up to and including
in or about August 2007 … [defendant] knowingly
did transfer, possess, and use, without lawful authority,
a means of identification of another person,
to wit, one and more names, during and in relation
to a felony enumerated in Title 18, United States
Code, Section 1028A(c), to wit, the bank fraud
charged in Count One of this Indictment.
Id. at 122.
The Second Circuit found the indictment constitutionally
sound. Id. at 124–25. In so finding, the court reasoned that “[i]n
addition to tracking the language of the pertinent criminal
statute, and specifying the time frame of the commission of the
offense, Count Two, by cross referencing Count One, provided
substantial additional detail as to the means by which [the
defendant] committed the offense.” Id. at 124. The court noted
that “[n]otwithstanding its failure to specify the names of
persons whose identifying documents were used,” the defen8
No. 16-1679
dant’s indictment “contained substantially more limiting
detail” in comparison to other common indictments. Id.
We find Stringer particularly applicable here. Miller’s
indictment contained equally limiting detail, including the time
frame in which he committed the offenses, language of the
pertinent criminal statutes, and detailed means by which Miller
committed these offenses. The lack of specific identification of
the victims does not make the indictment insufficient. Moreover,
the government provided Miller with the names of the
victims in pretrial disclosures, thus giving him notice, as well
as time, to object to the victims claiming harm from Miller. For
these reasons, we find the indictment sufficiently notified
Miller of the charges against him.
Miller also argues the indictment is duplicitous because
Counts Six, Seven, and Twelve aggregate multiple offenses
within a single count. We disagree.
“An indictment that charges two or more distinct offenses
within a single count is duplicitous.” United States v. Hassebrock,
663 F.3d 906, 916 (7th Cir. 2011). “However, an indictment
charging multiple acts in the same count, each of which could
be charged as a separate offense, may not be duplicitous where
these acts comprise a continuing course of conduct that
constitutes a single offense.” United States v. Buchmeier, 255 F.3d
415, 421 (7th Cir. 2001). Congress determines the intended unit
of prosecution for a particular statute. United States v. Cureton,
739 F.3d 1032, 1041 (7th Cir. 2014). Thus, to determine whether
a count is duplicitous, we must exercise statutory interpretation.
Id. at 1040. We review questions of statutory interpretation
de novo. Id.
No. 16-1679 9
Sections 1028(a)(7) and 1028A(a)(1) both criminalize the
knowing possession of “a means of identification of another
person” (emphasis added). Section 1028(d)(7)(A) defines “means
of identification” for purposes of §§ 1028(a)(7) and
1028A(a)(1) as “any name or number that may be used, alone
or in conjunction with any other information, to identify a
specific individual, including any … name, social security
number, date of birth.” (emphases added).
The Supreme Court previously found an ambiguity in the
use of “any” in 18 U.S.C. § 2421, where the statute read,
“[w]hoever knowingly transports in interstate or foreign
commerce … any woman or girl for the purpose of prostitution
or debauchery, or for any other immoral purpose.” Bell v.
United States, 349 U.S. 81, 84 (1955). Similar ambiguity exists in
§ 1028(d)(7)(A), which is compounded by the use of “a” in
§§ 1028(a)(7) and 1028A(a)(1).
The use of “a” in §§ 1028(a)(7) and 1028A(a)(1) could be
interpreted as a single means of identification tied to a single
individual. However, the use of “any” in defining the “means
of identification” lends to interpretation as a means of identification
for multiple names, social security numbers, or dates of
birth, thus encompassing the plural.
When statutory text presents us with uncertainty as to the
unit of prosecution intended by Congress, we turn to the rule
of lenity. Cureton, 739 F.3d at 1044. Under this rule, “if Congress
does not fix the punishment for a federal offense clearly
and without ambiguity, doubt will be resolved against turning
a single transaction into multiple offenses.” Bell, 349 U.S. at 84.
We have turned to the rule of lenity in cases interpreting the
10 No. 16-1679
use of “any” in other criminal statutes. See Cureton, 739 F.3d at
1043 (concluding that where a defendant “only used a firearm
once, in the simultaneous commission of two predicate
offenses … he may only stand convicted of one violation of
§ 924(c)”); see also Buchmeier, 255 F.3d at 422 (concluding that
“when a defendant’s possession of multiple firearms is
simultaneous and undifferentiated, the government may only
charge that defendant with one violation of § 922(g)(1) and
§ 922(j)”); see also United States v. Oliver, 683 F.2d 224, 232
(7th Cir. 1982) (finding that a convicted felon in possession of
a firearm and ammunition could only be charged with one
violation of § 922(h) when the government “failed to show that
the ammunition and revolver were acquired at different
times”).
Here, Miller possessed over 200 means of identification in
a single notebook, used to carry out a common credit card
scheme. To hold that each individual means of identification
constitutes a separate count would expose Miller to the
possibility of over 200 counts charged against him. This
certainly is not what Congress intended. Thus, we conclude
that where Miller possessed multiple means of identification
in a single notebook as part of a common credit card scheme,
he can only be convicted of one violation of § 1028(a)(7) and
one violation of § 1028A(a)(1).
B. Committing Charged Crimes While Under a Criminal
Justice Sentence
As a question of law, we review interpretation of the
Sentencing Guidelines de novo. United States v. Alcala, 352 F.3d
1153, 1156 (7th Cir. 2003). However, when a defendant fails to
No. 16-1679 11
object to a district court’s criminal history point calculation, as
was indisputably the case here, we review for plain error.
United States v. Jenkins, 772 F.3d 1092, 1097 (7th Cir. 2014).
Under plain error, we will reverse the district court’s determination
“only when we find: (1) an error or defect (2) that is
clear or obvious (3) affecting the defendant’s substantial rights
(4) and seriously impugning the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Anderson,
604 F.3d 997, 1002 (7th Cir. 2010) (citing United States v. Olano,
507 U.S. 725, 736 (1993)).
U.S.S.G. § 4A1.1(d) instructs the court to “[a]dd 2 points if
the defendant committed the instant offense while under any
criminal justice sentence, including … imprisonment.” Miller
argues that the two points added under this section are plain
error due to a lack of evidence in the record that he committed
any part of this offense while in prison. We disagree.
Miller’s plea agreement states, “[b]eginning no later than in
or about July 2007, and continuing until on or about December
2009 … Miller knowingly devised, intended to devise, and
participated in a scheme to defraud.” It is undisputed that
Miller was in prison in 2008, which is encompassed by the time
frame in his plea agreement. While Miller may not have been
actively taking money from victims while in prison, we do not
find this fact dispositive. During his time in prison, Miller
maintained constructive possession of the fraudulently
obtained credit cards, as well as the notebook containing the
identifying information of the victims. He also maintained
control over the fraudulently opened mailboxes, where credit
card statements continued to be received during his incarcera12
No. 16-1679
tion. Thus, we find the district court did not plainly err in
adding the two points under U.S.S.G. § 4A1.1(d).
C. Inmate Financial Responsibility Program
Turning to the district court’s order mandating Miller’s
participation in the IFRP, both parties agree that the district
court improperly mandated Miller’s participation in the
program. In United States v. Boyd, we found plain error for this
same order. 608 F.3d 331, 334–35 (7th Cir. 2010). We addressed
the error by modifying the sentence to clarify that participation
in the IFRP was voluntary, without requiring remand. See Id.
at 335. We find this appropriate here as well, and thus, order
modification on appeal to reflect that Miller’s participation in
IFRP is voluntary.

Outcome: For the foregoing reasons, we AFFIRM AS MODIFIED.

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