LTC 349-2018 THEFT OF FUNDS FROM CITY ACCOUNTOFFICE OF THE CITY MANAGER
LTC# 349-2018
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members o the City C mission
FROM: Jimmy L. Morales, City Manager
DATE: June 22, 2018
SUBJECT: THEFT OF FUNDS FROM CITY CCOUNT
Ever since the City discovered the theft of funds from the City's general depositary account in
December 2016, the question has persisted whether any City employee played a role in the
crime. I am pleased to announce that at this point, we can say that there is absolutely no
evidence that any City employee played a role in the fraud.
On April 6, 2018, the defendant, David J. Miller, who had pled guilty to the crimes in question,
was sentenced for his crimes at the United States District Court for the Southern District of
Florida, Miami Division, before the Honorable Federico A. Moreno. A copy of the transcript of the
sentencing proceedings is attached hereto. On pages 11 and 31 of the Transcript, both the
Court and the Assistant United States Attorney acknowledge that there is no evidence that
anyone from the City of Miami Beach was involved in this crime. The defendant indicated that
there was no City employee involved when debriefed and the AUSA states that there was no
evidence or information that there was anybody from the City involved. This is also consistent
with the findings by our own Police Department that worked closely with the FBI and the US
Attorney's office in this investigation.
As you know, in the aftermath of the discovery of the theft, the City conducted audits of its
banking procedures, implemented measures to prevent such actions in the future (including
implementing additional fraud protection measures for the accounts at SunTrust), and has
followed a series of recommendations set forth in the audit by BDO. But since some in the public
still wondered whether there might be City employees who had been complicit in this crime, I
believe the results of the criminal proceedings can reassure our residents and taxpayers.
Should any Commissioner have any further questions about the investigation and outcome, I ask
that they please contact the Police Chief. Thank you.
Attachment
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
2 MIAMI DIVISION
3 CASE NUMBER 17-20623-CR-MORENO
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UNITED STATES OF AMERICA,
Plaintiff,
vs.
DAVID J. MILLER,
Defendant.
Courtroom 13-3
Miami, Florida
April 6, 2018
SENTENCING PROCEEDINGS
BEFORE THE HONORABLE FEDERICO A. MORENO
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE GOVERNMENT:
FOR THE DEFENDANT:
REPORTED BY:
CHRISTOPHER B. BROWNE, AUSA
United States Attorney's Office
99 Northeast Fourth Street
6th Floor
Miami, Florida 33132
305-961-9419
Fax: 305-530-7976
R. D'ARSEY HOULIHAN, III, AFPD
Federal. Public Defender's Office
150 West Flagler Street
Suite 1700
Miami, Florida 33130
305-530-7000
Fax: 305-536-4559
GILDA PASTOR-HERNANDEZ, RPR, FPR
Official United States Court Reporter
Wilkie D. Ferguson Jr. US Courthouse
400 North Miami Avenue - Suite 13-3
Miami, Florida 33128 305.523.5118
gphofficialreporter@gmail.com
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TABLE OF CONTENTS
Page
Reporter's Certificate 33
EXHIBITS
10 Exhibits Marked for Received
Identification in Evidence
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Description Page Line Page Line
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Sentencing
1 (The following proceedings were held at 9:28 a.m.:)
2 THE COURT: Good morning, everybody. Please be seated
3 unless I call your case.
4 Let's start with 17 -20623 -Criminal, United States of
5 America versus David Miller. At the lectern, if the Marshals
6 would allow.
7 Who's here on behalf of the Government?
8 MR. BROWNE: Good morning, Your Honor. Christopher
9 Browne on behalf of the United States.
10 THE COURT: On behalf of the defendant.
11 MR. HOULIHAN: Good morning, Your Honor. D'arsey
12 Houlihan, Assistant Federal Defender, on behalf of Mr. Miller.
13 THE COURT: Probation officer.
14 THE PROBATION OFFICER: Elizabeth Robbert, Your Honor.
15 Good morning.
16 THE COURT: Good morning. Thank you for being here.
17 won't tell you why we're starting a little late, but that's all
18 right.
19 Mr. Miller, good morning. How are you, sir?
20 THE DEFENDANT: Your Honor, very good, sir,
21 THE COURT: Pardon?
22 THE DEFENDANT: Your Honor, good, sir.
23 THE COURT: Okay. I have read and reviewed the entire
24 Presentence Investigation Report, and I assume you have read it
25 as well. Am I right, sir?
Sentencing
1 THE DEFENDANT: Yes, Your Honor.
2 THE COURT: As you all know, the first obligation of
3 the Court is to properly calculate the guidelines. In this bank
4 fraud case the defendant has an adjusted offense level of 24,
5 Criminal History Category VI. For Count 3 the guideline range
6 is 100 to 125 months incarceration in view of the $3,686,712
7 and, of course, for aggravated identity theft there is the
8 minimum mandatory 24 months, the two years.
9 Any objections from the Government to the Presentence
10 Investigation Report?
11 MR. BROWNE: All of the Government's objections were
12 resolved, Your Honor, in the addendum.
13 THE COURT: Any objections by the defendant?
14 MR. HOULIHAN: No, Your Honor.
15 THE COURT: In view of that, those will be the
16 guidelines.
17 The next obligation of the Court is apply Title 18,
18 United States Code, Section 3553(a). In applying that, what say
19 the Government?
20 MR. BROWNE: Your Honor, the Government is recommending
21 a sentence of 124 months. The defendant pled guilty in this
22 case immediately upon reviewing discovery, debriefed with
23 agents, was forthright in the debriefing, gave as many details
24 as he could about the crime. And in view of that, the
25 Government is recommending a low end of the guidelines sentence
Sentencing
1 in spite of the defendant's criminal history which, of course,
2 is lengthy and pretty egregious.
3 I would note that the longest term of imprisonment it
4 appears the defendant ever served in State custody was about two
5 and a half years.
6 THE COURT: He actually got four years one time, but he
7 did less. It was two to four, yeah, and it's the same thing
8 over and over and over again.
9 MR. BROWNE: It is, Judge, and I think a sentence of
10 about 10 and a half years certainly accounts for the step-up in
11 criminal conduct. A 124 -month sentence is, to the Government,
12 sufficient --
13 THE COURT: His criminal conduct -- the reason there
14 was so much money is because of what?
15 MR. BROWNE: A number of factors. Quite honestly,
16 Judge --
17 THE COURT: The seats purchased for the football games,
18 all of that is 3 and a half million dollars?
19 MR. BROWNE: Believe it or not, these personal seat
20 licenses can run anywhere from 10,000 to $500,000 depending on
21 the venue. In this case, obviously, since it wasn't
22 Mr. Miller's money, he went for some of the pricier seat
23 licenses that were available online including, I believe, seats
24 for the Kentucky Derby which are about $500,000.
25 THE COURT: We discussed a little bit of this at the
Sentencing
1 plea colloquy when I said restitution is one of the most
2 important things, but he doesn't have any money to pay back the
3 restitution, does he?
4 MR. BROWNE: That's the Government's understanding,
5 Your Honor. And again, we asked him the same question during
6 the debriefing. It doesn't appear --
7 THE COURT: He gambles it all away.
8 Mr. Houlihan, what do you think I should sentence your
9 client to?
10 MR. HOULIHAN: Judge, before I give you a number --
11 THE COURT: You don't have to give me a number if you
12 don't want to. You say whatever you want.
13 MR. HOULIHAN: Okay. Mr. Miller is unusual in my
14 experience. He cooperated immediately as the Government said.
15 He was debriefed for about two hours. The Government was
16 maybe longer.
17 The Government was concerned as to the source of the
18 account number. Basically, the way this went down is Mr. Miller
19 was selling something online, an individual was attempting to
20 scam him and sent him a check that had an account.
21 THE COURT: No honor among thieves. Isn't that
22 incredible.
23 MR. HOULIHAN: It's sad. He sent him a check with this
24 account number and routing number and it turned out
25 THE COURT: I learned about routing number right now.
Sentencing
1 I didn't know about that.
2 MR. HOULIHAN: It turned out --
3 THE COURT: I'm late.
4 MR. HOULIHAN: It turned out to be a legitimate account
5 and he, you know, used it to pay for a couple of things and then
6 purchased these seat licenses.
7 THE COURT: What do you think my main problem with this
8 case is?
9 MR. HOULIHAN: His prior convictions, Judge.
10 THE COURT: For the same thing over and over and over
11 again, stiffing people that he's even close to in order to feed
12 his gambling. It's incredible, isn't it?
13 You don't want to have a lot of paper clips in the
14 Presentence Investigation Report before me. What do we do with
15 that?
16 MR. HOULIHAN: Judge --
17 THE COURT: I mean, what do we do?
18 MR. HOULIHAN: Judge, I understand and I'm not
19 suggesting --
20 THE COURT: The 82 -year-old grandmother of the
21 defendant's girlfriend, it starts when he was 30 years of age
22 and he is now 45 years. He gets probation and then the identity
23 theft, he gets a year in jail in Syracuse, he's 34. And that
24 had to do with the father's personal identification number and
25 then eventually falsifying business records, grand larceny in
Sentencing
1 New York. He gets 18 months to three years in jail. He gets
2 paroled and guess what happens? The parole is revoked. And
3 then when he's 38, possession of a forged instrument, parole
4 violation, return to custody, discharge. That's when he got two
5 to four years. And then at 39, possession of a forged
6 instrument, eight months in jail.
7 I mean, I'm going page by page. You've read it all.
8 His nephew's information to set up the credit card.
9 All right? And he said being arrested that day made him feel
10 better knowing that this matter would be behind him and for
11 good. That was in 2012. And then identity theft in New York
12 again, New York is very busy, and he gets 180 days. Then
13 identity theft when he's 44 in New York again; convicted, time
14 served. Over and over and over again. What do I do with all of
15 that?
16 MR. HOULIHAN: You had asked Mr. Browne or you and
17 Mr. Browne had discussed the longest sentence that he had served
18 and I believe there was a sentence imposed of two to four years,
19 but the actual -
20 THE COURT: But that didn't do the trick.
21 MR. HOULIHAN: The actual amount of time that he served
22 was 15 months. The guidelines in this case are more than eight
23 times as long.
24 THE COURT: But you know, if you added all the times
25 that he served it kind of equals around 10 years.
Sentencing
1 MR. HOULIHAN: I don't think it would.
2 THE COURT: Look it up. See, that is what I did. He
3 gets three years first in New York. I'm looking at the top. He
4 doesn't quite serve it, but he got three years, then he got four
5 years, then he got eight months, and then he got six months.
6 Three and four is seven. Eight and a half. So he gets eight
7 and a half years.
8 MR. HOULIHAN: That's the sentence imposed, Judge.
9 THE COURT: I understand, and I'm going to impose a
10 sentence, too.
11 MR. HOULIHAN: Right.
12 THE COURT: So judges in New York, who have been very
13 lenient because I assume they're facing people with robberies
14 and murders and rapes, so sometimes judges, busy State judges
15 look very kindly upon white collar criminals. I don't know why
16 because I think maybe it should be the other way around. It
17 depends on the crime.
18 So he's been sentenced to eight plus years altogether,
19 and it doesn't do any good because he's got a gambling
20 addiction.
21 MR. HOULIHAN: That's over the course of almost 20
22 years.
23 THE COURT: 15 years.
24 MR. HOULIHAN: And that's --
25 THE COURT: Because he got probation at the beginning.
Sentencing
1 MR. HOULIHAN: Right, but the amount of time imposed
2 versus the amount of time actually served, everybody knows when
3 you impose a sentence of two to four years in New York, that
4 that's not the number that's in everybody's mind in court.
5 THE COURT: The problem with him is he served more than
,6 that because his parole was violated.
7 MR. HOULIHAN: No, but ultimately, he still served
8 substantially less even though his parole was violated.
9 THE COURT: I think that may be an indictment on the
10 New York State prison system and maybe a reflection of the busy
11 dockets of the State judges. They're Supreme Court Justices,
12 they're called in New York, the trial judges, kind of nice.
13 MR. HOULIHAN: Right.
14 THE COURT: I mean, it's a tough case because he's not
15 violent, but he cheats everybody he can in order to go gamble.
16 That's what it is. I mean, I hate to be bottom line.
17 Would you disagree with that analysis or conclusion?
18 MR. HOULIHAN: Well, I think there's a little bit more
19 to it than that.
20 THE COURT: Which is what?
21 MR. HOULIHAN: Well, at the time of this incident, he
22 was involved with a woman who had a severe drug problem, and she
23 was taking a significant amount of this money. I believe
24 Mr. Browne --
25 THE COURT: You mean someone was stealing from him.
Sentencing
1 MR. HOULIHAN: I don't know if I would call it
2 stealing, but she was taking the money and using it for her drug
3 addiction.
4 THE COURT: His money?
5 MR. HOULIHAN: Well, City of Miami Beach's money
6 ultimately„
7 THE COURT: Okay. So a co -thief.
8 MR. HOULIHAN: Yes, and he gave the information to the
9 Government concerning this woman.
10 THE COURT: Is there a 5K1 motion?
11 MR. BROWNE: Not at this point.
12 MR. HOULIHAN: No.
13 THE COURT: Is there an expectation of a Rule 35?
14 MR. BROWNE: I don't believe, based on the information
15 we have now, that there is such an expectation, but we're
16 continuing to investigate, especially -- we are mostly concerned
17 about the source of the account number itself, and one thing
18 Mr. Miller's debriefing did result in is the conclusion that
19 there was no one from the City of Miami Beach involved in this.
20 THE COURT: Okay. That would be important.
21 MR. BROWNE: There were other cyber criminals who were
22 using this account who picked the wrong victim, in this case
23 Mr. Miller, and then he took the account and obviously went to
24 town.
25 THE COURT: All right.
Sentencing
1 MR. HOULIHAN: That's kind of what I wanted to focus
2 on.
3 THE COURT: Which part did you want to focus on?
4 MR. HOULIHAN: I wanted to focus on the part where my
5 client helped the Government.
6 THE COURT: Okay.
7 MR. HOULIHAN: When Mr. Browne called me initially, you
8 know, he laid the case out in great detail and provided a
9 condensed version of the discovery and indicated that the
10 Government was very interested in talking to Mr. Miller because
11 there was this big concern that perhaps somebody from the City
12 of Miami was involved in this offense and they wanted to -- if
13 that was the case, they wanted to get right into it, 'so they
14 wanted to talk to Mr. Miller and Mr. Miller agreed.
15 The first meeting -- the first time I sat down with
16 him, you know, after introducing ourselves, he said, you know,
17 I'm not going to lie to you, what they charged me with, I did
18 it. I want to plead guilty. I, you know, I just want to take
19 responsibility for what I did, and I'm not going to lie to you
20 about it. And I told Mr. Browne and we set up the interview.
21 Mr. Miller came in, provided a wealth of details about
22 everything that he could remember about how this happened, all
23 the information that he had concerning the individuals who had
24 sent the account number to him, allayed their concerns that he
25 had some connection with employees at the City of Miami Beach.
Sentencing
1 I guess because these charges -- they were substantial
2 charges that took place over a period of five months, but nobody
3 at the City of Miami Beach raised a concern about it I would
4 imagine, although I haven't asked Mr. Browne about this
5 specifically, but I would assume that that set off some alarm
6 bells that perhaps somebody from the City of Miami Beach was
7 involved because otherwise you would not expect them to miss
8 these sort of substantial charges.
9 The amount that's used for the base offense level is
10 correct. I'm not disputing that. But there were -- the City of
11 Miami Beach was essentially made whole. They're out a portion
12 of money, a little over a hundred thousand dollars. From my
13 conversations with Mr. Browne, there's an additional 90,000 I
14 believe that the City --
15 THE COURT: What's the amount of restitution in this
16 case?
17 MR. BROWNE: The amount of restitution is set out in I
18 believe -. -
19 THE COURT: Just tell me the number.
20 MR. BROWNE: -- it's the second addendum. It's the
21 total loss figure, Judge.
22 THE COURT: $3,686,712, is that what it is? Or is it
23 900,536, and 126,000?
24 MR. BROWNE: I believe it's less, Judge.
25 THE COURT: The last three figures I've said or not?
Sentencing
1 MR. BROWNE: I don't believe so. The probation officer
2 just showed me a different number.
3 THE COURT: This blue sheet I have is incorrect?
4 THE PROBATION OFFICER: No, that is correct, Your
5 Honor, but the total amount is 1,563,187. That is the total of
6 all of those three numbers.
7 THE COURT: Okay. And the defense has no objection
8 with paying that back, right?
9 MR. HOULIHAN: Judge, I haven't
--
10 THE COURT: That's a leading question.
11 MR. HOULIHAN: Well, I understand, Judge, it's just
12 that I haven't -- 1 saw these restitution figures from the
13 probation officer the day -before yesterday.
14 THE COURT: It doesn't get better if you wait.
15 MR. HOULIHAN: Well, it may if they made mistakes in
16 the calculations.
17 THE COURT: And what do you think it should be?
18 MR. HOULIHAN: I don't know, Judge, I haven't seen --
19 THE COURT: What difference does it make? I hate to be
20 so candid and frank.
21 MR. HOULIHAN: Well --
22 THE COURT: You think your client, who has got the
23 Federal Public Defender, who's living with his mother, is going
24 to pay a million and a half, or three and a half million, or
25 half a million, or $400,000, when the money was these things,
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Sentencing
licenses to seats at NFL stadiums and the Kentucky Derby? The
answer is absolutely not.
MR. HOULIHAN: No, Judge.
THE COURT: So are we going to have a fight over the
amount of restitution before I sentence him?
MR. HOULIHAN: No, no, Judge.
THE COURT: What is the amount of restitution? Is it
the right amount?
MR. HOULIHAN: I believe that that amount is probably
correct, Judge.
THE COURT: Then that's what I would order, $900,000 to
STR Marketplace; to SunTrust, 536,258; and to the City of Miami
Beach, 126,929; and the total amount would be one and a half
million, $1,536,187, which is less than half of the unauthorized
transfers.
MR. HOULIHAN: Right, and that's a little unusual in my
experience. You know, some of these, a lot of these --
THE COURT: That the restitution is less than the
amount of loss?
MR. HOULIHAN: Well, it's substantially less.
THE COURT: Okay.
MR. HOULIHAN: Substantially less.
THE COURT: True. I don't have any expectation -- I'm
not a gambler, unlike your client, but if I were a gambling man,
I would bet he's not going to pay hardly anything of it because
Sentencing
1 he can't. I just have to order it.
2 MR. HOULIHAN: It seems unlikely, Your Honor.
3 THE COURT: Okay.
4 MR. HOULIHAN: Just a couple of other things.
5 Now, you've talked about, you know, you've talked about
6 the gambling. If you look at the PSI, his first contact with
7 the criminal justice system was at age 30, from zero to 30, you
8 know. From age 11 on, he had a job at a produce company loading
9 trucks, making deliveries. He worked for the same company for
10 many years, and then when the daughter of the original owner
11 took over the company, he worked for her.
12 Unfortunately, it was around age 30, he had three
13 children, he had a house, he had a girlfriend that he had been
14 with for many years and still has contact with.
15 THE COURT: He wasn't paying child support, right, or
16 was he?
17 MR. HOULIHAN: No, I think his children are older
18 mostly.
19 THE COURT: But they were young at one point. Wasn't
20 he separated? You said he had a wife and he had a girlfriend.
21 MR. HOULIHAN: No, he had until -- no, no, not a wife
22 and a girlfriend. He didn't marry her. He had a common law
23 wife.
24 THE COURT: Okay.
25 MR. HOULIHAN: And that was until age 30 and it sort of
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Sentencing
coincided with the opening of a casino and his life really went
off the rails. And he has made efforts, ultimately
unsuccessful, but there are a couple periods of time in his past
where he has, you know, had a couple of years where he was able
to keep himself under control and he didn't get into --
THE COURT: When was that? Give me those couple of
years.
MR. HOULIHAN: That was for the period of time that he
was on probation in the first case.
THE COURT: In the first case he was on probation,
2003, for three years, and probation was violated June 18, 2007,
and he got a year in jail and that's because -- he got a year in
jail on May 30, 2007.
So the fact that his probation was violated, when you
look at 2009 -- in 2010, he was given 18 months to three years.
He was paroled November 9, 2010. Less than a year after that
parole was revoked on October 13, 2011, and it says the maximum
expiration of sentence, so he did as much as he could under the
law in New York for that. And then, when you look at the next
offense when he's 38, possession of a forged instrument in
DeWitt, with a capital W, in New York, two to four years. He
was paroled on April 28, '14, and on March 6, 2017, parole
violation, return to custody, and eventually discharged on April
14, 2017, and then we are here in 2018.
MR. HOULIHAN: Right. The period I'm talking --
Sentencing
1 THE COURT: I don't know what period of time he wasn't
2 doing something bad.
3 MR. HOULIHAN: I am talking about the period from when
4 he was initially put on probation --
5 THE COURT: Give me some dates.
6 MR. HOULIHAN: Sure. In 2003, he was put on probation.
7 Probation was ultimately violated four years later, in 2007, and
8 he had a case in 2013 where he got 180 days. The next case
9 after that is 2017. Again, it works out to about three and a
10 half years.
11 THE COURT: Say that one again.
12 MR. HOULIHAN: If you look at paragraph 32, Your Honor,
13 THE COURT: He got 180 days on May 1, 2013.
14 MR. HOULIHAN: Right, and then the next --
15 THE COURT: That was right after he got eight months on
16 June 27, 2012. So if you count eight months after June, and by
17 May he is doing jail again. See? And then you say the next one
18 was in 2017, that four-year period.
19 MR. HOULIHAN: Yes.
20 THE COURT: And this crime was committed when?
21 MR. BROWNE: It started in July of 2016.
22 THE COURT: So then I guess those are the three years.
23 MR. HOULIHAN: Yes, Judge.
24 THE COURT: And I would not infer that he did
25 something. How did he live during those three years.
Sentencing
1MR. HOULIHAN: You know, he had handyman jobs, did odd
2 jobs.
3 Judge, I got a letter from Mr. Miller's daughter.
4 Unfortunately, we had some email issues and I didn't receive it
5 until late last night and I did not have an opportunity to print
6 it off this morning. And I'd just like to read it to the Court.
7 THE COURT: Whatever you want.
8 MR. HOULIHAN: "I, Bryonna Miller, am writing this
9 letter to you in regards to my father, David Miller. I'm
10 asking for you to take into consideration that he is a good
11 person. He would do anything for anyone. He's not violent
12 nor has he ever physically harmed anyone. He shows
13 compassion and consideration when it comes to others.
14 "Your Honor, I know what he did was wrong and
15 unacceptable. I am not asking you to disregard what he did.
16 I am asking you to think of my father as a loving, caring,
17 understanding father, son, grandfather, and friend to many."
18 THE COURT: Is this Britney or Bryonna?
19 MR. HOULIHAN: This is Bryonna.
20 THE COURT: B -r -y -o -n -n -a, 23 years old.
21 MR. HOULIHAN: Yes, Your Honor.
22 THE COURT: Now, the girlfriend, the mother of these
23 children, is Ms. Gates, right, Heather Gates?
24 MR. HOULIHAN: Yes, Judge.
25 THE COURT: And she confirmed that the defendant has an
Sentencing
1 outstanding financial child support obligation, and the Equifax
2 credit history reports that he had $32,765 owed to the New York
3 State Department of Social Services for his child support, I
4 guess way back before she was 23. So even though he's kind and
5 considerate, he wasn't really supporting Bryonna because he
6 gambled it all away.
7 MR. HOULIHAN: He was supporting to the best of her
8 [sic] ability, and she recently, it's actually in the PSI --
9 THE COURT: The best of "his" ability you meant.
10 MR. HOULIHAN: Yes, Judge.
11 THE COURT: You said of "her" ability. No, I know
12 Ms. Gates was, that's what a lot of mothers do. She wasn't
13 getting the help from the father.
14 MR. HOULIHAN: I thought I said the best of his
15 ability, Judge.
16 THE COURT: You said "her," but it's no big deal.
17 MR. HOULIHAN: Ms. Miller, Bryonna, had an accident
18 where she shattered her pelvis and she actually mentions that --
19 her letter goes on:
20 "I would also like you to know for the last four years
21 I, myself, have been through some traumatic events where I
22 needed my father the most. He was there for me. Even
23 though we don't always see eye to eye, I know I can count on
24 him when needed. Thank you, Your Honor, for your time and
25 consideration."
Sentencing
1 THE COURT: She's very forgiving.
2 MR. HOULIHAN: Judge, Mr. Miller has -- this situation
3 obviously is different. He's facing a sentence that's nearly 10
4 times as long any sentence he's ever served. He has now been
5 away from his family longer than he's ever been away from them
6 before. He has always been in New York State. Even when he's
7 been incarcerated, he's been close and able to talk to them and
8 able to visit with them, and now he faces the prospect of a
9 substantial time away from them.
10 THE COURT: But, you know, you mentioned the family and
11 it is the most important institution, but I can't escape the
12 fact that his first conviction was when he stole from -- we'll
13 call it his wife, right -- his wife's mother, at the time an
14 82 -year-old grandmother -- no, the grandmother, it was the
15 grandmother.
16 MR. HOULIHAN: No, Judge, it was --
17 THE COURT: Geraldine Gates, the 82 -year-old
18 grandmother of the defendant's girlfriend. Is she the mother
19 and not the grandmother?
20 MR. HOULIHAN: No, she is not the victim. She is not
21 the victim. The victim was the mother-in-law, he used the
22 grandmother's --
23 THE COURT: That's what I mean. Oh, who is the
24 mother-in-law, Geraldine Gates?
25 MR. HOULIHAN: Marcia -- M.W., it's M.W.
Sentencing
1 THE COURT: So who is Geraldine Gates?
2 MR. HOULIHAN: That is his grandmother. No, I'm sorry,
3 her --
4 THE COURT: So the Presentence Investigation Report
5 says that:
6 "Defendant took Geraldine Gates to the bank on two
7 occasions to cash each check."
8 MR. HOULIHAN: Right.
9 THE COURT: He stole from the grandmother, the
10 mother-in-law.
11 THE PROBATION OFFICER: Your Honor, to clarify, the
12 victim was M.W., and Ms. Gates was used to cash those checks.
13 THE COURT: So she was a codefendant or she didn't know
14 what was going on?
15 THE PROBATION OFFICER:: Let me double-check that, Your
16 Honor.
17 THE COURT: Heather Gates informed Heather Gates is
18 the mother of the children, right?
19 "Heather Gates informed that she was staying with M.W.
20 and that the defendant had visited her several times at the
21 residence."
22 But the point is, you used a relative let's say a
23 relative even if you're not legally married -- in order to steal
24 from someone else you know. Is it worse to steal from someone
25 you know or from a stranger? I don't know. But you're
Sentencing
1 mentioning family a lot, that he is away from his family in New
2 York. Maybe that's a good thing according to some of the family
3 members. I don't know.
4 MR. HOULIHAN: Well, Bryonna has got these health
5 issues and has told me that her father has been very supportive
6 of her. And I am not trying to minimize his mistakes, Judge.
7 All I'm trying --
8 THE COURT: So what do you think I should give him?
9 MR. HOULIHAN: Judge, the last thing I wanted to make
10 the Court aware of and, you know, I don't know whether this is
11 relevant or not, but Mr. Browne and I both calculated
12 Mr. Miller's guidelines. There was an enhancement that I
13 missed. Mr. Miller doesn't want to withdraw his plea or
14 anything like that, but there was a two-point enhancement that I
15 was unaware of when I --
16 THE COURT: For what?
17 MR. HOULIHAN: It was for --
18 THE COURT: What do you mean, you were unaware of?
19 MR. HOULIHAN: Well, I did not expect it to be assessed
20 in this case. It's in paragraph 17.
21 THE COURT: Because the defendant derived more than 1
22 million dollars in gross receipts from one or more financial
23 institutions, as a result of the offense, there's a two-level
24 increase pursuant to 2B1.1(b)(16)(A). Because in the plea
25 colloquy we didn't talk about the fact that it was more than a
Sentencing
1 million dollars?
2 MR. HOULIHAN: No, it isn't that, Judge.
3 THE COURT: So you were aware of it.
4 MR. HOULIHAN: No, I knew
5 THE COURT: So was your client.
6 MR. HOULIHAN: I knew how much was involved, but when I
7 went through the guidelines I was thinking in terms of the money
8 coming from City of Miami Beach, not a financial institution,
9 but it's in the care, custody and control of a financial
10 institution. It was an error that I made and I'm not --
11 THE COURT: It's not an error that you made. You can
12 be an optimist when you advise your client, but I tell the
13 defendant what the maximum sentence is and I make no promises of
14 what the guidelines are.
15 MR. HOULIHAN: No, Judge --
16 THE COURT: So even if he wanted to withdraw his guilty
17 plea -- that's why I take a long time, I think, to do the plea
18 colloquies.
19 MR. HOULIHAN: Right, and that's why I prefaced this by
20 saying that, you know, he does not have any desire to withdraw
21 his plea.
22 THE COURT: I know, but then you added, "I made an
23 error." And whenever a lawyer says "I made an error," and then
24 when the defendant is sentenced to prison, he's going to talk to
25 other inmates and the other inmates are going to tell him, you
Sentencing
1 know what you should do? You should file a 2255 attacking your
2 lawyer, and he, himself, on the record said he made an error.
3 And then the case gets referred to Magistrate White, he has an
4 evidentiary hearing. By then you are the chief supervisor of
5 everybody in the Federal Public Defender, Mr. Browne is the
6 deputy chief, and you all have to testify in front of Magistrate
7 White. He issues a Report and Recommendation and then I have to
8 rule on it two years from now.
9 That's why whenever a lawyer says "I made an error"
10 I've got to go through all of this talk now to make sure that
11 you didn't make an error. And even if you did, it makes no
12 difference because the defendant when he pled guilty knew
13 exactly -- not exactly, but he knew the maximum sentence.
14 MR. HOULIHAN: Sure.
15 THE COURT: You can't let someone withdraw a guilty
16 plea just because once he sees the guidelines, he says, oh, my
17 goodness, I got 2 I don't expect the defendant to know about
18 2B1.1(b)(16)(a) and I expect you to know, and you do know it,
19 but you can be an optimist. Just because a lawyer is an
20 optimist doesn't mean the defendant gets to file a 2255 based on
21 the optimism of the lawyer.
22 I had to say all of this to save Judge White a lot of
23 time two years from now.
24 MR. HOULIHAN: Judge, I think it's in the plea
25 colloquy.
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THE COURT: It is. That's why I do the plea colloquies
the way I do it, and he said he was happy with you, didn't he?
MR. HOULIHAN: Yes, Judge. Judge, in light of the
fact, not discounting his prior record, in light of the fact
that the guidelines in this case, you know, when you also add
in, I think you need to take into consideration there's a 1028A
charges as well --
THE COURT: That's the minimum mandatory?
MR. HOULIHAN: It's a minimum mandatory --
THE COURT: Congress said, judges, don't get light on
people who are white collar criminals just because they are kind
of nice, from good homes, make sure you give them no less than
two years, no more than two years,
MR. HOULIHAN: Sure, and at the time the article
THE COURT: Don't be soft on people who look like us.
MR. HOULIHAN: Oh, yeah, people were getting probation
left, right and center and that's why --
THE COURT: Which is what he got in State court over
and over again and credit time served.
MR. HOULIHAN: Right, but this 1028A isn't affecting
anything over in State court. My recollection is that at the
time that this law was passed, there was concern that
individuals were not getting serious sentences.
The guideline sentence on this by itself is a pretty
serious sentence.
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THE COURT: That's true because he stole so much.
MR. HOULIHAN: No question about it. That's why --
that by itself is a substantial sentence even when you don't
factor in this consecutive two years. It just seems like an
awful lot to me, Judge. Like I said, it's nearly 10 years I
mean, 10 times as much as he's ever served before.
THE COURT: See, this is where I disagree. I don't
know where you get the math that it's 10 times more.
MR. HOULIHAN: No, I'm going based on what he has
actually served.
THE COURT: Okay. Anything else?
MR. HOULIHAN: I believe my client would like to talk
to you, Judge.
THE COURT: Of course. It's his right.
What do you want to say, sir, Mr. Miller?
THE DEFENDANT: First, Your Honor, I would like to
apologize for taking your time today for my stupidity. I'd like
to apologize --
THE COURT: Time is of no importance.
THE DEFENDANT: I'd like to apologize to Mr. Browne,
Special Agent Oman, Special Agent Donaldson, Miami detective
Ms. Yvette. Sorry, I don't remember your last name. And, Your
Honor, I'd like to ask you when -- on the probation part, if you
would also add community service for the time the FBI did the
investigation.
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Sentencing
THE COURT: Say that again.
THE DEFENDANT: I would like you to also add to the
probation community service hours.
THE COURT: You want me to give you community service
hours.
THE DEFENDANT: Yes, with the probation. I understand
that I have to do the jail time, plus with the probation,
community service hours for the time that the FBI had to waste
on my charges.
THE COURT: Well, they're just doing their job. I'm
not big on community service hours. Some great judges are and
we disagree with each other regarding that.
Do you know who I give community service hours to?
Rich people. So they can go pick up litter or do things to
dirty their hands. Those are the people who I think deserve
community service hours in addition to jail time, but the rest
of the people, I'd rather have them work and make a living, pay
their child support and their restitution. That's my general
philosophy.
How are you going to pay this money back?
THE DEFENDANT: I'm going to do everything possible to
pay it back, Your Honor.
THE COURT: What say the probation officer, what is
your recommendation?
THE PROBATION OFFICER: Your Honor, as noted on the
Sentencing
1 blue sheet, 124 months.
2 THE COURT: See, we knew what she was going to say
3 but --
4 MR. HOULIHAN: Judge, the only thing that I don't think
5 is factored in here is that Mr. Miller did cooperate, he did do
6 everything in his power. I think he allayed some concerns that
7 the Government had regarding City of Miami Beach. He gave them
8 some leads. It may result --
9 THE COURT: Mr. Browne said it and you said it already.
10 MR. HOULIHAN: I understand, Judge. I just feel like
11 it would be appropriate that there be some recognition in the
12 sentence for the cooperation, the truthful assistance that
13 Mr. Miller gave to the Government.
14 MR. BROWNE: For what it's worth, Your Honor, that
15 cooperation/assistance was factored in in the Government's low
16 end of the guideline recommendation.
17 THE COURT: All right. In applying 3553(a), I will
18 agree with defense counsel and the daughter that the defendant
19 is not violent, absolutely, and that's a plus. I will disagree
20 with the fact that the sentence as calculated by the probation
21 officer and accepted by the both sides is substantially higher
22 than anything he's ever served.
23 By my calculation, if you add the one year in jail of
24 June 18, 2007, the one year in jail of May 30, 2007, the 18
25 months to three years where parole was revoked and the maximum
Sentencing
1 expiration date of January 26, 2010, up to January 22, 2012, the
2 four years with also a maximum expiration date, the eight months
3 and then the six months, if you add all that up, you're talking
4 about more than 10 years. Even if it was less than that, it was
5 seven or eight years, it's obvious that in order to protect the
6 public from further thefts of one form or another because of his
7 gambling addiction, a substantial sentence should be imposed to
8 protect the public because of his criminal history category.
9 The issue is to what extent, and reasonable people could
10 disagree. Without cooperation I would have given him a lot more
11 time. People cooperate, you should get something for the
12 benefit of the cooperation.
13 The probation officer recommends 100 months, which is
14 the bottom of the guidelines, right, for Count 3, plus 24 months
15 for Count 22, for 124 months?
16 THE PROBATION OFFICER: That is correct, Your Honor.
17 THE COURT: The prosecutor says the same thing or a
18 little bit more?
19 MR. BROWNE: 124 months.
20 THE COURT: 124 months.
21 And I was starting out by giving him 144 months. You
22 know, judges before sentencing have an idea based on all the
23 pleadings and all the stuff. That's what I thought would be
24 reasonable, and I suspect any of those three sentences is
25 reasonable. So the issue is what sentence should be imposed,
Sentencing
1 And you hope that after 10 years, maybe he can overcome his
2 gambling habit. I don't know.
3 But I will take into consideration cooperation. And
4 generally cooperation is more than a reduction of more than
5 the bottom of the guidelines and he did cooperate. It didn't
6 yield anything worthwhile except good news that nobody in Miami
7 Beach City Government was, as far as the defendant knows,
8 involved in this. Is that right?
9 MR. BROWNE: That's correct, and there's no evidence or
10 information that there was anybody involved from the City.
11 THE COURT: He did cooperate so he should get credit
12 for that.
13 Therefore, it is the judgment -- I will agree to give
14 the bottom of the guidelines. That's 100 months for Count 3
15 with a consecutive 24 months, so it's a total of 124 months.
16 I was leaning at one point to give him less than that,
17 but he's incorrigible. He's not a bad guy-, he just steals in
18 order to support his habit. That's what it is.
19 So consistent with the probation officer's
20 recommendation, 124 months, supervised release of five years for
21 -- no, one year for Count 22, five years for Count 3, that will
22 be concurrent. And the restitution amount will be $1,536,187 to
23 SunTrust, STR Marketplace, City of Miami Beach.
24 During the period of supervised release, no access to
25 any computer for whatever purpose because that's the only way to
Sentencing
1 keep him.
2 THE PROBATION OFFICER: Your Honor, I just wanted to
3 clarify, my calculation on the restitution is 1 million, 563.
4 THE COURT: Okay. Instead of 36.
5 THE PROBATION OFFICER: Yes, Your Honor.
6 THE COURT: No problem.
7 THE PROBATION OFFICER: Thank you.
8 THE COURT: Yes, that's what it is if you add 900,000,
9 536,258 and 126,929, that's what you get.
10 Now that I've imposed the sentence at the bottom of the
11 guidelines, any objection from the Government?
12 MR. BROWNE: No, Your Honor.
13 THE COURT: From the defense?
14 MR. HOULIHAN: No, Your Honor.
15 THE COURT: Did he give up the right to appeal?
16 MR. BROWNE: No, Judge, there's no Plea Agreement
17 MR. HOULIHAN: No.
18 THE COURT: You have the right to appeal. If you want
19 to appeal the sentence, though your lawyer has preserved nothing
20 because I gave you the bottom of the guidelines, but if you
21 wanted to file a Notice of Appeal, that would have to be done
22 within 14 days.
23 Do you understand that, Mr. Miller?
24 THE DEFENDANT: Yes, Your Honor.
25 THE COURT: You're satisfied with your lawyer?
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THE DEFENDANT: Yes, Your Honor.
THE COURT: I find that -- well, I'm not even going to
ask you that. You're satisfied with your lawyer.
Okay. Thank you.
(The hearing was concluded at 10:30 a.m.)
CERTIFICATE
I hereby certify that the foregoing is an accurate
transcription of proceedings in the above -entitled matter.
05-28-18
DATE
GILDA PASTOR/HERNANDEZ, RPR, FPR
Official United States Court Reporter
Wilkie D. Ferguson Jr. U.S. Courthouse
400 North Miami Avenue, Suite 13-3
Miami, Florida 33128 305.523.5118
gphofficialreporter@gmail.com
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