                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-4461


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY R. MILLER, a/k/a Tony Miller,

                Defendant - Appellant.



                               No. 09-4462


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CATHERINE MILLER,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge.    (1:08-cr-00023-jpj-pms-1; 1:08-cr-00023-jpj-
pms-2)


Submitted:   August 12, 2010                 Decided:   September 2, 2010


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


David L. Scyphers, SCYPHERS & AUSTIN, PC, Abingdon, Virginia,
for Appellants.     Julia C. Dudley, United States Attorney,
Jennifer   R.  Bockhorst,   Assistant United States Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

                  Anthony Miller was convicted following a jury trial of

two    counts          of     making    false      statements         affecting          disability

insurance         to        the    Social     Security       Administration             (“SSA”)   in

violation         of    42     U.S.C.       § 408(a)(3)       (2006),      and     one    count   of

concealing events affecting his continued right to disability

insurance          in       violation        of    42       U.S.C.     § 408(a)(4)          (2006).

Catherine Miller, his wife, was convicted of one count of making

false statements to the SSA, also in violation of 42 U.S.C.

§ 408(a)(3).                Anthony    Miller      was      sentenced      to     six    months   in

prison, while Catherine Miller was sentenced to fifteen months

in prison.

                  On appeal, the Millers raise five issues:                             (1) whether

there       was    sufficient          evidence        to    sustain       their    convictions;

(2) whether the district court erred in admitting documents from

Anthony Miller’s SSA file; (3) whether the district court erred

in admitting investigatory notes taken during an interview with

the Millers; (4) whether the district court erred in admitting

evidence from outside the chronological scope of the indictment;

and (5) whether the district court erred in excluding evidence

of    the    Millers’             pending    SSA   appeal.           For    the    reasons     that

follow, we affirm.




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                          I.   Sufficiency of the Evidence

               “A    defendant      challenging            the      sufficiency       of     the

evidence faces a heavy burden.”                      United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007).                  This court reviews a sufficiency

of the evidence challenge by determining whether, viewing the

evidence   in       the    light   most     favorable         to    the    government,       any

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt.                     United States v. Collins, 412

F.3d    515,    519       (4th Cir. 2005).            We     review       both     direct    and

circumstantial            evidence,       and        accord        the     Government        all

reasonable inferences from the facts shown to those sought to be

established.          United       States       v.    Harvey,       532     F.3d    326,     333

(4th Cir. 2008).           In reviewing for sufficiency of the evidence,

we do not review the credibility of the witnesses, and we assume

that the jury resolved all contradictions in the testimony in

favor of the Government.                United States v. Kelly, 510 F.3d 433,

440    (4th Cir. 2007).            We    will       uphold    the        jury’s    verdict    if

substantial evidence supports it, and will reverse only in those

rare cases of clear failure by the prosecution.                                   Foster, 507

F.3d at 244-45.

               Here, the Government introduced substantial evidence

that Anthony and Catherine Miller made false statements to the

SSA.     In October 2004, Anthony Miller wrote to the SSA and

stated that he was unable to do more for his business, Tony

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Miller     Construction,        than      “give        some    advice      occasionally.”

Later, in a 2006 interview with an SSA claims representative,

the Millers each stated that Catherine Miller did all of the

work in the company.            In a later interview with SSA Office of

Inspector General Agent Paul Ragland, the Millers stated that

“it is not correct that Catherine Miller does all the work.”

While Catherine Miller disputes this account of their interview

with Agent Ragland, the jury was entitled to make a credibility

determination and conclude that Agent Ragland was credible when

he testified as to his interview with the Millers.

            In addition, the Government introduced the testimony

of numerous witnesses who described Anthony Miller taking an

active     role     in   the    running       of       the    construction        business;

engaging in a broad range of activities such as making repairs

to    homes,      negotiation        of    contracts,           and       supervision      of

employees.        Though Anthony Miller does have a life-threatening

brain tumor that has caused him significant vision impairments,

the jury had sufficient evidence before it to determine that he

was   still    actually        working.           While       the   Millers       introduced

testimony from a vocational expert who determined that based on

Anthony    Miller’s      disability,       there       was     no   job    that    he   could

perform,      the    jury      was     free       to    reject        that    opinion      as

contradicted by the testimony of Government’s witnesses who saw

Anthony Miller actually performing significant work.

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              In addition, the Government introduced evidence that

Anthony Miller knew he was under an obligation to inform the SSA

if    he   was    able     to   work   while   he   was   receiving       disability

insurance benefits, and that he did not do so.

              The evidence was thus more than sufficient to show

that Anthony and Catherine Miller made false statements to the

SSA, and that Anthony Miller was able to work and failed to

disclose that information to the SSA.



                    II.     Admissibility of SSA Documents

              Through the testimony of James Horton, an SSA Acting

District Manager, the Government admitted several documents from

Anthony Miller’s SSA file, including Anthony Miller’s 1994 SSA

application, his 2004 work activity report, and his tax returns

for    2002      through    2005.       The    Millers    argue    that     Horton’s

testimony was insufficient to authenticate these documents and

they should have been excluded.

              The authentication requirement may be met by “evidence

sufficient to support a finding that the matter in question is

what its proponent claims.”              Fed. R. Evid. 901(a).            By way of

illustration,       the     rule    provides   that   public      records    may   be

authenticated by providing evidence that the record is from the

public office where items of that nature are kept.                          Fed. R.

Evid. 901(b)(7).           Here, the district court had ample evidence

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that Anthony Miller’s social security filings were kept at the

SSA as a matter of course.              Horton, though not the custodian of

the records, testified that he received them from another SSA

office, and that they are in the custody of the SSA office.

Horton’s testimony was sufficient to authenticate the documents

from Anthony Miller’s SSA file.

               For the first time on appeal, the Millers argue that

introduction of the documents was improper in light of the Sixth

Amendment’s      Confrontation         Clause,     Crawford     v.     Washington,      541

U.S.    36     (2004),     and   the    recent      Supreme      Court       decision   in

Melendez-Diaz         v.   Massachusetts,          129     S.    Ct.     2527     (2009).

However,      the    documents   were     not     prepared      for    the    purpose   of

proving some fact at trial, and are therefore not testimonial

within the meaning of the Confrontation Clause.                          See Crawford,

541 U.S. at 51.          Thus, this argument fails.



                III. Admissibility of Agent Ragland’s Notes

               The   district       court,       over    the    Millers’       objection,

admitted the notes that Agent Ragland took during his interview

with the Millers.            At trial, Ragland testified that he took

notes.       Catherine Miller testified that she did not see Ragland

taking notes during the interview.                  The district court admitted

the    notes    into     evidence    during       Ragland’s     rebuttal       testimony.

Ragland’s notes are probative here, not necessarily for their

                                             7
content,    but    for    their    value       to   the   jury   in   weighing   the

credibility of witnesses as to a disputed fact, i.e., whether

notes were taken during Ragland’s interview with the Millers.

We do not see a basis for excluding the notes under Fed. R.

Evid.    403,      as     the     notes’       prejudicial       effect   did     not

substantially outweigh their probative value. *



           IV.    Evidence Outside the Scope of the Indictment

             The Millers argue that the district court improperly

allowed witnesses to testify as to work allegedly performed in

2002, prior to the date listed in Count Four of the indictment.

Evidence of events prior to 2003 was relevant and admissible,

even though Count Four of the indictment alleged crimes that

took place in 2003 and later.                  The Millers’ conduct prior to

2003 was at issue at trial, given that the allegedly false work

history reports were generated in response to the Millers’ 2002

tax return.       Evidence that Anthony Miller was working in 2002 is

relevant     to    show    that    the     Millers’       numerous    claims     that

Catherine Miller did all the work in 2002 were false.                            The



     *
       The case cited by the Millers as a basis for exclusion,
United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008), is
inapplicable.    Al-Moayad dealt with an undercover informant
whose notes were taken after the fact and admitted for the truth
of their content, not as evidence that notes were taken.



                                           8
district court did not err in admitting testimony that Anthony

Miller worked in 2002 and earlier.



V.   Admissibility of Evidence of the Millers’ Pending SSA
     Appeal

            The Millers argue that the district court erred in

refusing    to    admit     evidence       that       they       had    an    appeal     pending

before the SSA on the issue of whether Anthony Miller’s Social

Security    disability          benefits      should        be    suspended.            Relevant

evidence     may      be       excluded         if     “its       probative           value      is

substantially       outweighed           by        danger        of     unfair        prejudice,

confusion    of     the        issues,     or        misleading         the     jury,     or     by

considerations       of     undue     delay,         waste       of     time,    or     needless

presentation of cumulative evidence.”                      Fed. R. Evid. 403.

            The     district       court        was    within          its    prerogative        to

exclude evidence of the Millers’ pending SSA appeal on the basis

of Fed. R. Evid. 403.            Whether the Millers had an appeal pending

before the SSA at the time of trial was of no moment to the

ultimate     issues       in    the      case:          whether         the     Millers        made

materially       false     statements         to     the    SSA       and    whether     Anthony

Miller failed to disclose the fact that he was working.                                         The

district court could have properly concluded that evidence of

this sort was likely to confuse the jury and unduly delay the

trial.


                                                9
           We therefore affirm the district court’s judgment.        We

dispense   with   oral   argument    because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                               AFFIRMED




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