U.S. v. Miller

• Decision Date: 05 July 1990
• Docket Number: 85-2334,Nos. 84-2766,s. 84-2766
• Citation: 907 F.2d 994
• Parties: -5337, 91-1 USTC P 50,002 UNITED STATES of America, Plaintiff-Appellee, v. Herbert G. MILLER, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 994

907 F.2d 994

66 A.F.T.R.2d 90-5337, 91-1 USTC P 50,002

UNITED STATES of America, Plaintiff-Appellee, v. Herbert G. MILLER, II, Defendant-Appellant.

Nos. 84-2766, 85-2334.

United States Court of Appeals, Tenth Circuit.

July 5, 1990.

Charles J. Carroll of Dill and Dill, P.C. of Denver, Colo., for defendant-appellant.

Thomas M. O'Rourke, Asst. U.S. Atty., and Michael J. Norton, Acting U.S. Atty., Denver, Colo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and MCKAY, Circuit Judge, and GARTH, Senior Circuit Judge. ^*

GARTH, Senior Circuit Judge.

This appeal arises from the defendant Herbert Miller II's 18 U.S.C. Sec. 1001 conviction for making fraudulent statements in an effort to deceive and obstruct the tax authorities. Because the merits of Miller's direct appeal (84-2776) were never decided by this Court for reasons stated hereinafter, we have before us as well an appeal (85-2334) from the denial of Miller's motion to vacate and set aside his conviction on grounds of ineffective assistance of counsel. We affirm both Miller's conviction at 84-2776 and the order denying his 28 U.S.C. Sec. 2255 application to set aside his conviction (85-2334).

I.

In a November 1984 bench trial before the district court for the District of Colorado (Carrigan, J.), Miller, a tax attorney and accountant, was convicted on three counts of making false statements in violation of 18 U.S.C. Sec. 1001. ¹ Miller had been found guilty of orchestrating the back-dating of deeds, pension plan reports and other financial documents in order to avoid tax liabilities. ²

We have before us now a much delayed direct appeal of this conviction (84-2776) as well as Miller's appeal of the district court's subsequent denial of his application made under 28 U.S.C. Sec. 2255 to set aside his conviction (85-2334). Both claims essentially rest on assertions raised by Miller's third attorney (Mr. Carroll) that Miller had received inadequate assistance of counsel at trial by his then counsel (Mr. Calder). An explanation of the procedural evolution of these appeals will be helpful in defining the issues before us.

A.

Miller was convicted after a bench trial on November 26-27, 1984. On December 4, 1984 he filed motions for a new trial and/or a judgment notwithstanding the verdict (JNOV). These motions were denied on December 10, 1984. With the deadline for filing an appeal approaching, Miller on December 20, 1984 filed a notice of appeal from his conviction, as well as from the order denying him a new trial or JNOV. On March 15, 1985, Miller was sentenced to five years on each of the three counts on which he was convicted, to be served concurrently.

On April 4, 1985, Miller filed a motion to substitute new counsel for his original counsel. At about that time, the court ordered that Miller undergo psychiatric examination pursuant to a determination of his suitability for parole, 18 U.S.C. Sec. 4205(d), and this Court then stayed Miller's direct appeal pending the action of the trial court.

B.

On July 1, 1985 the district court judge suspended imposition of Miller's sentence and placed Miller on a five-year term of probation. ³ In the meantime, however, on June 28, 1985 Miller had filed a motion to set his conviction aside pursuant to 28 U.S.C. Sec. 2255. The grounds he alleged were the ineffective assistance of trial counsel and his own incompetency to stand trial. Following hearings that addressed those grounds, the district court on July 11, 1985 denied that motion. ⁴ Miller timely appealed that order. 28 U.S.C. Sec. 2107.

With his third lawyer (Mr. Carroll) in charge, Miller on August 14, 1986 filed a Motion for Reconsideration of the December 14, 1984 Order, which had denied him a new trial. Alternatively, his motion sought to supplement the record, alleging newly discovered evidence. On the basis of briefs, the district court on November 13, 1986 issued a certification of the District Court indicating that, upon remand of the Miller record from the Court of Appeals, it would grant the Motion to Reconsider and consider the case for a new trial. This court then remanded both appeals.

At an August 12, 1988 status conference, the district court judge granted Miller's original Motion for a New Trial pursuant to Fed.R.Crim.Pro. 33. The Government appealed, claiming that the trial court had no jurisdiction to order a new trial on the basis of Fed.R.Crim.Pro. 33.

C.

This court in March 1989 determined that the district court had no jurisdiction to order a new trial under Fed.R.Crim. Pro. 33 because Miller's Motion for Reconsideration was filed out of time. U.S. v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989). We predicated our holding on the nature of the new claims ("newly discovered evidence") Miller had raised.

Following this ruling, this court on May 2, 1989 returned both of Miller's pending appeals to active status and consolidated them. The result of the proceedings we have recounted is that we have before us: (1) the original direct appeal of Miller's underlying conviction for violating 18 U.S.C. Sec. 1001 (at 84-2776); and (2) Miller's appeal from the denial of his motion brought under 28 U.S.C. Sec. 2255 to set aside his conviction (at 85-2334).

II.

Miller now rests his consolidated appeal solely on claims of ineffective assistance of counsel. ⁵

In reviewing this consolidated appeal, we are to be guided, except if clearly erroneous, by the historical facts found by the district court judge, while our review of the ultimate legal issues is plenary. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1983) prescribes our standard of review for attorney performance relative to the effective assistance of counsel. To succeed in an ineffective assistance of counsel claim, an appellant must show "deficiency plus prejudice." Accordingly, in regard to Miller's trial, we must answer the questions: (a) did Mr. Calder, Miller's trial attorney, provide Miller with that quality of counsel which Strickland has held to be "ineffective assistance of counsel" under the Sixth Amendment; and (b) but for the alleged deficiencies of his trial counsel, might Miller have been found not guilty?

Thus, the inquiry before us--in both Miller's direct appeal and in our review of his motion to set aside his conviction pursuant to 28 U.S.C. Sec. 2255--is whether any or all of Miller's claims add up to ineffective assistance of trial counsel as defined by Strickland and recently construed by this court in U.S. v. Rivera, 900 F.2d 1462, 1472-1474, (10th Cir., 1990) (en banc). A mixed law and fact review such as Strickland obliges us to view the "totality of the evidence before the judge and jury" Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980). In doing so, as another Court of Appeals has ruled,

the presumption of correctness accorded the factual determinations of the state [trial] court ... applies only to the historical facts underlying the attorney's performance but not to the ultimate conclusion as to whether or not effective assistance has been rendered.

Wycoff v. Nix, 869 F.2d 1111, 1117 (8th Cir.1989) (citations omitted). Accord, Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc), Davis v. Kemp, 829 F.2d 1522, 1537 (11th Cir.1987). See also, U.S. v. Golub, 694 F.2d 207, 212-14 (10th Cir.1982), U.S. v. Crouthers, 669 F.2d 635, 643 (10th Cir.1982), Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.1980).

In addition, insofar as we review Miller's habeas motion, as well as his direct appeal, we are instructed to be particularly deferential to the circumstances at the time of trial. As the Supreme Court has put it,

The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.

Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (citing Strickland, 466 U.S., at 688-89; 104 S.Ct. at 2064-65).

Because the Sixth Amendment's right to counsel is the right to effective assistance of counsel, a conviction must be overturned where counsel's defense so "undermined the proper functioning of the adversarial system that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. To succeed with such a claim, however, a defendant must show both that his attorney's performance fell below an objective standard of reasonableness and that but for counsel's inadequacies the result of the proceedings would have been different. 466 U.S., at 688, 694, 104 S.Ct. at 2068. As this court has put it, a defendant must "prove that his counsel's performance was [both] deficient [and] prejudicial," and he must do so in view of the strength of the government's case. Rivera, at 1474.

Application of this "deficiency-plus-prejudice" test must be predicated, however, on the presumption that counsel's conduct was reasonable and that it will be reviewed from a contemporaneous perspective, without excessive benefit of hindsight. On the basis of Strickland and the lower court record, which we have independently reviewed, we cannot say that Miller was deprived of the effective assistance of counsel. Examining Miller's claims, which we discuss below, we agree with the district court's July 1985 conclusion that Miller's trial may not have been "perfect," but it was "fair." ⁶

III.

Shortly after Miller's initial sentencing, evidence of certain mental and/or physical problems besetting Miller began to emerge. In particular, a court-ordered psychiatric examination arguably revealed that Miller had alcohol-related amnesia, and that he was subject to fantasizing and bouts of depression. Indeed, Miller's second attorney (Mr. Steinberg) hinged his unsuccessful June 28, 1985 motion to vacate and set aside the conviction on these grounds. Thus, Steinberg argued that Miller had been incompetent...