United States v. Miller

• Decision Date: 22 July 2015
• Docket Number: No. 14–2779.,14–2779.
• Citation: 795 F.3d 619
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph B. MILLER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

795 F.3d 619

UNITED STATES of America, Plaintiff–Appellee

v.Joseph B. MILLER, Defendant–Appellant.

No. 14–2779.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 2015.

Decided July 22, 2015.

David E. Hollar, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Visvaldis P. Kupsis, Law Office of Visvaldis P. Kupsis, Valparaiso, IN, for Defendant–Appellant.

Opinion

FLAUM, Circuit Judge.

In 2013, a federal jury found Joseph Miller guilty of bank robbery. Miller now seeks a new trial, which he believes is warranted for two reasons: first, Miller contends that an FBI agent offered false testimony during his trial, and second, he argues that his trial counsel provided constitutionally ineffective assistance by failing both to seek suppression of an in-court identification and to challenge the credibility of the testifying FBI agent via cross-examination on certain specified issues. Because we conclude that neither the agent's alleged misstatements nor counsel's purported errors affected the outcome of Miller's trial, we affirm the district court's denial of his new trial motion.

I. Background

On December 13, 2011, a clean-cut male in his late 30s or early 40s robbed the Standard Bank & Trust in Hammond, Indiana. The robber wore a thigh-length leather coat, black sneakers with red stitching, and a green-and-white baseball cap with a Chicago Bulls logo. He approached bank teller Judith Tauber, who was standing next to her supervisor Pakama Hoffman, and handed Tauber a note demanding money. Tauber quickly turned over some $5,000 in cash. The robber then exited the bank and headed in the direction of Amtech Technology Systems, a nearby business. He climbed into a blue Ford Explorer with Illinois plates and drove off. The vehicle was captured on Amtech surveillance video.

FBI Agent Michael Peasley reviewed the surveillance footage but, after attempting to sharpen the image, could not identify the Explorer's license plate number. He sent the video footage to the Lake County High Intensity Drug Trafficking Area (“HIDTA”) Task Force, where the image was refined so that all but one digit on the license plate became legible. Using the enhanced image, Agent Peasley searched the Illinois vehicle registration database and entered each of the ten possible license plate combinations. One of those combinations matched the plate number of a Ford Explorer registered to defendant-appellant Joseph Miller, who lived a few miles outside of Hammond, in Lansing, Illinois.

The FBI conducted surveillance of Miller for several days. Agent Peasley observed Miller's Ford Explorer parked outside of his home and, based on the vehicle's distinctive characteristics, including stickers, rain dams, and window tinting, Agent Peasley concluded that Miller's Explorer was the same vehicle captured on the Amtech video. During the surveillance period, Miller and his girlfriend, Debra Loggins, were the only individuals seen driving the vehicle. On January 5, 2012, agents searched Miller's home with Loggins's consent and recovered a black leather jacket resembling that worn by the bank robber. The agents also seized Miller's black sneakers, which featured red stitching and distinctive tabs that matched the embellishments on the robber's sneakers. They did not locate any cash or a Chicago Bulls hat, though Loggins's daughter stated that Miller and Loggins owned matching green-and-white Chicago Bulls baseball caps.

That same day, Agent Peasley questioned Miller at the Lansing, Illinois police station, where he advised Miller of his Miranda rights. Miller initially denied involvement in the robbery, though when Agent Peasley showed him a photo of the robber and the Ford Explorer in the Amtech parking lot, Miller responded, “That's my vehicle, but that's not me.” Forty-five minutes into the interview, however, Agent Peasley asked Miller if he had a firearm, to which Miller replied, “I did not have a gun.” Understanding this to mean that Miller was admitting to the robbery, Agent Peasley clarified, “You mean you didn't have a gun during the robbery,” to which Miller replied, “Yes.” Miller also explained that, following the robbery, he had thrown the Chicago Bulls cap into a nearby dumpster. This conversation was not recorded, and Miller did not sign a written confession.

Early in the investigation, Agent Peasley provided photo arrays to both Tauber and Hoffman, the Standard Bank witnesses. Hoffman pointed at Miller's picture in the array but stated that she could not be 100% certain that he was the robber. Tauber pointed to Miller's photo and recalled that she had thought the bank robber resembled a courier who she had previously seen at the bank. Miller's photo, she explained, reminded her of that same courier. In support of the criminal complaint against Miller, Agent Peasley submitted an affidavit recounting the photo line-up with Tauber. The affidavit reads, in pertinent part:

[When] law enforcement showed a photo lineup containing a photo of Miller and five other subjects to [Tauber,] [s]he pointed to the photo of Miller and said, “He looks familiar to me.” [Tauber] explained that when she was being robbed, she thought the man reminded her of a courier who comes into the bank. When she saw the photo of Miller, she again thought the photo reminded her of the courier.

Tauber later reviewed Agent Peasley's affidavit and disagreed with its characterization of her statements. She clarified that the photograph of Miller “looked familiar, because it reminded her of the courier, not because the photograph looked like the bank robber.” When Miller learned of this discrepancy, he moved to depose Tauber prior to trial. The district court denied Miller's motion after the government explained that it “expect[ed] [Tauber's] trial testimony to be—that she did not identify the photograph as the bank robber.” Tauber, in fact, died shortly thereafter and no evidence relating to her observations upon viewing the photo array was introduced at trial.

At Miller's June 2013 trial, video footage from both Standard Bank and the Amtech parking lot was admitted. Hoffman testified as the sole eyewitness. Although she had been unable to pick Miller out of the photo array, Hoffman made an in-court identification of Miller as the robber at trial. Miller's attorney, Adam Tavitas, did not object to the admission of Hoffman's identification. However, on cross-examination, Tavitas emphasized that Hoffman had observed the robber only briefly and had been unable to identify Miller in the photo array presented to her shortly after the robbery. Loggins's daughter also testified at trial, identifying the robber's green-and-white baseball cap as a hat identical to one Miller had owned. Loggins herself denied previously seeing Miller with a green-and-white Bulls hat. She also denied several prior statements she had made to law enforcement, but admitted telling agents that Miller was the individual in the Amtech surveillance footage. When again confronted with the footage during trial, Loggins stated that she was unable to identify the person depicted. However, Log-gins did positively identify the car in the image as Miller's Ford Explorer.

Agent Peasley also testified at trial, and described the circumstances surrounding Miller's confession and other details relating to the investigation. When questioned about his identification of Miller's vehicle, Agent Peasley explained that he reviewed the Amtech surveillance tape and was eventually able to read all of the digits on the vehicle's license plate, with the exception of one number. Agent Peasley's testimony continued as follows:

Q. And did you do anything to enhance your ability to read th[e license plate]?

A. We played with the video quite a lot. We looked at could we adjust the colors, even invert the colors, do anything we can to bring out those numbers. And we continued to do that and then got to the point where we were able to read all but that one digit. So we then started playing with those digits in the registration system database to look and see if we could find a match.

Q. All right. And let me just have you explain something you just said. You said you were playing with the video. Did you make any changes or enhancements—

A. No.

Through Agent Peasley, the government also admitted various financial records. Records from Miller's electric company confirmed that his bill had been delinquent prior to the robbery but was paid the day after the robbery. Bank account records revealed that Miller's account was overdrawn by $159.82 on the morning of the robbery and that two cash deposits totaling $370 were made into his account later that same day. Agent Peasley testified, however, that Miller's account was “delinquent by about 730 something dollars [on the morning of] the bank robbery.” The government referenced this $730 figure during its closing argument.

Tavitas cross-examined Agent Peasley on several issues. He emphasized that Agent Peasley did not record the interview in which Miller purportedly confessed, and pointed out other shortcomings in the investigation, including that no handwriting exemplar was obtained from Miller, no fingerprints or DNA were recovered from the scene, and no stash of money was found at Miller's house. Tavitas did not question Agent Peasley about Tauber's statements in relation to the photo array, nor did he attempt to correct Agent Peasley's testimony regarding the amount by which Miller's account was overdrawn. Ultimately, Miller was found guilty of bank robbery in violation of 18 U.S.C. § 2113(a), and sentenced to 225 months' imprisonment.

Represented by new counsel, Miller filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. He argued that Tavitas provided constitutionally ineffective assistance, first, because he did not introduce evidence that Agent Peasley's affidavit “mischaracterized” Tauber as having identified Miller as the robber; second, because he did not...