United States District Court, N.D. Indiana, Hammond Division
ORDER AND OPINION
JAMES T. MOODY, District Judge.
This matter is before the court for disposition of defendant Joseph B. Miller's amended motion for a new trial pursuant to FED. R. CRIM. P. 33 (DE #81). This comes following an evidentiary hearing thereon held on May 21, 2014, at which time Miller called witnesses and presented evidence in support of his motion. Under RULE 33, the court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM P. 33(a). Miller's motion is grounded on a claim that his conviction at trial resulted from ineffective assistance of trial counsel. Thus, he must meet the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), and show that his counsel's performance was unreasonable under prevailing professional norms, and that the deficiency caused him prejudice. See United States v. Westmoreland, 712 F.3d 1066, 1079-80 (7th Cir. 2013).
First,  defendant Miller argues that his trial counsel, Adam Tavitas, was ineffective for failing to make a confrontation clause objection to testimony at trial by Special Agent Michael Peasley identifying Miller's vehicle as being near the scene of the bank robbery at issue. At trial Agent Peasley testified that by working with the Lake County HIDTA program and "playing with" video from a surveillance camera located at Amtech Technology Systems, a business near the bank, he had been able to determine every digit of the license plate number on the vehicle except the last. (DE #77 at 29-33.) Then, using the Illinois vehicle registration database and a process of elimination, he found a registered vehicle of a make and model-a Ford Explorer-which was what the vehicle in the surveillance video appeared to be. ( Id. )
Defendant Miller's argument now is based on a document turned over by the government in pretrial disclosures titled "working copy" prepared by an unknown author. The document states that HIDTA staff "conducted an image refinement" of a still image from the video and "contacted Agents to indicate they had obtained the license plate from the video and could see it was L42 9151, Illinois." (DE #85-1 at 8.) Relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), defendant Miller argues that attorney Tavitas was ineffective for failing to make a confrontation clause violation objection to Agent Peasley's testimony because the person who enhanced (that is, conducted the "image refinement") of the still from the video and reported the license number, and the person who prepared the "working copy" document, are unknown and did not testify. (DE #81 at 15.)
Unlike Melendez-Diaz, no confrontation clause violation occurred in the present case. In Melendez-Diaz, affidavits of analysts at the state forensic laboratory were admitted into evidence to establish that bags of powder seized from defendant Melendez-Diaz contained cocaine. Unlike that case, as Miller himself admits in his motion, DE #81 at 14-15, the enhanced photograph from the surveillance video was not offered nor admitted into evidence. Neither was the "working copy" document attached to his motion showing that HIDTA had identified the license numbers, nor was there any testimony concerning that document or indicating that someone at HIDTA had determined the license number. Thus, there was no confrontation clause violation to which trial counsel could or should have made an objection.
This is possibly why, in his reply memorandum and during the evidentiary hearing on his motion, defendant Miller's argument seems to have "morphed" into one that the document should have been used by Tavitas during his cross examination of Agent Peasley to cast doubt on Peasley's explanation of how he had determined the vehicle in the video was Miller's. This argument fares no better, however, because no plausible explanation has been offered or is obvious as to exactly what this cross-examination should have been and how it would have made a difference to the outcome.
To the contrary, at the hearing on defendant Miller's motion Agent Peasley reiterated, consistent with his testimony at trial, the steps he had taken to use the surveillance video to identify Miller's vehicle. At the hearing he testified that the enhanced still image used by HIDTA to determine the license number still wasn't clear enough, in his opinion, to be a "smoking gun" to identify the vehicle as Miller's and that he would characterize the information obtained from HIDTA as a tool he used to take the next steps. Those steps were using the Illinois vehicle registration database to determine a vehicle of the make and model seen in the video, a Ford Explorer registered to defendant Miller, then going to Miller's residence to view the vehicle and see that it had unique characteristics matching the one in the surveillance video, such as stickers on the windows.
Finally, at the hearing on Miller's motion his trial attorney, Adam Tavitas, testified that from preparing the defense he expected that both Miller's girlfriend and mother would testify that the vehicle in the surveillance video was Miller's Ford Explorer, and that Miller himself agreed that the video showed his vehicle. The defense he wanted Tavitas to pursue was that the person seen in the video exiting the vehicle was not him. In fact, Agent Peasley testified at trial that the first time he questioned Miller he showed Miller an image from the surveillance video and Miller said; "That's my vehicle, but that's not me." (DE #77 at 52.) Under all of the circumstances just summarized, Tavitas didn't see the "working copy" document stating that someone at HIDTA had identified the license number as having any special significance in the case, because it simply wasn't of great importance to show how the agents had gotten from the video to Miller's vehicle. Defendant Miller has not shown how Tavitas's judgment and performance in this regard was deficient, or how Tavitas could have utilized the document to make any difference in the case. He has not, therefore, made any showing of ineffective assistance of counsel.
Defendant Miller's second argument is that attorney Tavitas should have cross-examined Agent Peasley at trial concerning a portion of Peasley's affidavit in support of the criminal complaint in this case, in which Peasley recounted having shown a photo line-up to Judith Tauber, a bank teller and eyewitness. Miller asserts that evidence shows that Peasley misrepresented in the affidavit that Tauber had identified a photo of defendant Miller as being the bank robber. Oversimplifying in the interest of brevity, Miller argues this would have made a difference at trial because Agent Peasley testified that during his initial custodial questioning of defendant Miller, Miller admitted committing the robbery. Showing that Peasley was willing to mischaracterize an eyewitness's statement or, at best, was unable to accurately recall and describe the statement, would have minimized or negated the value of Peasley's testimony that Miller confessed.
Miller has not shown that Tavitas's decision not to pursue this matter at trial was deficient. To begin, the court views the evidence that Agent Peasley mischaracterized Tauber's statement to be lacking and not likely to have been of persuasive value to the jury. What occurred is this. The portion of Agent Peasley's affidavit at issue, paragraph 11, states:
On December 21, 2011, law enforcement showed a photo line-up containing a photo of Miller and five other subjects to the teller. She pointed to the photo of Miller and said, "He looks familiar to me." The teller 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.
(DE #1 at 5, ¶ 11.) Later, Tauber, after reviewing Peasley's affidavit, Tauber was of the opinion that it misrepresented what she had said. She wanted to be clear that she had never said the photo in the line-up was, or reminded her of, the bank robber. What she thought and said was that the man in the photo reminded her of the courier. The bank robber had also reminded her of the courier.
When defendant Miller learned this,  he moved to take a deposition of Tauber prior to trial. (DE #26.) Opposing that motion, the government argued:
During Defense Counsel's interview of the teller, she said she disagreed with the agent's report. Instead, she said that the photograph of the defendant looked familiar, because it reminded her of the courier, not because the photograph looked like the bank robber. Accordingly, the government expects her trial ...