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Miller v. United States

United States Court of Appeals, Seventh Circuit

October 9, 2019

Brian Miller, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued September 17, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. 1:18-cv-1154 - James E. Shadid, Judge.

          Before Flaum, Rovner, and Scudder, Circuit Judges.

          SCUDDER, CIRCUIT JUDGE.

         Brian Miller cut a hole in his bathroom wall and secretly filmed teenage girls-friends of his own children-undressing and showering. Federal authorities learned of his conduct, commenced an investigation, and, after extensive discussions, offered to allow Miller to plead guilty to possessing child pornography, an offense with a maximum penalty of ten years' imprisonment. Miller rejected the offer and instead chose to go to trial, where he was convicted of the greater offense of producing child pornography and then sentenced to 18 years. Having previously rejected Miller's challenge to his conviction and sentence on direct review, we now affirm the district court's denial of his petition for post-conviction relief under 28 U.S.C. § 2255. The district court correctly concluded that Miller failed to show that his trial counsel provided ineffective assistance during plea negotiations.

         I

         A

         In June 2012, after receiving a tip about Miller's misconduct, local authorities obtained a warrant to search his home, where they found the rigging in his basement and his cell phone. In time federal authorities became involved and searched Miller's phone. The search uncovered so-called thumbnail images-small, still photographs that serve as footprints of videos that have been deleted-of naked teenage girls. This initial search did not recover any video files on Miller's phone, however.

         When federal agents approached and questioned Miller about his conduct, he hired an attorney, Joel Brown, to represent him in the investigation. The agents made clear from the outset that Miller would be charged with a child pornography offense. The only unresolved question was whether that charge would be for simple possession or production. After conferring with federal prosecutors, the agents informed Brown that the government would permit a plea to the lesser charge if Miller could show that his conduct was limited to filming the teenage girls and did not extend to any sexual contact with them. Miller sought to make this showing by agreeing to meet with the agents to discuss his offense conduct and to submit to a polygraph exam.

         Much hung in the balance for Miller: if he was able to plead to a possession offense, he faced a maximum penalty of ten years' imprisonment. See 18 U.S.C. § 2252A(a)(5)(B), (b)(2). But if he failed the polygraph or otherwise was unable to persuade the government of the scope of his conduct, Miller would face the 15-year mandatory minimum sentence that Congress prescribed for producing child pornography. See id. § 2251(a), (e).

         Miller passed the polygraph and proffered successfully, only then to decline the government's plea offer. The government reacted as it told Miller it would-by seeking an indictment charging him with producing child pornography. By this same time, and in response to learning that Miller opted to go to trial, the U.S. Secret Service had conducted a renewed forensic examination of Miller's phone and managed to recover the videos he made of the teenage girls undressing or showering in his basement bathroom. The indictment the grand jury returned against Miller contained 22 production counts, with each count tracking each of the 22 video files found on his phone.

         A bench trial followed and ended in the district court finding Miller guilty on all counts. The court then sentenced Miller to 18 years' imprisonment and 15 years' supervised release. We affirmed on direct review. See United States v. Miller, 829 F.3d 519, 530 (7th Cir. 2016).

         B

         Miller then turned his attention to post-conviction relief. In his petition to vacate his sentence under 28 U.S.C. § 2255, he claimed that his trial counsel, Joel Brown, provided ineffective assistance during the pre-indictment plea negotiations. With Miller and Brown offering polar opposite versions of what transpired ...


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