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United States v. Miller

United States District Court, N.D. Indiana, Hammond Division

October 21, 2019

UNITED STATES OF AMERICA
v.
JOSEPH B. MILLER

          OPINION AND ORDER

          JAMES T. MOODY, JUDGE

         Petitioner Joseph Miller has filed a motion (DE # 144) to vacate his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, Miller's motion will be denied.

         I. BACKGROUND

         The following factual and procedural history is adopted from the Seventh Circuit's opinion on Miller's direct appeal.

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, Loggins 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 object to Agent Peasley's testimony regarding the enhancement of the license plate images; and third, because Tavitas did not challenge Agent Peasley's incorrect assertion that Miller's bank account was more than $700 overdrawn on the day of the robbery.
At an evidentiary hearing, Agent Peasley testified that he had sent the Amtech video to HIDTA staff who “took a look at the video to try to clear it up to see if we could see what the [license plate] tag was.” He also attempted to clarify the image on his own but was unsuccessful. Agent Peasley admitted he could not recall exactly how the video was sent to HIDTA, who adjusted its sharpness, or what techniques were used to do so. He believed HIDTA “simply adjusted aspects of the image, so-like, they adjusted the color ration [sic]. They adjusted the zoom level. They adjusted sharpness of the photos.” However, he insisted that HIDTA “did not change the photograph.” Agent Peasley also admitted that he erred in testifying that Miller's bank account was overdrawn by approximately $730 on the day of the robbery. He explained that he had mistakenly conflated the relevant pre-robbery account balance (-$159.82) with Miller's account balance a few weeks after the robbery (-$713).
Tavitas also testified at the hearing regarding his representation of Miller. He explained that he did not question Agent Peasley about Tauber's statements because he did not want to introduce evidence that might allow the jury to infer that Tauber thought Miller resembled the robber. Tavitas also stated that it was not part of his trial strategy to challenge the assertion that the car in the Amtech lot belonged to Miller, as Miller and Loggins had both admitted to Agent Peasley that the car in the Amtech lot was his. Rather, Tavitas's trial strategy was to argue that the car was Miller's, but that the man in the video was someone else. Tavitas therefore saw no need to cross-examine Agent Peasley regarding the process by which he verified the robber's license plate number. Tavitas could not explain his failure to correct Agent Peasley's misstatement with respect to Miller's bank records.
The district court denied Miller's new trial motion. First, it found no ineffectiveness relating to Tavitas's choice not to cross-examine Agent Peasley about Tauber's pre-trial statements, concluding that Tavitas had made a “sound tactical decision.” The court also concluded that Tavitas acted permissibly in declining to question Agent Peasley about the license plate enhancement process as Tavitas had explained that he did not intend to argue at trial that the vehicle on the scene did not belong to Miller. Finally, the district court assumed that Tavitas's failure to correct Agent Peasley's testimony regarding Miller's bank account balance was error but that, considering the strength of the government's case, it did not prejudice Miller.

United States v. Miller, 795 F.3d 619, 622-25 (7th Cir. 2015).

         Miller, through his appellate counsel, then pursued these claims on a direct appeal. See Id. On appeal, Miller argued that he was entitled to a new trial because Agent Peasley offered false testimony during trial regarding: (1) his involvement in clarifying the surveillance footage to obtain the license plate number; and (2) the amount by which Miller's bank account was overdrawn on the morning of the robbery. Miller also argued that he was entitled to a new trial because his trial counsel provided constitutionally ineffective assistance by: (1) failing to seek the suppression of Hoffman's in-court identification of Miller as the robber; (2) failing to cross examine Peasley about Tauber's clarification of statements she made while examining the photo array; and (3) failing to correct Peasley's statement about Miller's account deficit on the morning of the robbery. Id. at 627-28.

         The Seventh Circuit affirmed this court's denial of Miller's motion for a new trial. The Court specifically found that Peasley's statements did not effect the jury's verdict. The Court also held that Miller's trial counsel did not provide constitutionally inadequate representation. The Court held that trial counsel's decision not to object to Hoffman's in-court identification did not fall below an objective standard of reasonable attorney performance. Id. at 629. Second, the Court found that trial counsel's decision not to cross examine Peasley using the statements Tauber made while viewing the photo array was a legitimate trial strategy. Id. at 629-30. Finally, the Court held that trial counsel's failure to correct Peasley's misstatement regarding Miller's bank account did not prejudice Miller. Id. at 630.

         Miller now moves to vacate his conviction pursuant to 28 U.S.C. § 2255. Miller's motion, supplemented several times and containing hundreds of pages of argument, identifies 10 claims (Claims A-J)[1] which he believes entitle him to relief. Miller's claims can be categorized as claims of: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) challenges to the Government's evidence; and (4) challenges to the conditions of his supervised release.

         II. LEGAL STANDARD

         A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. 28 U.S.C. § 2255(a). Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy to a person who has ...


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