United States v. Miller , 911 F.3d 638 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2053
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID MILLER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Barron and Selya, Circuit Judges,
and Katzmann, Judge.
Robert Herrick, with whom Nicholson Herrick LLP was on brief,
for appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
December 28, 2018

Of the United States Court of International Trade, sitting
by designation.
SELYA, Circuit Judge. Defendant-appellant David Miller
pleaded guilty to violating the Mann Act, 18 U.S.C. § 2423(a), by
transporting his thirteen-year-old1 adopted daughter across state
lines in 1995 for immoral sexual purposes. The defendant had not
yet been charged and the limitations period for his Mann Act
violation was still open when Congress elongated the statute of
limitations in 2003. "The mills of justice grind slowly, but they
grind exceedingly fine," Vineberg v. Bissonnette, 548 F.3d 50, 59
(1st Cir. 2008), and the government eventually charged the
defendant with the Mann Act violation in 2016. By then, the old
statute of limitations had expired, but the new statute of
limitations had not. The defendant entered a guilty plea, and the
district court sentenced him to a 327-month term of immurement.
Represented by a new lawyer, the defendant argues for
the first time on appeal that he received ineffective assistance
of counsel in derogation of the Sixth Amendment because his trial
attorney (now deceased) did not mount a defense premised on the
statute of limitations in effect at the time of the offense.2 But
this argument runs headlong into a potential obstacle: the general
1
Although the presentence investigation report states that
the victim was twelve years old at the time of the crime, both the
prosecution's version of the offense and the victim's testimony
confirm that she was actually thirteen when the crime was
committed.
2 Apart from the ineffective assistance of counsel claim, this
appeal does not take issue with any aspect of either the
defendant's conviction or his sentence.
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rule is that such a claim must first be raised in the district
court, either during the proceedings leading to the defendant's
direct appeal or after the conclusion of that appeal (typically,
through a petition for post-conviction relief pursuant to 28 U.S.C.
§ 2255). Here, however, the claim was never raised at all in the
district court. Consequently, our first task is to determine
whether this case qualifies for an exception to the general rule.
Because it is uncertain whether the 2003 amendment applies
retrospectively to the defendant's conduct and because the record
is opaque as to why trial counsel elected not to raise a
limitations defense below, we conclude that the defendant's
ineffective assistance of counsel claim ought not to be aired for
the first time on direct appeal. Thus, we affirm the defendant's
conviction and sentence; without prejudice, however, to his right
to raise his claim of ineffective assistance of counsel in a
collateral proceeding brought pursuant to 28 U.S.C. § 2255. We do
not decide the limitations issue.
I. BACKGROUND
We briefly rehearse the relevant facts. On November 30,
2016, a federal grand jury sitting in the District of Maine charged
the defendant with two counts of transporting a minor with the
intent to engage in criminal sexual activity in violation of 18
U.S.C. § 2423(a). Specifically, the indictment charged that in
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June and July of 1995, the defendant knowingly transported a child
across state lines with the intent to sexually assault her.
In 1995, the statute of limitations for the charged crime
allowed prosecution until the victim reached twenty-five years of
age. See 18 U.S.C. § 3283 (1994). Since the victim in this case
would have turned twenty-five no later than sometime in 2007, the
statute of limitations would have expired during that year. The
legal landscape shifted in 2003, when Congress extended the statute
of limitations for Mann Act violations to allow prosecution for
the duration of the life of the child victim. See id. (2003).
The defendant originally maintained his innocence.
During the pretrial proceedings, his attorney demonstrated an
awareness that the applicable statute of limitations had changed
mid-stream and indicated that he "wanted to look at the statute of
limitations issue one final time." Ultimately, the attorney
eschewed a limitations defense and, on June 1, 2017, the defendant
entered a guilty plea to one of the charged counts. The district
court sentenced the defendant to 327 months in prison and, at the
same time, dismissed the remaining count lodged in the indictment.
The defendant timely appealed, and at his request, this court
appointed new counsel under the Criminal Justice Act. See 18
U.S.C. § 3006A.
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II. ANALYSIS
We begin with constitutional bedrock: the Sixth
Amendment guarantees "the right to the effective assistance of
counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
The Supreme Court has crafted a two-pronged inquiry as a means of
evaluating ineffective assistance of counsel claims: "[f]irst,
the defendant must show that counsel's performance was deficient,"
and "[s]econd, the defendant must show that the deficient
performance prejudiced the defense." Id. at 687. This two-pronged
inquiry has equal relevance with respect to ineffective assistance
claims in both tried cases and cases resolved by guilty pleas.
See Hill v. Lockhart, 474 U.S. 52, 58 (1985).
To establish deficient performance by an attorney in a
criminal case, the defendant must show that the attorney's
representation was "outside the wide range of professionally
competent assistance." Strickland, 466 U.S. at 690. Pertinently,
when "an attorney fails to raise an important, obvious defense
without any imaginable strategic or tactical reason for the
omission, his performance falls below the standard of proficient
representation that the Constitution demands." Prou v. United
States, 199 F.3d 37, 48 (1st Cir. 1999). To satisfy the prejudice
requirement, the defendant must show "a reasonable probability
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that, but for counsel's errors, he would not have pleaded guilty."
Hill, 474 U.S. at 59.
Here, however, there is an antecedent question as to
timing — a question that asks whether, as a prudential matter, the
defendant should be allowed to raise his ineffective assistance of
counsel claim for the first time on appeal. The general rule is
that "fact-specific claims of ineffective assistance cannot make
their debut on direct review of criminal convictions, but, rather,
must originally be presented to, and acted upon by, the trial
court." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
Thus, a criminal defendant who wishes to pursue a claim of
ineffective assistance not advanced in the trial court is
ordinarily required to defer that claim to collateral proceedings.
See id.; see also 28 U.S.C. § 2255.
This general rule — like most general rules — admits of
exceptions. The exception that the defendant attempts to invoke
provides that "where the critical facts are not genuinely in
dispute and the record is sufficiently developed to allow reasoned
consideration of an ineffective assistance claim, an appellate
court may dispense with the usual praxis and determine the merits
of such a contention on direct appeal." United States v. Natanel,
938 F.2d 302, 309 (1st Cir. 1991). Since the applicability of
this exception must be gauged case by case, we turn next to the
particulars of the defendant's ineffective assistance claim.
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Stripped of rhetorical flourishes, the defendant's
position is that his trial counsel was ineffective because the
defendant had available a meritorious limitations defense but
counsel turned a winner into a loser by neglecting to raise that
defense.3 So, the defendant says, this case fits the exception
because no further development of the record is needed: any lawyer
worth his salt would have advanced such a limitations defense.
In weighing this claim, a useful starting point is to
consider whether it can be said with assurance that the amended
version of the statute of limitations (enacted in 2003 and which
had not yet expired when the defendant was charged) applies to the
defendant's 1995 offense. If so, further development of the record
would be a waste of time and the Natanel exception would be
available. Cf. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999)
("Obviously, counsel's performance was not deficient if he
declined to pursue a futile tactic."). If, however, it is less
than certain that the amended version of the statute of limitations
was available to the government, a material question would persist
3 The defendant does not challenge the advice given to him by
his trial counsel in connection with his guilty plea. He does not
allege, for example, that his plea was other than knowing and
voluntary because his attorney failed to advise him of a possible
limitations defense. Instead, his claim rests exclusively on the
argument that his trial counsel should have moved to dismiss the
indictment on limitations grounds — a step that he submits likely
would have borne fruit and resulted in a dismissal of the charges
prior to his tendering of a guilty plea.
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as to why the defendant's trial counsel did not raise a limitations
defense; the vitality of the ineffective assistance claim would
depend on idiosyncratic facts (including trial counsel's
justification, if any, for failing to mount such a defense); and
the availability of the Natanel exception would hinge on whether
the information in the record was sufficient to permit a reasoned
evaluation of the defendant's ineffective assistance claim. See,
e.g., United States v. Leahy, 473 F.3d 401, 410 (1st Cir. 2007)
(finding that "narrow" Natanel exception did not apply where record
"contain[ed] nothing approaching an adequate elaboration of why
counsel adopted the course that he followed"); United States v.
McGill, 952 F.2d 16, 19 (1st Cir. 1991) (finding Natanel exception
inapplicable where "[t]he relevant facts, especially those
concerning the reasons behind trial counsel's adoption of certain
strategies, [we]re unclear").
Against this backdrop, we turn to the statutory
construction question. Applying a statute of limitations enacted
in 2003 to conduct that occurred in 1995 requires a retrospective
application of the 2003 statute. Following the Supreme Court's
lead, see Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994),
we assess the validity of such an application through a two-step
approach.
The first step in the Landgraf approach involves
"determin[ing] whether Congress has expressly prescribed the
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statute's proper reach." Id. If Congress has clearly prescribed
an intention to give — or not to give — the statute retrospective
effect, the statute must be construed as Congress has ordained.
See Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir. 2004). Although
"Congress's intention [must] be unmistakable, our inquiry is not
limited to the statutory text but may include an examination of
standard ensigns of statutory construction, such as the statute's
structure and legislative history." Id. If, however, such a clear
directive cannot be gleaned, the second step in the approach comes
into play. The question then becomes whether applying the statute
retrospectively would have impermissible effects. See id.Specifically, Landgraf instructs an inquiring court to ask whether
the proposed application "would impair rights a party possessed
when he acted, increase a party's liability for past conduct, or
impose new duties with respect to transactions already completed."
511 U.S. at 280.
With these principles in mind, we train the lens of our
inquiry on the 2003 amendment. Some background lends perspective.
The general statute of limitations for non-capital federal crimes
is five years. See 18 U.S.C. § 3282(a). In 1990, Congress enacted
18 U.S.C. § 3509(k), which extended the five-year statute of
limitations for crimes of child sexual abuse until the child victim
reached twenty-five years of age. See Crime Control Act of 1990,
Pub. L. No. 101-647, § 225, 104 Stat. 4789, 4805 (1990) ("EXTENSION
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OF CHILD STATUTE OF LIMITATIONS. — No statute of limitation[s]
that would otherwise preclude prosecution for an offense involving
the sexual or physical abuse of a child under the age of 18 years
shall preclude such prosecution before the child reaches the age
of 25 years."). Approximately four years later, the text of the
statute was recodified (without any substantive change) at 18
U.S.C. § 3283 (1994).
This brings us to 2003, when Congress amended section
3283. The amended version provided that: "[n]o statute of
limitations that would otherwise preclude prosecution for an
offense involving the sexual or physical abuse, or kidnaping, of
a child under the age of 18 years shall preclude such prosecution
during the life of the child." 18 U.S.C. § 3283 (2003). The Joint
Conference Report prepared by the Senate and the House of
Representatives, which accompanied the 2003 amendment, explained:
The conference report amends the current law
that covers the statute of limitations for
offenses involving the sexual or physical
abuse of a child. This section adds crimes of
kidnapping and extends the statute of
limitations to the life of the child victim.
. . . Under current law, the standard
limitation rules do not bar prosecution "for
an offense involving the sexual or physical
abuse of a child under the age of eighteen
years . . . before the child reaches the age
of 25 years." While this is better than a
flat five-year rule, it remains inadequate in
many cases. For example, a person who
abducted and raped a child could not be
prosecuted beyond this extended limit — even
if DNA matching conclusively identified him as
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the perpetrator one day after the victim
turned 25.
H.R. Rep. No. 108-66, at 54 (2003) (Conf. Rep.), as reprinted in
2003 U.S.C.C.A.N. 683, 688 (footnote omitted).4
We do not believe that a Landgraf analysis of the 2003
amendment yields a readily discernable result. To begin, neither
the amendment nor its legislative history expressly states that
the extension to the statute of limitations is to have
retrospective reach. At first blush, the wording of the statute
— "[n]o statute of limitations that would otherwise preclude
prosecution for an offense . . . shall preclude such prosecution
during the life of the child," 18 U.S.C. § 3283 (2003) — might be
thought to reflect an intent that the new limitations period apply
to all offenses for which the prior statute of limitations was
still open. But appearances can be deceiving, and in drafting an
amendment to a different statute with the same "otherwise preclude"
language, Congress included an explicit direction for
retrospective application. See Justice for All Act of 2004, Pub.
L. No. 108-405, § 204, 118 Stat 2260, 2271 (2004) (explaining that
"[t]he amendments made by this section [18 U.S.C. § 3297] shall
apply to the prosecution of any offense committed before, on, or
4
For the sake of completeness, we note that Congress again
amended the statute in 2006 to allow for prosecution "during the
life of the child, or for ten years after the offense, whichever
is longer." 18 U.S.C. § 3283 (2006). The 2006 amendment has no
bearing on this case.
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after the date of the enactment of this section if the applicable
limitation period has not yet expired").5 The fact that Congress
thought it necessary to insert this clarifying statement when
amending 18 U.S.C. § 3297 but omitted any such clarifying statement
from the 2003 amendment to 18 U.S.C. § 3283, arguably introduces
a modicum of ambiguity into the question of whether Congress
intended section 3283 to apply retrospectively. Cf. Carnero v.
Bos. Sci. Corp., 433 F.3d 1, 8 (1st Cir. 2006) (finding no clear
intent for extraterritorial application where Congress was silent
with respect to particular statute but "provided expressly
elsewhere in the [same] Act for extraterritorial enforcement of a
different . . . statute"). And even though two courts of appeals
have determined that Congress intended that the amended statute of
limitations for crimes of child sexual abuse should be applied
retrospectively, neither court grappled with Congress's explicit
statement regarding the retrospective reach of section 3297. See
United States v. Leo Sure Chief, 438 F.3d 920, 923-25 (9th Cir.
2006); United States v. Jeffries, 405 F.3d 682, 684 (8th Cir.
2005).
5
The 2004 amendment to 18 U.S.C. § 3297 added the following
language: "[i]n a case in which DNA testing implicates an
identified person in the commission of a felony, . . . no statute
of limitations that would otherwise preclude prosecution of the
offense shall preclude such prosecution until a period of time
following the implication of the person by DNA testing has elapsed
that is equal to the otherwise applicable limitation period."
Justice for All Act § 204, 118 Stat at 2271.
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There is another fly in the ointment. As the defendant
points out, the phrase "[n]o statute of limitations that would
otherwise preclude prosecution," when read in historical context,
is itself unclear: it may refer only to preclusion by the five-
year federal default statute of limitations (18 U.S.C. § 3282).
After all, in 1990 — when Congress first employed this critical
language — the only existing limitations period to which the
language could have referred was the default limit set forth in
section 3282. Employing identical language in 2003, then, arguably
may have been intended to accomplish only the same result —
precluding the application of the federal default statute — and no
more.
There is, of course, another side to the story. When
enacting the 2003 amendment, Congress specifically identified the
inadequacy of the then-existing (1994) statute of limitations as
the very reason for fashioning the amendment. See H.R. Rep. No.
108-66, at 54, as reprinted in 2003 U.S.C.C.A.N. at 688. And when
Congress has opted to distinguish a particular statute of
limitations from section 3282, it frequently has used language
specifically tailored to achieve that goal. See, e.g., 18 U.S.C.
§ 1091(f) (stating that "[n]otwithstanding section 3282" an
indictment for genocide may be brought "at any time without
limitation"); id. § 3286(a) (prescribing eight-year statute of
limitations for certain terrorism offenses "[n]otwithstanding
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section 3282"); cf. Rhode Island v. Narragansett Indian Tribe, 19
F.3d 685, 702 (1st Cir. 1994) (explaining that "[t]he omission of
[specific language] looms particularly large in light of the use
of that [language] elsewhere").
For present purposes though, the most important fact is
that neither the statute nor the legislative history expressly
states that the 2003 amendment is meant to have retrospective
application. In the absence of such an express statement, the
2003 amendment arguably can be read as only preventing a prior
statute of limitations from "preclud[ing] prosecution" of a
prospective "offense." 18 U.S.C. § 3283 (2003).
Assuming, for argument's sake, that the defendant is
able to clear this first Landgraf hurdle, the second step of the
Landgraf analysis is equally hard to negotiate. This impediment
is not surprising: as the Second Circuit aptly observed, it is
"particularly difficult to categorize the presumptively
impermissible effects of retroactively applying a statute of
limitations." Weingarten v. United States, 865 F.3d 48, 56 (2d
Cir. 2017), cert. denied, 138 S. Ct. 1309 (2018). The problem
becomes dicier because "criminal limitations statutes are 'to be
liberally interpreted in favor of repose.'" Toussie v. United
States, 397 U.S. 112, 115 (1970) (quoting United States v. Habig,
390 U.S. 222, 227 (1968)). The lone reported decision to analyze
the interplay between Landgraf and Toussie with respect to an
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extension of a statute of limitations determined that when these
cases "are read in conjunction," a court "must interpret the
statute of limitations in a manner favoring repose for Defendant."
United States v. Gentile, 235 F. Supp. 3d 649, 655 (D.N.J. 2017).
In other words, when Congress has sounded an uncertain trumpet, a
court ought to refrain from applying an enlarged criminal statute
of limitations retrospectively. See id. Seen in this light,
Toussie potentially alters the second step in the Landgraf
approach. Cf. Arevalo v. Ashcroft, 344 F.3d 1, 10 & n.6 (1st Cir.
2003) (suggesting that "[i]n criminal cases, other rubrics [beyond
Landgraf] may apply").
At the end of the day, the reach of the 2003 amendment
is uncertain.6 This uncertainty casts a long shadow over the
ineffective assistance claim: a limitations defense, if
successful, "would have furnished [the defendant] a complete
defense to the entire indictment." Weingarten, 865 F.3d at 53.
So the next question that must be asked is: why did the defendant's
trial counsel refrain from asserting such a defense?
6 Let us be perfectly clear. We do not hold that the 2003
amendment to 18 U.S.C. § 3283 applies — or does not apply — to
conduct that occurred prior to 2003 but as to which the previous
limitations period was still open at the time of the amendment.
For present purposes, it is enough to conclude that the answer to
this question is uncertain and that, therefore, the defendant may
have had a viable limitations defense.
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On this meager record, the answer to this question
remains an enigma. We are left to guess at trial counsel's thought
processes, especially since we are unable to discern any strategic
or tactical reason for spurning the defense. When all is said and
done, we know little more than that trial counsel chose not to
file a motion to dismiss. Given the potential potency of the
limitations defense, the indicia of uncertainty that we have
catalogued, the dearth of controlling case law, and our inability
to evaluate the ineffective assistance claim without some insight
into trial counsel's reasoning,7 we conclude that resort to the
Natanel exception is unwarranted.
This conclusion is not inconsistent with Weingarten.
There, the court ruled that an attorney's failure to raise the
same limitations issue did not constitute ineffective assistance
of counsel. See 865 F.3d at 58. But the defendant in that case
advanced his ineffective assistance claim in the district court by
way of a section 2255 petition. Consequently, the appellate court
— unlike this court — had the benefit of a developed factual record
and did not face the threshold question of whether an ineffective
7 Although the defendant's trial counsel is now deceased, it
may still be possible to flesh out the record. For example, a
review of counsel's file and notes might shed light on his decision
to eschew a limitations defense. So might testimony from his
partners, associates, or co-workers. In any event, the defendant
himself likely could testify about any strategic discussions that
he and his attorney may have had. See Tse v. United States, 290
F.3d 462, 463-64 (1st Cir. 2002) (per curiam).
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assistance claim could be entertained for the first time on direct
review.8
III. CONCLUSION
We need go no further. Concluding, as we do, that it
would be imprudent for us to attempt to adjudicate the defendant's
ineffective assistance of counsel claim on direct review without
a developed record, we hold that this case falls within the
confines of the general rule, not within the narrow Natanel
exception. Accordingly, we affirm the judgment below; without
prejudice, however, to the defendant's right to raise his claim of
ineffective assistance of counsel, if he so desires, in a
collateral proceeding brought pursuant to 28 U.S.C. § 2255.
So Ordered.
8 Notwithstanding Weingarten's different procedural posture,
the Second Circuit appears to share our concern about the
uncertainty surrounding the limitations issue. After all, the
Weingarten court found that issue to be "murky," 865 F.3d at 56,
and concluded that the defendant "may have been able to make a
colorable argument" in support of a limitations defense, id. at
55.
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