United States v. Joseph B. Miller ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2779
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH B. MILLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12-CR-10 — James T. Moody, Judge.
____________________
ARGUED APRIL 9, 2015 — DECIDED JULY 22, 2015
____________________
Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.
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
2 No. 14-2779
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 Traf-
ficking 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.
No. 14-2779 3
The FBI conducted surveillance of Miller for several days.
Agent Peasley observed Miller’s Ford Explorer parked out-
side of his home and, based on the vehicle’s distinctive char-
acteristics, including stickers, rain dams, and window tint-
ing, Agent Peasley concluded that Miller’s Explorer was the
same vehicle captured on the Amtech video. During the sur-
veillance period, Miller and his girlfriend, Debra Loggins,
were the only individuals seen driving the vehicle. On Janu-
ary 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 sneak-
ers. 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 Pea-
sley asked Miller if he had a firearm, to which Miller replied,
“I did not have a gun.” Understanding this to mean that Mil-
ler 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, fol-
lowing 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.
4 No. 14-2779
Early in the investigation, Agent Peasley provided photo
arrays to both Tauber and Hoffman, the Standard Bank wit-
nesses. 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 ex-
plained, 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 line-
up 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 dis-
agreed with its characterization of her statements. She clari-
fied 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 evi-
No. 14-2779 5
dence 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 tri-
al. Miller’s attorney, Adam Tavitas, did not object to the ad-
mission of Hoffman’s identification. However, on cross-
examination, Tavitas emphasized that Hoffman had ob-
served the robber only briefly and had been unable to identi-
fy 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 de-
nied several prior statements she had made to law enforce-
ment, but admitted telling agents that Miller was the indi-
vidual in the Amtech surveillance footage. When again con-
fronted 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 cir-
cumstances surrounding Miller’s confession and other de-
tails 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 li-
cense plate, with the exception of one number. Agent Pea-
sley’s testimony continued as follows:
6 No. 14-2779
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 contin-
ued 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 over-
drawn 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 govern-
ment referenced this $730 figure during its closing argu-
ment.
Tavitas cross-examined Agent Peasley on several issues.
He emphasized that Agent Peasley did not record the inter-
No. 14-2779 7
view in which Miller purportedly confessed, and pointed
out other shortcomings in the investigation, including that
no handwriting exemplar was obtained from Miller, no fin-
gerprints 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 rela-
tion 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 sen-
tenced 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 hav-
ing identified Miller as the robber; second, because he did
not object to Agent Peasley’s testimony regarding the en-
hancement of the license plate images; 1 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
1 On appeal, Miller has abandoned the argument that Tavitas’s failure to
cast doubt on Agent Peasley’s explanation of how he determined owner-
ship of the vehicle in the Amtech video amounted to ineffective assis-
tance. Instead, Miller claims that Agent Peasley’s allegedly false testimo-
ny regarding the license plate verification process impacted his right to a
fair trial.
8 No. 14-2779
the [license plate] tag was.” He also attempted to clarify the
image on his own but was unsuccessful. Agent Peasley ad-
mitted 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 over-
drawn 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 bal-
ance a few weeks after the robbery (-$713).
Tavitas also testified at the hearing regarding his repre-
sentation 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 al-
so stated that it was not part of his trial strategy to challenge
the assertion that the car in the Amtech lot belonged to Mil-
ler, as Miller and Loggins had both admitted to Agent Pea-
sley 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 num-
ber. 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
No. 14-2779 9
cross-examine Agent Peasley about Tauber’s pre-trial state-
ments, concluding that Tavitas had made a “sound tactical
decision.” The court also concluded that Tavitas acted per-
missibly 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 as-
sumed that Tavitas’s failure to correct Agent Peasley’s testi-
mony regarding Miller’s bank account balance was error but
that, considering the strength of the government’s case, it
did not prejudice Miller.
II. Discussion
On appeal, Miller continues to press the argument that
Tavitas’s assistance was constitutionally ineffective. He also
cites Agent Peasley’s statements regarding the enhanced li-
cense plate footage and the amount by which Miller’s bank
account was overdrawn in support of an independent claim
that the government offered false testimony at trial. 2 Miller
contends that there is a reasonable likelihood that Agent
Peasley’s purportedly false testimony and Tavitas’s alleged
errors affected the jury’s verdict. We disagree.
2 Because Miller did not raise his false testimony claim below, that claim
is arguably waived as we have “repeatedly held that a party that fails to
press an argument before the district court waives the right to present
that argument on appeal.” Garlington v. O’Leary, 879 F.2d 277, 282 (7th
Cir. 1989). However, because the government has not argued waiver—
and because “it is our practice to consider only those arguments present-
ed to us”—we decline to address the waiver issue and will proceed to
analyze Miller’s false testimony claim on the merits. Id. at 282–83 (recog-
nizing that “a defense of waiver can itself be waived by not being
raised”).
10 No. 14-2779
A. False Testimony
Miller argues that he is entitled to a new trial based on
Agent Peasley’s allegedly false testimony on two points: (1)
the process by which the Amtech surveillance footage was
enhanced, and (2) the balance of Miller’s bank account on
the morning of the robbery. In order to receive a new trial on
the basis of the government’s use of false testimony, Miller
must establish that the government’s case included perjured
testimony; that the government knew, or should have
known, of the perjury; and that there is a likelihood that the
false testimony affected the judgment of the jury. United
States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995).
Miller first claims that Agent Peasley testified falsely
when questioned about his ability to read the license plate
number from the vehicle captured on the Amtech surveil-
lance video. When asked whether he enhanced the image in
order to read the number, Agent Peasley explained that
“we” used various techniques to clarify the image. Accord-
ing to Miller, this implied that Agent Peasley himself had ad-
justed the image and identified the license plate number
when in reality an unknown HIDTA employee refined the
image (using unknown techniques) and provided Agent
Peasley with the enhanced footage.
It is not immediately clear to us that the challenged tes-
timony was false. While Agent Peasley’s language was ad-
mittedly ambiguous and imprecise, it is plausible that when
he used the term “we,” he was simply referring both to his
own unsuccessful efforts and the more successful efforts of
the HIDTA staff to enhance the Amtech footage. Neverthe-
less, we agree with Miller that the most obvious inference to
be drawn from Agent Peasley’s summary description of the
No. 14-2779 11
image refinement process was that he himself was responsi-
ble for sharpening the image that enabled him to initially
connect the getaway vehicle to Miller—not that he was
blindly relying on information provided to him by a third
party. 3
Even so, we do not believe that this admittedly flawed
testimony affected the jury’s verdict. First, Tavitas had am-
ple opportunity to bring to light any false or misleading
statements on cross-examination and did, in fact, elicit an
admission from Agent Peasley that he received “additional
help” in identifying the license plate number and that he
“didn’t do this [him]self.” See United States v. Adcox, 19 F.3d
290, 295 (7th Cir. 1994) (explaining that “whether the de-
fendant had adequate opportunity to expose the alleged per-
3 Because Agent Peasley’s testimony conveyed the assertion that the li-
cense plate captured on the Amtech surveillance video matched Miller’s
plates—an assertion made by an individual other than Agent Peasley,
who himself was uninvolved in the HIDTA image refinement process—
his testimony also presented potential hearsay and Confrontation Clause
problems. See Fed. R. Evid. 801; Davis v. Washington, 547 U.S. 813, 821
(2006) (holding that the Confrontation Clause of the Sixth Amendment
“bars admission of testimonial statements of a witness who did not ap-
pear at trial” (citation and internal quotation marks omitted)). Given
these considerations, it would have been preferable for the government
to instead call as a witness a HIDTA employee with personal knowledge
of the license plate enhancement process. But ultimately, because the
defense did not challenge the government’s contention that the vehicle
depicted in the Amtech footage belonged to Miller, any hearsay or Con-
frontation Clause violation would have been harmless. See United States
v. Westmoreland, 240 F.3d 618, 629 (7th Cir. 2001) (“Even if hearsay state-
ments are improperly admitted into evidence at trial, a conviction will
not be set aside if erroneous rulings under both [the Federal Rules of Ev-
idence] and the Confrontation Clause are harmless.”).
12 No. 14-2779
jury on cross-examination” is crucial in determining whether
a new trial is merited). More importantly, the license plate
identification process proved to be only a collateral matter at
trial. Because both Miller and Loggins had admitted that the
vehicle in the Amtech lot belonged to Miller, the defense did
not attempt to challenge that assertion. And, separate and
apart from its license plate number, Miller’s Ford Explorer
possessed certain other distinctive characteristics (e.g., win-
dow stickers, a chrome bumper, tinted windows, and rain
dams) that enabled Agent Peasley to identify Miller’s vehicle
as the vehicle present at the scene of the crime. Therefore,
Agent Peasley’s potentially misleading statements about the
license plate identification process were not essential to the
factual finding that the getaway car belonged to Miller.
Miller also challenges Agent Peasley’s statement at trial
that Miller’s bank account was overdrawn by approximately
$730 on the morning of the robbery. At the evidentiary hear-
ing on Miller’s new trial motion, Agent Peasley acknowl-
edged that this testimony was incorrect; in reality, Miller’s
account was overdrawn by only $159.82. However, it is un-
likely that this concededly false statement affected the judg-
ment of the jury. Details of Miller’s negative account balance
were offered to prove motive to commit robbery. The fact
that Miller’s account was overdrawn by less than Agent Pea-
sley suggested may lessen his motive, but it does not negate
it, nor does it alter the fact that deposits were made to Mil-
ler’s account (and his overdue electric bill paid) just after the
robbery. Furthermore, the remaining evidence of Miller’s
guilt is powerful: his vehicle was captured on surveillance
video near the bank at the time of the robbery; there is video
footage of a man with a similar build and similar distinctive
clothing entering the vehicle; Agent Peasley testified that
No. 14-2779 13
Miller confessed to committing the robbery; and, although
Hoffman’s in-court identification of Miller may not be enti-
tled to much weight (as we explain below), it is an additional
factor that weighs in favor of the government’s case. We are
therefore convinced that the effect on the jury of Agent Pea-
sley’s overstatement regarding the status of Miller’s bank
account was negligible. As a result, Miller’s claim to a new
trial based on Agent Peasley’s false testimony fails.
B. Ineffective Assistance of Counsel
Miller next contends that he is entitled to a new trial on
the ground that Tavitas’s representation was constitutionally
inadequate. In considering a claim of ineffective assistance of
counsel, we review the district court’s conclusions of law de
novo and its factual findings for clear error. United States v.
Traeger, 289 F.3d 461, 470 (7th Cir. 2002).
To prevail on an ineffective assistance claim, a defendant
must satisfy the demanding standard set forth by the Su-
preme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, Miller must demonstrate both that Tavi-
tas’s performance fell below an objective standard of reason-
ableness and that Miller was prejudiced as a result of that
deficient performance. Id. at 687–88. With respect to the
“performance” prong of the Strickland test, “a court must in-
dulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at 689 (citation and in-
ternal quotation marks omitted). As for the “prejudice”
prong, the Supreme Court has required defendants to estab-
lish “a reasonable probability that, but for counsel’s unpro-
14 No. 14-2779
fessional errors, the result of the proceeding would have
been different.” Id. at 694. Miller contends that Tavitas com-
mitted three errors during trial that rendered his representa-
tion inadequate: first, Tavitas did not attempt to suppress
Hoffman’s in-court identification of Miller as the robber;
second, Tavitas did not cross-examine Agent Peasley about
Tauber’s clarification of statements she made while examin-
ing the photo array; and third, Tavitas did not correct Agent
Peasley’s overstatement of Miller’s bank account deficit on
the morning of the robbery.
Miller first alleges that Tavitas’s decision not to move to
suppress Hoffman’s in-court identification constituted inef-
fective assistance. Hoffman, a Standard Bank employee,
identified Miller as the robber when she observed him sit-
ting at defense counsel’s table at trial. When previously pre-
sented with a photo array during the criminal investigation,
Hoffman had pointed to Miller’s photograph but stated that
she could not be certain that he was the robber.
Defendants have a due process right not to be subject to
unreasonably suggestive identification procedures that cre-
ate a “substantial likelihood of irreparable misindentifica-
tion.” Neil v. Biggers, 409 U.S. 188, 198 (1972) (citation and
internal quotation marks omitted). However, demonstrating
that an identification is “so unreliable that it violates due
process to allow the jury to hear it” is a “high standard,”
Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996), and
we have repeatedly held that “[a] defendant’s mere presence
at the defense table [at the time of identification] is not
enough to establish a violation of due process.” United States
v. Recendiz, 557 F.3d 511, 525 (7th Cir. 2009); see also Rodriguez
v. Peters, 63 F.3d 546, 556 (7th Cir. 1995). In addition, the fact
No. 14-2779 15
that a witness could not positively identify the defendant in
a pre-trial identification procedure does not automatically
render that witness’s subsequent in-court identification in-
admissible. See Lee v. Foster, 750 F.3d 687, 691 (7th Cir. 2014)
(“The fact that Johnson was not able to select [defendant]’s
photo may tend to discredit Johnson’s [in-court identifica-
tion], but this is not our concern, for examining the accuracy
of the identification falls within the exclusive province of the
jury.” (citation and internal quotation marks omitted)).
Miller cites our decision in Cossel v. Miller, 229 F.3d 649
(7th Cir. 2000), in which we concluded that trial counsel was
ineffective for failing to object to an in-court identification,
but Cossel is readily distinguishable. Most importantly, in
Cossel, there were two pre-trial identification procedures—a
line-up and a single-photo show-up—which the government
conceded were unnecessarily suggestive, and which there-
fore tainted the subsequent in-court identification. Id. at 655.
Crucially, there is no allegation of any prior impermissibly
suggestive identification procedure here. There were also
further indicia of unreliability in Cossel. The Supreme Court
has listed several factors to consider in determining the reli-
ability of a challenged identification, including the witness’s
opportunity to observe the perpetrator at the time of the
crime; the witness’s degree of attention; the accuracy of the
witness’s prior description; the witness’s level of certainty at
the time of the identification; and the length of time that has
elapsed between the crime and the identification. 4 Biggers,
4 It is worth noting that these factors—while relevant to the reliability of
any identification—are typically cited when evaluating whether an iden-
tification made during an impermissibly suggestive identification proce-
dure was nonetheless reliable under the circumstances. See Lee, 750 F.3d
16 No. 14-2779
409 U.S. at 199–200. In Cossel, although the eyewitness had
ten seconds to view the assailant by moonlight and street-
light, the defendant did not match the pre-identification de-
scription that the witness provided. 229 F.3d at 655–56. In
addition, far more time elapsed between the crime and the
identifications at issue in Cossel than in the instant case: here,
eighteen months passed between the robbery and Hoffman’s
in-court identification, while in Cossel, three years passed be-
fore the first positive (and concededly suggestive) out-of-
court identification and six years elapsed between the crime
and the challenged in-court identification. Id. at 656.
It is true that Hoffman’s in-court identification also lacks
certain indicia of reliability. While Hoffman—who was
standing at the teller counter during the bank robbery—had
an unobstructed view of the robber at close range, the record
suggests that she did not realize a robbery was being com-
mitted and that she likely paid little attention to the robber’s
appearance. Further, although Hoffman appears to have
displayed some certainty with respect to her in-court identi-
fication, at the time she viewed the photo array, she ex-
pressed doubt as to her ability to identify the robber. Yet we
have acknowledged that in-court identifications are often
“much less reliable than fair line-ups and photo arrays” but
have nevertheless concluded that “[t]his does not necessarily
at 692 (“The Supreme Court set forth several factors for courts to use to
determine whether an unduly suggestive identification procedure was still
to be considered reliable … .” (emphasis added)); see also Cossel, 229 F.3d
at 655 (“In determining whether an identification is reliable despite sug-
gestive pre-trial identification procedures, courts look to the ‘Biggers fac-
tors’ … .”). Because we do not believe that the identification procedure at
issue here was unduly suggestive, these factors have limited bearing on
our analysis.
No. 14-2779 17
mean … that a witness should not be allowed to take the
stand and make such an identification.” Johnson, 92 F.3d at
597. Suppression of an identification is an extreme and often
inappropriate remedy; rather, where defense counsel has
“more than adequate opportunity to cross examine [the wit-
ness] and to make clear to the jury that [the witness] was un-
able to pick [the defendant] out of the photo array,” due
process will generally be deemed satisfied. Id. Here, Tavitas
thoroughly cross-examined Hoffman in an attempt to attack
the reliability of her identification. He pointed out that she
had only a brief opportunity to observe the robber, and fur-
ther noted that she had failed to pick Miller out of a photo
array shortly after the robbery. This exchange provided the
jury with sufficient information with which to evaluate the
reliability of Hoffman’s identification. We therefore conclude
that Tavitas’s decision not to object to that identification did
not fall below an objective standard of reasonable attorney
performance.
Miller next argues that Tavitas was ineffective as a result
of his decision not to undermine Agent Peasley’s credibility
by cross-examining him as to the statements Tauber made
upon viewing the photo array. According to Miller, Agent
Peasley’s affidavit improperly represented that Tauber had
positively identified Miller as the bank robber. He reasons
that if Tavitas had exposed Agent Peasley’s willingness to
mischaracterize a witness’s statement, the jury would not
have given credence to Agent Peasley’s report of Miller’s
confession. Miller cannot prevail on this claim for two rea-
sons.
First, we do not believe that Agent Peasley misrepresent-
ed Tauber’s statements in his affidavit. The affidavit explains
18 No. 14-2779
that Tauber “thought the [robber] reminded her of a courier
who comes into the bank,” and also “thought [that Miller’s]
photo reminded her of the courier.” While this language cer-
tainly permits an inference that Miller looked like the robber,
it does not mischaracterize Tauber’s limited observation that
Miller resembled the courier. Therefore, any attempt Tavitas
might have made to use the affidavit against Agent Peasley
would likely have had little, if any, effect on a jury. Second,
there is a legitimate strategic explanation for Tavitas’s deci-
sion not to cross-examine Agent Peasley on this issue. Be-
cause Tauber died prior to trial, no evidence was introduced
concerning her comments about the photo array and the fact
that both the robber and Miller’s photo reminded her of the
courier. Introducing that information in order to impeach
Agent Peasley would have revealed to the jury otherwise
unavailable information that might have encouraged jurors
to draw the damaging inference that Miller was in fact the
perpetrator because both he and the robber reminded
Tauber of the courier. Because Tavitas’s decision not to run
that risk can be deemed sound trial strategy, it does not con-
stitute deficient performance.
Miller’s final claim of ineffectiveness relates to Tavitas’s
failure to correct Agent Peasley’s testimony that Miller’s
bank account had been overdrawn by some $730 on the
morning of the robbery. Tavitas offered no explanation for
this oversight. The district court assumed without deciding
that Tavitas’s error did fall below an objective standard of
reasonableness, thereby satisfying the performance prong of
Strickland. See 466 U.S. at 687–88. The government challenges
this conclusion, claiming that such a minor error, in light of
otherwise satisfactory representation, cannot amount to con-
stitutionally insufficient performance. Cf. Groves v. United
No. 14-2779 19
States, 755 F.3d 588, 593 (7th Cir. 2014) (“Even if counsel
erred for failing to object to the [presentence report]’s char-
acterization of [defendant]’s 1995 burglary conviction, we do
not examine this error in isolation, but instead analyze coun-
sel’s performance as a whole.”). However, we need not de-
termine whether Tavitas’s performance was deficient in this
respect because, regardless of whether the first prong of
Strickland has been satisfied, Tavitas’s oversight did not
prejudice Miller. As discussed above, in light of all of the
remaining evidence presented at trial, Miller has not demon-
strated a “reasonable probability” that, but for Tavitas’s fail-
ure to correct Agent Peasley’s overstatement, “the result of
the proceeding would have been different.” Strickland, 466
U.S. at 694. Tavitas therefore cannot succeed on his claim of
ineffective assistance of counsel. 5
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Miller’s motion for a new trial.
5 We note that because Miller brought his ineffective assistance of coun-
sel claim on direct appeal, he will be barred from collaterally attacking
his conviction on these same grounds. See Peoples v. United States, 403
F.3d 844, 848 (7th Cir. 2005) (“[A] defendant who chooses to make an
ineffective-assistance argument on direct appeal cannot present it again
on collateral review.”).