United States v. Miller

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
v. ) Criminal Case No. 05-143 (RJL)
)
ROBERT FRANK MILLER, ) v
> F I L E D
Defendant. )
DEC ~ 3 20‘.8
MEM()RANDUM ()PINION C|erk, U,S. Dist.'ict & Bankruptcy
Gourts for the Dtstrict of Columbia
(November;Q, 2018) [Dkt. ## 155, 180, 184]
On November 20, 2007, after a nine-day trial, defendant Robert Frank Miller
(“Miller” or “the defendant”) was found guilty by a jury of nine counts of travel fraud
and two counts of wire fraud. Miller appealed and raised a number of challenges to his
conviction and sentence, including claims that his trial counsel was constitutionally
deficient Our Circuit Court affirmed Miller’s conviction and sentence, but it remanded
his ineffective-assistance-of-counsel (“IAC”) claims for me to consider in the first
instance. Following the remand, Miller filed a motion clarifying the specifics of his IAC
claims, and, pursuant to an agreement with the Government, Miller supplemented the
claims he had raised on appeal with new ones. After the initial round of briefing, I held
three days of evidentiary hearings on September 12 and 13, and October 23, 2017, after
which l accepted post-hearing briefing-in the form of proposed findings of fact and
conclusions of law_and heard argument on Miller’s IAC claims. I then accepted
post-argument briefing that was ultimately completed on February 5, 2018.
Having closely reviewed the evidence presented during the hearings and in the
parties’ extensive briefing, Miller’s IAC claims are DENIED for the reasons set forth
below.
BACKGROUND
Over a less than ten-month period in late 2003 and early 2004, Miller, through his
company American Funding and Investment Corporation (“AFIC”), defrauded dozens of
investors and prospective home buyers out of more than $500,000. See, e.g., 11/16/07
Trial Tr. 985_87 [Dkt. # 72]; Judgment 6~8 [Dkt. # 124]. He operated AFIC from July
2003 through his arrest on April 8, 2004, all the while purporting to offer both high-yield
real estate investments and home-buying assistance for individuals with subprime credit.
Um``ted States v. Miller, 799 F.3d 1097, 1100 (D.C. Cir. 2015). ln its opinion affirming
his conviction and sentence, our Circuit Court summarized Miller’s fraudulent scheme as
follows:
First, Miller obtained cash investments from individuals who thought AFIC
would invest their money in pools of investment real estate. He told those
investors that AFIC would use the invested capital to buy and refurbish
foreclosure properties and then resell those properties, at a profit, to home
buyers with poor credit. Second, Miller obtained cash “down payments”
from prospective home buyers with poor credit. He told those home buyers
he would help secure mortgages for them and then would use the down
payment funds to buy homes they had preselected.
Id. The “mortgage side” of the scheme involved “find[ing] buyers for the properties that
[Miller] would acquire from the monies that he collected from the investor side.” 1 1/8/07
Trial Tr. 53~54 [Dkt. # 67]. Potential buyers were told they could purchase “regardless
of their credit history and with little or no money down,” because Miller would provide
loans through his purported mortgage company. Id. at 48, 54-56.
Upon securing the investments, however, Miller neither purchased real estate nor
secured or funded any mortgages Miller, 799 F.3d at 1100. Instead, he used the money
to sustain and promote AFIC’s purported business, taking out newspaper advertisements
to attract additional investors, paying rent for AFIC’s “extravagant” office space on
Pennsylvania Avenue in downtown Washington, D.C., as well as for office equipment
and payroll, and even making partial distributions to early investors who demanded
recompense. Id.; 11/16/07 Trial Tr. 923. Miller also used AFIC investor funds to cover
his own personal expenses at bars, restaurants, and hotels. Miller, 799 F.3d at 1100;
11/16/07 Trial Tr. 994-1002. The majority of AFIC’s investors and prospective home
buyers lost their entire investments 11/16/07 Trial Tr. 980-85; Gov’t Trial Ex. 27A.
One of AFIC’s early investors was Richard Chisholm, an unemployed real-estate
agent. 11/8/07 Trial Tr. 44-45, 69_70. Miller described his real estate investment plan
to Chisholm in September 2003, explaining that he would match investments of $5,000,
use the $10,000 to “rehab” properties he purchased, sell the properties for at least a
$25,000 profit, and split the profits with his investors. Ia’. at 44-46. Chisholm agreed to
join AFIC as an affiliate, and he worked there from September to November 2003. Id. at
42-43, 46-47, 57-58, 77-78. Chisholm also invested $5,000 of his own money, for
which Miller promised a “guaranteed” return of $12,500 within 90 days. Id. at 71, 73-
74. During the three months that Chisholm worked at AFIC, he did not see Miller
purchase any homes. He saw no evidence that Miller even owned a mortgage company.
Id. at 56, 78-79. Chisholm lost his $5,000 investment Id. at 77-80.
Another investor, Yerusalem Woldeselassie, invested $5,000 with Miller to help
finance the purchase and sale of fifteen properties in Baltimore, Which he represented
were “presently being conveyed to” AFIC. Id. at 145, 155-58. Miller told Woldeselassie
that within 90 days she would receive a $200,000 profit, or at least a return of her
principal. Id. at 146_47. ln fact, he had not even offered to buy the fifteen Baltimore
properties. 11/9/07 Trial Tr. 189-91, 193-95 [Dkt. # 68]. After 90 days, Woldeselassie
wrote to Miller demanding repayment of her principal; Miller did not respond, and
Woldeselassie lost her investment 11/8/ 17 Trial Tr. 160_64.
Jimmy Cheng invested in AFIC after reading a Washington Post advertisement
promising a “guaranteed” fifteen percent return on a $5,000 investment, “secured by real
estate.” 11/13/07 Trial Tr. 408-09 [Dkt. # 69]. Miller invited Cheng to AFIC’s
Pennsylvania Avenue offices in November 2003 and gave Cheng the “grand tour.” Ia’. at
411-12. Miller introduced Cheng to employees he referred to as real-estate agents and
loan officers, which reassured Cheng that AFIC was a legitimate business. Id. at 412_20.
Cheng invested $25,000 in AFIC on Miller’s promise that Cheng would receive at least
$25,000 in profit within 90 days. Id. at 414, 421-24. Cheng never heard from Miller
again, and he lost his entire investment Ia'. at 432-35. The same fate befell AFIC
investors Lawrence Haye, Brenda Alston, and Denise McQueen. 11/9/07 Trial Tr. 322-
24, 328-31; 11/13/07 Trial Tr. 447~55; 11/14/07 Trial Tr. 479~88, 449_50, 455-56, 489
[Dkt. # 70].
On the mortgage side of AFIC’s operation, Miller placed advertisements offering
home-buying help for people with poor credit and secured down payments from
individuals for whom he offered to purchase homes and obtain mortgages for the
balances. 11/16/07 Trial Tr. 885-88, 890-93, 920~23, 926~29. Anthony Wilburn and
Charlene Peters gave Miller down payments of $4,500 and $7,200, respectively. Id at
890-91, 893-95, 925-26, 932-35. Both Wilburn and Peters lost their deposits, and
neither got a home. Ia’. at 896, 937. When an AFIC employee informed Miller that
Peters and her family were at risk of becoming homeless and asked that he return her
down payment, Miller replied, “I can’t save the world. They can go live with relatives.”
11/15/07 Trial Tr. 795 [Dkt. # 71].
In late 2003, Cary Greene and Shawn Campbell met with Miller about Miller
potentially purchasing their 65 rental properties in Baltimore, which were held by Queen
Anne, LLC. 1 1/9/07 Trial Tr. 211-14. Greene provided Miller with a portfolio of
photographs, descriptions, appraised values, and rent rolls for the properties, and offered
to sell the properties to Miller for $2.2 million. Ia’. at 216-22. Miller declined to put
down a deposit to buy the properties_and Greene and Campbell never heard from him
again-but Miller kept the portfolio, which he then used to solicit and obtain investments
from Anthony Stephen Roberts ($15,000), Robert Debnam ($143,000), and Haye
($25,000) under the pretense that he already had acquired the properties. Id. at 224, 226,
261_64, 268-71, 276-77, 279-80, 332-45; 11/14/07 Trial Tr. 554-56; 564-66; 569. In
the weeks following the investments, Miller became “harder and harder to reach.”
11/9/07 Trial Tr. 289-91, 349-50; 11/14/07 Trial Tr. 561. Then, in late March 2004,
5
Miller told Roberts, Debnam, and Haye that he would soon be closing on the properties
and that on April 9, 2014, they would be paid “in full.” 11/9/07 Trial Tr. 287-89, 353-
56. Roberts and Haye lost their entire investment; Debnam lost all but $10,000, which
Miller paid_using funds obtained from another AFIC investor-after Debnam
threatened to contact the local media to do an “expos[e].” Id. at 291-93, 359; 11/14/07
Trial Tr. 561-62; 11/19/07 Trial Tr. 1038 [Dkt. # 73].
In February 2004, Miller spoke with Charles Wilson, the president of Foxworthy,
Inc., which owned 22 rental properties in Georgia. 11/14/07 Trial Tr. 492_94. On March
12, 2004, Miller contracted to buy the Georgia properties from Wilson for $750,000, and
he made a $10,000 deposit. Id. at 495-98, 496-99, 515-16. The deal was scheduled to
close on May 12, 2004. Ia’. at 495-98, 515~16. On March 26, 2004, Miller enlisted an
AFIC employee to send a form letter under the employee’s signature to the tenants of the
Georgia properties, which stated, among other things, that AFIC had “acquired the
property you presently live in” and that the tenants should send rental payments from
February through April 2004 to AFIC within 10 days or face “IMMEDIATE EVICTION
PROCEEDINGS.” Id. at 587-93, 545-46, 588-90, 633~34, 642; Gov’t Trial Ex. 26L,
Attachment C. The letter also offered to help the tenants obtain a mortgage through
AFIC to purchase their present home and enclosed a mortgage application. Id.
On April 6, 2004, having learned of Miller’s letter to the tenants of his properties,
Wilson sued Miller and AFIC. 11/14/07 Trial Tr. 500-01. Wilson’s complaint noted that
Foxworthy had been contacted by the Secret Service. Id. at 523, 597-98. On Thursday,
April 8, 2004, Miller directed several AFIC employees to place 22 boxes of files and
6
records in a F ord Explorer that Miller’s secretary, Tonya Smith, had borrowed from her
mother and parked in the building garage. 11/15/07 Trial Tr. 713-15; Stipulation of
Facts (“Stipulation”) 1 [Dkt. # 20-1]. Miller told AFIC employees that he Was leaving
for the weekend to organize the files and that they should not come into work on Friday.
11/15/07 Trial Tr. 713-14.
On April 8, 2004, Secret Service Special Agent Anthony Saler learned from an
AFIC investor that Miller was in the process of moving files out of AF IC’s offices and
that he had told AFIC employees not to come to work the next day (when Miller was due
to meet with an AFIC investor). Aff. of Anthony Saler in Supp. of Search Warrants
(“Saler Aff.”) 7 [Dkt. # 19-1]. Agent Saler was concerned that Miller may be attempting
to flee or destroy evidence. Id. At approximately 5:30 p.m. that evening, Agent Saler
and other law enforcement officers arrested Miller at AFIC’s offices on unrelated
outstanding Maryland state arrest warrants. Ia’.; Stipulation 1. Agent Saler spoke to
Smith, who agreed to drive the Ford Explorer containing the 22 boxes of records to the
Secret Service Washington Field Office, where the files were turned over. Saler Aff. 7.
On April 27, 2004, Agent Saler obtained_a warrant to search the contents of the 22 boxes
as well as AFIC’s offices. Supp. App. at 433, Miller, 799 F.3d 1097 (No. 08-3116).
On April 22, 2005, a grand jury indicted Miller on nine counts of travel fraud,
18 U.S.C. § 2314, and two counts ofwire fraud, 18 U.S.C. § 1343. Indictment [Dkt. # 1].
Miller was found guilty as charged by a jury on all counts on November 20, 2007,
following a nine-day trial. On December 10, 2008, l sentenced Miller to 204 months’
imprisonment and ordered him to pay $495,954.49 in restitution. Judgment 3, 6. From
7
pretrial through sentencing, assistant federal public defender Jonathan Jeffress served as
Miller’s lead counsel. 9/13/17 Hr’g Tr. 183, 229 [Dkt. # 174]. Miller appealed his
conviction and sentence, arguing that 1 erred in denying Miller’s pretrial motion to
suppress the 22 boxes seized from the F ord Explorer, that his trial counsel was ineffective
in his handling of the suppression claim and in failing to move for dismissal of his
indictment for violation of the Speedy Trial Act (“STA”), that I made certain evidentiary
errors, that the Government made certain improper remarks during its closing argument,
and that 1 erroneously ordered that Miller’s federal-sentence run consecutive to his
Maryland state sentence for separate crimes. Our Circuit Court rejected Miller’s
challenges to his conviction and sentence but remanded his IAC claims for me to
consider in the first instance. Miller, 799 F.3d at 1108.
Following our Circuit’s remand, I held a status hearing on March 2, 2016, and set
a briefing schedule. On April 18, 2016, Miller filed a motion specifying and-pursuant
_ to an agreement with the Government and in service of judicial economy-
supplementing his IAC claims, which the Government opposed on May 18, 2006.
[Dkt. ## 155, 157]. Miller then filed a reply brief followed by a supplemental brief on
June 24, 2016. [Dkt. ## 158, 160]. I held three days of evidentiary hearings on
September 12 and 13, and October 23, 2017, during which only Miller and Jeffress
testified. The parties were allowed to file post-hearing proposed findings of fact and
conclusions of law, which they submitted on December 15, 2017. [Dkt. ## 179, 180].
Three days later, on December 18, 2017, l heard argument on Miller’s IAC claims, after
which l permitted the parties to submit post-argument briefing to address any remaining
issues. Those briefs were filed on February 5, 2018. [Dkt. ## 183, 184].
STANDARD OF REVIEW
The Government contends that Miller’s IAC claims are subject to the heightened
standard set forth in 28 U.S.C § 2255, which governs collateral attacks raised by federal
prisoners on their sentences. Gov’t’s Proposed Findings of Fact and Conclusions of Law
(“Gov’t’s Br.”) 4 [Dkt. # 179]; see Um'ted States v. Pollard, 959 F.2d 1011, 1020 (D.C.
Cir. 1992) (defendant raising “a § 2255 collateral chal_lenge” must “show a good deal
more than would be sufficient on a direct appeal from his sentence”). Miller, however, is
not collaterally attacking his federal s_entence. Our Circuit remanded Miller’s IAC claims
after his direct appeal for this Court to consider them in the first instance. See Miller, 799
F.3d at 1103 (D.C. Circuit’s “general practice” is to remand colorable IAC claims “raised
for the first time on direct appeal”). Indeed, Miller and the Government agreed that
Miller would raise “all of his potential collateral attack claims” at this stage precisely to
avoid the burden of litigating the IAC issue a second time in the context of a § 2255
motion. 3/2/16 Hr’g Tr. 7 [Dkt. # 164] (emphasis added); see also 12/18/17 Hr’g Tr. 7
(Government counsel stating that “[e]ven though this is not technically a 2255, it does
address claims of ineffective assistance of counsel” for purposes of efficiency); Def.’s
Proposed Findings of Fact and Conclusions of Law (“Def.’s Br.”) 1 [Dkt. # 180-1]. That
agreement, however, did not convert Miller’s remanded IAC claims into a collateral
attack under § 2255.
Miller’s IAC claims are thus governed by the usual standard applicable to IAC
claims raised on direct appeal. See Strickland v. Washington, 466 U.S. 668 (1984);
Uniteal States v. Gray-Burriss, 251 F. Supp. 3d 13, 17 (D.D.C. 2017) (applying Strz'cklancl
standard only following remand of IAC claims after direct appeal). 1 trust that the
Government’s mistake regarding the applicable legal standard was earnest l
I. Ineffective Assistance of Counsel
“To prove constitutionally defective representation, the defendant must shows
(1) ‘that counsel’s performance was deficient,’ and (2) ‘that the deficient performance
prejudiced the defense.”’ Unz'tea’ States v. Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008)
(quoting Stricklana’, 466 U.S. at 687). The defendant shoulders the burden of proof as to
both elements. See, e.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[A]
defendant must show both deficient performance and prejudice in order to prove that he
has received ineffective assistance of counsel[.]”). As such, the “[f]ailure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim,” and courts have discretion to dispose of the claim Without
“address[ing] both components of the inquiry if the defendant makes an insufficient
showing on one.” Strl'cklana', 466 U.S. at 697, 700; see also Unl``tea’ States v. Gwyn, 481
F.3d 849, 854 (D.C. Cir. 2007) (because defendant “suffered no prejudice from trial
counsel’s [alleged deficiency], we need not decide whether counsel’s performance in this
respect was objectively unreasonable”).
Strz'cklana”s deficiency prong requires the Court to determine whether counsel
acted “reasonabl[y] under prevailing professional norms . . . considering all the
10
circumstances.” Strl``cklana’, 466 U.S. at 688; see Pacll``lla v. Kentucky, 559 U.S. 356, 366
(2010) (deficiency is “necessarily linked to the practice and expectations of the legal
community”). As a general matter, “the standard for constitutionally effective
representation is not overly rigorous.” Um'ted States. Catlez‘t, 97 F.3d 565, 570 (D.C. Cir.
1996); see also Hinton v. Alabama, 571 U.S. 263, 272 (2014) (attorney performance need
only “meet[ ] . . . a minimal standard of competence”). The Court does not sit as an
armchair quarterback, nitpicking counsel’s gameday performance from the bench. To the
contrary, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and
courts must be vigilant against the “all too tempting” lure “to second-guess . . . counsel’s
defense after it has proved unsuccessful.” Strickland, 466 U.S. at 689 (courts should
make “every effort . . . to eliminate the distorting effects of hindsight”). There is a “wide
range of reasonable professional assistance,” and there are “countless ways to provide
effective assistance in any given case.” Ia’. These realities of legal representation give
rise to a “presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Ia’. Surmounting this presumption is, in the Supreme
Court’s words, “never an easy task.” Paa’z``lla, 559 U.S. at 371; see Stricklana’; 466 U.S. at
690 (“[S]trategic choices made after a thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”).
To establish prejudice under Strickland, a defendant must “affirmatively prove”
that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94.
This is not to say that any likelihood of an alternative outcome will suffice. A
11
“reasonable probability” in the Strz``cklana' context is one that is “sufficient to undermine
confidence in the outcome.” lal. at 694. The prospect of a different result must “be
substantial, not just conceivable.” Harrington v. Rz``chter, 562 U.S. 86, 112 (2011).
While not an exact analogue, the requisite showing approaches a “more-probable-than-
not standard.” Id. “At bottom, defense counsel’s error must have been ‘so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.”’ Unitea’ States v.
Brinson-Scott, 714 F.3d 616, 623 (D.C. Cir. 2013) (quoting Stricklanal, 466 U.S. at 687).
As such, our Circuit Court itself has noted that it is “very difficult for a convicted
defendant to prevail on a claim of ineffective assistance of counsel.” United States v.
Moore, 703 F.3d 562, 574 (D.C. Cir. 2012).
ANALYSIS
Miller and the Government, as previously noted, agreed that Miller would raise all
of his potential IAC claims at the present stage.I I, therefore, will consider only those
claims that Miller developed during the IAC evidentiary hearings and subsequently
presented in his proposed findings of fact and conclusions of law and post-argument
submission. See generally Def.’s Br.; Def.’s Post-Argument Br. (“Def.’s Supp. Br.”)
[Dkt. # 184].
I. Claims Related to Counsel’s Performance at the Suppression Stage
Miller contends that his counsel was constitutionally deficient in litigating his
pretrial motion to suppress the 22 boxes of documents seized from the Ford Explorer
1 As such, any IAC claims that are now ripe but not presently before the Court will
be considered waived for purposes of any future § 2255 action. See Def.’s Br. 1.
12
under the Fourth Amendment While there are many threads to Miller’s Fourth
Amendment IAC claim, the thrust of his argument is that counsel missed a number of
opportunities to present additional evidence at the suppression stage to establish Miller’s
Fourth Amendment standing_i.e., his individualized privacy (or possessory) interest, see
Unl'tea’ States v. She/j‘iela’, 832 F.3d 296, 303 (D.C. Cir. 2016)-to challenge the search of
the Ford Explorer and/or the seizure of the boxes. See Def.’s Br. 2-11, 21-24.
Unfortunately for the defendant, there is a flaw common to each variant of his
Fourth Amendment IAC claim-and it is a fatal ``one. IAC claims predicated on an
alleged failure to competently litigate a Fourth Amendment suppression motion are
subject to the gloss placed on Strz'cklancl by the Supreme Court in Kz'mmelman v.
Morrz'son, 477 U.S. 365 (1986). To successfully mount such a claim, a defendant must
not only satisfy Strz``cklancl’s deficiency prong but also establish both that “his Fourth
Amendment claim is meritorious” and prejudice in the form of “a reasonable probability
that the verdict would have been different absent the [allegedly] excludable evidence.”
Kz``mmelman, 477 U.S. at 375; see Unl``tea' States v. Wooa’, 879 F.2d 927, 934 (D.C. Cir.
1989). Here, Miller, having focused almost exclusively on standing to the exclusion of
the remainder of his burden, cannot prevail on his Fourth Amendment IAC claims. More
to the point, even assuming that (a) counsel’s alleged failures amount to constitutional
deficiency,2 and (b) competent counsel would have presented evidence establishing the
2 They do not. The record strongly supports the conclusion that trial counsel’s
purported suppression errors regarding standing-principally, not calling Miller or Tonya
Smith to testify and not introducing the so-called “Smith Report”_did not fall outside
13
defendant’s Fourth Amendment standing, Miller has not come close to showing either
that his suppression claim would have succeeded or that excluding the 22 boxes would
have produced a different verdict. See Kz'rnmel)nan, 477 U.S. at 375; Wooa’, 879 F.2d at
934.
A. Merits of the Fourth Amendment Claim
The defendant has not shown_and, as l explain below, likely could not show_
that his Fourth Amendment challenge would have succeeded He appears to operate
under the mistaken impression that the record is devoid of evidence bearing on the
prospects of suppression and that, therefore, he has met his burden. See 12/ 18/ 17 Hr’g
Tr. 40 (arguing that the “warrantless search [was] presumptively illegal” and “since no
evidence was taken [on the merits of the suppression claim], then the presumption must
be that the evidence would have established the suppression without more”); Def.’s Br.
24. According to Miller, the merits of his Fourth Amendment challenge were “off the
table” before trial such that the existing record is of no use in assessing whether it would
have prevailed. 12/18/17 Hr’ g Tr. 41. I disagree. To the contrary, I find that the record
is sufficiently developed to assess whether Miller’s Fourth Amendment challenge was
meritorious. See Ray v. Unitea’ States, 721 F.3d 758, 763_64 (6th Cir. 2013) (record
“contained sufficient evidence to contradict” defendant’s Fourth Amendment IAC claims
“without the need for additional evidence” where “the same district court judge
considering [the IAC claims] presided over [the] criminal trial” and thus “observed the
the range of reasonable professional assistance l accept the Government’s proposed
conclusions of law on these issues. See Gov’t’s Br. 19-35.
14
testimony of all witnesses” and “could rely on [his] own recollections of the
proceedings”)§ see also Uniteal States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005)
(Fourth Amendment standing need not be resolved before a court may address whether
probable cause existed on the merits). Indeed, I specifically note that Miller was
permitted three days of evidentiary hearings to supplement the trial record precisely for
the purpose of supporting his IAC claims.
Notwithstanding this extra hearing time, the defendant failed to establish that his
suppression motion would have succeeded, thereby foreclosing his Fourth Amendment
IAC claims. How so? The record indicates that Agent Saler had probable cause to
believe that the Ford Explorer contained evidence of Miller’s suspected fraud at the time
of the April 8 search and seizure. Agent Saler--a trained lawyer with extensive
experience investigating financial and other fraud_executed an affidavit supporting an
April 27 Warrant to search the boxes after their seizure, in which he swore that he knew,
among other things, that Miller:
0 Previously had “been arrested approximately 45 times,” that “[a] number of
these arrests relate[d] to fraud or theft,” and that Miller “ha[d] several fraud
related convictions, including 1995 Maryland felony convictions relating to
a scheme in which Mr. Miller sold victims’ automobiles, kept the sales
proceeds and falsely represented to the victims that the automobiles had
been stolen or vandalized”;
0 According to public reporting, engaged “in fraudulent schemes involving
credit repair, mortgages, real estate, a medical clinic and used cars” and
allegedly made false representations about his occupation;
0 Was under indictment in Maryland for “felony theft and fraudulent
misappropriation by a fiduciary” involving “a scheme to fraudulently
obtain down payments from potential home buyers”;
15
Leased office space for AFIC on Pennsylvania Avenue in D.C. for $20,000
per month but, according to ex-employees of AFIC whom Agent Saler
interviewed, was struggling to pay rent and meet payroll, despite taking in
hundreds of thousands of dollars in investments. Miller allegedly had
attempted to pay rent with a counterfeit check;
Would, according to former employees, “take up-front fees from customers
or investors knowing that he would not be providing the promised services
or investments.” The former employees also reported that Miller routinely
hid from disgruntled investors;
Had used the portfolio for the Queen Anne LLC properties to fraudulently
represent that he owned the properties and secure approximately $300,000
in investments, after which Miller “failed to return calls” and did not return
“any of the promised profits or a return of the[] principal.” See supra at 5-
6;
On or about March 26, 2004, sent letters to the tenants of the Foxworthy
properties falsely representing that he had acquired the properties and
demanding rent for February, March, and April 2004, as well as threatening
eviction if they did not comply within 10 days. After learning of the letters,
Foxworthy officials sued Miller and AFIC “in connection with their
fraudulent and tort[ious] activity in connection with the letters and other
acts,” which resulted in a temporary restraining order against Miller and
AFIC. See supra at 6; and
Was, on April 8, 2004, in the process of “moving files out of the [AFIC]
office and had told all of the employees not to report to work on April 9,
2004,” raising the concern that “Miller may be fleeing and/or destroying
evidence.”
Saler Aff. 2~7; Supp. App. at 436, Miller, 799 F.3d 1097 (No. 08-3116).
While Agent Saler’s affidavit is undated, raising the question whether he knew the
aforementioned facts at the time of the April 8 search and seizure (an issue the
Government does not address in its submissions), the record indicates that, had the issue
been litigated at the suppression stage, the Government likely would have established that
by April 8 Agent Saler knew all_or at least the vast majority of_-the facts set out in the
affidavit Indeed, Jeffress represented to the Court during trial that “Agent Saler . . . was
16
investigating Mr. Miller long before the indictment came down in this case” on April 22,
and that Agent Saler “interacted with a lot of witnesses prior to Mr. Miller even being
arrested” on April 8. 11/7/07 Trial Tr. 8 [Dkt. # 78]. Agent Saler’s trial testimony
confirmed Jeffress’s statements Agent Saler testified that he began investigating AFIC
on March 15, 2004, when he first spoke to a potential AFlC investor. 11/16/07 Trial Tr.
967. Agent Saler then spoke to several other AFIC investors and former employees, ia’.,
as confirmed by multiple trial witnesses. See 11/8/07 Trial Tr. 96, 138 (Chisholm);
11/14/07 Trial Tr. 471, 474, 523-33, 597-98 (Wilson). On March 26, 2004, Agent Saler
visited AFIC’s offices to speak to AFIC’s lessor to “see what they knew about what
actually was going on [at AFIC], and what they knew about Mr. Miller and their
experience with him.” 1 1/16/07 Trial Tr. 968.
Apart from his own investigation, Agent Saler was also in contact with Maryland
law enforcement officials investigating Miller for fraud prior to April 8. Agent Saler
“had requested information [about Miller] through a law enforcement database” and
communicated with Special Agent Lori Dicriscio of the United States Department of
Housing and Urban Development’s Office of Inspector General. Decl. of Special Agent
Lori Dicriscio (“Dicriscio Decl.”) 6 [Dkt. # 93-2]. Agent Dicriscio had been
investigating Miller since 2000 and had “conducted many interviews, reviewed thousands
of records, and executed five search and seizure warrants” to uncover “an elaborate and
varied real estate scam conducted by Miller” in which “Miller portrayed himself as an
investor, mortgage broker and lawyer to induce primarily low income, uneducated
individuals with poor credit to” invest so that Miller could purportedly purchase
17
foreclosed properties. Ia’. at 4. The Maryland Attorney General’s Office indicted Miller
in March 2004, a fact that Agent Saler relied on in his affidavit See ia’. at 6; Saler Aff. 3.
Finally, Agent Saler’s trial testimony confirmed that he went to AFIC’s offices on
April 8, 2004 because he “had received information that Mr. Miller was packing up boxes
[of files], that they were being moved to a vehicle, and that he had told his employees not
to come to work the next day.” 11/16/07 Trial Tr. 968. After arriving at AFIC’s offices,
Agent Saler spoke to Smith, who told him that the boxes were in the Ford Explorer
parked in the garage lal. at 969.
Given these facts, had the merits of suppression been litigated the Government
very likely would have shown that the April 8 search of the Ford Explorer and seizure of
the 22 boxes were lawful. “Authorities may conduct a warrantless search of a motor
vehicle if they have probable cause to believe it contains contraband or evidence of a
crime.” Lawson, 410 F.3d at 740 (citing Call``fornz'a v. Acevedo, 500 U.S. 565, 569~70
(1991)). Moreover, if officers have probable cause to believe that the object of the search
will be found in a particular container within a vehicle, they may conduct a warrantless
search not only of the vehicle but also of the container itself. See, e.g., United States v.
$639,5581n U.S. Currency, 955 F.2d 712, 717-18 (D.C. Cir. 1992). Officers may also,
as occurred here, “seize [the] container[s] and hold [them] until they obtain a search
warrant.” Acevealo, 500 U.S. at 575. Here, Agent Saler likely had probable cause to
believe that the 22 boxes in the Ford Explorer contained evidence of Miller’s suspected
fraud in the form of AFIC files, which Miller was in the process of moving to evade law
enforcement scrutiny. See Lawson, 410 F.3d at 740; see also United States v. Cara’oza,
18
713 F.3d 656, 660-61 (D.C. Cir. 2013) (“probable cause does not require certainty, or
proof beyond a reasonable doubt, or proof by a preponderance of the evidence” but only
“a fair probability” that contraband or evidence will be found in a particular place based
on a “flexible, all-things-considered approach” (quoting Florz'a’a v. Harris, 568 U.S. 237 ,
244 (2013)).
B. Probability that Exclusion Would Have Resulted in a Different Verdict
Even if Miller had shown a meritorious Fourth Amendment challenge, his IAC
claim still fails. Miller was required to establish prejudice_i.e., a “reasonable
probability that the verdict would have been different absent the excludable evidence.”
Kz'mmelman, 477 U.S. at 375. On this point, Miller cites only Jeffress’s testimony that
suppression of the boxes would have “made the government’s case harder in proving
Mr. Miller’s guilt.” Def.’s Br. 24 n.13. To put it mildly, that is insufficient for Miller to
meet his burden. Nor, it seems, could he have. As Miller himself states, the contents of
the 22 boxes used at trial consisted of “checks received from investors and contracts
signed with alleged victims,” which the Government also used to create a summary chart.
Def.’s Br. 3; see also Def.’s Mot. Specifying IAC Claims (“Def.’s Initial Br.”) 17~18
[Dkt. # 155]. The Government’s case against Miller, however, was built on documents
seized from AFIC’s offices, records for “numerous bank accounts,” information provided
by AFIC’s lessor, and documents (and testimony) “from many of the individual [AFIC]
investors.” 11/16/07 Trial Tr. 971. In other words, the evidence against Miller was both
overwhelming and derived from a broad set of sources beyond_and likely duplicative
of-the contents of the 22 boxes seized from the F ord Explorer. Thus, even setting aside
19
the allegedly excludable documents, “the strength of the government’s evidence . . .
would remain virtually unchanged.” United States v. Weaver, 234 F.3d 42, 48 (D.C. Cir.
2000); see also United States v. Perez, 603 F.3d 44, 49 (D.C. Cir. 2010) (alleged
deficiencies could not have prejudiced defendant because government’s case “was simply
too strong”); Gwyn, 481 F.3d at 855 (no probability of different result “[g]iven the
overwhelming evidence against” defendant).3
II. Claims Related to Counsel’s Failure to Seek STA Dismissal
Miller contends next that his counsel performed deficiently in failing to move to
dismiss his indictment for violation of the STA. The STA establishes the general rule
that the failure to bring a criminal defendant to trial within 70 days of the indictment or
arraignment “shall” result in dismissal of the indictment on “motion of the defendant”
18 U.S.C. § 3162(a)(2). In such circumstances, the district court must determine
“whether to dismiss the case with or without prejudice” based on certain non-exclusive
statutory factors: “(i) the seriousness of the offense; (ii) the facts and circumstances of
the case which led to the dismissal; and (iii) the impact of a reprosecution on the
administration of this chapter and on the administration of justice.” Ia’. “[T]he presence
or absence of prejudice to the defendant” also is “relevant” See United States v. Taylor,
3 This case is a far cry from those in which a defendant has successfully
demonstrated prejudice in the context of a Fourth Amendment IAC claim. See, e.g.,
United States v. Mercecles-De La Cruz, 787 F.3d 61, 69 (1st Cir. 2015) (prejudice where
challenged evidence was defendant’s inculpatory statements and “[t]he government’s
case against [defendant] was based almost exclusively on those statements”); Grumbley
v. Burt, 591 Fed. Appx. 488, 501 (6th Cir. 2015) (prejudice where suppression of
challenged evidence “would have single-handedly excluded the principal evidence in
support of [the] charges”). 1
20
487 U.S. 326, 334 (1988). “Congress did not intend any particular type of dismissal to
serve as the presumptive remedy for a Speedy Trial Act violation.” Ia’. Rather, the
choice of remedy is left “to the guided discretion of the district court.” Ia’. at 335. lf the
court decides to dismiss the indictment without prejudice, the Government has six
months to re-indict the defendant 18 U.S.C. § 3288.
The parties agree that the STA was violated during Miller’s prosecution. Gov’t’s
Br. 9; Def.’s Br. l 1.4 As such, l must assess whether Jeffress’s failure to move for STA
dismissal amounts to constitutional deficiency under Stricklana’. F or the following
reasons, I conclude that it does not.
Jeffress testified that he discussed with Miller his speedy trial right “many times,”
and they agreed that Miller did not want to push the issue because a slower pace favored
his defense. 9/13/ 17 Hr’ g Tr. 201~06.5 Indeed, the defense requested multiple
continuances, deadline extensions, and scheduling accommodations See infra at 25-26.
This certainly was not an unreasonable strategic judgment See United Staz‘es v. Bryant,
523 F.3d 349, 363 (D.C. Cir. 2008) (Randolph, J., concurring) (“As criminal defense
attorneys know, delaying a trial often works to the defendant’s advantage.”).
Nevertheless, according to Miller, I should view the considered question of whether to
4 The parties dispute the precise number of non-excludable days. 1 agree with the
Government’s computation, as set forth in its brief on appeal, that there were 171 non-
excludable days. See Brief oprpellee at 61-63, Miller, 799 F.3d 1097 (No. 08-3116).
5 Miller contradicted Jeffress’s testimony on this point For the reasons stated in
the Government’s brief, l credit Jeffress’s testimony and find that he did discuss with
Miller his speedy trial rights (albeit, not the possibility of seeking STA dismissal). See
Gov’t’s Br. 11-16. 1 also echo the assessment of Miller’s current counsel that during his
testimony Jeffress was “as credible a guy as there is.” 12/18/17 Hr’g Tr. 27_28.
21
push for a speedy trial as analytically distinct from the unconsidered question of whether
to pursue dismissal. See Def.’s Br. 25. As to the latter, Miller contends that counsel was
deficient in not “adequately research[ing], investigat[ing], [or] consult[ing] with Miller”
about moving for STA dismissal. Ia’.
Miller’s dichotomy does not hold water, however, as the two questions, in this
case, were inextricably intertwined Jeffress testified that he “felt along the way that it
would be unfair to not be asking for a speedy trial but then go into court and say, hey,
you haven’t been making findings all along . . . and you need to dismiss this case, even
though . . . we haven’t been asking for a speedy trial.” 9/13/17 Hr’g Tr. 201-06.
Jeffress’s sense that pursuing an STA violation would be in tension with-and potentially
jeopardize_his and Miller’s unhurried defense strategy “might well have [been a] sound
strategic reason[] for not pursuing the violation.” United States v. Rz``chara’son, 167 F.3d
621, 626 (D.C. Cir. 1999); see United States v. Rushz``n, 642 F.3d 1299, 1307 (10th Cir.
2011) (“[N]ot every decision on the part of defense counsel to forego filing a motion to
dismiss upon an apparent violation of the STA is suspect under Strz``cklana”s first
prong.”). Indeed, to the extent Jeffress perceived that taking inconsistent positions to
obtain a statutory dismissal would have yielded, at best, a Pyrrhic victory, his impression
was well founded. See Rushin, 642 F.3d at 1307 (by moving for STA dismissal,
defendant may “have lost the favor of a district court that had granted him multiple
continuances to date”). In Dz``Bruno v. United States, for example, the court noted that
trial counsel “reasonably would have understood the Court’s frustration at an attorney
agreeing to a date in the future, silently lying in wait for a STA violation, and then filing
22
a motion to dismiss on the STA violation.” No. 3:11CV297, 2014 WL 4636581, at * 13
(W.D. N.C. Sept. 16, 2014). As such, Miller has not established constitutional
deficiency.
In addition, Miller was not prejudiced by counsel’s failure to move for STA
dismissal. Having “carefully consider[ed the statutory] factors as applied to th[is]
particular case,” Taylor, 487 U.S. at 336; 18 U.S.C. § 3162(a)(2), I conclude that ifl\/liller
had moved to dismiss his indictment, l would have dismissed it at most without prejudice
and allowed the Government to re-indict him on the same charges. See 12/18/17 Hr’ g Tr.
14, 24. How so?
First, the crimes with which Miller was charged (and for which he was convicted)
are very serious offenses, as evidenced by Miller’s 204-month sentence. See United
States v. Robz``nson, 389 F.3d 582, 588 (6th Cir. 2004) (“Given the length ofthe sentence,
the offenses charged against Robinson were serious and favored dismissal without
prejudice.”).v Travel and wire fraud carry significant statutory penalties, including up to
ten and twenty years’ imprisonment respectively. 18 U.S.C. §§ 2314, 1343; see United
Srates v. Koerber, 813 F.3d 1262, 1276 & n.19 (10th Cir. 2016) (seriousness of offense
may be assessed “by considering the length of sentence Congress has adopted”); United
States v. Peeples, 811 F.2d 849, 850 (5th Cir. 1987) (defendant conceded wire fraud was
serious offense where indictment alleged defendant attempted to defraud investor of
$500,000 and statute provided for up to five years’ imprisonment per count).
Miller’s conduct in committing the charged offenses was also very serious. What
Miller now calls “amateurish” and “ham-handed . . . sales tactics,” Def.’s Supp. Br. 14, l
23
viewed then, and now, as a brazen fraud perpetrated against vulnerable individuals 1 am
also not persuaded that the non-violent nature of Miller’s conduct renders the offenses
any less serious See ia’. at 26-27. Indeed, as one of Miller’s own cases makes clear, \
“[w]hite collar crime and wire fraud are serious crimes that often have significant effects
on real victims.” United States v. Rz``]jfo, No. 2:10-cr-686, 2013 WL 3967748, at *4 (D.
Utah July 31, 2013); see Peeples, 811 F.2d at 850.6 Otherjudges on this Court have
reached similar conclusions See, e.g., United Stales v. Briscoe, 839 F. Supp. 31, 36
(D.D.C. 1993) (offenses deemed serious where they involved “a series of false
statements” and kickbacks to the defendant).
Nor do l give credence to Miller’s contention that although he fraudulently
obtained hundreds of thousands of dollars, the sum did not surpass $1 million and the
fraudulent scheme was “never likely to grow into something very large.” Def.’s lnitial
Br. 18; Def.’s Br. 26-27; Def.’s Supp. Br. 14. This says less about the nature ofMiller’s
crimes and more about the work of the law enforcement officers who investigated and
apprehended Miller before he could defraud anyone else. Finally, the Court discounts
heavily'Miller’s assertion that his crimes were not serious because personally he took
only $55,000 and spent the rest of the money on AFIC’s expenses and employee salaries
Def.’s Supp. Br. 13; see ia’. (arguing Miller was not “living large” by purchasing “homes,
yachts, etc., after bilking thousands of victims”). Miller used the unlawfully obtained
6 Miller also cites United States v. Caparella, 716 F.2d 976 (2d Cir. 1983), but that
case involved a postal service employee opening a piece of mail without authority,
plainly a less serious offense than Miller’s
24
money to support AFIC’s purported business, spending funds on newspaper
advertisements, impressive office space and equipment, employee salaries, and placating
investors who demanded repayment See Miller, 799 F.3d at 1100; 1 1/16/07 Trial Tr.
923. In other words, while Miller put only a portion of the illicit money directly into his
own pocket, he used the remainder to sustain his fraudulent scheme.
Second, 1 find that the facts and circumstances that would have given rise to an
STA dismissal weigh heavily in favor of dismissal without prejudice. This factor
requires me to “focus on the culpability of the conduct that led to the delay.” Koerber,
813 F.3d at 1277 (internal quotation marks omitted). Dismissal with prejudice is
appropriate where the delay is attributable to “intentional dilatory conduct” or a “pattern”
of prosecutorial neglect Ia’.; see also United States v. Bert, 814 F.3d 70, 80 (2d Cir.
2016) (“The Supreme Court has likewise instructed that courts should only preclude
reprosecution of a serious crime upon a showing of ‘something more than an isolated
unwitting violation,’ such as a finding of ‘bad faith’ or a ‘pattern of neglect.”’ (quoting
Taylor, 487 U.S. at 339)).
No such intentional dilatory conduct, bad faith, or pattern of prosecutorial neglect
occurred in this case. As Jeffress testified, he and Miller believed that delay was in the
defense’s interest, and they made a strategic decision not to take action to accelerate the
trial. In fact, as l noted during the IAC argument much of the delay between Miller’s
indictment and trial resulted from defense requests for continuances, extensions of
various deadlines and scheduling accommodations due to defense counsels’ conflicts and
Miller’s concerns 12/18/17 Hr’ g Tr. 31; see Def.’s Unopposed Mot. for Continuance of
25
Mots. Deadline [Dkt. # 13]; Def.’s Mot. for Continuance [Dkt. # 33]; 8/24/05 Hr’g Tr. 3-
6 [Dkt # 129]; 12/19/05 Hr’g Tr. 4 [Dkt. ``# 130]; 10/25/07 Hr’g Tr. 32~33, 43~45 [Dkt.
# 132]. These facts would strongly favor dismissal without prejudice See Briscoe, 839
F. Supp. at 36 (dismissal without prejudice where “much of the delay in this case was
initiated by, and is attributable to, defendants’ own efforts” and “certainly was not due to
any abuse by the Government”). Additionally, the adjudication of Miller’s suppression
motion between January 13, 2006 and December 12, 2006, also consumed a significant
amount of time. See Def.’s Mot. to Suppress Evidence [Dkt. # 16]; 12/12/06 Hr’ g Tr. 6-
7 [Dkt # 34]. ``
The Government, for its part, was not in any Way derelict in prosecuting this case.
For example, the Government pushed for a decision on Miller’s suppression motion,
substituted one of its counsel to ensure trial went forward, and opposed defense requests
to continue trial on several occasions See Gov’t’s Unopposed Mot. for Status
Conference [Dkt. # 29]; Gov’t’s Resp. to Def.’s Mot. for Continuance [Dkt. # 35];
Gov’t’s Resp. to Def.’s Requests for Continuance and Appointment of New Counsel
[Dkt. # 46]; see also United States v. Ferguson, 565 F. Supp. 2d 32, 46 (D.D.C. 2008)
(dismissal without prejudice where “the Government repeatedly represented that it was
ready to proceed to trial”). 1 reject Miller’s accusation of prosecutorial misconduct,
namely that the Government attempted to “hide” or “paper over” the STA violation by
requesting the Court retroactively declare certain time excludable under the STA during a
December 12, 2006 hearing. See Def.’s Br. 12-13, 27; 12/18/17 Hr’g Tr. 26~27, 30
(accusing the Government of attempting to commit “an illegal act” by trying “to enlist
26
[the Court] in papering over the Speedy Trial Act violation”). As 1 noted at the hearing to
which Miller refers, the time period at issue was in fact excludable under the STA
because qualifying motions were pending, 12/12/06 Hr’g Tr. 12-13; see 18 U.S.C.
§ 3161(h)(1)(D), and thus did not require an ends-of-justice continuance, see 18 U.S.C.
§ 3161(h)(7). Put simply, 1 find no bad faith on the part of the Government in this case
that would support a prejudicial dismissal. See United States v. Sparks, 885 F. Supp. 2d
92, 103 (D.D.C. 2012) (delay was “not the result of gamesmanship or malice on the part
of the government for the purpose of obtaining a technical advantage”); United States v.
Bauer, 286 F. Supp. 2d 31, 34 (D.D.C. 2003) (delay “was not willful or malicious and the
government ha[d] not sought and certainly ha[d] not gained any tactical advantage by the
delay”).
Third, 1 find that re-prosecution in this case would have served the administration
of the STA and of justice. While Miller is correct that dismissal with prejudice would
have sent a stronger message to the Government and done more to encourage
compliance, Def.’s lnitial Br. 19-20; Def.’s Br. 29,7 1 already have concluded that
Miller’s transgressions were serious and that the delay in this case was not attributable to
prosecutorial malfeasance. See United States v. Wrz``ght, 6 F.3d 811, 816 (D.C. Cir. 1993)
(“Whether a dismissal without prejudice will have an adverse impact on the
7 1 would be remiss not to point out, however, that “dismissal without prejudice is
not ‘a toothless sanction”’ and has been found to “adequately convey the seriousness of
the Govemment’s Speedy Trial Act violation.” United States v. Ferguson, 565
F. Supp. 2d 32, 48-49 (D.D.C. 2008) (quoting Taylor, 487 U.S. at 342).
27
administration of the Act or on the administration of justice depends, in large part, on the
seriousness of the defendant’s alleged crime and on the reasons for the delay.”).
Moreover, the absence of prejudice to Miller resulting from the delay “strongly
weighs in favor of dismissal without prejudice.” Ferguson, 565 F. Supp. 2d at 48; see
Taylor,. 487 U.S. at 341. Prejudice in this context manifests in two forms: (1) trial
prejudice, i.e., prejudice to the defendant’s ability to put on a competent defense, and (2)
non-trial prejudice, i.e., prejudice to the defendant’s liberty, employment, financial
resources, etc. Bert, 814 F.3d at 82; see Taylor, 487 U.S. at 340-41. As Miller points
out, he was subject to Maryland incarceration during the pendency of his federal
prosecution, Def.’s Initial Br. 19~20, and thus his non-trial interests were not
meaningfully impacted by the delay in this case. Miller’s trial defense likewise was
unharmed As 1 have noted, it was Miller who, quite reasonably, sought multiple
continuances in this case in service of his defense strategy and to allow his counsel to
better prepare for trial. See Briscoe, 839 F. Supp. at 36 (“[A]lthough any significant
period of delay inevitably could be labeled ‘prejudicial’ to a defendant, much of the delay
in this case was initiated by, and is attributable to, defendants’ own efforts.”). Miller
identifies no “particularized prejudice to his defense, such as loss of evidence due to the
delay.” Robz'nson, 389 F.3d at 589. Under the circumstances, while 1 recognize that the
delay in this case was not insubstantial, see Bert, 814 F.3d at 81-82, 1 find that permitting
re-prosecution would have served the administration of the STA and of justice.
Having found that 1 Would have dismissed Miller’s indictment without prejudice, 1
conclude that Miller has not demonstrated Strz'cklana’ prejudice 1n its opinion, our
28
Circuit Court posed the as-yet-undecided question whether “a dismissal without prejudice
would itself demonstrate Stricklana’ prejudice.” Miller, 799 F.3d at 1 105 . On these facts,
1 conclude that the answer is: no l To establish prejudice under Strl``cklana’, a defendant
must “affirmatively prove” that there was a “reasonable probability” of a different
outcome of the proceeding had counsel performed competently. Strz``cklana’, 466 U.S. at
693~94; see Rushz'n, 642 F.3d at 1309-10. Here, Miller likely benefited from his
counsel’s failure to move for STA dismissal Had counsel so moved, Miller would have
not only been re-indicted on the same charges, but also prodded the Government and the
Court to move quickly to trial and invited the inference that Miller’s counsel was engaged
in “unwarranted gamesmanship.” Rushz'n, 642 F.3d at 1308. Miller thus was unharmed
by counsel’s failure to obtain a non-prejudicial dismissal, a conclusion that comports with
those reached by other courts See z``a’. at 1310 n. 12 (“At least four of our sister circuits
have held that where an indictment would have been dismissed without prejudice, a
defendant could not show prejudice based upon trial counsel’s failure to seek dismissal
under the STA.” (collecting cases)).8 1n short, letting that sleeping dog lie was indeed a
wise tactic for the defense.
8 Miller’s attempts to articulate prejudice from a non-prejudicial dismissal fail.
First, it is not at all clear that Miller’s claim that re-indictment might have resulted in a
new suppression hearing with a potentially different outcome, see Def.’s Br. 31~32, could
constitute prejudice in this context, as a “proceeding” for Strz'cklana’ purposes is not
limited to “those court processes related to a particular indictment,” Rushz``n, 642 F.3d at
1309-10. 1n any event, the claim fails for the same reason that Miller’s Fourth
Amendment IAC claims fail: There is no evidence that a second suppression motion
would have succeeded Second, Miller’s suggestion of prejudice from the attendant
failure to preserve the STA violation for appellate review, see Def.’s Br. 12-13, fails
because meritorious STA claims are mechanical in nature and “will always be plain to a
29
II. Claims Related to Sentencing
Miller alleges two deficiencies in his counsel’s performance at sentencing; (1)
failing to request that Miller be placed in a Residential Drug Abuse Program (“RDAP”),
and (2) not bringing to the Court’s attention that Miller’s time in federal custody during
the federal prosecution purportedly prevented him from obtaining Maryland state jail
credit for that period Def.’s Br. 33.9 As to both, 1 find that Miller has not shown
Strz``cklana’ prejudice and therefore decline to consider whether counsel’s performance
Was constitutionally deficient See Gwyn, 481 F.3d at 854.
A. Failure to Request an RDAP Recommendation
If counsel had requested that Miller receive RDAP treatment while incarcerated,lo
it is conceivable that 1 might have recommended such treatment, that the Bureau of
Prisons (“BOP”) might have exercised its absolute discretion to allow Miller entry into
RDAP``, and that, consequently, Miller’s sentence might have been carried out in a
different way. However, a reasonable probability of a different outcome this chain of
possibilities does not make. See Strz``cklana’, 466 U.S. at 693~94. As 1 noted at the IAC
hearing, the most that 1 could have done in response to an RDAP request was provide “a
recommendation It’s up to the [BOP] whether to allow him into the [RDAP] or not.”
reviewing court and will always affect substantial rights.” United States v. Taplet, 776
F.3d 875, 880-81 (D.C. Cir. 2015).
9 Miller notes other complaints about his sentencing, but he does not attempt to
explain how the purported errors prejudiced him. See Def.’s Br. 34~35. 1 therefore
decline to address them.
10 Miller does not contend that he asked Jeffress to make such a request and was
rebuffed See United States v. Smith, No. 12-20066-32, 2016 WL 2958454, at *3 (D.
Kan. May 23, 2016).
30
12/18/17 Hr’g Tr. 43; see Tapz``a v. United States, 564 U.S. 319, 334 (2011) (courts “may
urge the BOP to place an offender in a prison treatment program” pursuant to 18 U.S.C.
.§ 3582(a), which allows courts to “make a recommendation concerning the type of prison
facility appropriate for the defendant”). The RDAP program was established “pursuant
to a statute that grants discretion to the BOP to provide alternative conditions of
confinement for prisoners who have completed the program.” Richarclson v. Joslz'n, 501
F.3d 415, 417 (5th Cir. 2007) (citing 18 U.S.C. § 3621(e)(2)(A)). While federal courts
can make recommendations they lack any binding effect-the BOP’s control over “the
place of the prisoner’s imprisonment” and “the treatment programs (if any) in which he
may participate” is “plenary.” Tapz'a, 564 U.S. at 331 (citing 18 U.S.C. §§ 3621(b), (e),
(f); § 3624(f)). As such, a “judicial recommendation on matters such as participation in
BOP programs is technically not a part of the sentence imposed.” United States v. Smith,
No. 12-20066-32, 2016 WL 2958454, at *3 (D. Kan. May 23, 2016). For these reasons,
courts have found consistently that counsel’s failure to request RDAP treatment does not
prejudice a defendant under Strz'clclana’.ll
During the IAC hearing, Miller tried to articulate prejudice by arguing that
through RDAP he could have gotten “up to one year off of his sentence” and that the
“Court would have considered giving [him] an RDAP recommendation so that he gets
ll See, e.g., Claua'l'o-Zayas v. United States, No. 14-1402, 2017 WL 3309683, at
*9 (D.P.R. Aug. 2, 2017); Smith, No. 12-20066-32, 2016 WL 2958454, at *3; United
States v. Saul, 09-cr-0781-2, 2014 WL 3508640, at *1 (E.D. Pa. July 16, 2014); Jones v.
United States, Nos. 7:08-CR~105-01, 7:10-CV-22, 2010 WL 4484532, at *5 (E.D.N.C.
Oct. 25, 2010).
31
out at 75 instead of 76 [years of age].” 12/18/ 17 Hr’ g Tr. 73-74. The latter point appears
to run headlong into the Supreme Court’s admonition that 18 U.S.C. § 3582(a) does not
permit sentencing courts to “calculate[] the length of [a defendant’s] sentence to ensure
that [he or she] receive certain rehabilitative services.” Tapz'a, 564 U.S. at 334-35. As
for the former, Miller simply highlights yet another layer of extrajudicial discretion that
prevents him from showing prejudice. Upon successful completion of RDAP, the BOP
“has the authority, but not the duty, both to alter the prisoner’s conditions of confinement
and to reduce his term of imprisonment.” Lopez v. Davz``s, 531 U.S. 230, 241 (2001); see
18 U.S.C. § 3621(e)(2)(B) (stating that “[t]he period a prisoner convicted of a nonviolent
offense remains in custody after successfully completing a treatment program may be
reduced by the [BOP]” (emphasis added)); Beckley v. Miner, 125 Fed. Appx. 385, 388
(3d Cir. 2005) (even if RDAP is “completed to perfection,” BOP has “complete
discretion to require [the defendant] to serve his full sentence”). Miller therefore has
failed to show prejudice resulting from his counsel’s failure to request RDAP treatment at
sentencing
B. Failure to Inform Court of Maryland State Jail Credit Issue
Miller’s second alleged sentencing error also did not prejudice him. As 1
explained at the IAC hearing, even if Miller’s counsel had notified me during sentencing
of this Maryland jail credit issue, “[i]t wouldn’t have made a difference to the sentence 1
gave him,” which was “crafted . . . [to be] a fair sentence for [Miller’s] conduct in [the
federal] case.” 12/18/17 Hr’ g Tr. 45. Whether Maryland affords Miller credit for his
time in federal custody is “up to Maryland.” Ia’. at 46. As such, any perceived unfairness
32
in Maryland’s sentencing credit laws would not have resulted in a different sentence for
Miller, even if it had been brought to my attention at sentencing.12
III. Other Purported Deficiencies
Finally, Miller lodges an assortment of additional complaints about his counsel’s
conduct before and during trial. See Def.’s Br. 14-17. However, Miller appears to
abandon these claims in his proposed findings of fact and conclusions of law, wherein he
suggests that 1 decline to resolve them. See ia’. at 32~33. Even if Miller had continued to
pursue these claims, he does not develop them in any meaningful way, nor does he
articulate Strz``cklana’ prejudice And even if Miller had articulated cognizable Stricklana’
claims as to these purported errors, 1 reject them on the merits for the reasons stated in the
Government’s briefing. See Gov’t’s Br. 38-44.
CONCLUSION
For the foregoing reasons, Miller’s claims that his trial counsel was
constitutionally deficient are DENIED. An order consistent With this Memorandum
Opinion is separately and contemporaneously issued herewith.
United States Iistrict Judge
12 1 am not alone in this conclusion. See Vasquez v. United States, No. 2:08-cv-
04081, 2008 WL 4279813, *5 (W.D. Mo. Sept. 15, 2008) (counsel not ineffective for
failing to request downward departure “based on [d``efendant’s] time in county jail”
because court considered relevant statutory sentencing factors and likely would not have
lowered defendant’s sentence based on county jail time).
33