JAMES T. MOODY, District Judge.
This matter is before the court for disposition of defendant Joseph B. Miller's amended motion for a new trial pursuant to FED. R. CRIM. P. 33 (DE #81). This comes following an evidentiary hearing thereon held on May 21, 2014, at which time Miller called witnesses and presented evidence in support of his motion. Under RULE 33, the court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM P. 33(a). Miller's motion is grounded on a claim that his conviction at trial resulted from ineffective assistance of trial counsel. Thus, he must meet the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), and show that his counsel's performance was unreasonable under prevailing professional norms, and that the deficiency caused him prejudice. See United States v. Westmoreland, 712 F.3d 1066, 1079-80 (7th Cir. 2013).
First,
Defendant Miller's argument now is based on a document turned over by the government in pretrial disclosures
Unlike Melendez-Diaz, no confrontation clause violation occurred in the present case. In Melendez-Diaz, affidavits of analysts at the state forensic laboratory were admitted into evidence to establish that bags of powder seized from defendant Melendez-Diaz contained cocaine. Unlike that case, as Miller himself admits in his motion, DE #81 at 14-15, the enhanced photograph from the surveillance video was not offered nor admitted into evidence.
This is possibly why, in his reply memorandum and during the evidentiary hearing on his motion, defendant Miller's argument seems to have "morphed" into one that the document should have been used by Tavitas during his cross examination of Agent Peasley to cast doubt on Peasley's explanation of how he had determined the vehicle in the video was Miller's. This argument fares no better, however, because no plausible explanation has been offered or is obvious as to exactly what this cross-examination should have been and how it would have made a difference to the outcome.
To the contrary, at the hearing on defendant Miller's motion Agent Peasley reiterated, consistent with his testimony at trial, the steps he had taken to use the surveillance video to identify Miller's vehicle. At the hearing he testified that the enhanced still image
Finally, at the hearing on Miller's motion his trial attorney, Adam Tavitas, testified that from preparing the defense he expected that both Miller's girlfriend and mother would testify that the vehicle in the surveillance video was Miller's Ford Explorer, and that Miller himself agreed that the video showed his vehicle. The defense he wanted Tavitas to pursue was that the person seen in the video exiting the vehicle was not him. In fact, Agent Peasley testified at trial that the first time he questioned Miller he showed Miller an image from the surveillance video and Miller said; "That's my vehicle, but that's not me." (DE #77 at 52.) Under all of the circumstances just summarized, Tavitas didn't see the "working copy" document stating that someone at HIDTA had identified the license number as having any special significance in the case, because it simply wasn't of great importance to show how the agents had gotten from the video to Miller's vehicle. Defendant Miller has not shown how Tavitas's judgment and performance in this regard was deficient, or how Tavitas could have utilized the document to make any difference in the case. He has not, therefore, made any showing of ineffective assistance of counsel.
Defendant Miller's second argument is that attorney Tavitas should have cross-examined Agent Peasley at trial concerning a portion of Peasley's affidavit in support of the criminal complaint in this case, in which Peasley recounted having shown a photo line-up to Judith Tauber, a bank teller and eyewitness. Miller asserts that evidence shows that Peasley misrepresented in the affidavit that Tauber had identified a photo of defendant Miller as being the bank robber. Oversimplifying in the interest of brevity, Miller argues this would have made a difference at trial because Agent Peasley testified that during his initial custodial questioning of defendant Miller, Miller admitted committing the robbery.
Miller has not shown that Tavitas's decision not to pursue this matter at trial was deficient. To begin, the court views the evidence that Agent Peasley mischaracterized Tauber's statement to be lacking and not likely to have been of persuasive value to the jury. What occurred is this. The portion of Agent Peasley's affidavit at issue, paragraph 11, states:
(DE #1 at 5, ¶ 11.) Later, Tauber, after reviewing Peasley's affidavit, Tauber was of the opinion that it misrepresented what she had said. She wanted to be clear that she had never said the photo in the line-up was, or reminded her of, the bank robber. What she thought and said was that the man in the photo reminded her of the courier. The bank robber had also reminded her of the courier.
When defendant Miller learned this,
(DE #28 at 5.) The court denied the motion to take her deposition. (DE #29.) Tauber did not testify at trial because she died prior to its commencement.
At the hearing on Miller's motion for a new trial, Peasley testified that he does not believe his affidavit mischaracterizes what Tauber had said while viewing the photo line-up. He strived to be accurate, and believed he had made it "abundantly clear" in the affidavit (as well as in testimony before the grand jury) that Tauber had not identified the photo as the bank robber, but had said the bank robber reminded her of the courier, and the photo reminded her of the courier. Thus, he thought a person might infer from her statements that the courier could be the bank robber, or that Miller could be the courier, or that Miller could be the bank robber. Re-reading paragraph 11 of Peasley's affidavit in that light, it becomes clear that while its wording might be less than perfect, it does not misrepresent anything. Thus, when Tauber read it she saw the same inference that anyone might draw: that the bank robber and Miller both reminding her of the courier might mean that Miller was the bank robber, and she wanted to be clear she was not saying that the man in the photo, Miller, was the bank robber.
What this all boils down to then, is this: attorney Tavitas's decision not to inquire into this matter at the trial, far from being ineffective, was a sound tactical decision. As he explained at the hearing, because Tauber was deceased and would not testify, there would be no evidence at trial concerning her comments about the photo line-up and the robber and a person in the line-up both reminding her of the courier. Therefore, doing so would hurt, not help, Miller, because there was no eyewitness who would identify Miller as the bank robber.
Third, Miller argued that his trial counsel was ineffective for failing to call two witnesses to rebut the government's evidence that he was having financial problems and therefore had a motive to commit the robbery. At trial, Doug Eveleigh, the assistant general counsel for Solo Cup Company, testified that the last day Miller came to work was the night of December 13, 2011 (the day of the robbery) and that he was then terminated on January 5, 2012. (DE #77 at 8.) Miller asserted in his motion that Patricia Lucit, a human resources employee at Solo Cup, would have testified that he was employed there full-time and was authorized to be absent from work due to an injury starting on December 13, 2011, and was only terminated because he failed to appear at work due to his arrest for the bank robbery; and that Sheree Wilks, a supervisor at Solo Cup, would also have testified concerning his full-time employment status, and in addition that he made money from a second job selling purses.
He called both of these witnesses at the hearing on his motion. The testimony of neither of them supports his assertions. Lucit testified that there was a doctor's note in Miller's file excusing his absence from work starting on December 21st and after, but not before then. Thus, her testimony does not aid Miller's showing of ineffective assistance, because there is no evidence that his absence from work starting on December 14, 2011, the day after the robbery, was authorized. (See . DE# 77 at 63-64.)
Wilks testified only that on one occasion in the summer or fall of 2011, after her shift ended, she saw a group of employees gathered around Miller's vehicle, and she thought he was selling something and told him to stop. She did not know, however, if Miller was selling purses for compensation. At best, her testimony is cumulative of other testimony at trial, from Miller's girlfriend, that he made money working on cars and selling purses and shoes. (DE #75 at 208.) In sum, neither witness's testimony suggests that Miller would have gained anything of value by calling them at trial; therefore, his attorney's failure to call them was neither deficient nor did it cause him any prejudice.
Finally, and again going to his motive, Miller argues that his attorney was ineffective for not using Miller's bank records to disprove Agent Peasley's trial testimony that Miller's bank account was overdrawn by more than $700 on the day before and morning of the robbery, before being brought into the black with cash deposits that afternoon. At the hearing on the motion for a new trial, Agent Peasley admitted that his trial testimony was wrong, and that Miller's account was not overdrawn by more than $700. It was, however, overdrawn by a small amount.
The court accepts, for the purpose of Miller's argument, that Tavitas's performance on this issue was deficient; that is, Tavitas should have used the bank records to show that Miller was not overdrawn by more than $700. He was overdrawn, however, and so Tavitas's mistake is minor, going to degree rather than substance. In addition, Miller did make cash deposits to his account on the day of the robbery to bring it back into the black, and paid his delinquent electric bill that same day. Beyond that, the evidence of Miller's guilt is quite strong: his vehicle was captured on surveillance video near the bank at the time of the robbery, and getting out of the vehicle was a person resembling him in build, and wearing shoes and a distinctive Chicago Bulls baseball cap
For the reasons explained above, defendant Miller has not demonstrated that his trial was tainted by ineffective assistance of defense counsel undermining this court's confidence in the jury's verdict by causing the court to think there is any reasonable possibility that the outcome might have been different. His amended motion for a new trial (DE #81, supplanting DE #62, which the clerk should term as moot) is, therefore,
