Argued April 9, 2015
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:12-CR-10 -- James T. Moody, Judge.
For United States of America, Plaintiff - Appellee: David E. Hollar, Attorney, Office of The United States Attorney, Hammond, IN.
For Joseph Miller, Defendant - Appellant: Visvaldis P. Kupsis, Attorney, Law Office of Visvaldis P. Kupsis, Valparaiso, IN.
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 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.
On December 13, 2011, a clean-cut male in his late 30s or early 40s robbed the Standard Bank & Trust in Hammond, Indiana. The robber wore a thigh-length leather coat, black sneakers with red stitching, and a green-and-white baseball cap with a Chicago Bulls logo. He approached bank teller Judith Tauber, who was standing next to her supervisor Pakama Hoffman, and handed Tauber a note demanding money. Tauber quickly turned over some $5,000 in cash. The robber then exited the bank and headed in the direction of Amtech Technology Systems, a nearby business. He climbed into a blue Ford Explorer with Illinois plates and drove off. The vehicle was captured on Amtech surveillance video.
FBI Agent Michael Peasley reviewed the surveillance footage but, after attempting to sharpen the image, could not identify the Explorer's license plate number. He sent the video footage to the Lake County High Intensity Drug Trafficking Area (" HIDTA" ) Task Force, where the image was refined so that all but one digit on the license plate became legible. Using the enhanced image, Agent Peasley searched the Illinois vehicle registration database and entered each of the ten possible license plate combinations. One of those combinations matched the plate number of a Ford Explorer registered to defendant-appellant Joseph Miller, who lived a few miles outside of Hammond, in Lansing, Illinois.
The FBI conducted surveillance of Miller for several days. Agent Peasley observed Miller's Ford Explorer parked out-side of his home and, based on the vehicle's distinctive characteristics, including stickers, rain dams, and window tinting, Agent Peasley concluded that Miller's Explorer was the same vehicle captured on the Amtech video. During the surveillance period, Miller and his girlfriend, Debra Loggins, were the only individuals seen driving the vehicle. On January 5, 2012, agents searched Miller's home with Loggins's consent and recovered a black leather jacket resembling that worn by the bank robber. The agents also seized Miller's black sneakers, which featured red stitching and distinctive tabs that matched the embellishments on the robber's sneakers. They did not locate any cash or a Chicago Bulls hat, though Loggins's daughter stated that Miller and Loggins owned matching green-and-white Chicago Bulls baseball caps.
That same day, Agent Peasley questioned Miller at the Lansing, Illinois police station, where he advised Miller of his Miranda rights. Miller initially denied involvement in the robbery, though when Agent Peasley showed him a photo of the robber and the Ford Explorer in the Amtech parking lot, Miller responded, " That's my vehicle, but that's not me." Forty-five minutes into the interview, however, Agent Peasley asked Miller if he had a firearm, to which Miller replied, " I did not have a gun." Understanding this to mean that Miller was admitting to the robbery, Agent Peasley clarified, " You mean you didn't have a gun during the robbery," to which Miller replied, " Yes." Miller also explained that, following the robbery, he had thrown the Chicago Bulls cap into a nearby dumpster. This conversation was not recorded, and Miller did not sign a written confession.
Early in the investigation, Agent Peasley provided photo arrays to both Tauber and Hoffman, the Standard Bank witnesses. Hoffman pointed at Miller's picture in the array but stated that she could not be 100% certain that he was the robber. Tauber pointed to Miller's photo and recalled that she had thought the bank robber resembled a courier who she had previously seen at the bank. Miller's photo, she explained, reminded her of that same courier. In support of the criminal complaint against Miller, Agent Peasley submitted an affidavit recounting the photo line-up with Tauber. The affidavit reads, in pertinent part:
[When] law enforcement showed a photo 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 ...