953 F.3d 804
D.C. Cir.2020Background:
- From 2003 AFIC (run by Robert Miller) solicited investments and down-payments for home purchases but never bought properties or obtained mortgages; funds were used for office costs, personal expenses, and partial payouts.
- On April 8, 2004 Miller directed employees to load 22 boxes of AFIC files into a Ford Explorer (owned by an employee’s mother); Secret Service agents seized the boxes without a warrant and later obtained a search warrant.
- Miller was indicted in federal court (2005) on nine counts (travel and wire fraud). He was already serving an 8–12 year Maryland sentence and was transferred to federal custody on a writ; this transfer caused him to lose roughly a year of Maryland custody credits.
- Trial counsel moved to suppress the seized boxes but did not timely introduce a HUD memorandum indicating Miller had permission to use the vehicle; the district court denied suppression for lack of standing. Counsel did not move to dismiss for the Speedy Trial Act (STA) violation and did not call certain investor witnesses.
- Miller was convicted (2007) on all counts and sentenced to 204 months’ imprisonment, consecutive to his Maryland sentence. On remand from this court, Miller raised ineffective-assistance-of-counsel (IAC) claims concerning suppression, STA dismissal, trial witnesses, and sentencing arguments (RDAP recommendation and lost Maryland credits).
- The district court denied Miller’s IAC claims after an evidentiary hearing; on appeal the D.C. Circuit affirms in part but finds IAC for failure to inform the court of lost Maryland credits and remands for resentencing.
Issues:
| Issue | Miller's Argument | Government's Argument | Held |
|---|---|---|---|
| Counsel failed to timely introduce HUD memo to establish standing to suppress boxes | Counsel should have used HUD memo to show Miller had permission to use the vehicle and thus standing | Even if standing were shown, officers had probable cause to seize and hold the boxes, so suppression would fail on the merits | Assuming deficiency, no Strickland prejudice; suppression would have failed because probable cause supported seizure (IAC claim denied) |
| Counsel failed to move to dismiss for Speedy Trial Act violation | Counsel’s failure forfeited a timely STA dismissal; had counsel moved, case might have been dismissed with prejudice or re-prosecution would have been unlikely or faster, reducing federal custody time | Dismissal would likely have been without prejudice; reindictment and reprosecution were probable and hypothetical benefits are speculative | No Strickland prejudice; dismissal would likely be without prejudice and Miller failed to show reasonable probability of a different outcome (IAC claim denied) |
| Counsel failed to call investors who were repaid as defense witnesses | These witnesses would have shown legitimate repayments and undermined fraud allegations | Calling them risked corroborating government’s narrative (they were paid because they threatened to complain), a reasonable strategic choice not to call | Strategic decision reasonable; no IAC (claim denied) |
| Sentencing: failure to request RDAP and failure to inform court of lost Maryland credits | RDAP request and informing court about lost Maryland credits would have materially reduced Miller’s federal sentence or led to different sentencing structure | RDAP recommendation is discretionary with BOP; lost Maryland credits are a state computation and would not alter federal sentence | RDAP claim fails for lack of prejudice; but failure to inform the court of lost Maryland credits was prejudicial—sentencing was procedurally unreasonable and case is remanded for resentencing on that ground |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Ineffective-assistance-of-counsel standard: deficient performance and prejudice)
- Kimmelman v. Morrison, 477 U.S. 365 (When IAC alleges failure to litigate Fourth Amendment, defendant must show claim is meritorious and prejudice)
- California v. Acevedo, 500 U.S. 565 (Probable cause to search a container in a vehicle; containers may be seized pending warrant)
- Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (Definition of probable cause standard)
- United States v. Marshall, 669 F.3d 288 (D.C. Cir. 2011) (IAC for failing to move for STA dismissal can show prejudice in clear-cut violations)
- United States v. Mohammed, 863 F.3d 885 (D.C. Cir. 2017) (articulation of Strickland prejudice in challenging witness credibility)
- United States v. McLendon, 944 F.3d 255 (D.C. Cir. 2019) (Prejudice where dismissal likely without prejudice requires showing reasonable probability outcome would differ on re-prosecution)
- United States v. Taplet, 776 F.3d 875 (D.C. Cir. 2015) (plain-error review unavailable for unraised STA dismissal arguments due to potential gamesmanship)
- United States v. Lawson, 410 F.3d 735 (D.C. Cir. 2005) (automobile-search probable-cause precedent)