United States District Court, District of Columbia
MEMORANDUM OPINION (NOVEMBER 30, 2018) [DKT. ## 155,
Richard J. Leon Judge.
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 I 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.
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.
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.
United States v. Miller, 799 F.3d 1097, 1100 (D.C.
Cir. 2015). In 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." 11/8/07 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,
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.
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.
Id. 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.
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. In 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.
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."
Id. 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. Id. 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].
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. Id. 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].
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. 11/9/07 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. Id. 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, 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].
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. Id. 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.
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 records in a Ford 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.
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 AFIC'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. Id.; 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).
April 22, 2005, a grand jury indicted Miller on nine counts
of travel fraud, 18 U.S.C. § 2314, and two counts of
wire 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, 1 sentenced Miller to 204 months' imprisonment
and ordered him to pay $495, 954.49 in restitution. Judgment
3, 6. From 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 I erred in
denying Miller's pretrial motion to suppress the 22 boxes
seized from the Ford 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 I
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.
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, 1 heard argument on Miller's IAC claims, after
which I permitted the parties to submit post-argument
briefing to address any remaining issues. Those briefs were
filed on February 5, 2018. [Dkt. ## 183, 184].
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 United States v. Pollard, 959 F.2d
1011, 1020 (D.C. Cir. 1992) (defendant raising "a §
2255 collateral challenge" 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 sentence. 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 §
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); United States v. Gr
ay-Burr iss, 251 F.Supp.3d 13, 17 (D.D.C. 2017)
(applying Strickland standard only following remand
of IAC claims after direct appeal). I trust that the
Government's mistake regarding the applicable legal
standard was earnest.
Ineffective Assistance of Counsel
prove constitutionally defective representation, the
defendant must show: (1) 'that counsel's performance
was deficient,' and (2) 'that the deficient
performance prejudiced the defense.'" United
States v. Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008)
(quoting Strickland, 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 "addressing] both components of the
inquiry if the defendant makes an insufficient showing on
one." Strickland, 466 U.S. at 697, 700; see
also United 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").
deficiency prong requires the Court to determine whether
counsel acted "reasonabl[y] under prevailing
professional norms . . . considering all the
circumstances." Strickland, 466 U.S. at 688;
see Padilla 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." United
States. Catlett, 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, "[judicial
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."
Id. These realities of legal representation give
rise to a "presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy." Id. Surmounting this presumption is,
in the Supreme Court's words, "never an easy
task." Padilla, 559 U.S. at 371; see
Strickland; 466 U.S. at 690 ("[Strategic choices
made after a thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.").
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 "reasonable
probability" in the Strickland context is one
that is "sufficient to undermine confidence in the
outcome." Id. at 694. The prospect of a
different result must "be substantial, not just
conceivable." Harrington v. Richter, 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.'" United States v.
Brinson-Scott,714 F.3d 616, 623 (D.C. Cir. 2013)
(quoting Strickland, 466 U.S. at 687). As such, our