Brian Miller v. United States ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1552
BRIAN MILLER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:18-cv-1154 — James E. Shadid, Judge.
____________________
ARGUED SEPTEMBER 17, 2019 — DECIDED OCTOBER 9, 2019
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Brian Miller cut a hole in his bath-
room wall and secretly filmed teenage girls—friends of his
own children—undressing and showering. Federal authori-
ties learned of his conduct, commenced an investigation, and,
after extensive discussions, offered to allow Miller to plead
guilty to possessing child pornography, an offense with a
maximum penalty of ten years’ imprisonment. Miller rejected
the offer and instead chose to go to trial, where he was
2 No. 19-1552
convicted of the greater offense of producing child pornogra-
phy and then sentenced to 18 years. Having previously re-
jected Miller’s challenge to his conviction and sentence on di-
rect review, we now affirm the district court’s denial of his
petition for post-conviction relief under 28 U.S.C. § 2255. The
district court correctly concluded that Miller failed to show
that his trial counsel provided ineffective assistance during
plea negotiations.
I
A
In June 2012, after receiving a tip about Miller’s miscon-
duct, local authorities obtained a warrant to search his home,
where they found the rigging in his basement and his cell
phone. In time federal authorities became involved and
searched Miller’s phone. The search uncovered so-called
thumbnail images—small, still photographs that serve as
footprints of videos that have been deleted—of naked teenage
girls. This initial search did not recover any video files on Mil-
ler’s phone, however.
When federal agents approached and questioned Miller
about his conduct, he hired an attorney, Joel Brown, to repre-
sent him in the investigation. The agents made clear from the
outset that Miller would be charged with a child pornography
offense. The only unresolved question was whether that
charge would be for simple possession or production. After
conferring with federal prosecutors, the agents informed
Brown that the government would permit a plea to the lesser
charge if Miller could show that his conduct was limited to
filming the teenage girls and did not extend to any sexual con-
tact with them. Miller sought to make this showing by
No. 19-1552 3
agreeing to meet with the agents to discuss his offense con-
duct and to submit to a polygraph exam.
Much hung in the balance for Miller: if he was able to
plead to a possession offense, he faced a maximum penalty of
ten years’ imprisonment. See 18 U.S.C. § 2252A(a)(5)(B),
(b)(2). But if he failed the polygraph or otherwise was unable
to persuade the government of the scope of his conduct, Mil-
ler would face the 15-year mandatory minimum sentence that
Congress prescribed for producing child pornography. See id.
§ 2251(a), (e).
Miller passed the polygraph and proffered successfully,
only then to decline the government’s plea offer. The govern-
ment reacted as it told Miller it would—by seeking an indict-
ment charging him with producing child pornography. By
this same time, and in response to learning that Miller opted
to go to trial, the U.S. Secret Service had conducted a renewed
forensic examination of Miller’s phone and managed to re-
cover the videos he made of the teenage girls undressing or
showering in his basement bathroom. The indictment the
grand jury returned against Miller contained 22 production
counts, with each count tracking each of the 22 video files
found on his phone.
A bench trial followed and ended in the district court find-
ing Miller guilty on all counts. The court then sentenced Mil-
ler to 18 years’ imprisonment and 15 years’ supervised re-
lease. We affirmed on direct review. See United States v. Miller,
829 F.3d 519, 530 (7th Cir. 2016).
B
Miller then turned his attention to post-conviction relief.
In his petition to vacate his sentence under 28 U.S.C. § 2255,
4 No. 19-1552
he claimed that his trial counsel, Joel Brown, provided inef-
fective assistance during the pre-indictment plea negotia-
tions. With Miller and Brown offering polar opposite versions
of what transpired during those discussions, the district court
held a hearing to assess the competing accounts.
Miller and Brown’s testimony was indeed night and day
different. Miller testified that Brown advised him his maxi-
mum sentence would be ten years no matter what. At no
point, Miller insisted, did Brown inform him that declining a
plea could result in production charges with a 15-year man-
datory minimum sentence. Miller contended that Brown’s
faulty advice sealed his fate: there were no viable defenses to
the production charges, especially once the Secret Service
found the video files revealing the young girls undressing and
showering. With those videos in the government’s hands,
Miller insisted, there was no way the defense he ultimately
pursued at trial—that the images did not reflect the “lascivi-
ous exhibition” of any girl’s genitals, as required by §§ 2251(a)
and 2256(2)(A)(v)—had any meaningful chance of succeed-
ing.
For his part, Brown offered a starkly different account. He
outlined for the district court his extensive experience as a
criminal defense lawyer and testified that he fully informed
Miller of the risks of rejecting the plea to simple possession
and facing a charge of producing child pornography. Brown
made plain that he expressly and specifically advised Miller
that a conviction for producing child pornography would re-
sult in a sentence of at least 15 years, but that Miller insisted
on going to trial on the view that accepting a ten-year sentence
for possessing child pornography was tantamount to receiv-
ing a life sentence. Brown then underscored that he and Miller
No. 19-1552 5
“spent a long, long time” reviewing the case law informing
the question whether the video images “met the federal defi-
nition of lascivious.” Brown further emphasized that, in the
end, he left to Miller the ultimate decision of whether to ac-
cept the government’s offer (to the possession charge) or to
proceed to trial (on the greater production charge).
After hearing and weighing this competing testimony, the
district court credited Brown’s testimony. The court found
that Brown offered the more credible account of what had
transpired during the pre-indictment discussions with the
government. Even more specifically, the district court found
that Brown provided Miller “with enough information that he
was aware of the situation he faced.” Accordingly, the court
concluded that Brown’s performance was not deficient within
the meaning of the standard announced by the Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984), and re-
lated cases.
II
A
On appeal Miller renews his argument that Joel Brown
provided ineffective assistance of counsel during pre-indict-
ment plea negotiations. The government disagrees, taking the
broad position that the Sixth Amendment right to counsel
does not apply to pre-indictment plea discussions. From
there, however, the government steps back and argues that,
even if Miller did have a right to effective assistance from
Brown during plea negotiations, the district court got it right
in concluding that the claim failed on the merits.
The government uttered not a word in the district court
about the inapplicability of the Sixth Amendment to pre-
6 No. 19-1552
indictment plea negotiations. Miller urges us to view the gov-
ernment’s silence as waiver or forfeiture. While Miller’s point
is well-taken, we prefer to chart a narrower course and can do
so by proceeding to the merits of the district court’s conclu-
sion that Brown did not render ineffective assistance.
B
The familiar teachings of Strickland supply the principles
for assessing an ineffective-assistance-of-counsel claim. We
consider, first, whether counsel’s performance was deficient
and, if so, whether the deficient performance prejudiced the
petitioner. See Strickland, 466 U.S. at 687, 694. Where, as here,
the ineffective-assistance claim concerns counsel’s advice to
reject a guilty plea, Miller needed to make the more specific
showing “that his counsel’s advice to reject the plea agree-
ment and go to trial was objectively unreasonable, and that
absent this advice he would have accepted the plea offer.”
Torres-Chavez v. United States, 828 F.3d 582, 585 (7th Cir. 2016).
In advising a client to reject a plea, an attorney’s perfor-
mance “is deficient if the attorney grossly mischaracterizes
the evidence or advises a client to reject a plea offer and go to
trial in the face of overwhelming evidence and no viable de-
fenses.” Id. It is not enough for a defendant to show that he
faced an uphill battle at trial. The defendant needs to go fur-
ther by showing that, given the apparent strength of the gov-
ernment’s case and the likelihood of a successful defense, any
reasonable attorney would have recommended forgoing trial
and accepting a guilty plea. See id. The Sixth Amendment re-
serves the ultimate choice for the accused: it is up the defend-
ant, informed by counsel’s advice, to determine whether to
accept a plea or instead to play the odds by proceeding to trial.
No. 19-1552 7
See Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Underwood
v. Clark, 939 F.2d 473, 474 (7th Cir. 1991).
Like the district court, we cannot conclude that Brown’s
performance was objectively unreasonable. Accepting the
facts as found by the district court—none of which Miller has
shown reflect clear error—we start from the important deter-
mination that Brown informed Miller of the risks of rejecting
the government’s plea offer and proceeding to trial on charges
of producing child pornography. In testimony credited by the
district court, Brown explained that Miller was “well aware”
of the risks of forgoing a plea to simple possession charges
and instead chose to put the government to its proof on the
production charges. The law required no more of Brown.
To be sure, the district court could have articulated its
findings about the precise content of Brown’s advice to Miller
in more detail. Regardless, it is abundantly clear from the rec-
ord—owing to the care the district judge took in conducting
the hearing and allowing Miller and Brown to air their respec-
tive positions—that the court found Brown’s account alto-
gether more credible than Miller’s. Put another way, the only
fair and objective takeaway from the hearing transcript and
district court’s findings is that Brown fully advised Miller on
the risks of choosing to proceed to trial.
Miller overshoots in contending that Brown’s advice
walked him into a surefire conviction at trial. Recall that the
indictment charged Miller with violating 18 U.S.C. § 2251(a),
which made it a crime to use “any minor to engage in … any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct[.]” Id. “Sexually explicit con-
duct” includes the “lascivious exhibition of the anus, genitals,
or pubic area of any person.” Id. § 2256(2)(A)(v). From there,
8 No. 19-1552
however, Congress did not define “lascivious exhibition,”
and federal courts have struggled to define the term with
much precision or particularity. See, e.g., United States v.
Schuster, 706 F.3d 800, 806 (7th Cir. 2013) (observing that las-
civiousness “is an intensely fact-bound question”); United
States v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (noting that
“Congress has chosen not to employ any additional glossing”
to the statutory standard).
Miller went to trial on the defense that the prosecution
could not prove that the four thumbnail images found on the
phone—which, at the time, comprised the extent of the gov-
ernment’s evidence—depicted “lascivious exhibition” within
the meaning of § 2256(2)(A)(v). Success at trial depended on a
distinction between mere nudity and lascivious exhibition—a
distinction recognized in the case law. Take our precedent, for
example. We have observed that “more than nudity is re-
quired to make an image lascivious.” United States v.
Griesbach, 540 F.3d 654, 656 (7th Cir. 2008). Brown knew this
and could have reasonably advised Miller that there was
some prospect of beating the production charge on the view
that the still images lacked that something more.
Indeed, at least one circuit had reached that precise con-
clusion in circumstances sufficiently analogous to those fac-
ing Miller. In United States v. Steen, the Fifth Circuit held that
a secretly filmed video of a teenager lying naked in a tanning
bed was not lascivious because there was insufficient evi-
dence that the video was intended to elicit a sexual response
in the viewer. 634 F.3d 822, 828 (5th Cir. 2011). Reasoning
from cases like Steen, Brown could have reasonably advised
Miller that a similar defense had some prospect of prevailing
at trial because the thumbnail images found on Miller’s phone
No. 19-1552 9
depicted little more than nudity—girls undressing or shower-
ing—but not lascivious exhibition. Not one of the still photos
reflected any girl in a sexual pose or performing any sexual
act. Nor did any of the images reflect a close-up view of any
girl’s genitals.
Miller begs to differ by focusing not so much on the still
images initially recovered from his phone but instead on the
video images recovered by the Secret Service during the sec-
ond search. But Miller is conflating the timeline of events. The
recovery of the videos came after—not before—he had de-
cided to reject the government’s plea offer and proceed to
trial. Brown, in other words, formulated and conveyed his ad-
vice to Miller at a time when the government’s only forensic
evidence at trial would have been the thumbnail images. The
law did not require Brown to foresee that the Secret Service,
which conducted the first search of Miller’s phone, would
somehow manage to recover the videos in a second search.
And with cases like Steen in the Federal Reporter, it was not
beyond the pale for Brown to have advised Miller that he had
some prospect of prevailing at trial on the defense that the
government could not prove beyond a reasonable doubt that
the still images reflected lascivious exhibition.
Our conclusion does not change by observing that the de-
fense faced difficult odds once the government found and
produced the video images. By then the plea offer was off the
table. As we noted in our opinion affirming Miller’s convic-
tion, the minors’ nudity, combined with Miller’s efforts to film
them and conceal his misconduct, was enough to support a
finding that the videos featured a “lascivious exhibition” un-
der § 2256(2)(A)(v). See Miller, 829 F.3d at 525–26; see also
United States v. Russell, 662 F.3d 831, 843 (7th Cir. 2011) (“[T]he
10 No. 19-1552
intent and motive of the photographer can be a relevant con-
sideration in evaluating those images.”).
Given the reasoning embodied in cases like Steen, we agree
with the district court that Brown’s advice was not objectively
unreasonable. Remember, too, that Strickland highlights that
the strategic choices of counsel based on legal and factual re-
search “are virtually unchallengeable” on an ineffective-assis-
tance claim. See 466 U.S. at 690. Here the defense made a stra-
tegic choice to contest the lasciviousness of Miller’s images,
and to do so at a bench trial—perhaps on the view that the
defense could find traction with a district judge (as opposed
to lay jurors). Having made clear that he was unwilling to ac-
cept even a maximum sentence of ten years for the possession
of child pornography, Miller acceded to that choice when he
decided to go to trial on the production charges. We cannot
say he did so because of constitutionally deficient advice pro-
vided by Brown.
On this record, then, we AFFIRM.