In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2779

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH B. MILLER,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:12-CR-10 — James T. Moody, Judge.

____________________

ARGUED APRIL 9, 2015 — DECIDED JULY 22, 2015

____________________

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 
2 No. 14-2779

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. 

I. Background

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.
No. 14-2779 3

The FBI conducted surveillance of Miller for several days. 

Agent Peasley observed Miller’s Ford Explorer parked outside 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. 
4 No. 14-2779

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 lineup 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 photo of Miller, she again thought the 

photo reminded her of the courier.

Tauber later reviewed Agent Peasley’s affidavit and disagreed with its characterization of her statements. She clarified that the photograph of Miller “looked familiar, because it 

reminded her of the courier, not because the photograph 

looked like the bank robber.” When Miller learned of this 

discrepancy, he moved to depose Tauber prior to trial. The 

district court denied Miller’s motion after the government 

explained that it “expect[ed] [Tauber’s] trial testimony to 

be—that she did not identify the photograph as the bank 

robber.” Tauber, in fact, died shortly thereafter and no evi-
No. 14-2779 5

dence relating to her observations upon viewing the photo 

array was introduced at trial.

At Miller’s June 2013 trial, video footage from both 

Standard Bank and the Amtech parking lot was admitted. 

Hoffman testified as the sole eyewitness. Although she had 

been unable to pick Miller out of the photo array, Hoffman 

made an in-court identification of Miller as the robber at trial. Miller’s attorney, Adam Tavitas, did not object to the admission of Hoffman’s identification. However, on crossexamination, Tavitas emphasized that Hoffman had observed the robber only briefly and had been unable to identify Miller in the photo array presented to her shortly after the 

robbery. Loggins’s daughter also testified at trial, identifying 

the robber’s green-and-white baseball cap as a hat identical 

to one Miller had owned. Loggins herself denied previously 

seeing Miller with a green-and-white Bulls hat. She also denied several prior statements she had made to law enforcement, but admitted telling agents that Miller was the individual in the Amtech surveillance footage. When again confronted with the footage during trial, Loggins stated that she 

was unable to identify the person depicted. However, Loggins did positively identify the car in the image as Miller’s 

Ford Explorer. 

Agent Peasley also testified at trial, and described the circumstances surrounding Miller’s confession and other details relating to the investigation. When questioned about his 

identification of Miller’s vehicle, Agent Peasley explained 

that he reviewed the Amtech surveillance tape and was 

eventually able to read all of the digits on the vehicle’s license plate, with the exception of one number. Agent Peasley’s testimony continued as follows:
6 No. 14-2779

Q. And did you do anything to enhance your 

ability to read th[e license plate]?

A. We played with the video quite a lot. We 

looked at could we adjust the colors, even 

invert the colors, do anything we can to 

bring out those numbers. And we continued to do that and then got to the point 

where we were able to read all but that one 

digit. So we then started playing with those 

digits in the registration system database to 

look and see if we could find a match.

Q. All right. And let me just have you explain 

something you just said. You said you were 

playing with the video. Did you make any 

changes or enhancements–

A. No.

Through Agent Peasley, the government also admitted 

various financial records. Records from Miller’s electric 

company confirmed that his bill had been delinquent prior 

to the robbery but was paid the day after the robbery. Bank 

account records revealed that Miller’s account was overdrawn by $159.82 on the morning of the robbery and that 

two cash deposits totaling $370 were made into his account 

later that same day. Agent Peasley testified, however, that 

Miller’s account was “delinquent by about 730 something 

dollars [on the morning of] the bank robbery.” The government referenced this $730 figure during its closing argument. 

Tavitas cross-examined Agent Peasley on several issues. 

He emphasized that Agent Peasley did not record the inter-
No. 14-2779 7

view in which Miller purportedly confessed, and pointed 

out other shortcomings in the investigation, including that 

no handwriting exemplar was obtained from Miller, no fingerprints or DNA were recovered from the scene, and no 

stash of money was found at Miller’s house. Tavitas did not 

question Agent Peasley about Tauber’s statements in relation to the photo array, nor did he attempt to correct Agent 

Peasley’s testimony regarding the amount by which Miller’s 

account was overdrawn. Ultimately, Miller was found guilty 

of bank robbery in violation of 18 U.S.C. § 2113(a), and sentenced to 225 months’ imprisonment.

Represented by new counsel, Miller filed a motion for a 

new trial pursuant to Federal Rule of Criminal Procedure 33. 

He argued that Tavitas provided constitutionally ineffective 

assistance, first, because he did not introduce evidence that 

Agent Peasley’s affidavit “mischaracterized” Tauber as having identified Miller as the robber; second, because he did 

not object to Agent Peasley’s testimony regarding the enhancement of the license plate images;1 and third, because 

Tavitas did not challenge Agent Peasley’s incorrect assertion 

that Miller’s bank account was more than $700 overdrawn 

on the day of the robbery.

At an evidentiary hearing, Agent Peasley testified that he 

had sent the Amtech video to HIDTA staff who “took a look 

at the video to try to clear it up to see if we could see what 

 1 On appeal, Miller has abandoned the argument that Tavitas’s failure to 

cast doubt on Agent Peasley’s explanation of how he determined ownership of the vehicle in the Amtech video amounted to ineffective assistance. Instead, Miller claims that Agent Peasley’s allegedly false testimony regarding the license plate verification process impacted his right to a 

fair trial.
8 No. 14-2779

the [license plate] tag was.” He also attempted to clarify the 

image on his own but was unsuccessful. Agent Peasley admitted he could not recall exactly how the video was sent to 

HIDTA, who adjusted its sharpness, or what techniques 

were used to do so. He believed HIDTA “simply adjusted 

aspects of the image, so—like, they adjusted the color ration

[sic]. They adjusted the zoom level. They adjusted sharpness 

of the photos.” However, he insisted that HIDTA “did not 

change the photograph.” Agent Peasley also admitted that 

he erred in testifying that Miller’s bank account was overdrawn by approximately $730 on the day of the robbery. He 

explained that he had mistakenly conflated the relevant prerobbery account balance (-$159.82) with Miller’s account balance a few weeks after the robbery (-$713).

Tavitas also testified at the hearing regarding his representation of Miller. He explained that he did not question 

Agent Peasley about Tauber’s statements because he did not 

want to introduce evidence that might allow the jury to infer 

that Tauber thought Miller resembled the robber. Tavitas also stated that it was not part of his trial strategy to challenge 

the assertion that the car in the Amtech lot belonged to Miller, as Miller and Loggins had both admitted to Agent Peasley that the car in the Amtech lot was his. Rather, Tavitas’s 

trial strategy was to argue that the car was Miller’s, but that 

the man in the video was someone else. Tavitas therefore 

saw no need to cross-examine Agent Peasley regarding the 

process by which he verified the robber’s license plate number. Tavitas could not explain his failure to correct Agent 

Peasley’s misstatement with respect to Miller’s bank records.

The district court denied Miller’s new trial motion. First, 

it found no ineffectiveness relating to Tavitas’s choice not to 
No. 14-2779 9

cross-examine Agent Peasley about Tauber’s pre-trial statements, concluding that Tavitas had made a “sound tactical

decision.” The court also concluded that Tavitas acted permissibly in declining to question Agent Peasley about the 

license plate enhancement process as Tavitas had explained 

that he did not intend to argue at trial that the vehicle on the 

scene did not belong to Miller. Finally, the district court assumed that Tavitas’s failure to correct Agent Peasley’s testimony regarding Miller’s bank account balance was error but 

that, considering the strength of the government’s case, it 

did not prejudice Miller.

II. Discussion

On appeal, Miller continues to press the argument that 

Tavitas’s assistance was constitutionally ineffective. He also 

cites Agent Peasley’s statements regarding the enhanced license plate footage and the amount by which Miller’s bank 

account was overdrawn in support of an independent claim 

that the government offered false testimony at trial.2 Miller 

contends that there is a reasonable likelihood that Agent 

Peasley’s purportedly false testimony and Tavitas’s alleged 

errors affected the jury’s verdict. We disagree.

 

2 Because Miller did not raise his false testimony claim below, that claim 

is arguably waived as we have “repeatedly held that a party that fails to 

press an argument before the district court waives the right to present 

that argument on appeal.” Garlington v. O’Leary, 879 F.2d 277, 282 (7th 

Cir. 1989). However, because the government has not argued waiver—

and because “it is our practice to consider only those arguments presented to us”—we decline to address the waiver issue and will proceed to 

analyze Miller’s false testimony claim on the merits. Id. at 282–83 (recognizing that “a defense of waiver can itself be waived by not being 

raised”).
10 No. 14-2779

A. False Testimony

Miller argues that he is entitled to a new trial based on 

Agent Peasley’s allegedly false testimony on two points: (1) 

the process by which the Amtech surveillance footage was 

enhanced, and (2) the balance of Miller’s bank account on 

the morning of the robbery. In order to receive a new trial on 

the basis of the government’s use of false testimony, Miller 

must establish that the government’s case included perjured 

testimony; that the government knew, or should have 

known, of the perjury; and that there is a likelihood that the 

false testimony affected the judgment of the jury. United 

States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995). 

Miller first claims that Agent Peasley testified falsely 

when questioned about his ability to read the license plate 

number from the vehicle captured on the Amtech surveillance video. When asked whether he enhanced the image in 

order to read the number, Agent Peasley explained that 

“we” used various techniques to clarify the image. According to Miller, this implied that Agent Peasley himself had adjusted the image and identified the license plate number

when in reality an unknown HIDTA employee refined the 

image (using unknown techniques) and provided Agent 

Peasley with the enhanced footage. 

It is not immediately clear to us that the challenged testimony was false. While Agent Peasley’s language was admittedly ambiguous and imprecise, it is plausible that when 

he used the term “we,” he was simply referring both to his 

own unsuccessful efforts and the more successful efforts of 

the HIDTA staff to enhance the Amtech footage. Nevertheless, we agree with Miller that the most obvious inference to 

be drawn from Agent Peasley’s summary description of the 
No. 14-2779 11

image refinement process was that he himself was responsible for sharpening the image that enabled him to initially 

connect the getaway vehicle to Miller—not that he was 

blindly relying on information provided to him by a third 

party.3

Even so, we do not believe that this admittedly flawed 

testimony affected the jury’s verdict. First, Tavitas had ample opportunity to bring to light any false or misleading 

statements on cross-examination and did, in fact, elicit an 

admission from Agent Peasley that he received “additional 

help” in identifying the license plate number and that he 

“didn’t do this [him]self.” See United States v. Adcox, 19 F.3d 

290, 295 (7th Cir. 1994) (explaining that “whether the defendant had adequate opportunity to expose the alleged per-

 

3 Because Agent Peasley’s testimony conveyed the assertion that the license plate captured on the Amtech surveillance video matched Miller’s 

plates—an assertion made by an individual other than Agent Peasley, 

who himself was uninvolved in the HIDTA image refinement process—

his testimony also presented potential hearsay and Confrontation Clause 

problems. See Fed. R. Evid. 801; Davis v. Washington, 547 U.S. 813, 821 

(2006) (holding that the Confrontation Clause of the Sixth Amendment 

“bars admission of testimonial statements of a witness who did not appear at trial” (citation and internal quotation marks omitted)). Given 

these considerations, it would have been preferable for the government 

to instead call as a witness a HIDTA employee with personal knowledge 

of the license plate enhancement process. But ultimately, because the 

defense did not challenge the government’s contention that the vehicle 

depicted in the Amtech footage belonged to Miller, any hearsay or Confrontation Clause violation would have been harmless. See United States 

v. Westmoreland, 240 F.3d 618, 629 (7th Cir. 2001) (“Even if hearsay statements are improperly admitted into evidence at trial, a conviction will 

not be set aside if erroneous rulings under both [the Federal Rules of Evidence] and the Confrontation Clause are harmless.”).
12 No. 14-2779

jury on cross-examination” is crucial in determining whether 

a new trial is merited). More importantly, the license plate 

identification process proved to be only a collateral matter at 

trial. Because both Miller and Loggins had admitted that the 

vehicle in the Amtech lot belonged to Miller, the defense did 

not attempt to challenge that assertion. And, separate and 

apart from its license plate number, Miller’s Ford Explorer

possessed certain other distinctive characteristics (e.g., window stickers, a chrome bumper, tinted windows, and rain 

dams) that enabled Agent Peasley to identify Miller’s vehicle

as the vehicle present at the scene of the crime. Therefore, 

Agent Peasley’s potentially misleading statements about the 

license plate identification process were not essential to the 

factual finding that the getaway car belonged to Miller.

Miller also challenges Agent Peasley’s statement at trial 

that Miller’s bank account was overdrawn by approximately 

$730 on the morning of the robbery. At the evidentiary hearing on Miller’s new trial motion, Agent Peasley acknowledged that this testimony was incorrect; in reality, Miller’s 

account was overdrawn by only $159.82. However, it is unlikely that this concededly false statement affected the judgment of the jury. Details of Miller’s negative account balance 

were offered to prove motive to commit robbery. The fact 

that Miller’s account was overdrawn by less than Agent Peasley suggested may lessen his motive, but it does not negate 

it, nor does it alter the fact that deposits were made to Miller’s account (and his overdue electric bill paid) just after the 

robbery. Furthermore, the remaining evidence of Miller’s 

guilt is powerful: his vehicle was captured on surveillance 

video near the bank at the time of the robbery; there is video 

footage of a man with a similar build and similar distinctive 

clothing entering the vehicle; Agent Peasley testified that 
No. 14-2779 13

Miller confessed to committing the robbery; and, although 

Hoffman’s in-court identification of Miller may not be entitled to much weight (as we explain below), it is an additional 

factor that weighs in favor of the government’s case. We are 

therefore convinced that the effect on the jury of Agent Peasley’s overstatement regarding the status of Miller’s bank 

account was negligible. As a result, Miller’s claim to a new 

trial based on Agent Peasley’s false testimony fails.

B. Ineffective Assistance of Counsel

Miller next contends that he is entitled to a new trial on 

the ground that Tavitas’s representation was constitutionally 

inadequate. In considering a claim of ineffective assistance of 

counsel, we review the district court’s conclusions of law de 

novo and its factual findings for clear error. United States v. 

Traeger, 289 F.3d 461, 470 (7th Cir. 2002). 

To prevail on an ineffective assistance claim, a defendant 

must satisfy the demanding standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

Under Strickland, Miller must demonstrate both that Tavitas’s performance fell below an objective standard of reasonableness and that Miller was prejudiced as a result of that 

deficient performance. Id. at 687–88. With respect to the 

“performance” prong of the Strickland test, “a court must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; 

that is, the defendant must overcome the presumption that, 

under the circumstances, the challenged action might be 

considered sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted). As for the “prejudice” 

prong, the Supreme Court has required defendants to establish “a reasonable probability that, but for counsel’s unpro-
14 No. 14-2779

fessional errors, the result of the proceeding would have 

been different.” Id. at 694. Miller contends that Tavitas committed three errors during trial that rendered his representation inadequate: first, Tavitas did not attempt to suppress 

Hoffman’s in-court identification of Miller as the robber; 

second, Tavitas did not cross-examine Agent Peasley about 

Tauber’s clarification of statements she made while examining the photo array; and third, Tavitas did not correct Agent 

Peasley’s overstatement of Miller’s bank account deficit on 

the morning of the robbery.

Miller first alleges that Tavitas’s decision not to move to 

suppress Hoffman’s in-court identification constituted ineffective assistance. Hoffman, a Standard Bank employee,

identified Miller as the robber when she observed him sitting at defense counsel’s table at trial. When previously presented with a photo array during the criminal investigation, 

Hoffman had pointed to Miller’s photograph but stated that 

she could not be certain that he was the robber.

Defendants have a due process right not to be subject to 

unreasonably suggestive identification procedures that create a “substantial likelihood of irreparable misindentification.” Neil v. Biggers, 409 U.S. 188, 198 (1972) (citation and 

internal quotation marks omitted). However, demonstrating 

that an identification is “so unreliable that it violates due 

process to allow the jury to hear it” is a “high standard,” 

Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996), and 

we have repeatedly held that “[a] defendant’s mere presence 

at the defense table [at the time of identification] is not 

enough to establish a violation of due process.” United States 

v. Recendiz, 557 F.3d 511, 525 (7th Cir. 2009); see also Rodriguez 

v. Peters, 63 F.3d 546, 556 (7th Cir. 1995). In addition, the fact
No. 14-2779 15

that a witness could not positively identify the defendant in 

a pre-trial identification procedure does not automatically 

render that witness’s subsequent in-court identification inadmissible. See Lee v. Foster, 750 F.3d 687, 691 (7th Cir. 2014)

(“The fact that Johnson was not able to select [defendant]’s 

photo may tend to discredit Johnson’s [in-court identification], but this is not our concern, for examining the accuracy 

of the identification falls within the exclusive province of the 

jury.” (citation and internal quotation marks omitted)).

Miller cites our decision in Cossel v. Miller, 229 F.3d 649 

(7th Cir. 2000), in which we concluded that trial counsel was 

ineffective for failing to object to an in-court identification, 

but Cossel is readily distinguishable. Most importantly, in 

Cossel, there were two pre-trial identification procedures—a 

line-up and a single-photo show-up—which the government 

conceded were unnecessarily suggestive, and which therefore tainted the subsequent in-court identification. Id. at 655. 

Crucially, there is no allegation of any prior impermissibly 

suggestive identification procedure here. There were also 

further indicia of unreliability in Cossel. The Supreme Court 

has listed several factors to consider in determining the reliability of a challenged identification, including the witness’s 

opportunity to observe the perpetrator at the time of the 

crime; the witness’s degree of attention; the accuracy of the 

witness’s prior description; the witness’s level of certainty at 

the time of the identification; and the length of time that has 

elapsed between the crime and the identification.4 Biggers,

 4 It is worth noting that these factors—while relevant to the reliability of 

any identification—are typically cited when evaluating whether an identification made during an impermissibly suggestive identification procedure was nonetheless reliable under the circumstances. See Lee, 750 F.3d 
16 No. 14-2779

409 U.S. at 199–200. In Cossel, although the eyewitness had 

ten seconds to view the assailant by moonlight and streetlight, the defendant did not match the pre-identification description that the witness provided. 229 F.3d at 655–56. In 

addition, far more time elapsed between the crime and the 

identifications at issue in Cossel than in the instant case: here, 

eighteen months passed between the robbery and Hoffman’s 

in-court identification, while in Cossel, three years passed before the first positive (and concededly suggestive) out-ofcourt identification and six years elapsed between the crime 

and the challenged in-court identification. Id. at 656.

It is true that Hoffman’s in-court identification also lacks 

certain indicia of reliability. While Hoffman—who was 

standing at the teller counter during the bank robbery—had 

an unobstructed view of the robber at close range, the record 

suggests that she did not realize a robbery was being committed and that she likely paid little attention to the robber’s 

appearance. Further, although Hoffman appears to have 

displayed some certainty with respect to her in-court identification, at the time she viewed the photo array, she expressed doubt as to her ability to identify the robber. Yet we 

have acknowledged that in-court identifications are often 

“much less reliable than fair line-ups and photo arrays” but 

have nevertheless concluded that “[t]his does not necessarily 

 

at 692 (“The Supreme Court set forth several factors for courts to use to 

determine whether an unduly suggestive identification procedure was still 

to be considered reliable ... .” (emphasis added)); see also Cossel, 229 F.3d 

at 655 (“In determining whether an identification is reliable despite suggestive pre-trial identification procedures, courts look to the ‘Biggers factors’ ... .”). Because we do not believe that the identification procedure at 

issue here was unduly suggestive, these factors have limited bearing on 

our analysis.
No. 14-2779 17

mean ... that a witness should not be allowed to take the 

stand and make such an identification.” Johnson, 92 F.3d at 

597. Suppression of an identification is an extreme and often 

inappropriate remedy; rather, where defense counsel has 

“more than adequate opportunity to cross examine [the witness] and to make clear to the jury that [the witness] was unable to pick [the defendant] out of the photo array,” due 

process will generally be deemed satisfied. Id. Here, Tavitas 

thoroughly cross-examined Hoffman in an attempt to attack 

the reliability of her identification. He pointed out that she 

had only a brief opportunity to observe the robber, and further noted that she had failed to pick Miller out of a photo 

array shortly after the robbery. This exchange provided the 

jury with sufficient information with which to evaluate the 

reliability of Hoffman’s identification. We therefore conclude 

that Tavitas’s decision not to object to that identification did 

not fall below an objective standard of reasonable attorney

performance.

Miller next argues that Tavitas was ineffective as a result 

of his decision not to undermine Agent Peasley’s credibility 

by cross-examining him as to the statements Tauber made 

upon viewing the photo array. According to Miller, Agent

Peasley’s affidavit improperly represented that Tauber had 

positively identified Miller as the bank robber. He reasons 

that if Tavitas had exposed Agent Peasley’s willingness to 

mischaracterize a witness’s statement, the jury would not 

have given credence to Agent Peasley’s report of Miller’s

confession. Miller cannot prevail on this claim for two reasons.

First, we do not believe that Agent Peasley misrepresented Tauber’s statements in his affidavit. The affidavit explains
18 No. 14-2779

that Tauber “thought the [robber] reminded her of a courier 

who comes into the bank,” and also “thought [that Miller’s] 

photo reminded her of the courier.” While this language certainly permits an inference that Miller looked like the robber, 

it does not mischaracterize Tauber’s limited observation that 

Miller resembled the courier. Therefore, any attempt Tavitas 

might have made to use the affidavit against Agent Peasley 

would likely have had little, if any, effect on a jury. Second, 

there is a legitimate strategic explanation for Tavitas’s decision not to cross-examine Agent Peasley on this issue. Because Tauber died prior to trial, no evidence was introduced 

concerning her comments about the photo array and the fact 

that both the robber and Miller’s photo reminded her of the 

courier. Introducing that information in order to impeach 

Agent Peasley would have revealed to the jury otherwise 

unavailable information that might have encouraged jurors 

to draw the damaging inference that Miller was in fact the 

perpetrator because both he and the robber reminded 

Tauber of the courier. Because Tavitas’s decision not to run 

that risk can be deemed sound trial strategy, it does not constitute deficient performance. 

Miller’s final claim of ineffectiveness relates to Tavitas’s 

failure to correct Agent Peasley’s testimony that Miller’s 

bank account had been overdrawn by some $730 on the 

morning of the robbery. Tavitas offered no explanation for 

this oversight. The district court assumed without deciding 

that Tavitas’s error did fall below an objective standard of 

reasonableness, thereby satisfying the performance prong of 

Strickland. See 466 U.S. at 687–88. The government challenges 

this conclusion, claiming that such a minor error, in light of 

otherwise satisfactory representation, cannot amount to constitutionally insufficient performance. Cf. Groves v. United 
No. 14-2779 19

States, 755 F.3d 588, 593 (7th Cir. 2014) (“Even if counsel 

erred for failing to object to the [presentence report]’s characterization of [defendant]’s 1995 burglary conviction, we do 

not examine this error in isolation, but instead analyze counsel’s performance as a whole.”). However, we need not determine whether Tavitas’s performance was deficient in this 

respect because, regardless of whether the first prong of 

Strickland has been satisfied, Tavitas’s oversight did not 

prejudice Miller. As discussed above, in light of all of the 

remaining evidence presented at trial, Miller has not demonstrated a “reasonable probability” that, but for Tavitas’s failure to correct Agent Peasley’s overstatement, “the result of 

the proceeding would have been different.” Strickland, 466 

U.S. at 694. Tavitas therefore cannot succeed on his claim of 

ineffective assistance of counsel.5

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s 

denial of Miller’s motion for a new trial.

 5 We note that because Miller brought his ineffective assistance of counsel claim on direct appeal, he will be barred from collaterally attacking 

his conviction on these same grounds. See Peoples v. United States, 403 

F.3d 844, 848 (7th Cir. 2005) (“[A] defendant who chooses to make an 

ineffective-assistance argument on direct appeal cannot present it again 

on collateral review.”).