United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2015 Decided August 21, 2015
No. 08-3116
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT FRANK MILLER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00143-1)
Gregory Stuart Smith, appointed by the court, argued the
cause and filed the briefs for appellant.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman, John P.
Mannarino, and Michael K. Atkinson, Assistant U.S.
Attorneys.
Before: TATEL, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
SRINIVASAN, Circuit Judge: Appellant Robert Miller
was convicted of travel fraud and wire fraud for a scheme in
which he obtained funds from investors and home buyers
based on false representations about how the funds would be
used. On appeal, Miller raises a number of challenges to his
convictions and sentence. We reject the bulk of his
challenges, except that, in accordance with our usual practice,
we remand his claims of ineffective assistance of trial counsel
to enable the district court to consider those claims in the first
instance.
I.
Beginning in July 2003, Miller operated American
Funding and Investment Corporation (AFIC), a company
through which he purported to offer two types of services: (i)
high-yield real estate investments, and (ii) home-buying
assistance for people with poor credit. 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.
As a result of those schemes, Miller obtained hundreds of
thousands of dollars from prospective investors and home
buyers. He never used the funds to buy any real estate for
AFIC’s investors, however, or to secure or fund any
mortgages for prospective home buyers. He instead used the
funds to pay rent for AFIC’s office space, compensate
3
employees, buy office equipment, obtain newspaper
advertisements to attract additional investors, cover personal
and travel expenses, and make partial distributions to certain
investors who demanded repayment.
A Secret Service investigation uncovered many details of
Miller’s scheme. After receiving a tip indicating that Miller
had become aware of the investigation and might attempt to
flee, the Secret Service arrested him at his offices. Miller was
charged with nine counts of travel fraud, 18 U.S.C. § 2314,
and two counts of wire fraud, 18 U.S.C. § 1343. A jury found
him guilty on all counts.
II.
A.
We first consider Miller’s Fourth Amendment challenge
to the admission of evidence obtained by the Secret Service.
In the district court, Miller sought to suppress documentary
evidence obtained in a search of boxes seized from a vehicle
parked at AFIC’s offices. According to the parties’ joint
stipulation of facts, on April 8, 2004, “at [Miller’s] direction,
employees of AFIC placed 22 boxes of AFIC records,
interspersed with what appeared to be some of Miller’s
personal records, in a 1995 Ford Explorer owned by and
registered to Deborah Key, the mother of AFIC employee
Tonya Smith.” J.A. 63. Smith had “temporary use” of the
Ford Explorer that day. Id.
After Secret Service agents arrested Miller, Smith drove
the Explorer to the Secret Service Washington Field Office,
where agents seized and secured the twenty-two boxes of
files. The Secret Service held the boxes without immediately
4
searching them. The search took place only after agents
obtained a search warrant, weeks later on April 27, 2004.
Miller moved to suppress the evidence contained in the
boxes on the ground that it had been obtained in violation of
his Fourth Amendment rights. The district court denied the
motion, concluding that Miller had “fail[ed] to demonstrate an
objectively legitimate expectation of privacy in the vehicle”
and that he therefore lacked “standing to challenge the seizure
of the boxes located in that vehicle.” J.A. 179-80. Miller
appeals the district court’s denial of his motion to suppress,
arguing that the court erred in “requiring [Miller] to establish
standing in the vehicle as well as the boxes inside.”
Appellant Br. 28. According to Miller, he “had a viable
privacy interest in the boxes,” id., which in his view sufficed
to give him standing to object to the boxes’ seizure.
In reviewing the district court’s denial of the suppression
motion, we review legal conclusions de novo and factual
findings for clear error. United States v. Holmes, 385 F.3d
786, 789 (D.C. Cir. 2004). We will affirm the district court
“so long as any reasonable view of the record supports its
denial of the motion to suppress.” United States v. Patrick,
959 F.2d 991, 997-98 n.8 (D.C. Cir. 1992).
There are three distinct events involving the evidence
found in the boxes that could conceivably raise a Fourth
Amendment question: (i) the search of the Ford Explorer that
led to discovery of the boxes, (ii) the seizure of the twenty-
two boxes from the vehicle, and (iii) the eventual search of
the boxes. Miller raises no challenge to the search of the
boxes. Oral Arg. Tr. 6. And for good reason: agents searched
the boxes only after obtaining a search warrant. J.A. 44;
Suppl. App. 436. Nor does Miller contest the validity of the
search of the Ford Explorer. Oral Arg. Tr. 5. Instead, Miller
5
challenges only the seizure of the boxes from the vehicle.
Appellant Br. 27.
Miller’s argument against the seizure, however, is flawed
at its foundation. His argument sounds exclusively in the
privacy interests he ostensibly held in the boxes. He thus
contends that the district court erred in examining whether he
had a reasonable expectation of privacy in the Ford Explorer,
when, in his view, the relevant question instead is whether he
had an expectation of privacy in the boxes. His challenge to
the seizure of the boxes, however, should not hinge on
privacy interests at all. Rather, seizures, unlike searches,
involve an interference with possessory—not privacy—
interests. But Miller makes no argument about (or even any
reference to) any possessory interests he may have had in the
boxes. That is fatal to his challenge.
The Fourth Amendment protects two distinct “types of
expectations,” the first involving “searches” and the second
involving “seizures.” United States v. Jacobsen, 466 U.S.
109, 113 (1984). The “interest protected by the Fourth
Amendment injunction against unreasonable searches is quite
different from that protected by its injunction against
unreasonable seizures.” Arizona v. Hicks, 480 U.S. 321, 328
(1987); see 1 Wayne R. LaFave, Search & Seizure § 2.1(a)
(5th ed. 2014). A search “occurs when an expectation of
privacy that society is prepared to consider reasonable is
infringed.” Jacobsen, 466 U.S. at 113 (emphasis added). A
seizure, by contrast, “occurs when there is some meaningful
interference with an individual’s possessory interests in that
property.” Id. (emphasis added). It is well established that
the reasonableness of a seizure turns on the nature and extent
of interference with possessory, rather than privacy, interests,
e.g., id. at 124-25; and the Supreme Court has rejected the
notion that “the Fourth Amendment protects against
6
unreasonable seizures of property only where privacy or
liberty [interests are] also implicated,” Soldal v. Cook Cnty.,
Ill., 506 U.S. 56, 65 (1992).
The Court accordingly has explained that subjecting
luggage to a “canine sniff” does not amount to a “search”
under the Fourth Amendment because it infringes no
constitutionally protected privacy interest: a canine sniff
“does not require opening the luggage” or “expos[ing]
noncontraband items . . . otherwise . . . hidden from public
view.” United States v. Place, 462 U.S. 696, 706-07 (1983).
But detaining luggage to facilitate a canine sniff “is no doubt
. . . a ‘seizure’ . . . for purposes of the Fourth Amendment”
because it “intrudes on” the owner’s “possessory interest in
[the] luggage.” Id. at 707-08. Conversely, whereas recording
of serial numbers on stereo equipment does not constitute a
seizure because it does not “meaningfully interfere with [the
owner’s] possessory interest,” shifting the position of the
equipment to bring the serial numbers into view amounts to a
search: “expos[ing] . . . concealed portions” of the equipment
is an “invasion of [the owner’s] privacy.” Hicks, 480 U.S. at
324-25 (internal quotation marks omitted).
Here, although Miller consistently (and exclusively)
frames his Fourth Amendment argument as one about the
unlawful seizure of the twenty-two boxes from the back of the
Ford Explorer, he makes no complaint of any interference
with his possessory rights. Instead, he contends that the “key
question” the district court failed to address was whether
Miller had a “privacy interest in the boxes themselves.”
Appellant Br. 24, 27 (emphases added and omitted). Indeed,
he invokes the term “privacy” more than fifty times in the
portion of his briefing devoted to the suppression motion, but
he never once makes reference to any loss of a “possessory”
7
interest in the boxes. Appellant Br. 4-36; Appellant Reply Br.
4-10.
It therefore is unsurprising that, in the decision on which
Miller principally relies, United States v. Most, 876 F.2d 191,
195-200 (D.C. Cir. 1989), this court examined whether a
search of a defendant’s bag by a police officer violated the
Fourth Amendment. In the course of finding the search
unlawful, we held that the defendant had not relinquished his
reasonable expectation of privacy in the bag’s contents by
leaving the bag with a store clerk while shopping. Id. at 198-
99. Most is inapposite to Miller’s seizure challenge. The
defendant there contested the search of the bag, not its
seizure, because the police never obtained a warrant to search
it. Id. at 193, 195-96. Here, by contrast, the Secret Service
obtained a warrant before searching the boxes. And Miller
unsurprisingly makes no argument that the search of the
boxes was unlawful.
In short, there is a basic mismatch between Miller’s
wholesale reliance on his privacy interest in the boxes and his
challenge to the seizure of those boxes. To the extent the
seizure of those boxes violated his Fourth Amendment rights,
the violation would intrude on his possessory interest in the
boxes rather than on any reasonable expectation of privacy
associated with them. See, e.g., Jacobsen, 466 U.S. at 113.
But because Miller raises no claim of interference with his
possessory interests, his challenge to the seizure necessarily
fails.
B.
Miller alternatively raises a second claim related to the
recovery of the boxes from the Ford Explorer. He asserts that
his trial counsel rendered constitutionally ineffective
8
assistance by failing to call any witnesses during the hearings
on Miller’s suppression motion and by failing timely to
submit into the record an FBI form (FBI 302) documenting an
interview with Smith. According to Miller, his trial counsel’s
failure to put him or Smith on the stand or to enter the FBI
302 into the record deprived him of an opportunity to show
that he had effective control of the Ford Explorer and thus had
standing to contest its search.
To prevail on a Sixth Amendment claim of ineffective
assistance of counsel, Miller first would need to show that his
trial counsel’s performance was deficient, falling below “an
objective standard of reasonableness” as defined by
“prevailing professional norms.” Strickland v. Washington,
466 U.S. 668, 687-88 (1984). Miller would also need to
demonstrate that his counsel’s deficient performance caused
him prejudice—“that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Our
general practice when faced with a “colorable and previously
unexplored” ineffective-assistance-of-counsel claim raised for
the first time on direct appeal is to remand the claim for an
evidentiary hearing. United States v. Rashad, 331 F.3d 908,
908-10 (D.C. Cir. 2003). We will resolve such a claim
without a remand only if the “trial record alone conclusively
shows that the defendant either is or is not entitled to relief.”
Id. at 909-10 (internal quotation marks omitted).
Here, with respect to the first prong of the Strickland
inquiry, the government describes various tactical
considerations that may have led defense counsel to refrain
from placing Smith or Miller on the stand—for instance, to
avoid waiving Miller’s Fifth Amendment protection, or
because Smith might have been a hostile witness. The record
is unclear, moreover, whether Smith planned to invoke her
9
own Fifth Amendment privilege to avoid testifying. We thus
do not know “all the circumstances animating counsel’s
strategic decisions from which we could determine whether
[counsel’s] failure” to call the witnesses and timely submit the
FBI 302 “was a reasonable, calculated choice or a mark of
deficient performance.” United States v. Mohammed, 693
F.3d 192, 204 (D.C. Cir. 2012) (internal quotation marks
omitted). With respect to Strickland’s prejudice prong, the
record does not conclusively show whether trial counsel’s
decision might have caused prejudice to Miller, a subject on
which the district court has an “advantageous perspective.”
Massaro v. United States, 538 U.S. 500, 506 (2003). We
therefore adhere to our normal practice and remand Miller’s
claim to the district court to examine his allegations. See
Mohammed, 693 F.3d at 204.
II.
We next consider Miller’s challenge based on the Speedy
Trial Act (STA). The STA establishes a general rule: if a
defendant is not brought to trial within seventy days of
indictment, the court “shall” dismiss the indictment “on
motion of the defendant.” 18 U.S.C. § 3162(a)(2). Certain
periods of pre-trial delay, however, are “excluded” when
determining whether the seventy-day period elapsed. Id.
§ 3161(h). In the event of an STA violation, the district court
retains discretion to determine “whether to dismiss the case
with or without prejudice” based on three statutory factors.
Id. § 3162(a)(2). In the case of a dismissal without prejudice,
the government has six months from the date of dismissal to
secure the return of a new indictment. Id. § 3288.
Here, Miller argues that the non-excludable period of
time between his arraignment and his trial exceeded the
statutory seventy-day limit. The Act, however, establishes
10
that “[f]ailure of the defendant to move for dismissal prior to
trial or entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal.” Id.
§ 3162(a)(2). Miller never sought a dismissal on STA
grounds before the district court. Any STA challenge he
might bring on appeal therefore is waived, and plain error
review is unavailable. See United States v. Taplet, 776 F.3d
875, 879-81 (D.C. Cir. 2015).
Unable to obtain relief on appeal directly under the STA,
Miller raises the STA through the lens of an ineffective-
assistance-of-counsel claim. He argues that his trial counsel
rendered constitutionally ineffective assistance by failing to
move for dismissal in the district court under the STA. We
again follow our ordinary practice and remand that claim for
initial examination by the district court.
With respect to the performance prong of the Strickland
inquiry, Miller argues that his counsel’s failure to seek
dismissal necessarily amounted to deficient performance
because Miller had a statutory entitlement to dismissal under
the Act. Even if more than seventy non-excludable days
elapsed, however, that would still not amount to a per se
showing of deficient performance. See United States v.
Richardson, 167 F.3d 621, 626 (D.C. Cir. 1999). Counsel
might have had “sound strategic reasons for not pursuing the
violation,” based, for instance, on the complexity of the case
or a reasonable belief that any dismissal would have been
without prejudice. Id.; see United States v. Rushin, 642 F.3d
1299, 1307-08 (10th Cir. 2011).
With respect to Strickland’s prejudice prong, there would
be a threshold question whether, in the event of a successful
STA objection, the case would have been dismissed with or
without prejudice. The Act provides that, “[i]n determining
11
whether to dismiss [a] case with or without prejudice, the
court shall consider, among others, each of the following
factors: [i] the seriousness of the offense; [ii] the facts and
circumstances of the case which led to the dismissal; and [iii]
the impact of a reprosecution on the administration of this
chapter and on the administration of justice.” 18 U.S.C.
§ 3162(a)(2). Because it is generally for a district court to
determine in the first instance whether to dismiss with
prejudice, see United States v. Bryant, 523 F.3d 349, 361
(D.C. Cir. 2008), and because the record does not
conclusively establish the appropriate outcome in this case,
we remand for consideration of the § 3162(a)(2) factors.
If the district court determines that the case would have
been dismissed with prejudice, Miller will have satisfied
Strickland’s prejudice prong. But if the court concludes that
it would have dismissed without prejudice, thus leaving room
for a retrial, the court will need to assess the implications of
such a dismissal under Strickland’s prejudice standard. The
parties dispute whether the prospect of a dismissal without
prejudice would itself demonstrate Strickland prejudice. We
have previously noted that issue without resolving it. See
United States v. Marshall, 669 F.3d 288, 295 (D.C. Cir.
2011). There is no occasion for us to resolve that question
here when it is undetermined whether Miller has a meritorious
argument under Strickland’s performance prong, or whether,
for purposes of the prejudice prong, a dismissal under the
STA would in fact have been without prejudice.
III.
Miller argues that the district court improperly allowed
testimony of two prospective home buyers, Charlene Peters
and Anthony Wilburn, and of AFIC’s director of mortgage
banking, Deadrid Brown. Peters and Wilburn testified that
12
Miller induced them to make “down payments” in exchange
for mortgages and homes that never materialized. Brown
testified that Miller refused to return Peters’s money even
when it became clear that those funds would not be used to
purchase a home. We review the district court’s decision to
allow testimony for abuse of discretion. United States v.
Williams, 212 F.3d 1305, 1308 (D.C. Cir. 2000).
Miller first contends that, because the eleven counts in
the indictment pertained to real-estate investment
transactions, not mortgage transactions, Peters’s and
Wilburn’s testimony about their mortgage transactions should
have been deemed irrelevant under Federal Rule of Evidence
401. Evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the
evidence” and if the “fact is of consequence in determining
the action.” Fed. R. Evid. 401. Here, although each of the
individual counts against Miller involved an investment
transaction, rather than a mortgage transaction, those counts
represented specific instances of a charged scheme “to
defraud and to obtain money and property by means of
materially false and fraudulent pretenses, representations and
promises,” including obtaining “moneys, funds and property
from investors and prospective home buyers.” J.A. 31-32
(emphasis added). Because Peters’s and Wilburn’s testimony
as prospective home buyers pertained to aspects of the
fraudulent scheme with which Miller was charged, the
testimony met Rule 401’s relevance standard.
Miller next argues that the same testimony amounted to
inadmissible character evidence under Rule 404(b), which
bars the introduction of evidence of a “crime, wrong, or other
act” to “prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). According to Miller, the
13
government improperly attempted to show that, because
Miller defrauded Peters and Wilburn, he must also have
defrauded the victims of the eleven specific counts charged in
the indictment. Miller misapprehends the scope of Rule
404(b). The Rule does not bar “evidence . . . of an act that is
part of the charged offense,” United States v. Bowie, 232 F.3d
923, 929 (D.C. Cir. 2000), as was the case with Peters’s and
Wilburn’s testimony.
Miller next contends that the testimony of Peters,
Wilburn, and Brown should have been excluded as unfairly
prejudicial under Federal Rule of Evidence 403. Peters and
Brown, for example, both wept on the stand and testified that
Peters had been left homeless with a sick baby after Miller
failed to provide the home and mortgage he had promised her.
Under Rule 403, the district court “may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice.” Fed. R. Evid. 403. In this
case, the evidence in question was directly probative of
Miller’s fraudulent intent in carrying out the charged scheme,
showing that the mortgage side of AFIC’s business was a
sham. And when, as here, the “evidence indicates a close
relationship to the event charged,” a district court acts within
its discretion by striking the Rule 403 “balance . . . in favor of
admission.” United States v. Clarke, 24 F.3d 257, 266 (D.C.
Cir. 1994).
For those reasons, we find no abuse of discretion in the
district court’s decision to allow the challenged testimony.
IV.
Miller challenges the propriety of two aspects of the
government’s closing argument. He first argues that the
prosecution engaged in “race-baiting” when referring to
14
Brown’s trial testimony. Brown testified about a brochure,
entitled “Company Profile,” which Miller had given Brown to
persuade her to join AFIC. Brown said that she had
underlined a particular sentence in the brochure stating that
“AFIC [was] targeting primarily African American Families
as its biggest market.” Suppl. App. 498. When asked why
she had underlined that statement, Brown responded that,
when she “read” the statement, “I just thought that [Miller]
was on the same page as I was basically,” i.e., that Miller
“was out there to help people, not hurt people.” Id. at 1014.
In summarizing Brown’s testimony in closing arguments, the
prosecution stated that Brown “noted in AFIC’s marketing
materials the statement that AFIC is targeting primarily
African-American families as its biggest market. Now, she
thought at the time that Mr. Miller like herself was trying to
help African-American families, trying to help them get into
homes, not trying to hurt them.” Id. at 1147-49.
Miller notes that the “Constitution prohibits racially
biased prosecutorial arguments.” McCleskey v. Kemp, 481
U.S. 279, 309 n.30 (1987). The statements in the
prosecution’s closing argument to which Miller points,
however, do not qualify as “racially biased.” The prohibition
on racially biased comments addresses “comments beyond the
pale of legally acceptable modes of proof.” United States v.
Doe, 903 F.2d 16, 25 (D.C. Cir. 1990). Here, the
prosecution’s statements about Brown’s testimony amounted
to a summary of that testimony, i.e., of “proper evidence
introduced during trial.” See United States v. Perholtz, 842
F.2d 343, 360 (D.C. Cir. 1988) (internal quotation marks
omitted). While the statement referred to “African-American
families,” it did so via a recapitulation of Brown’s own
testimony highlighting that very phrase as it appeared in an
AFIC brochure. Such a recapitulation does not constitute the
sort of “racially inflammatory remark[]” or “[a]ppeal[] to
15
racial passion” that would implicate the prohibition against
racially biased arguments by the prosecution. Doe, 903 F.2d
at 24-25.
Miller also takes issue with several references by the
prosecution to him as a “con artist” or “con man.” While a
prosecutor may draw “reasonable inferences from the
evidence,” United States v. Allen, 960 F.2d 1055, 1059 (D.C.
Cir. 1992), she may not express her “personal opinion
concerning the guilt of the accused,” United States v. Young,
470 U.S. 1, 18 (1985). A “con man” is someone “who
defrauds a victim by first gaining the victim’s confidence and
then, through trickery, obtaining money or property.” Black’s
Law Dictionary (10th ed. 2014). Each time the prosecutor
referred to Miller as a “con artist” or “con man,” it was part of
a broader discussion of evidence showing that Miller engaged
in a scheme to defraud his victims by winning their
confidence. See J.A. 237-42; Suppl. App. 1174-75, 1177,
1181. Consequently, the “words were not used as free-
floating . . . expressions of the prosecutor’s opinion.” United
States v. Gartmon, 146 F.3d 1015, 1024 (D.C. Cir. 1998).
Instead, the references to “con artist” and “con man” were
permissibly “tied to specific conduct at issue in the trial” and
used as a “description of the manner in which [Miller]
conducted the scheme charged in the indictment.” Id.
V.
Finally, Miller challenges his sentence, contending that
the district court failed to make an individualized
determination supporting a federal sentence consecutive to
(rather than concurrent with) his existing Maryland state
sentence. The Sentencing Guidelines in effect at the time of
Miller’s conduct and sentencing provided that a “sentence . . .
may be imposed to run concurrently, partially concurrently, or
16
consecutively to the prior [sentence] to achieve a reasonable
punishment for the instant offense.” U.S.S.G. § 5G1.3(c)
(2008). Miller takes issue with the district court’s expression
of its “adhere[nce] as a general proposition to the principle,
separate crime, separate time.” Suppl. App. 1222.
While there might be cause for concern if the district
court had limited its analysis to that kind of general approach,
the court here went on to exercise case-specific discretion in
imposing a consecutive sentence. The court expressly noted
its “discretion to sentence concurrently or consecutively” and
its “willing[ness] to listen to arguments as to why [the
sentence] shouldn’t be consecutive.” Id. After considering
the duration and indeterminate nature of the Maryland
sentence as well as the statutory sentencing factors, the court
found lacking “any fact or circumstances or even legal
arguments that would warrant a concurrent sentence.” Id. at
1248-49.
This case is thus unlike the unpublished Second Circuit
decision on which Miller relies. See United States v. Brown,
152 F. App’x 55 (2d Cir. 2005). There, the district court
exercised no case-specific discretion and imposed a
consecutive sentence based solely on a “personal attitude” and
preference for consecutive sentences. Id. at 57. Here, by
contrast, the district court considered individualized factors in
assigning a consecutive sentence.
Nor are the facts here akin to those in United States v.
Ayers, __ F.3d __, 2015 WL 4590290 (D.C. Cir. July 31,
2015), decided after briefing and oral argument in this case.
In Ayers, we held that the district court erred when it
construed the relevant sentencing statute to impose a statutory
presumption of consecutive sentences and thereby to limit the
trial court’s discretion to determine the timing of sentences.
17
Id. at *3-4; see 18 U.S.C. § 3584(a). By contrast, the district
court in this case, as noted, understood that it had full
discretion; and while it expressed a general sentiment (based
on experience) about the exercise of that discretion, it made
the required, individualized determination under the
defendant’s case-specific circumstances.
* * * * *
We remand for further proceedings on Miller’s claims
that his trial counsel provided ineffective assistance by failing
to offer certain testimony and evidence to establish Fourth
Amendment standing and by failing to move for dismissal
under the Speedy Trial Act. We otherwise reject Miller’s
challenges to his convictions and sentence, including a
number of passing suggestions of ineffective assistance of
counsel mentioned only in footnotes or conclusory statements
in Miller’s briefing. See Appellant Br. 45 n.16, 47 n.19, 52,
53 n.23. Those passing references, which contain no
discussion of the relevant law, are “not enough to raise [those]
issue[s] for our review.” NSTAR Elec. & Gas Corp. v. FERC,
481 F.3d 794, 800 (D.C. Cir. 2007); see Ry. Labor
Executives’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6
(D.C. Cir. 1984).
So ordered.