United States v. Miller

United States Court of Appeals
For the First Circuit

No. 17-2053

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID MILLER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Barron and Selya, Circuit Judges,
and Katzmann, Judge.

Robert Herrick, with whom Nicholson Herrick LLP was on brief,
for appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.

December 28, 2018


Of the United States Court of International Trade, sitting
by designation.
 SELYA, Circuit Judge. Defendant-appellant David Miller

pleaded guilty to violating the Mann Act, 18 U.S.C. § 2423(a), by

transporting his thirteen-year-old1 adopted daughter across state

lines in 1995 for immoral sexual purposes. The defendant had not

yet been charged and the limitations period for his Mann Act

violation was still open when Congress elongated the statute of

limitations in 2003. "The mills of justice grind slowly, but they

grind exceedingly fine," Vineberg v. Bissonnette, 548 F.3d 50, 59

(1st Cir. 2008), and the government eventually charged the

defendant with the Mann Act violation in 2016. By then, the old

statute of limitations had expired, but the new statute of

limitations had not. The defendant entered a guilty plea, and the

district court sentenced him to a 327-month term of immurement.

Represented by a new lawyer, the defendant argues for

the first time on appeal that he received ineffective assistance

of counsel in derogation of the Sixth Amendment because his trial

attorney (now deceased) did not mount a defense premised on the

statute of limitations in effect at the time of the offense.2 But

this argument runs headlong into a potential obstacle: the general

1
Although the presentence investigation report states that
the victim was twelve years old at the time of the crime, both the
prosecution's version of the offense and the victim's testimony
confirm that she was actually thirteen when the crime was
committed.
2 Apart from the ineffective assistance of counsel claim, this

appeal does not take issue with any aspect of either the
defendant's conviction or his sentence.

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rule is that such a claim must first be raised in the district

court, either during the proceedings leading to the defendant's

direct appeal or after the conclusion of that appeal (typically,

through a petition for post-conviction relief pursuant to 28 U.S.C.

§ 2255). Here, however, the claim was never raised at all in the

district court. Consequently, our first task is to determine

whether this case qualifies for an exception to the general rule.

Because it is uncertain whether the 2003 amendment applies

retrospectively to the defendant's conduct and because the record

is opaque as to why trial counsel elected not to raise a

limitations defense below, we conclude that the defendant's

ineffective assistance of counsel claim ought not to be aired for

the first time on direct appeal. Thus, we affirm the defendant's

conviction and sentence; without prejudice, however, to his right

to raise his claim of ineffective assistance of counsel in a

collateral proceeding brought pursuant to 28 U.S.C. § 2255. We do

not decide the limitations issue.

I. BACKGROUND

We briefly rehearse the relevant facts. On November 30,

2016, a federal grand jury sitting in the District of Maine charged

the defendant with two counts of transporting a minor with the

intent to engage in criminal sexual activity in violation of 18

U.S.C. § 2423(a). Specifically, the indictment charged that in

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June and July of 1995, the defendant knowingly transported a child

across state lines with the intent to sexually assault her.

In 1995, the statute of limitations for the charged crime

allowed prosecution until the victim reached twenty-five years of

age. See 18 U.S.C. § 3283 (1994). Since the victim in this case

would have turned twenty-five no later than sometime in 2007, the

statute of limitations would have expired during that year. The

legal landscape shifted in 2003, when Congress extended the statute

of limitations for Mann Act violations to allow prosecution for

the duration of the life of the child victim. See id. (2003).

The defendant originally maintained his innocence.

During the pretrial proceedings, his attorney demonstrated an

awareness that the applicable statute of limitations had changed

mid-stream and indicated that he "wanted to look at the statute of

limitations issue one final time." Ultimately, the attorney

eschewed a limitations defense and, on June 1, 2017, the defendant

entered a guilty plea to one of the charged counts. The district

court sentenced the defendant to 327 months in prison and, at the

same time, dismissed the remaining count lodged in the indictment.

The defendant timely appealed, and at his request, this court

appointed new counsel under the Criminal Justice Act. See 18

U.S.C. § 3006A.

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II. ANALYSIS

We begin with constitutional bedrock: the Sixth

Amendment guarantees "the right to the effective assistance of

counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984)

(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

The Supreme Court has crafted a two-pronged inquiry as a means of

evaluating ineffective assistance of counsel claims: "[f]irst,

the defendant must show that counsel's performance was deficient,"

and "[s]econd, the defendant must show that the deficient

performance prejudiced the defense." Id. at 687. This two-pronged

inquiry has equal relevance with respect to ineffective assistance

claims in both tried cases and cases resolved by guilty pleas.

See Hill v. Lockhart, 474 U.S. 52, 58 (1985).

To establish deficient performance by an attorney in a

criminal case, the defendant must show that the attorney's

representation was "outside the wide range of professionally

competent assistance." Strickland, 466 U.S. at 690. Pertinently,

when "an attorney fails to raise an important, obvious defense

without any imaginable strategic or tactical reason for the

omission, his performance falls below the standard of proficient

representation that the Constitution demands." Prou v. United

States, 199 F.3d 37, 48 (1st Cir. 1999). To satisfy the prejudice

requirement, the defendant must show "a reasonable probability

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that, but for counsel's errors, he would not have pleaded guilty."

Hill, 474 U.S. at 59.

Here, however, there is an antecedent question as to

timing — a question that asks whether, as a prudential matter, the

defendant should be allowed to raise his ineffective assistance of

counsel claim for the first time on appeal. The general rule is

that "fact-specific claims of ineffective assistance cannot make

their debut on direct review of criminal convictions, but, rather,

must originally be presented to, and acted upon by, the trial

court." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

Thus, a criminal defendant who wishes to pursue a claim of

ineffective assistance not advanced in the trial court is

ordinarily required to defer that claim to collateral proceedings.

See id.; see also 28 U.S.C. § 2255.

This general rule — like most general rules — admits of

exceptions. The exception that the defendant attempts to invoke

provides that "where the critical facts are not genuinely in

dispute and the record is sufficiently developed to allow reasoned

consideration of an ineffective assistance claim, an appellate

court may dispense with the usual praxis and determine the merits

of such a contention on direct appeal." United States v. Natanel,

938 F.2d 302, 309 (1st Cir. 1991). Since the applicability of

this exception must be gauged case by case, we turn next to the

particulars of the defendant's ineffective assistance claim.

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 Stripped of rhetorical flourishes, the defendant's

position is that his trial counsel was ineffective because the

defendant had available a meritorious limitations defense but

counsel turned a winner into a loser by neglecting to raise that

defense.3 So, the defendant says, this case fits the exception

because no further development of the record is needed: any lawyer

worth his salt would have advanced such a limitations defense.

In weighing this claim, a useful starting point is to

consider whether it can be said with assurance that the amended

version of the statute of limitations (enacted in 2003 and which

had not yet expired when the defendant was charged) applies to the

defendant's 1995 offense. If so, further development of the record

would be a waste of time and the Natanel exception would be

available. Cf. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999)

("Obviously, counsel's performance was not deficient if he

declined to pursue a futile tactic."). If, however, it is less

than certain that the amended version of the statute of limitations

was available to the government, a material question would persist

3 The defendant does not challenge the advice given to him by
his trial counsel in connection with his guilty plea. He does not
allege, for example, that his plea was other than knowing and
voluntary because his attorney failed to advise him of a possible
limitations defense. Instead, his claim rests exclusively on the
argument that his trial counsel should have moved to dismiss the
indictment on limitations grounds — a step that he submits likely
would have borne fruit and resulted in a dismissal of the charges
prior to his tendering of a guilty plea.

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as to why the defendant's trial counsel did not raise a limitations

defense; the vitality of the ineffective assistance claim would

depend on idiosyncratic facts (including trial counsel's

justification, if any, for failing to mount such a defense); and

the availability of the Natanel exception would hinge on whether

the information in the record was sufficient to permit a reasoned

evaluation of the defendant's ineffective assistance claim. See,

e.g., United States v. Leahy, 473 F.3d 401, 410 (1st Cir. 2007)

(finding that "narrow" Natanel exception did not apply where record

"contain[ed] nothing approaching an adequate elaboration of why

counsel adopted the course that he followed"); United States v.

McGill, 952 F.2d 16, 19 (1st Cir. 1991) (finding Natanel exception

inapplicable where "[t]he relevant facts, especially those

concerning the reasons behind trial counsel's adoption of certain

strategies, [we]re unclear").

Against this backdrop, we turn to the statutory

construction question. Applying a statute of limitations enacted

in 2003 to conduct that occurred in 1995 requires a retrospective

application of the 2003 statute. Following the Supreme Court's

lead, see Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994),

we assess the validity of such an application through a two-step

approach.

The first step in the Landgraf approach involves

"determin[ing] whether Congress has expressly prescribed the

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statute's proper reach." Id. If Congress has clearly prescribed

an intention to give — or not to give — the statute retrospective

effect, the statute must be construed as Congress has ordained.

See Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir. 2004). Although

"Congress's intention [must] be unmistakable, our inquiry is not

limited to the statutory text but may include an examination of

standard ensigns of statutory construction, such as the statute's

structure and legislative history." Id. If, however, such a clear

directive cannot be gleaned, the second step in the approach comes

into play. The question then becomes whether applying the statute

retrospectively would have impermissible effects. See id.

Specifically, Landgraf instructs an inquiring court to ask whether

the proposed application "would impair rights a party possessed

when he acted, increase a party's liability for past conduct, or

impose new duties with respect to transactions already completed."

511 U.S. at 280.

With these principles in mind, we train the lens of our

inquiry on the 2003 amendment. Some background lends perspective.

The general statute of limitations for non-capital federal crimes

is five years. See 18 U.S.C. § 3282(a). In 1990, Congress enacted

18 U.S.C. § 3509(k), which extended the five-year statute of

limitations for crimes of child sexual abuse until the child victim

reached twenty-five years of age. See Crime Control Act of 1990,

Pub. L. No. 101-647, § 225, 104 Stat. 4789, 4805 (1990) ("EXTENSION

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OF CHILD STATUTE OF LIMITATIONS. — No statute of limitation[s]

that would otherwise preclude prosecution for an offense involving

the sexual or physical abuse of a child under the age of 18 years

shall preclude such prosecution before the child reaches the age

of 25 years."). Approximately four years later, the text of the

statute was recodified (without any substantive change) at 18

U.S.C. § 3283 (1994).

This brings us to 2003, when Congress amended section

3283. The amended version provided that: "[n]o statute of

limitations that would otherwise preclude prosecution for an

offense involving the sexual or physical abuse, or kidnaping, of

a child under the age of 18 years shall preclude such prosecution

during the life of the child." 18 U.S.C. § 3283 (2003). The Joint

Conference Report prepared by the Senate and the House of

Representatives, which accompanied the 2003 amendment, explained:

The conference report amends the current law
that covers the statute of limitations for
offenses involving the sexual or physical
abuse of a child. This section adds crimes of
kidnapping and extends the statute of
limitations to the life of the child victim.
. . . Under current law, the standard
limitation rules do not bar prosecution "for
an offense involving the sexual or physical
abuse of a child under the age of eighteen
years . . . before the child reaches the age
of 25 years." While this is better than a
flat five-year rule, it remains inadequate in
many cases. For example, a person who
abducted and raped a child could not be
prosecuted beyond this extended limit — even
if DNA matching conclusively identified him as

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 the perpetrator one day after the victim
turned 25.

H.R. Rep. No. 108-66, at 54 (2003) (Conf. Rep.), as reprinted in

2003 U.S.C.C.A.N. 683, 688 (footnote omitted).4

We do not believe that a Landgraf analysis of the 2003

amendment yields a readily discernable result. To begin, neither

the amendment nor its legislative history expressly states that

the extension to the statute of limitations is to have

retrospective reach. At first blush, the wording of the statute

— "[n]o statute of limitations that would otherwise preclude

prosecution for an offense . . . shall preclude such prosecution

during the life of the child," 18 U.S.C. § 3283 (2003) — might be

thought to reflect an intent that the new limitations period apply

to all offenses for which the prior statute of limitations was

still open. But appearances can be deceiving, and in drafting an

amendment to a different statute with the same "otherwise preclude"

language, Congress included an explicit direction for

retrospective application. See Justice for All Act of 2004, Pub.

L. No. 108-405, § 204, 118 Stat 2260, 2271 (2004) (explaining that

"[t]he amendments made by this section [18 U.S.C. § 3297] shall

apply to the prosecution of any offense committed before, on, or

4
For the sake of completeness, we note that Congress again
amended the statute in 2006 to allow for prosecution "during the
life of the child, or for ten years after the offense, whichever
is longer." 18 U.S.C. § 3283 (2006). The 2006 amendment has no
bearing on this case.

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after the date of the enactment of this section if the applicable

limitation period has not yet expired").5 The fact that Congress

thought it necessary to insert this clarifying statement when

amending 18 U.S.C. § 3297 but omitted any such clarifying statement

from the 2003 amendment to 18 U.S.C. § 3283, arguably introduces

a modicum of ambiguity into the question of whether Congress

intended section 3283 to apply retrospectively. Cf. Carnero v.

Bos. Sci. Corp., 433 F.3d 1, 8 (1st Cir. 2006) (finding no clear

intent for extraterritorial application where Congress was silent

with respect to particular statute but "provided expressly

elsewhere in the [same] Act for extraterritorial enforcement of a

different . . . statute"). And even though two courts of appeals

have determined that Congress intended that the amended statute of

limitations for crimes of child sexual abuse should be applied

retrospectively, neither court grappled with Congress's explicit

statement regarding the retrospective reach of section 3297. See

United States v. Leo Sure Chief, 438 F.3d 920, 923-25 (9th Cir.

2006); United States v. Jeffries, 405 F.3d 682, 684 (8th Cir.

2005).

5
The 2004 amendment to 18 U.S.C. § 3297 added the following
language: "[i]n a case in which DNA testing implicates an
identified person in the commission of a felony, . . . no statute
of limitations that would otherwise preclude prosecution of the
offense shall preclude such prosecution until a period of time
following the implication of the person by DNA testing has elapsed
that is equal to the otherwise applicable limitation period."
Justice for All Act § 204, 118 Stat at 2271.

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 There is another fly in the ointment. As the defendant

points out, the phrase "[n]o statute of limitations that would

otherwise preclude prosecution," when read in historical context,

is itself unclear: it may refer only to preclusion by the five-

year federal default statute of limitations (18 U.S.C. § 3282).

After all, in 1990 — when Congress first employed this critical

language — the only existing limitations period to which the

language could have referred was the default limit set forth in

section 3282. Employing identical language in 2003, then, arguably

may have been intended to accomplish only the same result —

precluding the application of the federal default statute — and no

more.

There is, of course, another side to the story. When

enacting the 2003 amendment, Congress specifically identified the

inadequacy of the then-existing (1994) statute of limitations as

the very reason for fashioning the amendment. See H.R. Rep. No.

108-66, at 54, as reprinted in 2003 U.S.C.C.A.N. at 688. And when

Congress has opted to distinguish a particular statute of

limitations from section 3282, it frequently has used language

specifically tailored to achieve that goal. See, e.g., 18 U.S.C.

§ 1091(f) (stating that "[n]otwithstanding section 3282" an

indictment for genocide may be brought "at any time without

limitation"); id. § 3286(a) (prescribing eight-year statute of

limitations for certain terrorism offenses "[n]otwithstanding

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section 3282"); cf. Rhode Island v. Narragansett Indian Tribe, 19

F.3d 685, 702 (1st Cir. 1994) (explaining that "[t]he omission of

[specific language] looms particularly large in light of the use

of that [language] elsewhere").

For present purposes though, the most important fact is

that neither the statute nor the legislative history expressly

states that the 2003 amendment is meant to have retrospective

application. In the absence of such an express statement, the

2003 amendment arguably can be read as only preventing a prior

statute of limitations from "preclud[ing] prosecution" of a

prospective "offense." 18 U.S.C. § 3283 (2003).

Assuming, for argument's sake, that the defendant is

able to clear this first Landgraf hurdle, the second step of the

Landgraf analysis is equally hard to negotiate. This impediment

is not surprising: as the Second Circuit aptly observed, it is

"particularly difficult to categorize the presumptively

impermissible effects of retroactively applying a statute of

limitations." Weingarten v. United States, 865 F.3d 48, 56 (2d

Cir. 2017), cert. denied, 138 S. Ct. 1309 (2018). The problem

becomes dicier because "criminal limitations statutes are 'to be

liberally interpreted in favor of repose.'" Toussie v. United

States, 397 U.S. 112, 115 (1970) (quoting United States v. Habig,

390 U.S. 222, 227 (1968)). The lone reported decision to analyze

the interplay between Landgraf and Toussie with respect to an

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extension of a statute of limitations determined that when these

cases "are read in conjunction," a court "must interpret the

statute of limitations in a manner favoring repose for Defendant."

United States v. Gentile, 235 F. Supp. 3d 649, 655 (D.N.J. 2017).

In other words, when Congress has sounded an uncertain trumpet, a

court ought to refrain from applying an enlarged criminal statute

of limitations retrospectively. See id. Seen in this light,

Toussie potentially alters the second step in the Landgraf

approach. Cf. Arevalo v. Ashcroft, 344 F.3d 1, 10 & n.6 (1st Cir.

2003) (suggesting that "[i]n criminal cases, other rubrics [beyond

Landgraf] may apply").

At the end of the day, the reach of the 2003 amendment

is uncertain.6 This uncertainty casts a long shadow over the

ineffective assistance claim: a limitations defense, if

successful, "would have furnished [the defendant] a complete

defense to the entire indictment." Weingarten, 865 F.3d at 53.

So the next question that must be asked is: why did the defendant's

trial counsel refrain from asserting such a defense?

6 Let us be perfectly clear. We do not hold that the 2003
amendment to 18 U.S.C. § 3283 applies — or does not apply — to
conduct that occurred prior to 2003 but as to which the previous
limitations period was still open at the time of the amendment.
For present purposes, it is enough to conclude that the answer to
this question is uncertain and that, therefore, the defendant may
have had a viable limitations defense.

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 On this meager record, the answer to this question

remains an enigma. We are left to guess at trial counsel's thought

processes, especially since we are unable to discern any strategic

or tactical reason for spurning the defense. When all is said and

done, we know little more than that trial counsel chose not to

file a motion to dismiss. Given the potential potency of the

limitations defense, the indicia of uncertainty that we have

catalogued, the dearth of controlling case law, and our inability

to evaluate the ineffective assistance claim without some insight

into trial counsel's reasoning,7 we conclude that resort to the

Natanel exception is unwarranted.

This conclusion is not inconsistent with Weingarten.

There, the court ruled that an attorney's failure to raise the

same limitations issue did not constitute ineffective assistance

of counsel. See 865 F.3d at 58. But the defendant in that case

advanced his ineffective assistance claim in the district court by

way of a section 2255 petition. Consequently, the appellate court

— unlike this court — had the benefit of a developed factual record

and did not face the threshold question of whether an ineffective

7 Although the defendant's trial counsel is now deceased, it
may still be possible to flesh out the record. For example, a
review of counsel's file and notes might shed light on his decision
to eschew a limitations defense. So might testimony from his
partners, associates, or co-workers. In any event, the defendant
himself likely could testify about any strategic discussions that
he and his attorney may have had. See Tse v. United States, 290
F.3d 462, 463-64 (1st Cir. 2002) (per curiam).

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assistance claim could be entertained for the first time on direct

review.8

III. CONCLUSION

We need go no further. Concluding, as we do, that it

would be imprudent for us to attempt to adjudicate the defendant's

ineffective assistance of counsel claim on direct review without

a developed record, we hold that this case falls within the

confines of the general rule, not within the narrow Natanel

exception. Accordingly, we affirm the judgment below; without

prejudice, however, to the defendant's right to raise his claim of

ineffective assistance of counsel, if he so desires, in a

collateral proceeding brought pursuant to 28 U.S.C. § 2255.

So Ordered.

8 Notwithstanding Weingarten's different procedural posture,
the Second Circuit appears to share our concern about the
uncertainty surrounding the limitations issue. After all, the
Weingarten court found that issue to be "murky," 865 F.3d at 56,
and concluded that the defendant "may have been able to make a
colorable argument" in support of a limitations defense, id. at
55.

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