United States v. Thomas B. Miller, Sr., A/K/A Crosby L. Powell, 643 F.2d 713 (10th Cir. 1981). · Go Syfert
United States v. Thomas B. Miller, Sr., A/K/A Crosby L. Powell, 643 F.2d 713 (10th Cir. 1981). Cases Citing This Book View Copy Cite
“whether to call a particular witness is a tactical decision and, thus, a 'matter of discretion' for trial counsel.”
57 citation events (18 in the last 25 years) across 24 distinct courts.
Strongest positive: Mead v. Harding (oked, 2024-04-01)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Mead v. Harding (2×) also: Cited as authority (rule)
E.D. Okla. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
whether to call a particular witness is a tactical decision and, thus, a 'matter of discretion' for trial counsel.
cited Cited as authority (rule) United States v. Etuk
N.D. Okla. · 2022 · confidence medium
First, “[w]hether to call a particular witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel.” United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981).
discussed Cited as authority (rule) Lemon v. United States
W.D. Okla. · 2020 · confidence medium
“Whether to call a particular witness is a tactical decision and, thus, a matter of discretion for trial counsel.” United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Zackary Jackson
D.C. · 2019 · confidence medium
The release of parole supervision records to further a criminal investigation has been held to qualify as a routine use under the Privacy Act, see United States v. Miller, 643 F.2d 713, 715 (10th Cir. 1981), and it is not suggested that probation supervision records should be treated differently in this respect.
discussed Cited as authority (rule) Ellis v. Raemisch
10th Cir. · 2017 · confidence medium
See Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney.”); DeLozier v. Sirmons, 531 F.3d 1306, 1324 (10th Cir. 2008) (“Generally, the decision whether to call a witness rests within the sound discretion of trial counsel.” (quoting Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998))); United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981) (“Whether to call a particular witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel.” (cita…
discussed Cited as authority (rule) Ellis v. Raemisch
10th Cir. · 2017 · confidence medium
See Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney.”); DeLozier v. Sirmons, 531 F.3d 1306, 1324 (10th Cir. 2008) (“Generally, the decision whether to call a witness rests within the sound discretion of trial counsel.” (quoting Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998))); United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981) (“Whether to call a particular witness is a 38 tactical decision and, thus, a ‘matter of discretion’ for trial counsel.” (c…
cited Cited as authority (rule) United States v. Schneider
D. Kan. · 2015 · confidence medium
“Whether to call a particular, witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel.” United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981).
discussed Cited as authority (rule) United States v. Dormer
10th Cir. · 2011 · confidence medium
See United States v. Pena, 920 F.2d 1509, 1520 (10th Cir.1990) (choosing not to cross-examine a witness constitutes a strategic choice); United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.1986) (finding counsel’s choice of cross-examination questions is a tactical decision); United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981) (finding that the decision whether to call a witness is a tactical one).
discussed Cited as authority (rule) Boyle v. McKune
10th Cir. · 2008 · confidence medium
United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981) (“Whether to call a particular witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel.”); Boyd, 179 F.3d at 915 (describing decisions regarding impeaching witnesses and introducing evidence as matters of “trial strategy and tactics”).
cited Cited as authority (rule) State v. Lewis
Kan. Ct. App. · 2003 · confidence medium
United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981).
discussed Cited as authority (rule) Fattahi v. Bureau of Alcohol, Tobacco & Firearms
E.D. Va. · 2002 · signal: cf. · confidence medium
See also Covert v. Harrington, 876 F.2d 751, 755 (9th Cir.1989) (information collected for security clearance purposes was incompatible with disclosure for purposes of criminal investigation of subsequent actions); cf. United States v. Miller, 643 F.2d 713, 715 (10th Cir.1981) (information given by a criminal defendant to his parole officer was compatible with disclosure to the FBI and postal inspectors to further a criminal investigation). 14 .
discussed Cited as authority (rule) United States v. Stewart (2×)
D. Kan. · 1999 · confidence medium
“Whether to call a particular witness is a tactical decision and thus a matter of discretion for trial counsel.” United States v. Janoe, 720 F.2d 1156, 1162 (10th Cir.1983) (citing United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981)).
discussed Cited as authority (rule) Marco Antonio Rocha v. William E. Price Gale Norton, Attorney General for the State of Colorado
10th Cir. · 1995 · confidence medium
United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981). 17 Petitioner asserted in his brief that Mendoza-Figeroa would have testified about his role in the case and his "testimony would affirm or contradict the prosecution's version of events," and that Detectives Brannon and Freeburg would have testified as to "the real reason for the petitioner's involvement in the case." Appellant's Opening Br. at 2-d.
discussed Cited as authority (rule) Davis v. People (2×)
Colo. · 1994 · confidence medium
Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.1990), cert. denied, 500 U.S. 910 , 111 S.Ct. 1696 , 114 L.Ed.2d 90 (1991); Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.1985), cert. denied, 483 U.S. 1026 , 107 S.Ct. 3248 , 97 L.Ed.2d 774 (1987); United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981).
discussed Cited as authority (rule) Omar Blanco, Cross-Appellant v. Harry K. Singletary, as Secretary, Department of Corrections, State of Florida, Cross-Appellee
11th Cir. · 1991 · confidence medium
See Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir.1989) ("[T]he decision not to use alibi testimony may reflect the reasonable exercise of judgment in view of the attorney’s concern that the testimony would be conflicting ... or otherwise unfavorable.” (citations omitted)); United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981) (“Whether to call a particular witness is a tactical decision and, thus, a 'matter of discretion’ for trial counsel.” (citation omitted)); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978) (“the presentation of testimonial evidence is a matter o…
discussed Cited as authority (rule) United States v. Earl Paul Snyder
10th Cir. · 1986 · confidence medium
Whether “to call a particular witness is a tactical decision and, thus, a matter of discretion for trial counsel.” United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981); see also United States v. Janoe, 720 F.2d 1156, 1162 (10th Cir.1983), cert. denied 465 U.S. 1036 , 104 S.Ct. 1310 , 79 L.Ed.2d 707 (1984); United States v. Glick, 710 F.2d 639, 644 (10th Cir.1983), cert. denied, 465 U.S. 1005 , 104 S.Ct. 995 , 79 L.Ed.2d 229 (1984).
cited Cited as authority (rule) State v. Schlickenmayer
N.D. · 1985 · confidence medium
E.g., United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981).
cited Cited as authority (rule) United States v. Elmo Dean Dressel
10th Cir. · 1984 · confidence medium
United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981); United States v. Dingle, 546 F.2d 1378, 1385 (10th Cir.1976).
discussed Cited as authority (rule) Minnesota v. Murphy (2×)
SCOTUS · 1984 · confidence medium
Compare, e. g., United States v. Steele, 419 F. Supp. 1385, 1386-1387 (WD Pa. 1976); People v. Garcia, 240 Cal. App. 2d 9, 12-13 , 49 Cal. Rptr. 146, 148 (1966); and State v. Lekas, 201 Kan. 579, 582-584 , 442 P. 2d 11, 15-16 (1968), with, e. g., United States v. Miller, 643 F. 2d 713, 715 (CA10 1981); United States v. Holmes, 594 F. 2d 1167 (CA8), cert. denied, 444 U. S. 873 (1979); Nettles v. State, 248 So. 2d 259, 260 (Fla. App. 1971); Connell v. State, 131 Ga. App. 213 , 205 S. E. 2d 513, 514 (1974); State v. Hartman, 281 N. W. 2d 639, 643-644 (Iowa App. 1979); and People v. Parker, 101 Mi…
cited Cited as authority (rule) United States v. Scott Brian Janoe
10th Cir. · 1984 · confidence medium
United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981).
cited Cited as authority (rule) United States v. Steven S. Glick
10th Cir. · 1983 · confidence medium
“Whether to call a particular witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel.” United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981).
discussed Cited "see" Kerns v. Board of Com'rs of Bernalillo County (2×) also: Cited "see, e.g."
D.N.M. · 2010 · signal: see · confidence high
See United States v. Miller, 643 F.2d at 715 n. 1.
cited Cited "see" Ford v. Bank of America
10th Cir. · 2000 · signal: see · confidence high
See United States v. Miller, 643 F.2d 713 , 715 n.1 (10th Cir. 1981); see also Williams v. City Bank, 566 F. Supp. 827, 830 (E.D.
discussed Cited "see" John Doe, A/K/A John L. Burton v. Naval Air Station, Pensacola, Florida and Mike Steele
11th Cir. · 1985 · signal: see · confidence high
See Miller, 643 F.2d at 715 (allowing disclosure of parole record to federal, state, local or foreign authorities for civil, criminal or regulatory law enforcement purposes; routine use described at 43 Fed.Reg. 30141); Burley, 443 F.Supp. at 623-24 (setting out in great detail the routine uses of DEA investigative reports and files for law enforcement and related activities, specifically including disclosure to state agencies with regard to licensing and certification in the field of pharmacy; see 41 Fed.Reg. 39925-39926).
discussed Cited "see" Disclosure of Parolees' Names to Local Police
OLC · 1982 · signal: see · confidence high
See U nited States v. Miller, 643 F. 2d 713, 715 (10th Cir. 1981) (release by parole officer of documents necessary to further a particular criminal investigation to Federal Bureau of Investigation (FBI) postal inspectors is a “ routine use” ); SEC v. D im ensional Entertainment Corp., 518 F. Supp. 773, 111 (S.D.N.Y. 1981) (release of parole hearing transcript to Securities and Exchange Commission for us£ in injunctive proceedings is a “ routine use” ).
discussed Cited "see, e.g." Rhyne v. State (2×)
Nev. · 2002 · signal: see also · confidence medium
Here, without a judgment of conviction or a notice of appeal, this court is without jurisdiction to consider Rhyne's claim that the conspiracy verdict is inconsistent with the acquittal on robbery. [2] North Carolina v. Alford, 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970). [3] Wainwright v. Sykes, 433 U.S. 72, 93 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring); see also United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981) ("Whether to call a particular witness is a tactical decision and, thus, a `matter of discretion' for trial counsel." (citation omitted)); Gust…
cited Cited "see, e.g." State v. Meyers
Neb. · 1986 · signal: see also · confidence low
See, also, United States v. Miller, 643 F.2d 713 (10th Cir. 1981), which holds that statements voluntarily given by a parolee to his parole officer did not fall within the scope of Miranda .
cited Cited "see, e.g." Levine v. Manson
Conn. · 1985 · signal: see, e.g. · confidence medium
See, e.g., United States v. Miller, 643 F.2d 713, 714 (10th Cir. 1981); United States v. Hammonds, 425 F.2d 597, 601 (D.C.
discussed Cited "see, e.g." United States v. George Andrew Scalf
10th Cir. · 1984 · signal: see also · confidence low
See also United States v. Miller, 643 F.2d 713 (10th Cir.1981) (Miranda warnings not required prior to conversation in defendant’s home when defendant was neither deprived of his freedom of action nor questioned in a coercive manner); United States v. Bridwell, 583 F.2d 1135 (10th Cir.1978) (Miranda warning not required where physician was questioned in his office, was not under arrest, and where there were no other indicia of coercion); United States v. DiGiacomo, 579 F.2d 1211 (10th Cir.1978) (Miranda warnings are required where agent’s actions toward defendant in a parking lot were fund…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas B. MILLER, Sr., A/K/A Crosby L. Powell, Defendant-Appellant
79-1442.
Court of Appeals for the Tenth Circuit.
Mar 9, 1981.
643 F.2d 713
Lee J. Shapiro, Littleton, Colo., for defendant-appellant., Marianne Wesson, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty. and Roland J. Brumbaugh, Asst. U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.
McWilliams, McKay, Seymour.
Cited by 46 opinions  |  Published
SEYMOUR, Circuit Judge.

Defendant seeks review of his conviction on one count of mail fraud, a violation of 18 U.S.C. § 1341. We affirm.

Thomas B. Miller, Sr., also known as Crosby L. Powell, was in arrears on a motor vehicle loan from the Fort Worth National Bank. After inquiry by the bank and an attempted repossession, Miller mailed a letter to the bank enclosing receipts of postal money orders, claiming that these receipts proved the disputed payments had been made. In fact, the receipts were falsified and the payments had not been made.

Miller raises two allegations of error: denial of effective assistance of counsel at trial and denial of his motion to suppress certain evidence. Each of the asserted errors is without merit.

The constitutional standard for representation by counsel was recently restated by this court: “[t]he Sixth Amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney.” Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). In support of his claim of ineffective assistance of counsel, Miller cites trial counsel’s failure to call Miller’s secretary as a defense witness. Whether to call a particular witness is a tactical decision and, thus, a “matter of discretion” for trial counsel. United States v. Dingle, 546 F.2d 1378,1385 (10th Cir. 1976). While “[i]t is error not to call a witness when that witness would present the only defense available,” id., we cannot say that it is improper to fail to call a witness whose testimony, as here, would only have been cumulative in nature.

Miller also argues that counsel was less than diligent in his failure to examine more closely the role of Miller’s parole officer in the investigation leading to these criminal charges. Miller’s allegations reflect his dissatisfaction at losing the case below. That outcome, however, is not necessarily a reflection of counsel’s skill or performance, and will not alone support a claim of inadequate representation. United States v. Vadar, 630 F.2d 792 (10th Cir. 1980). The record fails to sustain Miller’s contention that his attorney did not meet the constitutional standard.

Miller contends further that certain information introduced at trial should have[*715] been suppressed because the information' was acquired by his parole officer in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record shows that Miller voluntarily released this information to his parole officer in an interview at Miller’s home. Miller argues that because of the imbalance in the parole officer-parolee relationship, this interview so closely resembled a “custodial interrogation” situation that Miranda warnings were required. We do not agree. It is settled that those warnings are required only when the suspect “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, id. at 444, 86 S.Ct. at 1612, cited in United States v. Bridwell, 583 F.2d 1135, 1138 (10th Cir. 1978). As Miller was neither deprived of his freedom of action nor questioned in a coercive environment, the parole officer was not required to give him the Miranda warnings prior to their conversation.

Finally, Miller argues that certain documents he released to his parole officer were subsequently disclosed to either the FBI or to postal inspectors in violation of the Privacy Act, 5 U.S.C. § 552a. [1] This unauthorized disclosure, Miller contends, compels suppression of the documents. Although the Privacy Act proscribes certain disclosures of information without an individual’s consent, the disclosure of records for routine uses is specifically authorized. 5 U.S.C. § 552a(b)(3). Once Miller turned the records over to his parole officer, they became part of the Justice Department’s supervision files. While such files are covered by Privacy Act provisions, the release of the records to further a criminal investigation qualifies as a “routine use” under Justice Department regulations:

“(g) In the event that material in this system indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute, or by regulation, rule or order issued pursuant thereto, the relevant records may be referred to the appropriate agency, whether Federal, State, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order, issued pursuant thereto.

43 Fed.Reg. 30141. Consequently, no violation of the Privacy Act occurred.

Affirmed.

1

. Miller also contends that either the Postal Inspectors or the FBI obtained records from the Fort Worth National Bank pertaining to Miller’s account and his use of money orders. He asserts that a national bank is an agent of the federal government within the meaning of the Privacy Act so as to make unlawful the disclosure of these bank documents. We disagree. The applicable section of the Privacy Act, 5 U.S.C. § 552(e) defines “agency” as including “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” We do not believe this restrictive language was intended to encompass national banks.