United States v. Bates ( 2000 )

  •                    UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                                No. 99-11382
                         UNITED STATES OF AMERICA,
       DONALD KINNARD BATES, also known as Donald Keith Bates, also
    known as Donald Kinnond Bates, also known as Donald Kenneth Bates,
    also known as Donald Kevin Bates,
                Appeal from the United States District Court
                     For the Northern District of Texas
                             November 21, 2000
    Before DUHÉ, and PARKER, Circuit Judges, and LINDSAY,* District
           Appellant Donald Kinnard Bates appeals his conviction and
       District Judge of the Northern District of Texas sitting by
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under
    the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    sentence for mail fraud and wire fraud.                 Bates claims that the
    trial court erred by (1) denying him the right to a speedy trial
    under 18 U.S.C. § 1361; (2) admitting an expert witness without
    conducting a Daubert inquiry; (3) relying on insufficient evidence
    of prior convictions in a presentence report; and (4) departing
    upward from the federal sentencing guidelines without sufficiently
    stating its rationale.      For the reasons set out below, we affirm
    Mr. Bates’ conviction.
         Donald Kennard Bates was indicted on July 7, 1999 for five
    counts of mail fraud and five counts of wire fraud.                           Bates
    allegedly   opened   a   series    of   checking       accounts    with   a   false
    driver’s license, deposited small amounts of money in the accounts,
    and wrote checks to purchase airline tickets for sums exceeding the
    funds in each account.     He then used the tickets for travel or sent
    the tickets back to the airlines for             refunds, which were delivered
    through   the   United   States     mail.         At   trial,     witnesses     from
    approximately nine banks testified that Bates had opened accounts
    and written checks for insufficient funds.                The total number of
    “hot” checks exceeded 170.        The total loss to the airlines was over
         On September 23, 1999, after a three-day trial, the jury
    returned a verdict finding Bates guilty on all counts of the
    indictment.     After    considering         a   presentence    report    and    the
    relevant   federal   sentencing   guidelines,    the   district   judge
    sentenced Bates to an aggregate of 120 months in prison.          Bates
    timely appeals his conviction and sentence.
         Bates first contends that the trial court erred by failing to
    dismiss his indictment because he was not tried within seventy days
    of the date he was indicted as required by the Speedy Trial Act. 18
    U.S.C. § 3161(c)(1).    “We review the facts supporting a Speedy
    Trial Act ruling using the clearly erroneous standard and the legal
    conclusions de novo.”   United States v. Bermea, 
    30 F.3d 1539
    , 1566
    (5th Cir. 1994).
         Bates filed a motion to dismiss on August 6, 1999, which the
    trial court denied on August 11.       Bates claims that this five-day
    period during which his motion to dismiss was pending should be
    included in the total seventy-day period.     If the time in which the
    motion was pending before the court did not toll the seventy-day
    period, then the trial court erred by commencing his trial after
    the Speedy Trial Act’s seventy-day limit.      18 U.S.C. § 3161(c)(1).
         The Speedy Trial Act, designed to protect a defendant’s right
    to a quick trial and the public’s interest in curbing the periods
    of a defendant’s release on bail, requires a court to dismiss a
    defendant’s indictment if the defendant is not brought to trial
    before the end of seventy days after the defendant is indicted or
    appears before a judge or magistrate, whichever is later.          Id.;
    United States v. Grosz, 
    76 F.3d 1318
    , 1323 (5th Cir. 1996); United
    States v. Johnson, 
    29 F.3d 940
    , 942 (5th Cir. 1994).             However, the
    Speedy Trial Act provides exceptions for delays “resulting from any
    pretrial   motion,   from   the   filing    of    the   motion   through   the
    conclusion of the hearing on, or other prompt disposition of, such
    motion . . ..”       18 U.S.C. § 3161(h)(1)(F).             Subsection F is
    separated into two categories. See Henderson v. United States, 
    426 U.S. 321
    , 328 (1986). The first category includes situations where
    a pretrial motion requires a hearing.            See id.    The second group
    involves pretrial motions that do not require a hearing. See id.
    Bates’ argument concerns the latter variety.
         Where a pretrial motion does not require a hearing, Subsection
    F excludes the delay caused by a pending motion from the total
    seventy-day period. 18 U.S.C. § 3161(h)(1)(F).             However, the delay
    is limited to a “prompt disposition” of the motion, which cannot
    exceed thirty days.    Id. § 3161(h)(1)(F), (J); Henderson, 476 U.S.
    at 329; Bermea, 30 F.3d at 1566.           Bates does not argue that the
    court unduly delayed ruling on his motion to dismiss; rather, he
    argues that the five-day period in which the court ruled on his
    motion did not directly result in the delay of his trial, and
    therefore should not be excluded from the total seventy-day period.
    We address whether a pending pretrial motion constitutes a delay
    for purposes of the Speedy Trial Act without any indicia that the
    pending motion directly caused the postponement of a defendant’s
           The plain language of section 3161(h)(1)(F) indicates that
    periods of delay “resulting from any pretrial motion” will be
    excluded from computing the time within which the trial of an
    offense is commenced.        See United States v. Clymer, 
    25 F.3d 824
    830 (9th Cir. 1994) (holding that when a court postpones a motion
    to dismiss until after trial, the fact that the motion was pending
    beforehand does not toll the seventy-day period in which the court
    should have tried the case). The statute does not explicitly state
    that   pretrial    motions    must   directly   cause   the   delay   of   a
    defendant’s trial. Section 3161 expresses that a “period of delay”
    includes a “delay resulting from any pretrial motion.”          18 U.S.C.
    § 3161(h)(1)(F).    In other words, the statute simply takes account
    of the necessary pretrial impediments that all trial courts must
    overcome before beginning a criminal trial. See, e.g., Johnson, 29
    F.3d at 944-45 (allowing limited exclusions for periods of delay
    under Subsection F for a motion in limine, a motion for a bill of
    particulars, and a motion to suppress evidence); United States v.
    120 F.3d 43
    , 46 (5th Cir. 1997) (holding that the seventy-
    day time period was tolled by a motion to dismiss, a motion to
    revoke detention, a motion to substitute an attorney, and a motion
    for a pretrial determination of entrapment); Grosz, 76 F.3d at 1323
    (stating that a motion in limine will toll the time period under
    the Act).    The Act does not require either the defendant or the
    government to establish that a pending motion actually delayed the
    commencement    of   the   defendant’s     trial.        For    the   purposes   of
    Subsection     F,    any   interlude   caused       by    the     trial   court’s
    consideration of a pretrial motion constitutes a period of delay as
    long as it comports with the principles set forth by the Supreme
    Court in Henderson v. United States.           See Henderson, 476 U.S. at
    329; Johnson, 29 F.3d at 943 n.3 (noting that courts must look into
    the circumstances of a pretrial motion to determine whether the
    motion was taken under advisement as required by Henderson).
          Because Bates has not claimed that the five-day period in
    which the trial court considered his motion to dismiss was other
    than a “prompt disposition” under Subsection F, the five-day period
    of delay will be excluded from the seventy days in which the court
    could commence his trial.       Bates does not dispute that excluding
    the five-day period would bring his trial within the requirements
    of the Speedy Trial Act.1       We therefore affirm the trial court’s
    denial of the defendant’s motion to dismiss.
       Bates claims that the actual reason for the delay of his trial
    was the court’s sua sponte motion for continuance in which the
    district judge delayed Bates’ trial because an earlier criminal
    trial was set for the same day. 18 U.S.C. § 3161(h)(8)(C) states
    that a court cannot exclude time from the seventy-day period
    because of general congestion in the court’s docket. Nevertheless,
    after excluding the five-day period of delay resulting from Bates’
    motion to dismiss, the court commenced his trial within the
    seventy-day period.     The trial court’s continuance is of no
    consequence under the Speedy Trial Act.
          Bates also claims that the trial court erred by admitting the
    testimony of a handwriting analyst without first conducting its own
    Daubert inquiry or allowing Bates’ attorney to perform a Daubert
    examination of the government’s witness.         See Daubert v. Merrell
    Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993). Bates first raised
    the   issue   of   whether   handwriting    analysis   meets   the   Daubert
    requirements in a motion in limine he filed on September 14, 1999.
    Bates’ counsel moved to withdraw the motion, and the court granted
    counsel’s motion to withdraw on September 17, 1999.              At trial,
    Bates’ attorney asked the government’s expert witness about the
    scientific reliability of handwriting analysis. The district judge
    interrupted the examination and told counsel that a Daubert hearing
    was inappropriate at that time.          Counsel then passed the witness
    without objecting or moving for a hearing.2
          We review a district court’s decision concerning reliability
    of expert testimony under an abuse of discretion standard.               See
       The exchange between the judge and Bates’ attorney took place
    as follows:
    THE COURT: Well, I would have thought for that, which would be a
    Duabert challenge, that you would have filed a motion for that to
    be tested outside the presence of the jury.        So, if you’re
    conducting a Daubert hearing, I think it’s inappropriate and
    DEFENSE COUNSEL: Yes, sir. Well, I’ll tender the witness, back,
    and I would like an opportunity to ask some additional questions.
    THE COURT: Certainly
    Kumho Tire Co., Ltd. v. Carmichael, 
    119 S. Ct. 1167
    , 1171 (1999).
    However, when a party fails to contemporaneously object to the
    admissibility of evidence at trial, we apply the plain error
    standard of review.   See United States v. Bilbo, 
    19 F.3d 912
    , 916
    (5th Cir. 1994).   We must first decide which standard applies to
    Bates’ appeal.
         It is without question that Rule 702 of the Federal Rules of
    Evidence imposes an obligation on trial courts to ensure that all
    expert testimony is reliable.    See Kumho Tire Co., 119 S.Ct. at
    1174.   The trial court, in performing its “gatekeeping” function,
    has discretion to choose the manner in which the reliability of an
    expert’s testimony is appraised. See id.   However, the trial court
    has no discretion to abandon its role as gatekeeper.     See id. at
    1179 (Scalia, concurring).    When a party objects to an expert’s
    testimony, the court “must adequately demonstrate by specific
    findings on the record that it has performed its duty . . ..”
    Goebel v. Denver and Rio Grande Western R.R. Co., 
    215 F.3d 1083
    1088 (10th Cir. 2000).   Absent an objection, the trial judge is not
    required to announce for the record that the expert witness’s
    testimony is based on reliable methodology.   See Hoult v. Hoult, 
    57 F.3d 1
    , 5 (1st Cir. 1995)(holding that a court implicitly performs
    a Daubert analysis “sub silentio throughout the trial with respect
    to all expert testimony”).    A defendant must still make a timely
    objection to preserve error for appeal.     FED. R. EVID. 103(a)(1).
    If the defendant fails to object to the expert’s testimony, then
    the   defendant   “waives   appellate   review   absent   plain   error.”
    Goebel, 215 F.3d at 1088 n.2.    See also Marbled Murrelet v. Babbit,
    83 F.3d 1060
    , 1066 (9th Cir. 1996)(holding that a litigant waived
    its Daubert objections by failing to request a ruling on the
    admissibility of evidence).
          Bates’ attorney attempted to question the reliability of the
    government’s handwriting evidence at trial.        The court interjected
    stating that Bates’ counsel should have filed a motion for a
    Daubert hearing outside the presence of the jury and that his
    questioning was inappropriate at that time.        Instead of objecting
    to the witness or moving for a Daubert hearing, Bates’ attorney
    passed the witness.   Because Bates’ attorney did not object to the
    admission of the evidence, we review the trial court’s admission of
    the government’s handwriting expert for plain error.
             “Under the plain error standard, forfeited errors are
    subject to review only where the errors are ‘obvious,’ ‘clear,’ or
    ‘readily apparent,’ and they affect the defendant’s substantial
    rights.” United States v. Clayton, 
    172 F.3d 347
    , 351 (5th Cir.
    1999)(quoting Douglas v. United Servs. Auto Ass’n, 
    79 F.3d 1415
    1424 (5th Cir. 1996) (en banc)).        The trial court’s admission of
    the expert’s testimony regarding handwriting analysis does not even
    amount to an error, much less an obvious error affecting the
    defendant’s   substantial    rights.     “Courts   have   long    received
    handwriting analysis testimony as admissible evidence.”             United
    States v. Paul, 
    175 F.3d 906
    , 910 n.2 (11th Cir. 1999)(citing
    United States v. Jones, 
    107 F.3d 1147
    , 1160-61 (6th Cir. 1997);
    United States v. Velasquez, 
    64 F.3d 844
    , 848-50 (3d Cir. 1995)).
    Because testimony involving handwriting analysis has been readily
    admitted in criminal cases, the trial court did not commit plain
    error.   We affirm the trial court’s admission of the expert’s
         In his third argument, Bates claims that the trial court’s
    deference to the information in the presentence report (PSR) was
    not supported   by   reliable    evidence   and   should   not   have   been
    considered at sentencing. Factual findings used in sentencing must
    be supported by a preponderance of the evidence, and “[w]e review
    challenges to such findings for clear error.”          United States v.
    118 F.3d 318
    , 326 (5th Cir. 1997).       “A finding of fact is
    clearly erroneous when, although there is enough evidence to
    support it, the reviewing court is left with a firm and definite
    conviction that a mistake has been committed.”         United States v.
    30 F.3d 1539
    , 1575 (5th Cir. 1994)(citing United States v.
    United States Gypsum Co., 
    333 U.S. 364
    , 395 (1948)).
         The trial court may consider information in the PSR if the
    information has “some minimum indication of reliability.”           United
    States v. Vela, 
    927 F.3d 197
    , 201 (5th Cir. 1991); United States v.
    46 F.3d 410
    , 425 (5th Cir. 1995).        A PSR alone “generally
    bears sufficient indicia of reliability . . ..”           United States v.
    919 F.2d 962
    , 966 (5th Cir. 1990).           Because Bates attacks
    the reliability of the PSR, he bears the burden of establishing
    that the information in the PSR is inaccurate.           See United States
    v. Aubin, 
    87 F.3d 141
    , 150 (5th Cir. 1996) (citing Vela, 927 F.3d
    at 201).
         Bates’ PSR contained records of convictions from Hawaii,
    California,   Oregon,   Washington,    and   Iowa.      Probation    Officer
    Hammond prepared the report and testified that she conducted a
    thorough    investigation   of   Bates’      criminal     history.      Her
    investigation included a search in the National Crime Information
    Computer and correspondence with other probation officers who
    handled Bates’ previous convictions.          Her investigation linked
    Bates with each of the convictions listed in the PSR.                Special
    Agent Sumner also testified that the inmate photographs from the
    penitentiary packets were an “obvious match” to Bates.
         Bates argues that the testimony of Agent Sumner and Officer
    Hammond was “vague” and did not sufficiently link Bates to the
    convictions listed in the PSR. We conclude that the district judge
    could easily find that the information in the PSR was thoroughly
    investigated by Probation Officer Hammond and sufficiently reliable
    to link Bates to the other convictions.         See Morris, 46 F.3d at
    425-26.    The trial court’s consideration of the convictions listed
    in the PSR was not clear error.             Since Bates offers no evidence
    that contradicts the information in the PSR, we will not disturb
    the trial court’s factual findings.
         Finally,     Bates   contends     that    the   trial    court   used   an
    inappropriate method for calculating the extent of the upward
    departure from the sentencing guidelines.            He specifically claims
    that the court did not consider each intermediate criminal history
    category or adequately explain his departure from the sentencing
    guidelines.   We review a trial court’s decision to depart from the
    sentencing guidelines for abuse of discretion.               See United States
    v. McKenzie, 
    991 F.2d 203
    , 204 (5th Cir. 1993).
         A trial court “must evaluate each successive criminal history
    category above or below the guideline range for a defendant as it
    determines the proper extent of departure.”                  United States v.
    984 F.2d 658
    , 662 (5th Cir. 1993) (en banc).             If the court
    chooses to depart from the guidelines, it must give reasons for its
    departure and explain why the sentence it imposes is appropriate.
    See id. at 663.    The trial court is not required “to go through a
    ritualistic   exercise    in   which    it    mechanically     discusses   each
    criminal history category that it selects.”            Id.    A trial court’s
    reference to a defendant’s criminal history set out in a PSR
    adequately establishes the factors that warrant a departure from
    the sentencing guidelines.      See McKenzie, 991 F.2d at 205.
         At Bates’ sentencing, the district judge cited the PSR, which
    established that Bates had almost twice the criminal history points
    necessary for a category VI imprisonment range of 51 to 71 months.
    The court expressed the following explanation for its departure
    from the sentencing guidelines:
         The Court finds that the defendant’s criminal history
         category   of   VI   does     not   adequately   reflect    the
         seriousness of his past criminal conduct or the liklihood
         that he will commit other crimes.        The Court has moved
         incrementally down the criminal history category VI scale
         in the sentencing table of the guidelines manual.          Based
         on the departure information in Paragraph 115 of the
         presentence report and other paragraphs cited by the
         Court, the Court has determined that a sentence of 120
         months is appropriate.         The sentence will meet the
         objectives of punishment, deterrence, and incapacitation
         of the offender for the protection of the public.
    The district judge clearly considered each intermediate adjustment
    and gave reasonable justifications for its upward departure from
    the sentencing guidelines.       See United States v. Daughenbaugh, 
    49 F.3d 171
    , 174-75 (5th Cir. 1995); Ashburn, 38 F.3d at 809-10;
    McKenzie, 991 F.2d at 205-06.      The trial court’s assessment of 120
    months is not the type of drastic departure that warrants a
    detailed explanation.     Ashburn, 38 F.3d at 809-10 (“Although the
    sentence imposed in this case is more than twice the recommended
    guideline range, it was not the sort of drastic departure . . .”
    that would require a more detailed explanation).   We find that the
    trial court did not abuse its discretion by departing from the
    sentencing guidelines.
         In conclusion, we affirm the conviction of Bates on all counts
    of wire fraud and mail fraud.    The trial court neither violated
    Bates’ rights under the Speedy Trial Act nor abused its discretion
    in admitting the government’s expert witness.   We also affirm the
    trial court’s findings of fact concerning Bates’ criminal history
    and its imposition of Bates’ sentence.