UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11382
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
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,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas (4:99-CR-117-1-Y)
November 21, 2000 Before DUHÉ, and PARKER, Circuit Judges, and LINDSAY,* District Judge. PER CURIAM:**
Appellant Donald Kinnard Bates appeals his conviction and
* District Judge of the Northern District of Texas sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 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.
I.
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
$300,000.
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
2 relevant federal sentencing guidelines, the district judge
sentenced Bates to an aggregate of 120 months in prison. Bates
timely appeals his conviction and sentence.
II.
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.;
3 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
4 trial.
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.
Calle, 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
5 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.
1 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.
6 III.
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
2 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 untimely.
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
7 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).
8 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
9 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
testimony.
IV.
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.
Griffith, 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.
Bermea, 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.
10 Morris, 46 F.3d 410, 425 (5th Cir. 1995). A PSR alone “generally
bears sufficient indicia of reliability . . ..” United States v.
Alfaro, 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
11 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.
V.
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.
Lambert, 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.
12 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
13 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.
VI.
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.
AFFIRMED