United States v. Lee Ervin Dale , 618 F. App'x 494 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10733
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60251-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE ERVIN DALE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 2, 2015)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Lee Ervin Dale appeals his convictions on two counts of theft of public
money, in violation of 18 U.S.C. § 641; six counts of filing false claims with the
government, in violation of 18 U.S.C. § 287; and two counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Dale argues that the
district court erred in admitting at trial the testimony of a handwriting expert, Jason
Miller, and a fingerprint expert, James Snaidauf. He also contends that the court
erred by denying his pro se motion for a new trial and by declining to reinstate the
motion and allow him to proceed pro se after the case had been appealed.
However, after review of the parties’ briefs and the record on appeal, we
conclude that Dale’s arguments are without merit. Both experts were qualified,
used scientifically reliable methodology, and provided testimony that was helpful
to the jury. Additionally, we do not find that the district court abused its discretion
by declining to grant Dale’s pro se motion for a new trial and subsequently
declining to reinstate the motion, which he filed while represented by counsel.
Thus, we affirm the district court.
I.
We review “the district court’s decisions regarding the admissibility of
expert testimony and the reliability of an expert opinion” for abuse of discretion. 1
1
The government avers we should review the district court’s decisions for plain error,
since Dale did not object to the introduction of Snaidauf’s testimony at trial and did not preserve
his objection to the introduction of Miller’s testimony, whereas Dale asserts that abuse-of-
2
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United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). Rule
702 of the Federal Rules of Evidence controls the admission of expert testimony,
and the factors listed in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113
S. Ct. 2786 (1993), may also be used to assess the relevance and reliability of
expert testimony.
Dale first argues that the court abused its discretion in admitting the
testimony of Snaidauf, the fingerprint expert. Dale does not dispute that Snaidauf
was properly qualified or that his testimony assisted the jury; instead, he argues
that the government failed to show that fingerprint evidence is scientifically
reliable. However, we have held that fingerprint analysis utilizes scientifically
reliable methodology, and Dale cites to no binding authority holding that the
methodology applied in this case was scientifically unreliable. See United States v.
Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005) (per curiam) (fingerprint evidence is
reliable scientific evidence, satisfying the Daubert criteria for admissibility). Thus,
the district court did not abuse its discretion by admitting Snaidauf’s testimony.
Nor did the district court did abuse its discretion in admitting the testimony
of Miller, the handwriting expert. Although Dale appears to argue that Miller was
not qualified to testify as an expert in handwriting analysis, the record belies such a
discretion review applies. However, we need not reach the question of what standard of review
to apply because, as discussed below, Dale’s evidentiary arguments fail even under the less
deferential abuse-of-discretion standard.
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contention. Miller was properly qualified as an expert: he had been a forensic
document examiner with the IRS for over ten years; he was certified with the
American Board of Forensic Document Examiners; he had examined
approximately 100,000 documents in his career; and he had twice previously been
qualified as an expert in document examination in federal court. Further, Dale’s
assertion that handwriting analysis is not reliable scientific evidence is without
merit and has been squarely foreclosed by this court’s precedent. See United
States v. Paul, 175 F.3d 906, 909–10 & n.2 (11th Cir. 1999) (finding that the
argument that “handwriting analysis does not qualify as reliable scientific
evidence” is meritless).
Finally, Miller’s testimony was helpful to the jury in understanding how
handwriting samples are compared and any danger of unfair prejudice from
misleading the jury was mitigated by the fact that the jury was shown the
handwriting, through the use of demonstrative aids, and was free to compare the
handwriting for itself. See Frazier, 387 F.3d at 1262 (an expert’s testimony is
helpful to the trier of fact if the testimony “concerns matters that are beyond the
understanding of the average lay person”). In sum, because Miller was qualified to
testify, handwriting analysis is a scientifically reliable methodology, and Miller’s
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testimony was helpful to the jury, the court did not abuse its discretion in admitting
Miller’s testimony. 2
II.
A district court’s denial of a motion for a new trial receives abuse-of-
discretion review. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.
2002). We have held that “the right to counsel and the right to proceed pro se exist
in the alternative.” United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir.
1987). The district court may allow a defendant to proceed with “hybrid
representation”; however, this decision “rests in the sound discretion of the trial
court.” Id.
Here, the district court did not abuse its discretion in denying Dale’s pro se
motion, filed while he was represented, as the Southern District of Florida’s local
rules prohibited Dale from representing himself while he was represented by
counsel. See S.D. Fla. L.R. 11.1(d)(4) (“Whenever a party has appeared by
attorney, the party cannot thereafter appear or act on the party’s own behalf . . .
unless an order of substitution shall first have been made by the [c]ourt . . . .”).
2
Dale also argues, albeit primarily in his reply brief, that the evidence was insufficient to
convict him of aggravated identity theft. To the extent this argument is even before us, given
that it was not clearly raised in his opening brief, see United States v. Levy, 379 F.3d 1241, 1244
(11th Cir. 2004) (per curiam) (arguments not raised in initial brief are waived on appeal), it is
substantially premised on the allegedly improper admission of the expert witness testimony—
absent which Dale avers there was insufficient evidence to convict him. Since we determine for
the above-stated reasons that the district court properly admitted this evidence, Dale’s
insufficiency argument is unpersuasive.
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Dale refused to proceed pro se and the court advised him to discuss with his
counsel the possibility of filing a motion for a new trial. However, none of Dale’s
attorneys would file a motion for a new trial on his behalf, and Dale never
requested to proceed pro se or with hybrid representation during the nearly one
year between his conviction at trial and his sentencing. The district court also did
not abuse its discretion in declining to reinstate Dale’s pro se motion after Dale had
already appealed to this court. Dale’s motion was improper as originally filed,
and, although Dale had ample opportunity to file a proper motion for a new trial
before his appeal, he did not avail himself of the opportunity to file a proper
motion for a new trial in the time between his conviction and his sentencing.
III.
Upon review of the record and consideration of the parties’ briefs, we affirm
the district court.
AFFIRMED.
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