The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15104 JULY 19, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00176-CR-B-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL LAFITTE DUMONDE,
a.k.a. Daniel Pruitt Spencer,
a.k.a. Daniel Laffite Dumonde,
a.k.a. Daniel Spencer,
a.k.a. Danny,
a.k.a. Paul Moore,
Defendant-Appellant.
________________________
No. 05-12349
Non-Argument Calendar
________________________
D. C. Docket No. 04-00176-CR-B-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL LAFITTE DUMONDE,
a.k.a. Daniel Laffite Dumonde,
a.k.a. Paul Moore, etc.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
(July 19, 2006)
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
This opinion consolidates and decides two appeals perfected by Daniel
Lafitte Dumonde. Dumonde, appearing pro se, appeals his conviction from a
bench trial, in which he also proceeded pro se, for uttering a counterfeit security, in
violation of 18 U.S.C. §§ 513(a) and 2. In his first appeal, No. 04-15104,
Dumonde argues that his arrest was illegal because it was fraudulently obtained
without probable cause.1 Dumonde also asserts that the district court
unconstitutionally limited the compulsory process by denying his request to
subpoena Judge Watkins, Sheriff’s Internal Affairs Sgt. Moore, and Jefferson
County Sheriff Mike Hale. Next, Dumonde argues that his codefendant, Walker,
committed perjury at trial, and his testimony should not have been admitted
because it was uncorroborated and was inadmissible hearsay.
1
Dumonde asserts, admittedly for the first time on appeal, that the government committed
misconduct and the district court erred in admitting evidence of a check imprinting machine found
in his car because that machine was not found in the car during the first search. Because Dumonde
raises this issue for the first time in his reply brief, he has abandoned the issue. See United States
v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989) (noting that an appellant in a criminal case
may not raise an issue for the first time in a reply appellate brief).
2
In second appeal, No. 05-12349, Dumonde argues that the account numbers
on the counterfeit check were non-existent, and therefore, the check could not be
drawn on any organization within the meaning of the statute. 2 Dumonde also
asserts that Judge Blackburn of the district court should have recused herself from
the proceedings because she was “outrageously biased.” Lastly, Dumonde argues
that he was wrongly removed from state to federal custody without any authority,
and that he was denied due process of law because he was required to give a
handwriting sample before the grand jury, and he was forced to appear before the
grand jury in a prison stripe uniform and leg shackles.
I. Motion to Suppress
In reviewing a denial of a motion to suppress, we review for clear error the
district court’s factual findings, and we review de novo its application of law to
those facts. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005).
Moreover, “all facts are construed in the light most favorable to the prevailing
party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
Dumonde claims that the Government arrested him without probable cause.
2
On appeal, the government argues that we lack jurisdiction over the arguments raised in
this appeal. Dumonde did perfect his appeal via his second and fourth notices of appeal, and
therefore, we have jurisdiction to review the issues challenged here. See United States v. Curry, 760
F.2d 1079, 1079-80 (11th Cir. 1985) (per curiam) (holding that a premature notice of appeal made
before judgment and conviction are entered is effective to perfect an appeal as of the date the
sentence was entered as the judgment).
3
“Probable cause to arrest exists if the facts and circumstances within the officer’s
knowledge, of which he has reasonably trustworthy information, would cause a
prudent person to believe, under the circumstances shown, that the suspect has
committed or is committing an offense.” Ortega v. Christian, 85 F.3d 1521, 1525
(11th Cir. 1996).
The record shows that the government had probable cause to obtain an arrest
warrant for Dumonde. By the time law enforcement sought an arrest warrant for
Dumonde they knew of and were in possession of substantial evidence that would
have led a prudent person to believe that Dumonde was involved in the subject
offense. Id. For example, the officers knew that phone calls to the victim had
originated from Dumonde’s home. Also originating from Dumonde’s home were
phone calls to the Tennessee jewelry store where the victim’s ring was sold. The
jewelry store owner had identified Dumonde out of a photographic line up as the
person who sold him the ring. The store owner further stated that Dumonde had
used the name Daniel Spencer, one of his several aliases. In light of these facts
demonstrating probable cause, we affirm the district court’s denial of Dumonde’s
motion to suppress.
II. Compulsory Process
The Sixth Amendment protects a defendant’s right to have “compulsory
4
process for obtaining witnesses in his favor.” U.S. Const. amend. VI.; see U.S. v.
Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). However, “the Sixth Amendment
does not by its terms grant to a criminal defendant the right to secure the
attendance and testimony of any and all witnesses: it guarantees him ‘compulsory
process for obtaining witnesses in his favor.’ ” United States v. Valenzuela-Bernal,
458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982) (quoting U.S.
Const. amend. VI). A defendant must, therefore, “at least make some plausible
showing of how [the witness’s] testimony would [be] both material and favorable
to his defense.” Id.
The record here does not compel a reversal of the district court’s refusal to
issue a subpoena for Judge Watkins, Sgt. Moore, or Sheriff Hale. Dumonde had
failed to present any evidence that the requested witnesses would testify favorably
to his defense. He presented no evidence that Judge Watkins’s signature was
forged. Likewise, with regard to Sgt. Moore, Dumonde did not submit any support
for his assertion that Sgt. Moore’s testimony was needed to show a pattern of
officer misconduct. Regarding Sheriff Hale, Dumonde failed to present his request
for Hale’s subpoena before the district court, when the district court inquired into
Dumonde’s subpoena requests. Even if Dumonde had made the request known to
the district court, denying the request would not have been erroneous, because
5
Dumonde failed to make “some plausible showing” that Hale’s testimony would
have been favorable to his defense. Accordingly, we affirm the denial of
Dumonde’s requests for subpoenas.
III. Witness Credibility
“The credibility of a witness is in the province of the factfinder and [we] will
not ordinarily review the factfinder’s determination of credibility.” United States
v. Copeland, 20 F.3d 412, 413 (11th Cir.1994) (per curiam). Furthermore, the
district court’s credibility determinations are entitled to deference and its factual
findings will be accepted, unless clearly erroneous. United States v. Holland, 874
F.2d 1470, 1473 (11th Cir.1989). In addition, even where a government witness
testifies with immunity, it is the responsibility of the trier of fact to determine the
truthfulness of witness’s testimony. See United States v. Hewitt, 663 F.2d 1381,
1385 (11th Cir. 1981).
The district court did not err in admitting Walker’s testimony. Although at
trial Walker admitted to committing perjury, the district court found his testimony
to be truthful. The district court knew of Walker’s involvement in the subject
offense, his admitted perjury, and the fact that he testified in exchange for a
substantial assistance departure. Nevertheless, the court determined that Walker
was credible and that much circumstantial evidence supported his testimony, which
6
was within its province as the factfinder in a bench trial. See Copeland, 20 F.3d at
413. In addition, Dumonde does not offer any support for his assertion that
Walker’s testimony was inadmissible hearsay. Accordingly, we affirm in this
respect.
IV. Indictment
We review for abuse of discretion a district court’s denial of a motion to
dismiss an indictment. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.
1998).
It is a federal offense to make, utter, or possess, with the intent to deceive, a
forged security of an organization. 18 U.S.C. § 513(a). The statute broadly
defines an “organization” as “a legal entity, other than a government, established or
organized for any purpose, and includes a corporation, company, association, firm,
partnership, joint stock company, foundation, institution, society, union, or any
other association of persons which operates in or the activities of which affect
interstate or foreign commerce[.]” 18 U.S.C. § 513(c)(4).
The district court did not abuse its discretion by denying Dumonde’s
motions to dismiss the indictment. Evidence showed that the check was a
counterfeited security of an official Regions Bank check. The government
established that Regions Bank, operating in at least thirteen states of the union, and
7
IPS, by virtue of its agreement and cooperation with the bank, were organizations
under 18 U.S.C. § 513(c)(4). Accordingly, we affirm in this respect.
V. Recusal
Ordinarily we review a district court judge’s decision not to recuse herself
for an abuse of discretion. See United States v. Bailey, 175 F.3d 966, 968 (11th
Cir. 1999) (per curiam).
Two statutes govern recusal – 28 U.S.C. §§ 144 and 455. See Hamm v.
Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983).
Under § 144, a party can file a “timely and sufficient affidavit” complaining of a
trial judge’s personal bias. Section 455(a) instructs a federal judge to disqualify
herself if “[her] impartiality might reasonably be questioned,” and § 455(b)
requires disqualification under specific circumstances, including having personal
bias against a party or personal knowledge of disputed facts, expressing an opinion
about the case as a government employee, holding a financial interest in the
controversy, or having a spouse or relative involved with one of the parties.
For recusal to occur under § 455(a), “we musk ask whether an objective,
disinterested, lay observer fully informed of the facts underlying the grounds on
which recusal was sought would entertain a significant doubt about the judge’s
impartiality.” United States v. Patti, 337 F.3d 1317, 1322 (11th Cir. 2003)
8
(internal quotations omitted). Disqualification under § 455(b) “is clear; once it has
been established that one of the enumerated circumstances exists, there can be no
dispute about the propriety of recusal.” Id. at 1321-22. To disqualify a judge
under § 455(a) and (b)(1), the bias “must stem from extrajudicial sources, unless
the judge’s acts demonstrate such pervasive bias and prejudice that it unfairly
prejudices one of the parties.” Bailey, 175 F.3d at 968 (internal quotations
omitted). “[A]dverse rulings alone do not provide a party with a basis for holding
that the court’s impartiality is in doubt.” Byrne v. Nezhat, 261 F.3d 1075, 1103
(11th Cir. 2001).
In addition, a “[district court] judge has wide discretion in managing the
proceedings.” United States v. Hawkins, 661 F.2d 436, 450 (5th Cir. Unit B Nov.
1981). “[S]he may comment on the evidence, may question witnesses and elicit
facts not yet adduced or clarify those previously presented, and may maintain the
pace of the trial by interrupting or cutting off counsel as a matter of discretion.” Id.
(internal quotations omitted). Moreover, we are “cognizant of the maxim that the
trial judge has broad discretion in handling the trial and that the reviewing court
should restrain itself from interposing its opinion absent a clear showing of abuse.”
United States v. De La Vega, 913 F.2d 861, 867 (11th Cir. 1990) (internal
quotations omitted).
9
The district court judge here did not abuse her discretion in failing to recuse
herself. Dumonde accused the judge of having some personal bias against him, but
he never presented any facts to support his claim. In this case, Dumonde proceeded
pro se in a bench trial; thus, the judge necessarily had to become involved in
managing the proceedings.
Although Dumonde’s sentence exceeded the guideline range, the sentence
was less than the statutory maximum, and at sentencing, the district court judge
explained in detail her reasons for sentencing him above the recommended range.
For these reasons, there was no evidence from which an objective, disinterested,
lay observer fully informed of the facts underlying the grounds on which recusal
was sought would entertain a significant doubt about the judge’s impartiality. See
Patti, 337 F.3d at 1322. Accordingly, we affirm in this respect.
VI. Prosecutorial Misconduct
Any challenges based on prosecutorial misconduct before the grand jury are
reviewed under a harmless-error standard. Bank of Nova Scotia v. United States,
487 U.S. 250, 254, 108 S. Ct. 2369, 2373, 101 L. Ed. 2d 228 (1988). Under the
harmless-error standard, a reversal is required “only if it is established that the
violation substantially influenced the grand jury’s decision to indict, or if there is
grave doubt that the decision to indict was free from the substantial influence of
10
such violations.” Id. at 256 , 108 S. Ct. At 2374 (internal quotations omitted).
To the extent that Dumonde challenges events that occurred while he was in
state custody, presumably on state charges, we do not address his claims.
Dumonde argues that it was improper for him to appear before the grand jury
wearing a prison uniform and leg shackles. See Estelle v. Williams, 425 U.S. 501,
504, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976) (holding that a defendant’s
appearance in prison attire at trial seriously compromises the defendant’s right to
the presumption of innocence basic to the adversary system). However, the rule in
Estelle does not apply here because Dumonde was not a defendant on trial when he
allegedly was forced to wear his prison uniform and leg shackles. Even assuming
arguendo that an error did occur during the grand jury proceeding, any error was
harmless because sufficient probable cause supported Dumonde’s indictment. See
Bank of Nova Scotia, 487 U.S. at 254, 108 S. Ct. at 2373. For these reasons,
Dumonde has failed to establish a denial of his right to due process.
VII. Conclusion
Finding no error, we affirm Dumonde’s conviction and sentence. We also
deny Dumonde’s “Motion for Immediate Reversal.”
AFFIRMED.
11