U.S. v. Weaver

• Decision Date: 26 February 2002
• Docket Number: No. 01-3042.,01-3042.
• Citation: 281 F.3d 228
• Parties: UNITED STATES of America, Appellee, v. Wallace E. WEAVER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 228

281 F.3d 228

UNITED STATES of America, Appellee, v. Wallace E. WEAVER, Appellant.

No. 01-3042.

United States Court of Appeals, District of Columbia Circuit.

Argued January 10, 2002.

Decided February 26, 2002.

Appeal from the United States District Court for the District of Columbia (99cr00363-01).

Veronice A. Holt argued the cause and filed the briefs for appellant.

John K. Han, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Steven J. Durham, Assistant U.S. Attorneys. Roy W. McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

A jury convicted Wallace E. Weaver of each count of a fourteen-count indictment charging misappropriation of postal funds, in violation of 18 U.S.C. § 1711. The district court sentenced Weaver to concurrent terms of thirty months' imprisonment on each count, and ordered him to pay restitution to the United States Postal Service of $120,622. Weaver's appeal is on the grounds that errors infected his trial, that he was entitled to a new trial, that his counsel was ineffective, and that the district court miscalculated his sentence.

I.

Each count of the indictment corresponded to an alleged theft of postal funds on a particular day between December 20, 1994, and May 21, 1996. The government's evidence tended to show that Weaver began working as a supervisor at the Brentwood Road Post Office, the main post office in Washington, D.C., in May 1994. A Postal Service investigation conducted in 1996 revealed problems with several postage meter accounts for customers outside the District of Columbia who leased meters from Brentwood in order to obtain a D.C. postmark. Post offices in the customers' localities serviced the meters. The customers gave checks to their local post office and had their meters adjusted accordingly. The local post offices then sent the checks, and related paperwork, to the Brentwood facility. Brentwood maintained the balance ledger for each of the meters. When investigators looked at the books, they noticed that several meters were apparently still producing postage although the ledger indicated that no new payments had come in for quite some time.

Further investigation indicated that while Brentwood had received the meter customers' payments, no one had updated the ledgers. This led investigators to surmise that someone at Brentwood was stealing cash from the Main Office Window Unit and replacing it with the unrecorded checks to avoid detection. Eventually, they focused on Weaver, who often served as the close-out supervisor at Brentwood. The closeout supervisor deposited cash and checks received at the unit throughout the day. The ledger "gaps" began in May 1994, a date coinciding with Weaver's assignment to the Brentwood facility, and ended in the spring of 1996, around the same time postal inspectors questioned Weaver as part of their investigation. A handwriting expert testified that Weaver signed or marked the deposit slips for many of the checks corresponding to ledger gaps (including all fourteen days representing the separate counts charged in the indictment). A review of Weaver's personal finances demonstrated that his known expenditures well exceeded his reported income, and that he made large cash deposits to numerous bank accounts in 1994, 1995, and 1996. The government also elicited testimony showing that Weaver was a compulsive gambler.

Weaver took the stand and denied stealing any money. He produced a document indicating that he did not arrive at the Brentwood facility until May 21, 1994. This was designed to rebut the government's claim that the thefts began shortly after he started working as a supervisor at Brentwood. (The indictment did not charge Weaver with any thefts in May, but the government argued that he was the only postal employee working at the Brentwood facility on every date on which there was a suspected theft.) The date on the assignment document was typed on white correction tape.

After trial, but before sentencing, Weaver retained a new attorney, who now represents him in this appeal. During the interval his new counsel inspected several boxes of documents allegedly "discovered" at the Brentwood Post Office after trial. On the basis of these documents, Weaver moved for a new trial, arguing that they proved that he was not a closeout supervisor in May 1994 when the losses began and that the documents incriminated another postal employee. The district court denied the motion on January 17, 2001.

The court sentenced Weaver on April 6, 2001. In addition to the $64,240 loss comprising the thefts charged in the indictment, the court attributed $56,382 in losses corresponding to eleven other ledger gaps.

II.

Weaver's claims of error at trial are in two parts. The first is that the district court erred in allowing two witnesses, Rory Pankhurst and Carole Edwards, to testify without being qualified as experts. Because Weaver interposed no such objection, he may prevail only if the court committed plain error. See FED. R.CRIM. P. 52(b); United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Myles, 96 F.3d 491, 495 (D.C.Cir.1996).

Pankhurst was a long-time member of the Postal Inspection Service specializing in revenue investigation and was a certified internal auditor. His testimony linked the ledger gaps and unrecorded (but deposited) checks to the alleged cash thefts. He examined the cash register logs for the fourteen days in the indictment and estimated the absolute minimum amount of cash received by the end of the day, based upon the types of transactions conducted at the windows. (For example, the purchase of a money order indicated a cash transaction, because one could not pay for this service by personal check or credit card.) He then compared this minimum amount to the close-out logs and determined that on nine of the fourteen days in the indictment there was less cash recorded than the bare minimum. Because the total amount (cash, credit cards, checks) balanced with the daily transactions register, he concluded that someone must have stolen cash and replaced it with unprocessed out-of-town postage meter checks.

Why Weaver thinks the court should have prevented Pankhurst from giving this testimony is not obvious to us even with his argument, and it surely would not have been obvious to the district court without any argument. Pankhurst was an active participant in the investigation. His testimony rested on the personal knowledge he gained during the course of his examination. See FED.R.EVID. 602. That he performed "routine computations and culling through of documents" to arrive at his conclusions did not require him to be qualified as an expert. See United States v. Lemire, 720 F.2d 1327, 1350 (D.C.Cir. 1983).

Carole Edwards was a forfeiture specialist at the Postal Service. She testified that on the basis of her review of Weaver's tax returns and other financial documents, his expenditures significantly exceeded his known income in 1994-1996. Weaver believes the analysis Edwards performed did not comport with basic accounting principles and that the need for her to be qualified as an expert should have been obvious to the district court. Like Pankhurst, Edwards' testimony was based on her personal review of the financial documents, and simply involved the addition of known sources of income and known expenditures. For that reason, the court's allowing her to testify without objection was not error.

According to Weaver, the other plain trial error occurred when the court admitted what he calls the government's "summary" exhibits. The argument portion of Weaver's opening brief did not identify which exhibits he meant to include in this category; his reply specified, in a caption, Exhibits 37 and 38. We will not consider Exhibit 37, which was a timeline of events relating to the investigation. Neither Weaver's brief nor his reply brief contained any argument explaining what he thought constituted error in admitting this exhibit. See Trans Union Corp. v. FTC, 245 F.3d 809, 814 (D.C.Cir.2001); see also United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir.1993).

Exhibit 38 was a chart, admitted during Pankhurst's testimony. The chart compared the attendance records of various Brentwood employees with the dates of the alleged losses, and indicated that Weaver was the only employee present at that facility on every date on which a theft occurred. Weaver argues that it was plain error for this "summary" exhibit to be admitted without "safeguards," by which he apparently means some sort of jury instruction.

Weaver's attorney, when asked by the court whether he had any objection to Exhibit 38, replied "No objection, your honor." Relying on Supreme Court dicta in Olano, the government maintains that Weaver thereby waived his right to complain about this evidence on appeal. Olano stated that when the defendant has waived a right at trial, not even plain error review is available on appeal. 507 U.S. at 733, 113 S.Ct. at 1777. Weaver's "No objection" relinquished an evidentiary point, not a constitutional right. See id. His counsel did more than sit by silently as the evidence came in. Instead, he made a conscious choice, on the record, to indicate his lack of objection. Whether he did so for tactical reasons — for instance, to convey to the jury that he believed Exhibit 38 was not telling, see United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.1995) — or because he did not have the imagination to come up with an objection, seems to us of no particular consequence. Plain error assumes that the court should have intervened sua sponte because the error was so obvious. When defense counsel has...