United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2002 Decided February 26, 2002
No. 01-3042
United States of America,
Appellee
v.
Wallace E. Weaver,
Appellant
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 appear-
ance.
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.
s 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 investiga-
tion conducted in 1996 revealed problems with several post-
age 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 accord-
ingly. 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 investiga-
tors 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 close-
out 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 testi-
mony 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 close-
out 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 correspond-
ing 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 (1993); United States v. Myles, 96 F.3d 491,
495 (D.C. Cir. 1996).
Pankhurst was a long-time member of the Postal Inspec-
tion 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 win-
dows. (For example, the purchase of a money order indicat-
ed 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 Pank-
hurst 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 docu-
ments" 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. Nei-
ther Weaver's brief nor his reply brief contained any argu-
ment explaining what he thought constituted error in admit-
ting this exhibit. See Trans Union Corp. v. FTC, 245 F.3d
809, 814 (D.C. Cir. 2001); see also United States v. Brock-
smith, 991 F.2d 1363, 1366 (7th Cir. 1993).
Exhibit 38 was a chart, admitted during Pankhurst's testi-
mony. 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. Weav-
er'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 objec-
tion. 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 informed the court that he has no problem with
admitting the evidence, it may be too much to expect the trial
court to second-guess defense counsel's position and make its
own independent assessment of the possible grounds for
exclusion. See United States v. Lakich, 23 F.3d 1203, 1208
(7th Cir. 1994).
However, rather than deciding whether Weaver waived the
point, we are content to rest on the ground that the trial
court did not commit plain error in admitting Exhibit 38. As
Rule 1006 required, the government made available for in-
spection the documents underlying the exhibit. See Fed. R.
Evid. 1006. While Weaver now claims that no document
showed him working at Brentwood on May 12, 1994, his trial
counsel agreed that the government showed him a payroll
record indicating that Weaver was employed at Brentwood on
that date.
As to Weaver's claim that the court should have issued
some sort of "safeguards" with respect to Exhibit 38, we
think he misapprehends the Rules of Evidence. Rule 1006,
an exception to the best evidence rule, provides:
The contents of voluminous writings, recordings, or pho-
tographs which cannot conveniently be examined in court
may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other
parties at a reasonable time and place. The court may
order that they be produced in court.
Fed. R. Evid. 1006. Exhibit 38 compared payroll records for
various employees at the Brentwood facility with the dates of
the alleged losses. As such, it was a "summary" exhibit
under Rule 1006 and was itself evidence, serving as a substi-
tute for the actual payroll records. We therefore do not
understand Weaver's point that an instruction was needed
because the exhibit constituted inadmissible evidence. Weav-
er cites Lemire, 720 F.2d at 1347, but the case is not
comparable. In Lemire, the testimony of a government
witness summarized the testimony of previous witnesses and
explained the significance of documents already in evidence.
See id. at 1346. The witness used four "summary charts"
while testifying. The defendants objected to the testimony
but the trial court allowed it subject to a limiting instruction
that the "testimony was explanatory and was not itself evi-
dence." Id. at 1347. There is no indication that the govern-
ment sought to introduce the charts into evidence and, so far
as one can tell from the opinion, the only objection was to the
summary testimony, not the charts. Lemire thus has nothing
to do with this case. Although Lemire mentioned Rule 1006
by way of analogy, the opinion does not stand for the proposi-
tion that Rule 1006 summaries are not evidence or that in
admitting such a summary into evidence the court commits
plain error if it omits some sort of cautionary instruction
when the defense has not requested one. See 3 Stephen A.
Saltzburg, et al., Federal Rules of Evidence Manual 2078,
2089 (7th ed. 1998 & Supp. 2001).
III.
Weaver moved for a new trial, arguing that the government
violated its duty to turn over, before trial, documents his new
counsel found at Brentwood after the trial. The motion was,
in essence, a Brady claim. See Brady v. Maryland, 373 U.S.
83 (1963). The district court denied the motion, a ruling with
which we agree.
During discovery, the government informed Weaver's trial
counsel that it possessed documents relating to the May 1994
losses. The government also filed a motion, unopposed by
Weaver, to use the May 12, 1994, loss as Rule 404(b) evi-
dence. We need not decide whether the government sup-
pressed the documents, for there is no "reasonable probabili-
ty" that he would have been acquitted if the discovered
documents had been admitted. Strickler v. Greene, 527 U.S.
263, 289 (1999) (internal quotations omitted); see United
States v. Bowie, 198 F.3d 905, 908-09 (D.C. Cir. 1999). We
agree with the district court that the "documentary evidence
produced by the government ... not only demonstrated Mr.
Weaver's means and opportunity to commit the crimes
charged, but also demonstrated the fact that his expenditures
were far in excess of his postal worker's income" and "the
cross-examination seriously undermined Mr. Weaver's credi-
bility." It is worth adding that the missing documents indi-
cated at most that Weaver did not serve as a close-out
supervisor in May of 1994, and that another postal employee
did. But Weaver was not charged with any thefts occurring
in May 1994, and his handling the close-out on a particular
day was not essential to the government's theory of the case.
He was working at Brentwood on the date of the first
uncharged theft incident--May 12, 1994--and had access to
the cash received and the postage meter checks. Further,
Weaver's trial counsel established in cross-examination of the
government's witness that no document showed Weaver act-
ing as a close-out supervisor on May 12.
IV.
Weaver claims that his trial counsel was constitutionally
ineffective, in violation of the Sixth Amendment to the Consti-
tution. See Strickland v. Washington, 466 U.S. 668 (1984).
When this issue is raised for the first time on appeal, as it is
here, our general practice is to remand to the district court
for an evidentiary hearing unless it is clear from the record
that counsel was or was not ineffective, or that the supposed
defect in representation amounted to a strategic choice by
defense counsel. See United States v. Geraldo, 271 F.3d
1112, 1116 (D.C. Cir. 2001); United States v. Richardson, 167
F.3d 621, 626 (D.C. Cir. 1999); United States v. Pinkney, 543
F.2d 908, 915 (D.C. Cir. 1976). The theory presumably is
that trial counsel cannot be expected to argue his own ineffec-
tiveness in a motion for a new trial, and so we ought to allow
new counsel to argue it on appeal. Geraldo, 271 F.3d at 1116,
points out that our approach may place us in a minority of
one among the courts of appeals. (Other courts of appeals
require defendants to raise their ineffectiveness claims only in
a collateral proceeding. Id.) Rule 33 of the Federal Rules of
Criminal Procedure requires new trial motions to be filed
within 7 days of the verdict, yet our practice of remanding to
the district court for an evidentiary hearing has the effect of
greatly extending that time limit.
Weaver's claim of ineffectiveness, as set forth in his open-
ing brief, is on two scores, both of which may be rejected
without a remand for an evidentiary hearing. The first deals
with counsel's failure to object to the testimony of Carole
Edwards, the forfeiture specialist who testified that Weaver's
expenditures far exceeded his known income from 1994 to
1996. Weaver basically repeats his claim that Edwards was
an expert witness giving her "opinion, not fact." Brief of
Appellant at 39-40. We have already rejected that argument.
Weaver's second claim of ineffectiveness is counsel's failure to
object to Exhibits 37 and 38 on the basis that Weaver was not
working at Brentwood on May 12, 1994. Id. at 40. Here too
we have already rejected the premise. Weaver has presented
no argument about Exhibit 37 and Exhibit 38 was properly
admitted for the reasons given above.
V.
At sentencing, the government argued that, in addition to
the indicted offenses, the losses identified as having occurred
between May 12, 1994, and May 21, 1996 (essentially the Rule
404(b) evidence discussed at trial) should be attributed to
Weaver. The court credited Weaver with eleven additional
losses totaling $56,382. These thefts occurred immediately
before and during the time of thefts charged in the indict-
ment. Weaver argues that this finding of relevant conduct
violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and is
not supported by a preponderance of the evidence.
Weaver's Apprendi claim is hard to understand. The idea
apparently is that any attribution of relevant conduct contra-
venes the spirit of Apprendi. We have, on numerous occa-
sions, refused to extend Apprendi beyond its holding that any
factor other than a prior conviction triggering a sentence
above the statutory maximum must be submitted to and
found by a jury. See, e.g., United States v. Agramonte, 276
F.3d 594, 597 (D.C. Cir. 2001); United States v. Fields, 251
F.3d 1041, 1043-44 (D.C. Cir. 2001); In re Sealed Case, 246
F.3d 696, 698 (D.C. Cir. 2001).
Weaver's other complaint about the sentencing is well-
taken. The court credited Weaver with $22,817 in losses, yet
there was no evidence that checks for this amount were ever
received at Brentwood. The government's theory of its case
was that Weaver stole cash and covered his theft by deposit-
ing (but not logging) a postage meter check. The theory
cannot hold with respect to the $22,817. Since checks total-
ing this amount never cleared, there is no way of knowing
when the loss occurred and without a date there was no way
of knowing whether Weaver worked on the day the check
came in and no way of matching unexplained cash deposits in
Weaver's bank accounts with the loss. The district court
clearly erred in attributing this amount to Weaver. See
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). It
reasoned that the $22,817 occurred close in time to the
indicted offenses. But that alone cannot constitute a prepon-
derance of the evidence. With respect to the other thefts, the
government could point to corroborative evidence: for exam-
ple, on the unindicted April 3, 1996 loss, the government had
evidence to indicate that Weaver worked at Brentwood on the
day the check arrived at the facility, that he was the close-out
supervisor, that he signed the deposit slip for the check, and
that his personal bank account showed a large cash deposit
shortly thereafter. For the other attributed losses, the gov-
ernment could at least prove that Weaver worked at the Post
Office on the date the check was deposited and that his bank
accounts showed cash deposits shortly thereafter.
Weaver received a nine-level addition to his base offense
level because the total losses attributed to him exceeded
$120,000. Removing the $22,817 places the loss at less than
$120,000 but more than $70,000--an eight-level addition un-
der the applicable version of the Guidelines. U.S.S.G.
s 2B1.1(b)(1)(I) (1998). Because the error affects the sen-
tencing range the court should have applied (reducing it from
30-37 months to 27-33 months), the case will be remanded to
the district court for resentencing.
* * * *
Weaver's conviction and the denial of his motion for a new
trial are affirmed. The case is remanded for resentencing.
So ordered.