                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 7 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-1334
v.                                                 (District of Colorado)
                                                  (D.C. No. 98-CR-65-M)
MARK CHARLES THOMAS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, ALARCON, ** and PORFILIO, Circuit Judges.



I. INTRODUCTION AND BACKGROUND

      In 1996, Mark Charles Thomas was arrested and indicted on a charge of

credit card fraud, to which he later pleaded guilty. As a consequence, a federal

district court sentenced Thomas to thirty-three months imprisonment. He was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court
      **

of Appeals for the Ninth Circuit, sitting by designation.
then incarcerated at the Federal Prison Camp (the “Prison Camp”) in Florence,

Colorado, a minimum security facility. On May 17, 1997, Thomas disappeared

from the Prison Camp.

      In December of 1997, the appellant 1 was arrested in Bellevue, Washington.

A grand jury thereafter indicted the appellant on one count of escape from a

federal prison in violation of 18 U.S.C. § 751(a). At trial, the appellant

represented himself and maintained that he was Andre Strauss, not Mark Charles

Thomas. Nonetheless, a jury convicted the appellant of the charged crime and he

was sentenced to forty-one months’ imprisonment, to run consecutive to the

sentence he was serving on the credit card fraud conviction. [Vol I at 95] The

appellant now appeals his conviction and sentence.

      On appeal, this court must decide three issues: (1) whether the district court

committed reversible error by denying the appellant’s request for funds to hire a

fingerprint expert; (2) whether the district court erred in excluding exhibits

offered by the appellant; and (3) whether the appellant must be resentenced

because the district court denied his request for an attorney at sentencing.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the

conviction but remands for resentencing.



      1
        Because the appellant contends this is a case of mistaken identity, for sake
of clarity, this court will refer to him as “the appellant” rather than “Thomas.”

                                         -2-
II. DISCUSSION

      A. The Denial of a Fingerprint Expert

      Three days prior to trial, the appellant filed a motion requesting that the

court provide him funds to retain a fingerprint expert. The district court then

asked the government how it intended to prove the appellant’s identity at trial.

After listening to the government’s proffer of extensive identity evidence, which

included comparative fingerprint evidence and related expert testimony, the

district court denied the appellant’s motion to receive funds to hire a fingerprint

expert. At trial, the government placed into evidence fingerprints taken from

Mark Charles Thomas the day he was arrested in 1996 for credit card fraud and

fingerprints taken from Thomas upon his incarceration at the Prison Camp. The

government’s fingerprint expert then testified that those two sets of prints

matched prints taken from the appellant after he was apprehended in Washington

state. The appellant now challenges the district court’s ruling denying him funds

to obtain his own fingerprint expert.

      This court need not resolve whether the district court’s denial of the

appellant’s request for funds was erroneous, because even if it was, the error was

not sufficiently harmful to require reversal of the appellant’s conviction. Thomas




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argues that both the Criminal Justice Act 2 and the United States Constitution 3

provide him the right to obtain the requested funds. When a trial court’s ruling

deprives a party of a right, the harmless-error standard applied by this court is

directed by whether that right is statutory or constitutional. If a trial court’s

ruling violated a non-constitutional right, we can nonetheless affirm the

conviction so long as the error did not have a substantial influence on the jury’s

verdict. See United States v. Hanzlicek, 187 F.3d 1228, 1237 (10th Cir. 1999). If

a trial court’s ruling impinged upon a constitutional right, however, this court

generally must reverse the conviction unless we conclude the error was harmless

beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).

A small class of fundamental constitutional errors are considered structural errors

and are thus not subject to harmless error analysis, instead requiring reversal of

the conviction. See Neder v. United States, 527 U.S. 1, 7 (1999); United States v.

Pearson, 203 F.3d 1243, 1260 (10th Cir. 2000).

      2
       The Criminal Justice Act (“CJA”) provides, in part,
            Counsel for a person who is financially unable to obtain
            investigative, expert, or other services necessary for
            adequate representation may request them in an ex parte
            application. Upon finding, after appropriate inquiry in
            an ex parte proceeding, that the services are necessary
            and that the person is financially unable to obtain them,
            the court . . . shall authorize counsel to obtain services.
      18 U.S.C. § 3006A(e)(1).
      3
       Thomas contends this constitutional right flows from both the Fifth and
Sixth Amendments.

                                          -4-
      The appellant contends the district court’s denial of the funds for a

fingerprint expert rises to the level of structural constitutional error, mandating

that this court reverse his conviction. The appellant’s argument, however, is

foreclosed by this court’s decision in Brewer v. Reynolds, which held that the

denial of a psychiatric expert in violation of Ake v. Oklahoma, 470 U.S. 68 (1985)

does not constitute structural error. See 51 F.3d 1519, 1529 (10th Cir. 1995).

The Brewer court reasoned “that a right to which a appellant is not entitled absent

some threshold showing [cannot] fairly be defined as basic to the structure of a

constitutional trial.” Id. (quotation omitted). Although no court has ever decided

when a criminal appellant is constitutionally entitled to the services of a

fingerprint expert, such a right is akin to the right to the assistance of a mental

health expert announced in Ake. A appellant’s constitutional right to a fingerprint

expert thus only arises upon a threshold showing that proof of the perpetrator’s

identity through fingerprint evidence is likely to be a significant factor at trial.

See Ake, 470 U.S. at 83 (holding that when a appellant makes a threshold showing

that his mental condition at the time of the offense is likely to be a significant

factor at trial, the government must provide the appellant the services of a mental

health expert to satisfy due process). Pursuant to Brewer, therefore, the district

court’s denial of the appellant’s request for funds for a fingerprint expert cannot




                                           -5-
amount to structural error; the ruling, if error, is thus subject to harmless error

analysis.

      This court need not determine whether the district court’s ruling deprived

the appellant of either a constitutional or statutory right, or perhaps both, because

even under the harmless error standard applicable to non-structural constitutional

deprivations, the conviction can be affirmed. Both parties recognize that it is

difficult in this case to measure the harm resulting from the district court’s denial

of the appellant’s request, because we cannot know how an expert obtained by the

appellant would have assessed the government’s fingerprint evidence or how that

defense expert would have assisted the appellant in developing a cross-

examination of the government’s expert. Even assuming, however, that a

fingerprint expert obtained by the appellant would have enabled the appellant to

cause the jury to discount entirely the government’s fingerprint evidence, this

court is nonetheless convinced the district court’s ruling was harmless beyond a

reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)

(holding that when a appellant is denied the constitutional right to cross-examine

a witness for bias, the proper inquiry is “whether, assuming that the damaging

potential of the cross-examination were fully realized, a reviewing court might

nonetheless say that the error was harmless beyond a reasonable doubt”).




                                           -6-
      At trial, the government presented substantial identity evidence apart from

the fingerprint evidence. Four separate witnesses unequivocally identified the

appellant as the Mark Charles Thomas incarcerated in 1997 at the Prison Camp

for committing credit card fraud. Patrick Corcoran, the postal inspector who

arrested Mark Charles Thomas on September 23, 1996, identified the appellant as

the same person he arrested that day and as the same person who later was

indicted, who pleaded guilty, and who was sentenced for credit card fraud.

Christopher Perez, a probation officer who was also present when Mark Charles

Thomas pleaded guilty to and was sentenced for the credit card fraud charge,

similarly identified the appellant as that same person. Anne Cummins, a case

manager at the Prison Camp who testified she had contact with Mark Charles

Thomas several times a week at the Prison Camp, stated she was “absolutely

positive” the appellant was Thomas. Cummins elaborated on her identification:

“My recollection is that Mark Charles Thomas looked exactly like the appellant

standing before me, and spoke and walked much like, if not exactly like, the

appellant before me.” Finally, Marino Tejera, a correctional officer at the Prison

Camp during Thomas’ incarceration, identified the appellant as Thomas. Tejera

testified that Thomas’ appearance was particularly etched in his memory because

after Thomas escaped, a significant event for Tejera, he looked at a photograph of

Thomas and remembered that he had spoken with Thomas just a few days earlier.


                                        -7-
      In addition, the government produced two photographs of Thomas, one

taken upon Thomas’ arrest in 1996 and the other taken when Thomas was

incarcerated at the Prison Camp. These photographs allowed the jury to compare

the appearance of Mark Charles Thomas with that of the appellant. The

government also adduced evidence to discredit the appellant’s claim that he is in

fact Andre Strauss and not Mark Charles Thomas. Michael Cate, the police

officer who arrested the appellant in Bellevue, Washington, testified that the

appellant initially identified himself as Michael Coiffure and only later gave

Andre Strauss as his name. After the appellant elicited testimony from Cate that

he found a World Service Authority 4 (“WSA”) passport bearing the name Andre

Strauss and the appellant’s picture in the glove box of the appellant’s car, Cate

stated on re-direct that he also discovered in the same glove box an international

driver’s license with the appellant’s picture in the name of Jack White. The

government also placed into evidence a second passport issued by the WSA

bearing the appellant’s picture but in the name of Michael Coiffure. To further

minimize the significance of the Andre Strauss WSA passport, as well as an

identity card and a birth certificate in that name issued by the WSA and

introduced into evidence by the appellant, the government elicited testimony from



      According to the testimony of the president of the World Service
      4

Authority, the WSA is a non-profit organization that promotes the “right to
freedom of movement.”

                                         -8-
the President of the WSA that anyone who mails a completed application, a

photograph, a fingerprint, 5 and the required monetary fee can obtain these

documents.

      In sum, the government presented overwhelming evidence, apart from the

fingerprint evidence, that the appellant is the same Mark Charles Thomas who

escaped his incarceration at the Prison Camp in May of 1997. Because the

prosecution’s case was so strong and the fingerprint evidence was not that

important to prove the appellant’s identity, in light of the overwhelming amount

of other identity evidence, this court is convinced that the district court’s denial

of the appellant’s request for funds for a fingerprint expert was harmless beyond a

reasonable doubt. See id. The denial of the appellant’s request, therefore, does

not provide a basis to overturn the appellant’s conviction.

      B. The Texas Records Evidence

      During the appellant’s case, he attempted to place into evidence an

identification card issued by the state of Texas to Andre Strauss and bearing the

appellant’s photograph, as well as the file maintained by Texas in connection with

this identification card (collectively, the “Texas records”). The identification

card was discovered by Special Agent Wood during a search of the hotel room in


      5
       The president of the WSA conceded that the fingerprint is not compared to
any exemplars to ascertain the applicant’s true identity prior to issuing the
requested document.

                                          -9-
which the appellant was staying at the time of his arrest in Washington. The

district court denied the admission of the Texas records unless the appellant

called Agent Wood to establish a foundation for the evidence. The court also

rejected the appellant’s contention that these documents were admissible as public

records. Understanding that if Agent Wood were called to testify the government

would elicit from him further testimony that he found additional documents in the

hotel room in the name of Mark Charles Thomas, the appellant never called Wood

in an attempt to admit the Texas records. On appeal, the appellant argues the

district court’s refusal to admit these documents was erroneous. This court

reviews for abuse of discretion a trial court’s ruling on the admissibility of

evidence. See Hanzlicek, 187 F.3d at 1236.

      Even if the Texas records are self-authenticating pursuant to Federal Rule

of Evidence 902, the documents contain hearsay statements which can only be

admitted if they fall within a recognized hearsay exception. The appellant was

offering the Texas records precisely for the truth of the matter allegedly asserted

by the state of Texas within those documents, i.e., that the person whose

photograph is on the identification card is Andre Strauss. See Fed. R. Evid.

801(c). The appellant contends the Texas records are nonetheless admissible

because they qualify as public records under the public records exception to the

hearsay rule. See Fed. R. Evid. 803(8). Under that exception, however, a district


                                         -10-
court may refuse to admit hearsay statements in a public record if “the sources of

information or other circumstances indicate lack of trustworthiness.” Id. In the

instant case, the district court had no way to ascertain whether the State of Texas

undertook any steps to determine whether the person in the photograph on the

identification card is, in fact, Andre Strauss; no Texas official testified to the

process through which a person can obtain this type of identification card, nor do

the Texas records suggest anything about that process. It is thus entirely possible

that Texas issued the card purely on the appellant’s own assertion that he is Andre

Strauss. Moreover, the Texas records do reveal that although Texas issued the

appellant the identification card, it later rejected his application for a driver’s

license because he failed to provide a social security number, a further indicator

of the lack of trustworthiness inherent in the proferred hearsay statement.

Because the circumstances surrounding the Texas records indicate the hearsay

statements contained within lack trustworthiness, the district court did not abuse

its discretion in refusing to admit these documents into evidence.

      C. Right to Counsel at Sentencing

      After the appellant was convicted but several weeks prior to his scheduled

sentencing hearing, he moved to withdraw as his own counsel and have the court

appoint an attorney to represent him at sentencing. The appellant contended the

federal sentencing guidelines were sufficiently complicated to require


                                          -11-
representation by an attorney. On the day of sentencing, the district court denied

that motion. The appellant argues the district court’s denial of his request for

counsel at sentencing violated the Sixth Amendment. See Gardner v. Florida,

430 U.S. 349, 358 (1977) (noting that a criminal appellant retains the Sixth

Amendment right to counsel during sentencing); United States v. Taylor, 933 F.2d

307, 311 (5th Cir. 1991) (holding that a appellant who waived the right to counsel

at trial does not thereby lose the ability to assert that right at sentencing). The

government concedes that the district court’s denial of the appellant’s request for

counsel constitutes a structural violation of the Sixth Amendment, requiring

remand for resentencing. This court therefore vacates the sentence imposed and

remands for resentencing.



III. CONCLUSION

      The district court’s denial of the appellant’s request for funds to hire a

fingerprint expert, even if erroneous, was not sufficiently harmful to require

reversal. Furthermore, the district court did not err in refusing to accept into

evidence the Texas documents. The conviction entered in the United States

District Court for the District of Colorado is thus hereby AFFIRMED. Because

the district court denied the appellant’s request for counsel at sentencing,




                                          -12-
however, this court VACATES the sentence imposed and REMANDS for further

sentencing proceedings consistent with this opinion.

                                              ENTERED FOR THE COURT:



                                              Michael R. Murphy
                                              Circuit Judge




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