     Case: 13-40612   Document: 00512654785      Page: 1   Date Filed: 06/06/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                 No. 13-40612                           FILED
                                                                     June 6, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                            Plaintiff-Appellee

v.

JOHNNY LEE DAVIS,

                                            Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Johnny Lee Davis was convicted following a bench trial of passing an
altered obligation of the United States with intent to defraud and was
sentenced to a 34-month term of imprisonment. See 18 U.S.C. § 472. Davis
appeals, challenging his conviction and sentence. We AFFIRM.
                                       I.
      On July 25, 2012, a Grand Jury indicted Johnny Lee Davis with two
counts of knowingly passing counterfeit and altered obligations of the United
States with the intent to defraud. Count one alleged that Davis attempted to
pass a forged $100 bill on March 9, 2012, at a Taco Bell. Count two alleged that
Davis attempted to pass a forged $100 bill on April 11, 2012, at a Dollar Tree.
Davis waived his right to a jury trial, and the district court held a bench trial
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on October 17, 2012. The district court found Davis guilty on count two (the
Dollar Tree count) but acquitted him on count one (the Taco Bell count). The
court sentenced Davis to a 34-month term of imprisonment, a three-year term
of supervised release, and a $100 special assessment.
                                       II.
      Davis raises five issues on appeal. Davis argues that his trial was
defective because (1) the district court erred by admitting into evidence the
counterfeit $100 bill passed to a Dollar Tree employee on April 11, 2012, (2)
the district court erred by allowing in-court identification testimony of three
Dollar Tree employees, and (3) the district court erred by compelling Davis to
stand trial in handcuffs and shackles. Davis further argues that his sentence
is defective because (4) the district court erred by imposing a two-level
enhancement      pursuant    to    United    States    Sentencing     Guidelines
§ 2B5.1(b)(2)(A) and § 2B5.1(b)(3) for manufacturing or producing a counterfeit
obligation or possessing or having custody of or control over a counterfeiting
device or materials, and (5) the imposition of the enhancements violated
Alleyne v. United States, 133 S. Ct. 2151 (2013).
                                       1.
      Davis first challenges admission of a counterfeit $100 bill that the
district court admitted into evidence on the ground that the Government had
not made “a prima facie showing of authenticity.” Neither at a pretrial
conference nor during trial did Davis object to the admission of this evidence.
Because Davis did not preserve this issue in the district court, review is for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). To establish
plain error, Davis must show a clear or obvious forfeited error affecting his
substantial rights. See id. If he makes such a showing, this court has the




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discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
        “The standard for authentication is not a burdensome one.” United
States v. Jackson, 636 F.3d 687, 692–93 (5th Cir. 2011); see Fed. R. Evid. 901(a)
(“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.”).
        The authenticity of the evidence was supported by sufficient evidence at
trial. Amanda Marie Garcia, a former employee of the Dollar Tree, identified
the Government’s exhibit 2 as the bill that Davis gave to her on April 11, 2012.
Moreover the trial proof demonstrated that Garcia gave the bill to Antonia
Mora, the Dollar Tree’s assistant store manager, and Mora gave it to
Evangelina Hernandez, the store manager. Hernandez gave the bill to Corpus
Christi Police Officer Jose Vela, who logged the evidence into the property
control room. Special Agent Daniel Morales testified that Officer Colby Burris
gave him both bills, Government’s exhibits 1 and 2, and that he (Morales) was
present when the evidence was removed from the evidence vault at the Corpus
Christi Police Department. Morales signed for the property transfer on May 2,
2012.
        This evidence was more than sufficient to support a finding that
Government’s exhibit 2 was the bill that was passed to the Dollar Tree
employee on April 11, 2012. 1 Accordingly, Davis has not demonstrated error,


        1 Officer Colby Burris of the Corpus Christi Police Department testified that on May
2, 2012, at Special Agent Morales’s request, he called Diego Rivera (a crime scene
investigator), who was processing the bill, to advise him that Morales was coming to retrieve
the bill. To the extent that Davis is arguing that the evidence lacked authenticity because
there was an interruption or “contamination” in the processing of the bill for fingerprints, he
has cited no authority in support of his argument and thus cannot demonstrate plain error
by the district court in admitting the evidence. See United States v. Evans, 587 F.3d 667, 671
(5th Cir. 2009); see also Puckett, 556 U.S. at 135.


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plain or otherwise, with respect to his challenge to the district court’s
admission of the counterfeit $100 bill into evidence.
                                             2.
       Next, Davis argues that the district court erred by allowing the
prosecution to present an in-court identification based on an out-of-court
identification procedure that he claims was unnecessarily suggestive. The
question whether identification evidence and its fruits are admissible is a
mixed question of law and fact, which generally is reviewed de novo. United
States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000). This court reviews the
district court’s underlying factual findings for clear error. Id. Davis, however,
did not argue in the district court that the in-court identifications violated due
process because the pretrial photographic lineups were impermissibly
suggestive; nor did he challenge the pretrial photographic identification
procedures or the admissibility of the exhibits depicting the three photographic
lineups. Thus, review is limited to plain error. See, e.g., United States v. Rogers,
126 F.3d 655, 657 (5th Cir. 1997); see also United States v. Sanchez, 988 F.2d
1384, 1389 (5th Cir. 1993) (reviewing challenge to photographic lineup raised
for the first time on appeal for plain error). 2
       A conviction based on an eyewitness identification at trial following a
pretrial photographic identification must be set aside “‘only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.’” Honer, 225 F.3d
at 552 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). We apply


       2 We have recognized that “a defendant who fails to make a timely suppression motion
cannot raise that claim for the first time on appeal, and also that failure to raise specific
issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues
or arguments for appeal.” United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010)
(internal quotation marks omitted). Even so, “our cases identifying such waiver have often
proceeded to evaluate the issues under a plain error standard for good measure.” Id.


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a two-prong test to determine whether to exclude an in-court identification.
Honer, 225 F.3d at 552. First, this court asks whether the photographic lineup
is impermissibly suggestive; if it was not, the inquiry ends. Id. If the
photographic lineup was impermissibly suggestive, we ask whether
considering the totality of circumstances, the photographic display posed a
very substantial likelihood of irreparable misidentification. Id. at 552–53. This
court must determine whether the in-court identification was reliable,
notwithstanding the impermissibly suggestive pretrial photographic lineup.
Id. In determining whether an in-court identification was reliable, this court
considers such factors as: the opportunity of the witness to view the criminal
at the time of the crime; the witness’s degree of attention; the accuracy of the
witness’s prior description of the criminal; the level of certainty demonstrated
by the witness at the confrontation; and the length of time between the crime
and the confrontation. Id.
      Even assuming that the photographic lineups were impermissibly
suggestive, based on the totality of the circumstances, there was no substantial
likelihood of irreparable misidentification by Mora and Hernandez. See id.
Mora and Hernandez identified Davis at trial. According to Hernandez, on the
day of the incident, she viewed Davis for three to five minutes from her office
and could see his face for about two minutes. She viewed a photographic lineup
on April 30, 2012, and less than a minute later, she identified Davis as the
person passing the counterfeit bill. Similarly, Mora viewed the photographic
lineup on April 27, 2012. She testified that on the day of the incident, she was
“face to face” with the person who passed the bill and got a very good look at
him. She also did not have to look at the lineup for very long before identifying
Davis because she remembered “that guy’s face.”




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       It is a closer question whether, based on the totality of the circumstances,
there was a substantial likelihood of irreparable misidentification by Garcia,
the Dollar Tree cashier. See id. Garcia admitted that she just glanced at the
individual who passed her the bill and that there was a considerable length of
time between the incident and the viewing of the photographic lineup. 3 But
even if, based on the totality of the circumstances, there exists a substantial
likelihood of irreparable misidentification by Garcia, to establish plain error,
Davis must show not only a clear or obvious error but also that such error
affected his substantial rights. See Puckett, 556 U.S. at 135. Mora and
Hernandez both identified Davis at trial and each viewed the photographic
lineups within weeks of the incident, quickly identifying Davis as the
individual who passed the bill. Hernandez viewed Davis for three to five
minutes from her office and could see his face for about two minutes. Moreover,
Mora was “face to face” with the person who passed the bill and got a very good
look at him. In the light of the testimony of Mora and Hernandez, Davis cannot
demonstrate that his substantial rights were affected as a result of Garcia’s in-
court identification. See Sanchez, 988 F.2d at 1389; Puckett, 556 U.S. at 135.
Accordingly, Davis has not demonstrated plain error regarding the in-court
identifications of the witnesses at trial. See Sanchez, 988 F.2d at 1389.
                                              3.
       Davis next argues that the district court erred by having Davis
handcuffed and shackled at trial. Davis did not object at any time during the
October 2012 bench trial to being handcuffed and shackled. 4 Because Davis did


       3 Garcia did, however, testify that she “noticed his face” and “just looked at his face”
when the suspect passed her the bill.
       4 Rather, the only time he objected was at the conclusion of his May 2013 sentencing;

although represented by counsel, Davis, pro se, objected to, inter alia, “the violation of [his]
Sixth amendment right by leaving [him] in shackles and chains during [his] trial in front of
witnesses.” The district court overruled the objection.


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not object during the bench trial to the requirement that he stand trial
handcuffed and shackled, our review is limited to plain error. See United States
v. Banegas, 600 F.3d 342, 346 (5th Cir. 2010) (noting that a due process claim
based on shackling is preserved when the defendant “afforded the district court
an adequate opportunity to explore the issue”); see also United States v. Morin,
627 F.3d 985, 994 (5th Cir. 2010); Puckett, 556 U.S. at 135. To the extent that
Davis argues that his bench trial was rendered fundamentally unfair because
he was handcuffed during the testimony of a witness, see Deck v. Missouri, 544
U.S. 622, 629 (2007), Davis has not demonstrated error, plain or otherwise. See
United States v. Joseph, 333 F.3d 587, 590–91 (5th Cir. 2003).
      Indeed, Davis provides no authority for the proposition that Deck should
be extended to bench trials—a first flaw on plain error review. See Evans, 587
F.3d at 671 (“We ordinarily do not find plain error when we have not previously
addressed an issue.” (internal quotation marks omitted)). But even assuming
Deck’s application, the record demonstrates circumstances making it, in
Davis’s words, “apparent that shackling is justified.” See, e.g., Banegas, 600
F.3d at 346 (analyzing a similar claim and noting that “[t]he record is likewise
void of any indication that Banegas posed a danger to anyone in the
courtroom”); United States v. Robinson, 318 F. App’x 280, 285 (5th Cir. 2009)
(“But the district court must state the reasons for which it has chosen to
shackle the defendant on the record outside of the presence of the jury or
exceptional circumstances justifying shackling must be apparent on the
record.”). Special Agent Morales testified, for instance, that Davis had
threatened witnesses in previous cases and “threatened to kill the witnesses
in this case, too.” Moreover, at sentencing the district judge was informed that
Davis was “one of the prime suspects in the murder of Jenna Hernandez, a 16-
year-old.” Cf. Deck, 544 U.S. at 635 (“If there is an exceptional case where the



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record itself makes clear that there are indisputably good reasons for
shackling, it is not this one.”).
                                         4.
      Davis next challenges the district court’s imposition of a two-level
enhancement       pursuant     to    United   States     Sentencing     Guidelines
§ 2B5.1(b)(2)(A) for manufacturing or producing a counterfeit obligation or
possessing or having custody of or control over a counterfeiting device or
materials. He further challenges the district court’s enhancement of his base
offense level to 15 pursuant to § 2B5.1(b)(3). Section 2B5.1(b)(2)(A) provides
for a two-level increase if the defendant “manufactured or produced any
counterfeit obligation or security of the United States, or possessed or had
custody of or control over a counterfeiting device or materials used for
counterfeiting.” The commentary explains “counterfeit” means “an instrument
that has been falsely made, manufactured, or altered” and includes “a genuine
instrument that has been falsely altered (such as a genuine $5 bill that has
been altered to appear to be a genuine $100 bill).” U.S.S.G § 2B5.1, cmt. n.1.
Section 2B5.1(b)(3) provides that “[i]f subsection (b)(2)(A) applies, and the
offense level determined under that subsection is less than level 15, increase
to level 15.” Davis contends that the district court clearly erred in applying the
enhancements because there was a lack of evidence connecting him to
counterfeiting money.
      We review the district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A factual finding is not
clearly erroneous if it “is plausible in light of the record as a whole.” United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).




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      On Davis’s request, the district court conducted an evidentiary hearing
to receive evidence pertaining to Davis’s objection to the enhancements to his
base offense level to level 15. Kyle Rhodes of the Aransas Pass Police
Department testified that a confidential informant told him that John David
Johnson, Davis’s nephew, was in possession of some computer equipment that
Davis had used for counterfeiting money. Rhodes confiscated the equipment
from Johnson’s trailer and turned it over to Agent Morales. Johnson told
Rhodes that Davis gave him the equipment to hold for him (Davis), but
Johnson did not tell Rhodes that Davis had used the equipment for
counterfeiting—a confidential informant told Rhodes that information.
      Leo Martinez of the Aransas Pass Police Department testified that
Johnson told him that Davis had given him the equipment “to put it up where
the police wouldn’t find it or law enforcement couldn’t find it.” Johnson
testified, however, that Davis did not give him any equipment that he said he
had used for counterfeiting money; that he never had any computer equipment
obtained from Davis; that he had never turned over any such equipment to
Rhodes; and that he had never discussed the equipment with Martinez.
      Agent Morales testified that the equipment he received from the Aransas
Pass Police Department that came from Davis’s nephew consisted of “an all-in-
one scanner, copier, printer and a regular printer and then a CPU that didn’t
have a hard drive in it.” He could not determine from examining the equipment
whether it had been used for counterfeiting but testified that the equipment
was the type used for counterfeiting.
      Kimberly Longbine testified at sentencing that while Davis was living
with her, she had given Davis $5 dollar bills and he emerged from his room
with $100 bills. Further, she testified that although she did not see Davis
printing the $100 bills, she did see him wipe the ink off of the $5 bills using



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Easy-Off oven cleaner with make-up sponges. She testified that the computer
equipment that was seized by the Aransas Pass Police Department was not the
same computer equipment that was at her house. She had returned the printer
that Davis had at her house to Wal-Mart.
      After hearing the testimony of the various witnesses as well as argument
from counsel, the court overruled Davis’s objection to the enhancements. The
court observed that there had been conflicting testimony regarding the seized
computer equipment and that Longbine testified regarding different
equipment than that which was seized. The court stated that its decision was
based on the preponderance of the evidence and that it had weighed the
evidence and the credibility of the witnesses. In response to Davis’s argument
that the enhancements should not apply in light of the conflicting testimony,
the court summarized: “So, basically, you want me to just totally disregard
[Longbine’s] testimony?” The district court decided to credit the testimony
connecting Davis to counterfeiting, and Davis has not shown that the district
court’s credibility determinations were clearly erroneous. See United States v.
Ocana, 204 F.3d 585, 593 (5th Cir. 2000). Such “determinations in sentencing
hearings are peculiarly within the province of the trier-of-fact.” United States
v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (internal quotation marks omitted).
      Accordingly, the district court’s determination that Davis had
manufactured or produced a counterfeit obligation or possessed or had control
over a counterfeiting device or materials for purposes of applying the
enhancements was plausible in the light of the record as a whole and, thus, not
clearly erroneous. See Caldwell, 448 F.3d at 290; U.S.S.G. § 2B5.1(b)(2)(A)
(applying if the defendant “manufactured or produced any counterfeit
obligation or security of the United States, or possessed or had custody of or
control over a counterfeiting device or materials used for counterfeiting”);



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U.S.S.G. § 2B5.1(b)(3) (providing that “[i]f subsection (b)(2)(A) applies, and the
offense level determined under that subsection is less than level 15, increase
to level 15”).
                                        5.
      Lastly, Davis challenges for the first time on appeal his indictment and
sentence as violating the rule set forth in Alleyne v. United States, 133 S. Ct.
2151 (2013). Alleyne is inapposite because there was no statutory mandatory
minimum in Davis’s case. See Alleyne, 133 S. Ct. at 2155. Davis has shown no
error, plain or otherwise. See Puckett, 556 U.S. at 135.
                                       III.
      For the above stated reasons, we AFFIRM.




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