FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 19, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15104

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 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. 
 Dumonde asserts, admittedly for the first time on appeal, that the government committed 1

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

________________________

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. Dumonde also asserts that the district court 1

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. 
 On appeal, the government argues that we lack jurisdiction over the arguments raised in 2

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). 

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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. Dumonde also 2

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. 
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“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
5

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
6

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
7

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
8

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)
9

(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).
10

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
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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.