* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

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

ORDER AND JUDGMENT *

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

I. INTRODUCTION AND BACKGROUND In 1996, Mark Charles Thomas was arrested and indic ted 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 was1 Because the appellant contends this is a case of mi staken identity, for sake

of clarity, this court will refer to him as “the ap pellant” rather than “Thomas.” -2- 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 o ne 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 Andr e Strauss, not Mark Charles Thomas. Nonetheless, a jury convicted the appellan t 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 co nviction. [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 appel lant must be resentenced because the district court denied his request for a n attorney at sentencing. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, this court affirms the conviction but remands for resentencing.-3-

II. DISCUSSION A. The Denial of a Fingerprint Expert Three days prior to trial, the appellant filed a mo tion requesting that the court provide him funds to retain a fingerprint exp ert. 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 exte nsive identity evidence, which included comparative fingerprint evidence and relat ed expert testimony, the district court denied the appellant’s motion to rec eive funds to hire a fingerprint expert. At trial, the government placed into evide nce fingerprints taken from Mark Charles Thomas the day he was arrested in 1996 for credit card fraud and fingerprints taken from Thomas upon his incarcerati on at the Prison Camp. The government’s fingerprint expert then testified thatthose two sets of prints matched prints taken from the appellant after he wa s apprehended in Washington state. The appellant now challenges the district c ourt’s ruling denying him funds to obtain his own fingerprint expert. This court need not resolve whether the district co urt’s denial of the appellant’s request for funds was erroneous, becaus e even if it was, the error was not sufficiently harmful to require reversal of the appellant’s conviction. Thomas2 The Criminal Justice Act (“CJA”) provides, in part, Counsel for a person who is financially unable to o btain investigative, expert, or other services necessary for adequate representation may request them in an ex p arte application. Upon finding, after appropriate inqui ry in an ex parte proceeding, that the services are neces sary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain s ervices. 18 U.S.C. § 3006A(e)(1).

3 Thomas contends this constitutional right flows fro m both the Fifth and Sixth Amendments. -4- 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 cons titutional. 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 subs tantial 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 constitution al right, however, this court generally must reverse the conviction unless we con clude 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).-5-

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 appell ant’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 i s not entitled absent some threshold showing [cannot] fairly be defined a s basic to the structure of a constitutional trial.” Id . (quotation omitted). Although no court has ever decided when a criminal appellant is constitutionally entit led to the services of a fingerprint expert, such a right is akin to the rig ht to the assistance of a mental health expert announced in Ake . A appellant’s constitutional right to a fingerpr int expert thus only arises upon a threshold showing th at 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 mak es a threshold showing that his mental condition at the time of the offens e is likely to be a significant factor at trial, the government must provide the ap pellant 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-6-

amount to structural error; the ruling, if error, i s 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 statuto ry right, or perhaps both, because even under the harmless error standard applicable t o non-structural constitutional deprivations, the conviction can be affirmed. Both parties recognize that it is difficult in this case to measure the harm resultin g 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 fing erprint evidence or how that defense expert would have assisted the appellant indeveloping a crossexamination of the government’s expert. Even assum ing, 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 consti tutional right to cross-examine a witness for bias, the proper inquiry is “whether, assuming that the damaging potential of the cross-examination were fully reali zed, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt”).-7-

At trial, the government presented substantial iden tity evidence apart from the fingerprint evidence. Four separate witnesses unequivocally identified the appellant as the Mark Charles Thomas incarcerated i n 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 sam e person who later was indicted, who pleaded guilty, and who was sentencedfor 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 per son. Anne Cummins, a case manager at the Prison Camp who testified she had co ntact with Mark Charles Thomas several times a week at the Prison Camp, stated she was “absolutely positive” the appellant was Thomas. Cummins elabor ated on her identification: “My recollection is that Mark Charles Thomas lookedexactly like the appellant standing before me, and spoke and walked much like, if not exactly like, the appellant before me.” Finally, Marino Tejera, a co rrectional 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 Tejer a, he looked at a photograph of Thomas and remembered that he had spoken with Thoma s just a few days earlier.4 According to the testimony of the president of the World Service

Authority, the WSA is a non-profit organization that promotes the “right to freedom of movement.” -8- In addition, the government produced two photograph s of Thomas, one taken upon Thomas’ arrest in 1996 and the other tak en 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. Mi chael Cate, the police officer who arrested the appellant in Bellevue, Was hington, testified that the appellant initially identified himself as Michael C oiffure and only later gave Andre Strauss as his name. After the appellant eli cited 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 bo x 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 th e name of Jack White. The government also placed into evidence a second passp ort 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 gove rnment elicited testimony from5 The president of the WSA conceded that the fingerpr int is not compared to

any exemplars to ascertain the applicant’s true ide ntity prior to issuing the requested document. -9- the President of the WSA that anyone who mails a co mpleted application, a photograph, a fingerprint, 5 and the required monetary fee can obtain these documents. In sum, the government presented overwhelming evide nce, apart from the fingerprint evidence, that the appellant is the sam e Mark Charles Thomas who escaped his incarceration at the Prison Camp in Mayof 1997. Because the prosecution’s case was so strong and the fingerprint evidence was not that important to prove the appellant’s identity, in lig ht 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 fingerpr int 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 con viction.
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 maintai ned 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-10-

which the appellant was staying at the time of his arrest in Washington. The district court denied the admission of the Texas re cords unless the appellant called Agent Wood to establish a foundation for the evidence. The court also rejected the appellant’s contention that these docu ments were admissible as public records. Understanding that if Agent Wood were cal led to testify the government would elicit from him further testimony that he fou nd 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 appea l, the appellant argues the district court’s refusal to admit these documents w as erroneous. This court reviews for abuse of discretion a trial court’s rul ing on the admissibility of evidence. See Hanzlicek, 187 F.3d at 1236. Even if the Texas records are self-authenticating p ursuant to Federal Rule of Evidence 902, the documents contain hearsay stat ements which can only be admitted if they fall within a recognized hearsay e xception. 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 S trauss. See Fed. R. Evid. 801(c). The appellant contends the Texas records a re nonetheless admissible because they qualify as public records under the pu blic records exception to the hearsay rule. See Fed. R. Evid. 803(8). Under that exception, howeve r, a district-11-

court may refuse to admit hearsay statements in a p ublic 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 asce rtain whether the State of Texas undertook any steps to determine whether the personin 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 proce ss. 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 rejecte d his application for a driver’s license because he failed to provide a social secur ity number, a further indicator of the lack of trustworthiness inherent in the prof erred hearsay statement. Because the circumstances surrounding the Texas rec ords 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 owncounsel and have the court appoint an attorney to represent him at sentencing. The appellant contended the federal sentencing guidelines were sufficiently complicated to require-12-

representation by an attorney. On the day of sente ncing, the district court denied that motion. The appellant argues the district cou rt’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 ap pellant 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 denia l of the appellant’s request for counsel constitutes a structural violation of the S ixth 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 requ est for funds to hire a fingerprint expert, even if erroneous, was not suff iciently harmful to require reversal. Furthermore, the district court did not err in refusing to accept into evidence the Texas documents. The conviction enter ed in the United States District Court for the District of Colorado is thus hereby AFFIRMED . Because the district court denied the appellant’s request f or counsel at sentencing,-13-

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