Case: 14-10733   Date Filed: 07/02/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10733
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:12-cr-60251-KMW-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

LEE ERVIN DALE,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                              (July 2, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
                 Case: 14-10733       Date Filed: 07/02/2015        Page: 2 of 6


       Lee Ervin Dale appeals his convictions on two counts of theft of public

money, in violation of 18 U.S.C. § 641; six counts of filing false claims with the

government, in violation of 18 U.S.C. § 287; and two counts of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Dale argues that the

district court erred in admitting at trial the testimony of a handwriting expert, Jason

Miller, and a fingerprint expert, James Snaidauf. He also contends that the court

erred by denying his pro se motion for a new trial and by declining to reinstate the

motion and allow him to proceed pro se after the case had been appealed.

       However, after review of the parties’ briefs and the record on appeal, we

conclude that Dale’s arguments are without merit. Both experts were qualified,

used scientifically reliable methodology, and provided testimony that was helpful

to the jury. Additionally, we do not find that the district court abused its discretion

by declining to grant Dale’s pro se motion for a new trial and subsequently

declining to reinstate the motion, which he filed while represented by counsel.

Thus, we affirm the district court.

                                                I.

       We review “the district court’s decisions regarding the admissibility of

expert testimony and the reliability of an expert opinion” for abuse of discretion. 1


       1
         The government avers we should review the district court’s decisions for plain error,
since Dale did not object to the introduction of Snaidauf’s testimony at trial and did not preserve
his objection to the introduction of Miller’s testimony, whereas Dale asserts that abuse-of-
                                                 2
                Case: 14-10733      Date Filed: 07/02/2015      Page: 3 of 6


United States v. Frazier, 

, 1258 (11th Cir. 2004) (en banc). Rule

702 of the Federal Rules of Evidence controls the admission of expert testimony,

and the factors listed in Daubert v. Merrell Dow Pharms., Inc., 

, 

(1993), may also be used to assess the relevance and reliability of

expert testimony.

       Dale first argues that the court abused its discretion in admitting the

testimony of Snaidauf, the fingerprint expert. Dale does not dispute that Snaidauf

was properly qualified or that his testimony assisted the jury; instead, he argues

that the government failed to show that fingerprint evidence is scientifically

reliable. However, we have held that fingerprint analysis utilizes scientifically

reliable methodology, and Dale cites to no binding authority holding that the

methodology applied in this case was scientifically unreliable. See United States v.

Abreu, 

, 1307 (11th Cir. 2005) (per curiam) (fingerprint evidence is

reliable scientific evidence, satisfying the Daubert criteria for admissibility). Thus,

the district court did not abuse its discretion by admitting Snaidauf’s testimony.

       Nor did the district court did abuse its discretion in admitting the testimony

of Miller, the handwriting expert. Although Dale appears to argue that Miller was

not qualified to testify as an expert in handwriting analysis, the record belies such a



discretion review applies. However, we need not reach the question of what standard of review
to apply because, as discussed below, Dale’s evidentiary arguments fail even under the less
deferential abuse-of-discretion standard.
                                              3
              Case: 14-10733     Date Filed: 07/02/2015    Page: 4 of 6


contention. Miller was properly qualified as an expert: he had been a forensic

document examiner with the IRS for over ten years; he was certified with the

American Board of Forensic Document Examiners; he had examined

approximately 100,000 documents in his career; and he had twice previously been

qualified as an expert in document examination in federal court. Further, Dale’s

assertion that handwriting analysis is not reliable scientific evidence is without

merit and has been squarely foreclosed by this court’s precedent. See United

States v. Paul, 

, 909–10 & n.2 (11th Cir. 1999) (finding that the

argument that “handwriting analysis does not qualify as reliable scientific

evidence” is meritless).

      Finally, Miller’s testimony was helpful to the jury in understanding how

handwriting samples are compared and any danger of unfair prejudice from

misleading the jury was mitigated by the fact that the jury was shown the

handwriting, through the use of demonstrative aids, and was free to compare the

handwriting for itself. See 

(an expert’s testimony is

helpful to the trier of fact if the testimony “concerns matters that are beyond the

understanding of the average lay person”). In sum, because Miller was qualified to

testify, handwriting analysis is a scientifically reliable methodology, and Miller’s




                                          4
                 Case: 14-10733        Date Filed: 07/02/2015         Page: 5 of 6


testimony was helpful to the jury, the court did not abuse its discretion in admitting

Miller’s testimony. 2

                                                II.

       A district court’s denial of a motion for a new trial receives abuse-of-

discretion review. United States v. Pendergraft, 

, 1204 (11th Cir.

2002). We have held that “the right to counsel and the right to proceed pro se exist

in the alternative.” United States v. LaChance, 

, 1498 (11th Cir.

1987). The district court may allow a defendant to proceed with “hybrid

representation”; however, this decision “rests in the sound discretion of the trial

court.” 

district court did not abuse its discretion in denying Dale’s pro se

motion, filed while he was represented, as the Southern District of Florida’s local

rules prohibited Dale from representing himself while he was represented by

counsel. See S.D. Fla. L.R. 11.1(d)(4) (“Whenever a party has appeared by

attorney, the party cannot thereafter appear or act on the party’s own behalf . . .

unless an order of substitution shall first have been made by the [c]ourt . . . .”).


       2
          Dale also argues, albeit primarily in his reply brief, that the evidence was insufficient to
convict him of aggravated identity theft. To the extent this argument is even before us, given
that it was not clearly raised in his opening brief, see United States v. Levy, 

, 1244
(11th Cir. 2004) (per curiam) (arguments not raised in initial brief are waived on appeal), it is
substantially premised on the allegedly improper admission of the expert witness testimony—
absent which Dale avers there was insufficient evidence to convict him. Since we determine for
the above-stated reasons that the district court properly admitted this evidence, Dale’s
insufficiency argument is unpersuasive.
                                                  5
               Case: 14-10733    Date Filed: 07/02/2015    Page: 6 of 6


Dale refused to proceed pro se and the court advised him to discuss with his

counsel the possibility of filing a motion for a new trial. However, none of Dale’s

attorneys would file a motion for a new trial on his behalf, and Dale never

requested to proceed pro se or with hybrid representation during the nearly one

year between his conviction at trial and his sentencing. The district court also did

not abuse its discretion in declining to reinstate Dale’s pro se motion after Dale had

already appealed to this court. Dale’s motion was improper as originally filed,

and, although Dale had ample opportunity to file a proper motion for a new trial

before his appeal, he did not avail himself of the opportunity to file a proper

motion for a new trial in the time between his conviction and his sentencing.

                                         III.

       Upon review of the record and consideration of the parties’ briefs, we affirm

the district court.

       AFFIRMED.




                                          6