UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5654

WATSON JAMES TOLBERT, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-95-232)

Argued: June 6, 1996

Decided: August 26, 1996

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Benjamin Thomas Stepp, Assistant Federal Public
Defender, Greenville, South Carolina, for Appellant. William Corley
Lucius, Assistant United States Attorney, Greenville, South Carolina,
for Appellee. ON BRIEF: J. Preston Strom, Jr., United States Attor-
ney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Watson James Tolbert, Jr., appeals his convictions on two counts
of credit card fraud. Tolbert also appeals the district court's sentenc-
ing order that he pay restitution to the victim of the fraud. We affirm.

I.

Victory Express Trucking Co., Inc., and Emro Marketing Co.
entered into an agreement whereby Victory's drivers were permitted
to purchase diesel fuel on credit from Emro's chain of Speedway ser-
vice stations. Emro issued a number of credit cards for Victory's use,
and it had its stations retain them on their premises. To fuel his truck
at a Speedway station, a Victory driver needed only to give the atten-
dant his name and his vehicle and license plate numbers. The driver
completed the transaction by signing a credit slip.

James McKinney, who had worked for Victory for about a month
in 1990, struck a deal with Tolbert, who owns a small trucking com-
pany, to fill Tolbert's trucks at Speedway stations in Spartanburg and
Blacksburg, South Carolina. On numerous occasions in 1990-91, and
again in 1993-94, McKinney posed as a Victory employee, giving
false information to the station attendants and signing aliases to the
credit slips so that Tolbert's trucks could be refueled at Victory's
expense. The typical transaction involved $200-$350 worth of diesel
fuel; Tolbert generally paid McKinney $65-$100 per fill-up. By the
time the scheme was discovered, Victory had paid approximately
$11,500 for fuel that it had not obtained.

McKinney and Tolbert were each indicted on two counts of using
unauthorized access devices with the intent to defraud.1 McKinney
_________________________________________________________________
1 See 18 U.S.C. § 1029, prescribing a fine and/or imprisonment for any-
one who, inter alia, "knowingly and with intent to defraud traffics in or

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pled guilty to one count in exchange for dismissal of the other; after-
ward, he agreed to testify against Tolbert. The jury found Tolbert
guilty of both counts. The district court sentenced Tolbert to 18
months' imprisonment, and it ordered him to pay partial restitution to
Victory. Tolbert appeals.

II.

At the time of trial, there was an unresolved state charge against
McKinney for illegally possessing a pistol. Tolbert's counsel moved
in limine for permission to question McKinney about the charge; the
defense hoped to show that McKinney, who had a criminal record,
was susceptible to being prosecuted by the federal authorities under
18 U.S.C. § 922(g)(1),2 and was thus inclined to fabricate testimony
favorable to the government. The district court denied the motion,
stating that the link between the state charge and the possibility of
federal prosecution was "too tenuous," and, thus, the probative value
of the inquiry would be outweighed by its prejudicial effect.3 Tolbert
contends that the court's ruling was an abuse of its discretion, imping-
ing on his Sixth Amendment right to confront the witnesses against
him.

In United States v. Tindle, 

(4th Cir. 1987), a govern-
ment witness testified pursuant to a plea agreement that specifically
prohibited the government from prosecuting the witness for any
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uses one or more unauthorized access devices during any one-year
period, and by such conduct obtains anything of value aggregating $1000
or more during that period[.]" 18 U.S.C.A.§ 1029(a)(2) (West Supp.
1996). The separate charges in the indictment reflect the thirty-one
month hiatus between the similar courses of conduct.
2 The statute provides, in pertinent part, that "[i]t shall be unlawful for
any person . . . who has been convicted in any court of[ ] a crime punish-
able by imprisonment of a term exceeding one year . . . [to] possess in
or affecting commerce, any firearm or ammunition[.]" 18 U.S.C.A.
§ 922(g) and (1) (West Supp. 1996).
3 See Fed. R. Evid. 403 ("Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of undue
prejudice. . . .").

                    3
crimes related to his involvement with the defendant's heroin distri-
bution ring. At the time, the witness had already pled guilty to several
drug-related charges in state court that could have formed the basis
of a subsequent federal prosecution; the disposition of those charges
in a manner favorable to the witness was predicated on his full coop-
eration with the government. Although the district court permitted the
witness to be cross-examined concerning the unresolved charges and
the nature of the plea agreement, it prohibited the defense from
attempting to show that his association with the defendant had ren-
dered him susceptible to being charged in federal court with engaging
in a continuing criminal enterprise -- a crime that, on conviction, car-
ries a potential life sentence without parole.4

We held that the district court did not abuse its discretion by limit-
ing the defense's inquiry into the witness's potential bias to questions
concerning the actual charges lodged against him, along with other,
unspecified items mentioned in the plea agreement. 

noted that the witness had been effectively impeached through the
revelation of his drug use and extensive criminal record, and that the
jury had been aware that he already faced a potential sentence in
excess of thirty years on the state charges. 

"[w]hile
it would not have been an abuse of discretion to allow questioning
regarding possible § 848 violations, it was not an abuse of discretion
to disallow such questioning." 

Tolbert's case differs somewhat from Tindle,
inasmuch as there was no evidence that McKinney's testimony was
being offered in exchange for any promises from the government. It
was, therefore, more difficult for the defense here to erode the wit-
ness's credibility, though the jury was told of McKinney's previous
convictions for robbery, theft, and burglary; it was also revealed to
the jury that McKinney had apparently lied on federal tax forms and
on his job application with Victory.

Regardless of the extent to which doubt was cast upon McKinney's
credibility, it remains that there is no more evidence in this case than
in Tindle to support an inference that the witness's failure to provide
testimony favorable to the government would result in his being
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4 See 21 U.S.C.A. § 848(a) (West Supp. 1996).

                    4
charged with a specific federal crime. Indeed, such an inference finds
much less support here, where the witness appears to have been free
to abstain from testifying without fear of reprisal. 5 We hold that the
district court's decision to curtail inquiry into what was, at best, a
speculative eventuality, was not an abuse of its discretion.

III.

At sentencing, the district court concluded that Tolbert was respon-
sible for $5,748 of Victory's loss, and it ordered him to pay $200 per
month restitution upon his release from prison. In support of its rul-
ing, the court stated only that "he has the ability to earn at least that
amount to make restitution once he is released." Although Tolbert did
not object at the time, he now maintains that the court's succinctness
contravened 18 U.S.C. § 3664(a), which provides that

          [t]he court, in determining whether to order restitution . . .
          and the amount of such restitution, shall consider the
          amount of the loss sustained by any victim as a result of the
          offense, the financial resources of the defendant, the finan-
          cial needs and earning ability of the defendant and the
          defendant's dependents, and such other factors as the court
          deems appropriate.

Sentencing courts are required to make specific findings of fact as
to each of the above factors, and the findings "must key a defendant's
financial resources, financial needs, and earning ability to the type
and amount of restitution." United States v. Molen, 

, 1086
(4th Cir. 1993), cert. denied, 

(1994). The court must
also "make a factual determination that the defendant can feasibly
comply with the order without undue hardship to himself or his
dependents." 

v. Bailey, 

,
1032 (4th Cir. 1992). The court may either make its own findings on
the record, or it may adopt the probation officer's findings, provided
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5 Though it plays no part in our decision, we note also that the prose-
cuting attorney represented to the district court that he had been unaware
of the pending state charge against McKinney until so informed by
defense counsel.

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that they are adequately detailed in the presentence report. 

The district court's single-sentence pronouncement in this case
cannot be construed to have complied with the basic requirements of
the statute or to have approached the minimum specificity contem-
plated by our case law. Had Tolbert preserved the point by making
a timely objection, we would be constrained to vacate the restitution
order. See, e.g., United States v. Blake, 

, 505 (4th Cir.
1996) ("As this court has previously admonished, failure to make the
required findings necessitates remand.") (citations omitted). Because
no such objection was made, we review only for plain error. See Fed.
R. Crim. P. 52(b).7

A defendant is entitled to a remedy under Rule 52(b) if he can
demonstrate (1) that his proceedings were infected with an error; (2)
that was plain, or otherwise clear or obvious; (3) that affected his sub-
stantial rights -- meaning, in the typical case, that he must have been
prejudiced in some way; and (4) that "seriously affects the fairness,
integrity or public reputation of judicial proceedings," such that an
appellate court should exercise its discretion to correct it. See United
States v. Olano, 

, 732-36 (1993).

In United States v. Castner, 

(4th Cir. 1995), we
reviewed an order of restitution for plain error. The district court in
that case, as here, had adopted the findings of fact contained in each
defendant's PSR, see note 

, and we concluded that those
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6 In ruling on Tolbert's stated objections to the probation officer's find-
ings, the district court stated that it "accepts the findings in the presen-
tence report." Although the PSR contains some raw data concerning
Tolbert's financial condition as of June 1995, it is apparent that the pro-
bation officer made no adequately detailed findings regarding restitution
upon which, under Molen, the district court could have relied. See 

("[I]ncomplete or unclear recommended findings in a pre-
sentence report adopted by the district court are subject to attack just as
are deficient separate findings made by the district court on the record.").
7 Rule 52(b) provides that "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of
the court."

                     6
reports contained sufficient information to warrant affirmance. 

invites our attention to that portion of his PSR disclosing
that, as of June 1995, he had a negative net worth and a negative
monthly cash flow. These factors alone, however, do not compel a
conclusion that no restitution may be ordered. See 

n.10
(impending bankruptcy and negative monthly cash flow"does not
necessarily indicate an inability to pay, particularly when [the appel-
lants'] PSRs reflect past success in business and above average earn-
ing capacities[ ]") (citations omitted). Indeed, a closer examination of
Tolbert's PSR, along with his counsel's representations at sentencing,
reveals that Tolbert owns a viable trucking business, that his wife is
a self-employed beautician, and that the couple's equity in their home
is nearly $40,000.

We are mindful that, upon his release from prison, Tolbert will
have to shoulder part of the financial burden of providing for his two
children. Nevertheless, though the district court's failure to make
detailed restitution findings is an obvious error, Tolbert has not dem-
onstrated a sufficient probability that the amount or rate of restitution
would have been different had the court fully complied with the law.
He has not, therefore, shown that the error was a"defect[ ] affecting
substantial rights," which is the third prerequisite for obtaining relief
under Rule 52(b). See 

, and note 

.

IV.

In light of the foregoing, Tolbert's convictions and sentence are
affirmed.

AFFIRMED

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