F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 99-7139
v.
(D.C. No. 98-CR-49-S)
(Eastern District of Oklahoma)
JAMES C. CUNNINGHAM,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
James C. Cunningham appeals his conviction for violating 18 U.S.C.
§ 922(g), which prohibits possession of a firearm by a person convicted of a
felony. Cunningham’s attorney believes that his appeal is wholly frivolous. He
therefore has filed both a motion to withdraw as attorney of record and a
corresponding Anders brief outlining Cunningham’s apparent grounds for appeal.
See Anders v. California, 386 U.S. 738, 744 (1967). Anders requires that such a
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
brief refer to “anything in the record that might arguably support the appeal.” Id.
Consistent with this requirement, counsel informs us that the only possible points
of error concern the district court’s refusal to admit documentation corroborating
Cunningham’s claim of a back injury. Counsel furnished Cunningham with a
copy of the brief, and appellant responded, see id., raising twelve claims for relief
and requesting the appointment of counsel. Based on our own independent
review of the record, we conclude Cunningham’s claims are wholly without merit.
Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to
withdraw, deny Cunningham’s request for the appointment of counsel, and affirm
his conviction and sentence.
Cunningham was tried and convicted by a jury of being a felon in
possession of a firearm. The trial revolved around a question of credibility.
Government agents testified to seeing Cunningham leave, early in the morning, a
trailer where firearms were found, as well as a parole conditions document signed
by Cunningham. They further testified that he had signed a statement in which he
stated he had two guns at his place: a .22 magnum Winchester lever action, which
he borrowed from his mother, and a Mohawk antique firearm, 12 ga., which he
borrowed from his sister. Cunningham denied living at the trailer, borrowing the
firearms, and making and signing the statement. Family members also asserted he
was not residing at the trailer when the firearms were seized. Additionally, the
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government presented uncontested evidence of the firearms’ nexus to interstate
commerce.
Cunningham raises twelve points of error in his response to counsel’s
Anders brief. Eight of these claims, however, assert instances of allegedly
ineffective assistance of counsel. “Ineffective assistance of counsel claims
should be brought in collateral proceedings, not on direct appeal. Such claims
brought on direct appeal are presumptively dismissible, and virtually all will be
dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en
banc) (citing Beaulieu v. United States , 930 F.2d 805, 808 (10th Cir. 1991)).
Our review of the record confirms that this is not one of those “rare instances,”
permitting consideration of ineffective assistance claims on direct appeal. Id.
Therefore, we dismiss Cunningham’s ineffective assistance claims, while noting
that this does not bar their assertion in a petition pursuant to 28 U.S.C. § 2255.
See id. at 1241-42.
Cunningham’s response raises four issues proper for consideration on
direct appeal: (1) whether the trial court erred in mentioning, during voir dire,
“the recent tragedy in Colorado,” (II R. at 12); (4) whether the trial court erred in
refusing to admit defendant’s exhibit four, a propane bill; (6) whether the
government engaged in outrageous conduct by falsifying documents; and (10)
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whether the government produced evidence sufficient for the jury to find
Cunningham guilty beyond a reasonable doubt.
As to Cunningham’s claim of prejudicial error in the court’s reference to
the Columbine tragedy, the record makes obvious the court’s statement was in no
way improper. Indeed, the court’s statement, viewed in context, displays an
admirable concern for ascertaining that no members of the jury pool possessed
views or experiences that would predispose them against Cunningham:
Have any of you folks ever had any experience that you feel
might affect your consideration of this case? Anything in your
background, any experience that you’ve had yourself personally or a
close family member with matters such as this that you feel might
affect you in your judgment in this case?
I know we’ve all go[ne] through, on the television and in the
newspapers, this recent tragedy in Colorado with the shootings there.
Now this doesn’t involve anything like that .
(II R. at 12) (emphasis added).
With respect to Cunningham’s assertion that the district court erred in
refusing to admit a propane bill, which Cunningham offered as ostensibly
probative of his residence in a dwelling other than the trailer where the firearms
were found, the district court properly excluded this exhibit on the ground that it
had not been identified. We review the district court’s decision to admit or
exclude evidence for abuse of discretion, see United States v. Davis , 40 F.3d
1069, 1073 (10th Cir. 1994), and find no abuse of discretion in the district
court’s proper exclusion of the exhibit for failure to satisfy “[t]he requirement of
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authentication or identification as a condition precedent to admissibility,” Fed. R.
Evid. 901(a).
Cunningham’s claim of outrageous conduct must fail for lack of proof of
the alleged falsification of documents. His claim that his statement and signature
were falsified was presented to the jury at trial, which had the task of assessing
the credibility of that claim against the credibility of the government witnesses.
The jury carried out its duty and resolved the question of credibility in a manner
adverse to Cunningham; we lack the capacity to disturb its resolution on appeal.
Cunningham’s insufficient evidence claim fails for the same reasons. In
reviewing a jury verdict for sufficiency of the evidence, “this court must review
the record de novo ‘and ask only whether, taking the evidence—both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom—in
the light most favorable to the government, a reasonable jury could find the
defendant guilty beyond a reasonable doubt.’” United States v. Voss , 82 F.3d
1521, 1524-25 (10th Cir. 1996) (quoting United States v. Urena , 27 F.3d 1487,
1489 (10th Cir. 1994)) (further citations omitted). “In passing upon the
sufficiency of the evidence under that standard we may neither weigh conflicting
evidence nor consider the credibility of the witnesses.” United States v. Lopez ,
576 F.2d 840, 843 (10th Cir. 1978) (citing United States v. Weiss , 431 F.2d
1402, 1407 (10th Cir. 1970)). The government presented sufficient evidence to
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establish every element of the offense of conviction, and we may not second-
guess the jury’s decision to credit that evidence rather than the conflicting
testimony of Cunningham and his relatives.
Finally, we conclude that the district court’s refusal to admit certain
medical evidence corroborating Cunningham’s back injury was not an abuse of
discretion. Because we conclude that all of Cunningham’s claims either lack
merit or must be dismissed under Galloway, we also deny his request for the
appointment of counsel.
We AFFIRM the conviction imposed by the district court, GRANT
counsel’s request to withdraw, and DENY Cunningham’s request for the
appointment of counsel.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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