F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 00-5092
v. N.D. Oklahoma
MICHAEL SCOTT MORGAN, (D.C. No. 99-CR-146-H)
Defendants-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BALDOCK and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c). The case is
therefore ordered submitted without oral argument.
Michael Scott Morgan was convicted of three counts of unlawful
possession of a firearm after former conviction of a felony, 18 U.S.C. § 922(g)(1),
two counts of giving false statements to a licensed firearms dealer, 18 U.S.C. §
*
This order and judgment is not binding precedent, except under the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.
922(a)(6), and three counts of possession of a firearm while subject to the terms
of a judicial protective order, 18 U.S.C. § 922(g)(8). He was sentenced to 42
months’ imprisonment, three years of supervised release, a fine of $1,000, and a
monetary assessment of $100 per count. We exercise our jurisdiction under 28
U.S.C. § 1291 and affirm.
At trial and on the initial stages of appeal, Mr. Morgan was represented by
counsel. During his appeal, however, Mr. Morgan fired his attorney and
proceeded pro se. Upon receipt of Mr. Morgan’s appellate brief, we determined
Mr. Morgan should have counsel and appointed one to represent him. After
counsel made several attempts to contact Mr. Morgan, Mr. Morgan finally
responded on April 23, 2001 and identified four additional issues that are before
us. Mr. Morgan did not file a separate pro se brief.
Counsel for defendant has filed a brief pursuant to Anders v. California ,
386 U.S. 738 (1967), indicating his belief that the record contains no meritorious
issues for appeal. Defense counsel has also filed a motion requesting leave to
withdraw as counsel, stating his belief that the issues raised on appeal are
frivolous. As required, a copy of counsel’s Anders brief and motion to withdraw
were provided to defendant, see id. at 744.
In his Anders brief, counsel related that defendant wished to raise several
issues. The first two issues were raised in Mr. Morgan’s initial pro se appellate
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brief: (1) whether he must abide by laws that are allegedly repugnant and
unconstitutional; and (2) whether as a descendant of participants in the American
Revolution that Mr. Morgan, as a “peacemaker,” must suffer at the hands of those
who have impugned his character. Aplt’s Anders Br. at 15 (quoting pro se
opening br. at 3). The next five issues were raised at the suggestion of Mr.
Morgan after conferring with appointed counsel; they include: (3) ineffective
assistance of counsel; (4) unfair enhancement of sentence; (5) malicious and
selective prosecution; (6) Mr. Morgan lacked the mental capacity to understand
the charges against him; and (7) his prosecution was pursuant to an illegal Bill of
Attainder. Finally, counsel raised an insufficiency of the evidence claim, culling
together various strands of Mr. Morgan’s pro se filings. The record indicates that
none of the above issues was raised before the district court.
Pursuant to our duty under Anders , 386 U.S. at 744, we have conducted an
independent review of Mr. Morgan’s conviction and sentence and we agree with
counsel’s conscientious review of the record and conclusion that the appeal is
frivolous.
As to Mr Morgan’s ineffective assistance of counsel claim, for which he
provides no legal argument or record cites, we note that this “claim[] 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.”
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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 Mr. Morgan’s ineffective assistance claims, while noting that this does
not bar its assertion in a petition pursuant to 28 U.S.C. § 2255. See id. at
1241-42.
After a thorough review of the record, this court also agrees that Mr.
Morgan’s sufficiency-of-the-evidence claim is frivolous. In evaluating
challenges to the sufficiency of evidence, this court applies the following
standard: “[E]vidence both direct and circumstantial, together with reasonable
inferences to be drawn therefrom, is sufficient if, when taken in the light most
favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. Garcia- Emanuel , 14 F.3d 1469,
1472 (10th Cir. 1994) (quotations omitted). We will overturn a jury's finding only
if no reasonable juror could have reached the disputed verdict. United States v.
Carter , 130 F.3d 1432, 1440 (10th Cir. 1997). This purposefully high hurdle,
faced by a party challenging a jury verdict, “reflects a deep respect for the
fact-finding function of the jury.” United States v. Evans , 42 F.3d 586, 589 (10th
Cir. 1994) (quotation omitted).
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There is evidence that Mr. Morgan–a convicted felon, according to an ATF
determination–in fact purchased a rifle, a pistol, and ammunition for both, and
that he intended to purchase a third firearm. After this purchase, a police officer
stopped Mr. Morgan, who had a loaded shotgun in his possession in his truck,
along with other devices. The testimony at trial showed that Mr. Morgan had
been served with protective orders by officers who witnessed the same. Mr.
Morgan also testified about his prior felony conviction and that he indeed pleaded
guilty and possessed firearms. Without restating all of the evidence adduced at
trial, we simply note that the evidence, and the reasonable inferences drawn
therefrom, is more than sufficient to support Mr. Morgan’s conviction.
As to the remaining challenges, we have reviewed the entire record, all of
the briefs filed, and agree they are frivolous challenges. Therefore, we AFFIRM
Mr. Morgan’s conviction and GRANT counsel’s request to withdraw.
Entered for the Court,
Robert H. Henry
Circuit Judge
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