F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 16 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 03-7108 & 03-7111
v. (E.D. Oklahoma)
WARREN DOUGLASS VANN, (D.C. No. 02-CR-85)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Warren Vann was charged with and convicted by a jury of the following
offenses: Count I: first degree murder in Indian Country, a violation of 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This order and judgment is not binding precedent, except under the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.
§§ 1111(a), 1151, and 1153; Count II: the use of a firearm in the commission of a
felony, a violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 924(j); Count III:
possession of a firearm after former conviction of a felony; a violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2); and Count IV: possession of ammunition after
former conviction of a felony, a violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The district court sentenced him to life imprisonment on Count I, life
imprisonment on Count II (to be served consecutively with Counts I, III, and IV),
120 months on Count III, and 120 months on Count IV (to be served concurrently
with counts I and III). The court also sentenced him to five years’ supervised
release on Counts I and II, and three years on each of Counts III and IV (each to
run concurrently), and ordered him to pay a special assessment of $400.00 and
restitution in the amount of $7,075.20.
Mr. Vann now appeals from his conviction and sentence, and seeks to raise
numerous trial errors. Mr. Vann’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and moves for leave to withdraw as counsel.
Mr. Vann has not filed an additional appellate brief. For the reasons set out
below, we grant counsel’s motion to withdraw and dismiss the appeal.
Anders holds that if counsel finds an appeal to be wholly frivolous after
conscientious examination, he may advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
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referring to anything in the record arguably supportive of the appeal. The client
may then raise any point he chooses, and the court thereafter must undertake a
complete examination of all proceedings and then decide whether the appeal is in
fact frivolous. If the court so finds, it may grant counsel’s request to withdraw
and dismiss the appeal. See Anders, 386 U.S. at 744.
The Anders brief filed by Mr. Vann’s counsel identifies four potential
appellate issues: (1) the trial court erred in overruling Mr. Vann’s motion to
suppress the photo lineup that was presented to a witness, and (2) the trial court
erred in refusing to dismiss the charges under Rule 29 of the Federal Rules of
Criminal Procedure, on the grounds of insufficient evidence. Counsel also notes
that Mr. Vann may have claims of (3) ineffective assistance of trial counsel and
(4) ineffective assistance of appellate counsel. Counsel has informed Mr. Vann
that such claims should generally be brought in collateral proceedings, and not on
direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995).
After careful review of the entire proceedings, we agree with counsel that
no non-frivolous grounds for appeal appear on this record. The record amply
supports the admissibility of the photo lineup. During the investigation of the
murder, agents spoke with the next-door neighbor of the victim, Daphne Augare.
Ms. Augare indicated that an unknown Native American male of average height,
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in his late 20’s to early 30’s, with dark hair and a thin mustache, wearing an olive
green jacket and wearing at least two shirts, one maroon in color and one possibly
green, and blue jeans, knocked on her back door and asked for a Kyle Johnson.
The agents prepared a photo lineup with six individuals, and the neighbor
identified the individual in the fifth photo as the unknown male, although she was
not 100% sure. With some reservations, Ms. Augare later identified Mr. Vann in
a preliminary hearing. At the trial, Ms. Augare identified Mr. Vann, and testified
about several other factors that were consistent with identifiable characteristics
given by other witnesses in regard to what the defendant was driving and wearing.
Our record review reveals that there were multiple witnesses that identified
Mr. Vann at the trial, and there were minor discrepancies in the various
witnesses’ descriptions about whether he wore an Army jacket, a camouflage
jacket, or a green jacket. The victim’s son’s description and identification of Mr.
Vann were consistent with Ms. Augare’s.
Mr. Vann does not indicate that the photo lineup was in any way suggestive
that Mr. Vann was the suspect. Mr. Vann’s assertion that such inconsistences
regarding his identification presented insufficient evidence to go to the jury is
untenable. Cf. Kirby v. Illinois, 406 U.S. 682, 691 (1972) (noting that “[t]he Due
Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is
unnecessarily suggestive and conducive to irreparable mistaken identification”).
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As to the Rule 29 motion, this court reviews de novo the sufficiency of the
evidence to support a conviction. United States v. Colonna, 360 F.3d 1169, 1178
(10th Cir. 2004). In doing so, we view the evidence in the light most favorable to
the government and determine whether a reasonable jury could have found the
defendant guilty of the crime beyond a reasonable doubt. Id. We have reviewed
the testimony adduced at trial and conclude the district court properly denied the
motion. When the evidence is viewed in the light most favorable to the
government, a reasonable jury could readily conclude that Mr. Vann committed
each of the crimes charged in the indictment.
Accordingly, we GRANT counsel’s motion to withdraw and we DISMISS
the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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