United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 8, 2006
Charles R. Fulbruge III
Clerk
No. 06-40366
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANTHONY RAY DAILEY
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CR-67-1
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM*
Anthony Ray Dailey appeals from his conviction following a
jury trial for three counts of bank robbery and aiding and
abetting, in violation of 18 U.S.C. §§ 2113(a) and 2. He argues
first that an in-court identification by Sara Braswell violated
due process because it was tainted by impermissibly suggestive
pretrial circumstances and that the Government failed to disclose
that she would make an in-court identification. Braswell had
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
failed to identify Dailey in a photographic lineup but then
witnessed Dailey being led into court at a pretrial hearing
wearing prison clothing. Dailey was identified as a participant
in the robberies by two accomplices and another teller, Karen
Alexander, however, and we conclude that any error in Braswell’s
identification of Dailey was harmless and does not present
grounds for reversal. See United States v. Watkins, 741 F.2d
692, 695 (5th Cir. 1984).
Dailey also argues that Alexander’s in-court identification
was tainted by an impermissibly suggestive pretrial photographic
lineup. We ordinarily employ a two-part test to analyze the
admissibility of identification evidence, asking (1) "whether the
identification procedure was impermissibly suggestive" and (2)
"whether the procedure posed a very substantial likelihood of
irreparable misidentification." United States v. Rogers, 126
F.3d 655, 658 (5th Cir. 1997). After reviewing the record, we
conclude that the photographic lineup presented to Alexander was
not impermissibly suggestive, and we do not consider the second
part of the test. See Peters v. Whitley, 942 F.2d 937, 939 (5th
Cir. 1991).
Dailey also challenges the sufficiency of the evidence to
support his convictions, and he argues that there was a fatal
variance between the indictment and the testimony with respect to
the robbery charged in count three of the indictment. As noted
above, two of Dailey’s accomplices identified him as a
participant in all the robberies and Alexander identified him in
a photographic array and in court. The testimony of the
accomplices alone was sufficient to support the convictions
because the testimony was not incredible on its face. See United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). Dailey’s
challenges to the accomplice testimony concern the credibility of
the evidence, which we do not consider on appeal. See United
States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993). Because a
rational jury could find Dailey was a participant in all three
robberies, the evidence was sufficient. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). Dailey’s claim of a variance in the
indictment fails as the alleged variance was not material, and
Dailey concedes that he cannot meet the harmless error standard.
See United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005).
Dailey further argues that the district court erroneously
failed to charge the jury that it could consider the prior
convictions of the accomplices to discredit their testimony.
Dailey fails to show that the district court’s charge did not
adequately address the credibility of the accomplice testimony,
and he has not shown that the charge seriously impaired his
ability to present his defense. See United States v. Tomblin,
46 F.3d 1369, 1378 (5th Cir. 1995).
Dailey has filed several pro se motions asking that his
counsel withdraw and that he be permitted to proceed pro se.
He also seeks permission to file one copy of a pro se brief, to
file his brief late, and to exceed the page limitations in a pro
se brief. Dailey’s request to proceed pro se, filed after
counsel has filed an appellate brief and the Government filed its
responsive brief, is untimely. His motions are therefore denied.
See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.
1998); see also Martinez v. Court of Appeal of California,
528 U.S. 152, 163 (2000) .
AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.