                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 18, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-5183
                                             (D.C. No. 04-CR-00211-001-HDC)
    MARVIN L. BARBER, a/k/a “Hurt,”                     (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.



         A jury convicted defendant-appellant Marvin L. Barber of one count of

Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A)(iii); one count of Unlawful Possession of a Firearm by

Convicted Felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and one

count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 18 U.S.C. § 924(c)(1)(A). His counsel has submitted a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and seeks leave to withdraw from

representing Mr. Barber on appeal. Although he has briefed two issues for our

consideration concerning Mr. Barber’s conviction, counsel asserts in his motion

to withdraw that neither of these issues has merit, and that “counsel does

not believe that there are any issues that can be raised on appeal that are not

frivolous.” Mot. to Withdraw as Counsel of Record, at 1-2. In response,

Mr. Barber has filed a pro se brief raising one additional issue for our

consideration.

      The government contends that none of the three issues raised is

meritorious. We agree. Accordingly, exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm Mr. Barber’s conviction and grant counsel’s request to

withdraw.

                                  BACKGROUND

      On November 30, 2004, four Tulsa police officers executed a search

warrant at a residence located at 3324 North Garrison Avenue in Tulsa,

Oklahoma, seeking evidence of criminal activity involving illegal drugs. The

warrant was a “John Doe” warrant; that is, the officers did not know who lived

at the residence or who might have been dealing drugs there. At approximately

9:40 p.m., Officer Bruce Bonham knocked on the door and announced the




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presence of officers with a warrant. When no one inside responded after

approximately twenty seconds, officers breached the door.

       In the dining room, officers found Roman Checotah and took him into

custody. In that room they also found marijuana, suspected narcotics, and a

digital scale. They also found baggies in the kitchen area. Officer Bill Yelton

then saw Mr. Barber come out of the bathroom. He took him to the dining room

and handcuffed him. He noticed that Mr. Barber’s hands were wet, but he did not

include this information in the incident report. Officers Bonham, Jeff Henderson,

and Sergeant Luke Sherman also noticed that Mr. Barber had wet hands, and later

testified to this fact at trial.

       The officers finished searching the residence. Officer Yelton searched the

bathroom that Mr. Barber had exited. Inside the toilet bowl, he found a handgun

and baggies containing what appeared to be cocaine base. He also found a baggie

containing suspected cocaine base on the bathroom floor.

       Officer Yelton read Mr. Barber his rights. Mr. Barber told the officers that

he did not live at the residence. He stated that Mr. Checotah was cooking the

powder cocaine into crack cocaine for him; that he was there to pick it up; and

that he intended to sell it. He indicated that the pistol was used for protection.

The officers did not obtain either a handwritten statement or a signature on a

waiver of rights form from Mr. Barber.




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         Mr. Barber’s car was parked in the garage and the garage door was closed.

In the living room, the officers found a purse containing identification in the

name of Montenae Foreman. Ms. Foreman, the renter of the premises at 3324

North Garrison, arrived home after Mr. Barber and Mr. Checotah had been

removed from the premises. Officer Yelton testified that he spoke with

Ms. Foreman that evening after she returned home.

         Mr. Barber’s theory at trial appears to have been that Mr. Checotah was the

“real” drug dealer, who lived at Ms. Foreman’s house and dealt drugs there with

Ms. Foreman’s knowledge. The defense seemed to suggest that Mr. Barber’s

presence on the night the search warrant was executed was coincidental, because

he was there only to meet Ms. Foreman for a pre-arranged rendezvous.

         Mr. Barber attempted to bolster this theory with Ms. Foreman’s testimony.

She testified that she had known Mr. Checotah for five years and considered him

her uncle. He had been living with her aunt but moved out following an argument

and had been living at Ms. Foreman’s house for several months. She was aware

that he had prior involvement with drugs, but she had given him a key to her

house.

         Ms. Foreman further stated that Mr. Barber did not have a key. She had

known Mr. Barber for approximately four months. They saw each other about

twice a month to have sexual relations. On the evening when the search warrant

was executed, she called Mr. Barber at around 9:15 p.m. and asked him to meet

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her at her house. She gave him directions to the house, told him to park in the

garage, and informed him that Mr. Checotah would be there to let him in. She

stated she had never met Mr. Barber at her house before because she did not want

her boyfriend to find out about their relationship.

      On rebuttal, the prosecution called Officer Yelton, who gave a very

different version of events based on his recollection of what Ms. Foreman had

told him the night of the arrests. At that time, according to Officer Yelton, Ms.

Foreman told him that Mr. Barber had a key to her house. In the mind of the jury,

this testimony could have connected Mr. Barber more than incidentally to the

premises where drugs were being sold. She stated Mr. Barber was not supposed

to be there that evening, undermining his explanation that she had invited him

there for a sexual rendezvous. Finally, she denied knowing Mr. Checotah,

undermining Mr. Barber’s theory that Mr. Checotah was the “real” drug dealer at

her house.

      Finally, at trial, Mr. Barber stipulated that the substances recovered in the

bathroom were cocaine base; that the pistol recovered from the toilet was a fully

functional firearm; and that the pistol must have traveled in interstate commerce

to reach the location where it was found. He also stipulated that he had

previously been convicted of crimes punishable by imprisonment for a term

exceeding one year (i.e., that he had prior felony convictions).




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                                     ANALYSIS

      Anders instructs that “if counsel finds his case to be wholly frivolous, after

conscientious examination of it, he should so advise the court and request

permission to withdraw. That request must, however, be accompanied by a brief

referring to anything in the record that might arguably support the appeal.”

Anders, 386 U.S. at 744. Mr. Barber’s counsel has complied with his obligation

under Anders and has identified issues for our review, although he has conceded

that they are not legally viable.

      1. Sufficiency of the Evidence

      We agree with counsel that a challenge to the sufficiency of the evidence

would be meritless. “We review de novo whether the prosecution presented

sufficient evidence to support a conviction.” United States v. Avery, 295 F.3d

1158, 1177 (10th Cir. 2002). “In conducting this review . . . we ask 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.”

Id. (quotations omitted). Three major categories of evidence support the jury’s

verdict against Mr. Barber: (1) his confession to the officers; (2) the stipulated

facts in the record; and (3) the facts of the offense as related in the officers’

testimony at trial. These facts plainly provide a basis for the jury’s verdict.




                                          -6-
      Counsel argues that there were irregularities in connection with the

confession, but he does not contend that it should have been suppressed. Officer

Yelton testified that he read Mr. Barber his rights before he made his statement.

There is no indication that he did not understand the advisement or that his

confession was involuntary. The lack of a signed Miranda form and of a

handwritten confession do not make the confession inadmissible. See 18 U.S.C.

§ 3501(e) (defining “confession” admissible in federal criminal proceedings to

include both oral and written confessions); United States v. Lugo, 170 F.3d 996,

1004-05 (10th Cir. 1999) (stating Miranda waiver is not invalidated where it is

oral rather than written).

      In light of Mr. Barber’s confession, Ms. Foreman’s testimony did not

prevent a reasonable jury from finding him guilty beyond a reasonable doubt.

Moreover, the jury would have been entitled to discount her trial testimony,

which differed from what she allegedly told Officer Yelton at the scene.

      2. Double Jeopardy

      Counsel argues that convicting Mr. Barber of both unlawful possession of a

firearm by a convicted felon, and possession of a firearm in furtherance of a drug

trafficking crime violated double jeopardy, because both offenses involved the

use of the same firearm at the same time. This objection was not raised at trial

and therefore a plain error standard applies. Plain error “is fundamental error,

something so basic, so prejudicial, so lacking in its elements that justice cannot

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have been done.” United States v. Jones, 530 F.3d 1292, 1299-1300 (10th Cir.

2008) (quotation omitted), cert. denied, 2008 WL 4537534 (U.S. Nov. 10, 2008)

(No. 08-6696). But there is no error here, much less plain error.

      Ordinarily, the test in Blockburger v. United States, 284 U.S. 299, 304

(1932) applies to such a double jeopardy claim, requiring us to ask whether each

of the offenses for which the defendant was convicted required proof of a

different element. Here, the Blockburger test is satisfied, for the government was

required to prove two such differing elements: Mr. Barber’s conviction of a

felony, which applied only to the possession of a firearm by a convicted felon

charge; and his commission of a drug trafficking crime, which applied only to the

possession of a firearm in furtherance of a drug trafficking crime charge.

      Mr. Barber argues, however, that Blockburger doesn’t apply to his case

because he was punished under two provisions of the same statute, 18 U.S.C.

§ 924. He cites United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997),

in which this court found multiplicitous the defendant’s conviction for both being

a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1), and being an

unlawful user of controlled substances in possession of a firearm, in violation of

18 U.S.C. § 922(g)(3). But Johnson is distinguished from this case. In Johnson,

this court concluded that Congress did not intend to punish a defendant for

multiple violations of § 922(g) that arose out of the same factual predicate:

possession of a firearm. Here, although the definitions of both firearms offenses

                                         -8-
cite 18 U.S.C. § 924, only the “possession of a firearm in furtherance of a drug

trafficking crime” count actually is a § 924 offense. Section 924 merely provides

a punishment provision for the other crime, “possession of a firearm by a

convicted felon,” which is charged under a separate statute, 18 U.S.C.

§ 922(g)(1). Therefore, Mr. Barber was not convicted of two firearms offenses

under two different subsections of the same statute, as he claims. The

Blockburger test applies and was satisfied. There was no double jeopardy.

      3. Limitation of Cross-Examination

      In his pro se brief, Mr. Barber argues that his trial counsel should have

been permitted to inquire further of Officer Yelton “as to questions surrounding

his sworn affidavit, and the execution of the search warrant.” Aplt. Pro Se Br.,

at 6. The district court ruled these inquiries irrelevant. Mr. Barber fails to

establish prejudice arising from the district court’s failure to permit further

cross-examination. He advances a conspiracy theory under which he was entirely

innocent and framed by Officer Yelton and Mr. Checotah, who planted the drugs

and the weapons to implicate him. Id. at 7. There was no evidence at trial that

would have supported such a theory. It is only pure speculation on Mr. Barber’s

part that further cross-examination into the circumstances surrounding the

issuance of the warrant would have revealed a conspiracy to frame him. This

issue is therefore also frivolous.




                                          -9-
                              CONCLUSION

     After conducting a thorough and independent review of the record, we see

no meritorious appellate issues. We GRANT counsel’s motion to withdraw and

AFFIRM Mr. Barber’s conviction and sentence.

                                                Entered for the Court



                                                Michael W. McConnell
                                                Circuit Judge




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