                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 28 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                      No. 98-2339
                                                 (D.C. No. CR-97-692-MV
 WILLIS JEFFREY KELLY,                                  (D. N.M.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, the panel has determined

oral argument would not materially assist the determination of this appeal. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the case is ordered

submitted without oral argument.

      Defendant Willis Jeffrey Kelly appeals his convictions on one count of

burglary of a credit union, 18 U.S.C. § 2113(a), and one count of attempted



      *
        This order and judgment is not binding precedent, except under the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.
escape from a federal holding facility, 18 U.S.C. § 751(a). Defendant’s counsel

has determined the appeal to be frivolous and has filed a brief pursuant to         Anders

v. California , 386 U.S. 738, 744 (1967), stating there are no issues that would

entitle defendant to relief. The certificate of service filed as a part of the brief

indicates defendant was mailed a copy of the brief and, thereby, has had an

opportunity to raise any additional points. Defendant has filed no additional

pleading to date.

       Consistent with obligations under    Anders and Penson v. Ohio , 488 U.S. 75

(1988), defendant’s counsel has identified two possible issues as grounds for

appeal. Counsel candidly acknowledges governing law affords defendant no

relief on these issues.

       Defense counsel requested a lesser included offense instruction on the 18

U.S.C. § 2113(a) charge, apparently over defendant’s objection. Although we

held in United States v. Brittain , 41 F.3d 1409, 1415 (10th Cir. 1994), that bank

larceny (18 U.S.C. § 2113(b)) may be a lesser included offense of bank robbery

(18 U.S.C. § 2113(a)), the manner in which defendant was charged here did not

permit a lesser included offense instruction. Defendant was charged under the

second paragraph of 18 U.S.C. § 2113(a):

              Whoever enters or attempts to enter any . . . credit union . . .
       with intent to commit in such . . . credit union . . . any felony
       affecting such . . . credit union . . . and in violation of any statute of
       the United States, or any larceny--

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             Shall be fined under this title or imprisoned not more than
       twenty years, or both.

Section 2113(b) provides in relevant part:

             Whoever takes and carries away, with intent to steal or purloin,
       any property or money or any other thing of value exceeding $1,000
       belonging to, or in the care, custody, control, management, or
       possession of any . . . credit union . . . shall be fined under this title
       or imprisoned not more than ten years, or both.

If defendant had been charged under the     first paragraph of § 2113(a), which

requires use or attempted use of “force and violence” or intimidation, a § 2113(b)

lesser included offense instruction would have been warranted. Since the second

paragraph of § 2113(a) requires no such “force and violence” or intimidation,

however, § 2113(b) is not a lesser included offense of the second paragraph of §

2113(a) where, as here, it is undisputed that defendant entered or attempted to

enter a credit union with intent to commit a felony or larceny.

       Defendant’s counsel also notes defendant insisted at trial he should have

been permitted to testify during his case-in-chief about conditions of his

confinement. We find the district court properly held defendant’s allegations of

abuse by jailers had no relevance to his guilt and were thus inadmissible.    See

Fed. R. Evid. 401-402.

       We have conducted an independent analysis of the record and find no error

in any of the district court’s rulings. We conclude, as both parties have

acknowledged in the briefs, that the evidence against defendant was

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overwhelming and clearly sufficient to sustain his convictions.

      AFFIRMED.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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