                                                      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

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 6:04-CR-67-1
                       --------------------

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that this opinion should not be published and is not precedent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.
