United States v. Hemphill , 40 F. App'x 809 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4902
WARREN ALLEN HEMPHILL,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-328)
Submitted: June 19, 2002
Decided: July 12, 2002
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. HEMPHILL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
On April 24, 2001, Warren Allen Hemphill was convicted by a jury
of bank robbery with a dangerous weapon, in violation of 18 U.S.C.A.
§ 2113(d) (West 2000). Hemphill was subsequently sentenced to
seventy-two months’ imprisonment.
Hemphill’s counsel on appeal has filed a brief pursuant to Anders
v. California, 386 U.S. 738, 744 (1967), stating that he is not aware
of any meritorious basis for appeal. In his Anders brief, counsel for
Hemphill addresses the issue of the admissibility of a document found
in Hemphill’s BMW, because the handwriting on the paper was not
shown to be Hemphill’s.
Hemphill has also filed a supplemental pro se brief raising eight
separate claims of ineffective assistance of counsel: (1) defense coun-
sel refused to investigate constitutional violations; (2) defense counsel
failed to consult with defendant concerning critical decisions, con-
trary to his instructions; (3) defense counsel failed to timely file
motions to exclude evidence and prejudicial testimony; (4) defense
counsel conducted hostile interviews with Hemphill; (5) defense
counsel falsely reported to Hemphill his alibi witnesses’ responses
from interviews with them; (6) defense counsel denied Hemphill’s
requests to view Brady material; (7) defense counsel convinced him
not to testify on his own behalf; and (8) defense counsel avoided per-
sonal contact and phone calls with him.
The decision to admit evidence is reviewed on appeal for an abuse
of discretion. United States v. Eillis, 121 F.3d 908, 926 (4th Cir.
1997).
Under the Federal Rules of Evidence, authentication as a condition
precedent to admissibility is satisfied by "evidence sufficient to sup-
port a finding that the matter in question is what its proponent
claims." Fed. R. Evid. 901(a). Exhibits can be authenticated using cir-
cumstantial evidence. United States v. Clark, 649 F.2d 534, 542 (7th
UNITED STATES v. HEMPHILL 3
Cir. 1981). The prosecution must merely show that there is a rational
basis by which a jury could infer that it belonged to the defendant.
United States v. Natale, 526 F.2d 1160, 1173 (2d Cir. 1975). Here,
there was sufficient circumstantial evidence to find that the paper
belonged to Hemphill. Government witnesses testified that it was
found inside his briefcase in the trunk of his BMW along with U.S.
currency, cleaning supplies, and disposable gloves. Therefore it was
not an abuse of discretion to admit the document into evidence.
Regarding Hemphill’s claims on appeal that he received ineffective
assistance of counsel, such claims are generally not cognizable on
direct appeal. To allow for adequate development of a record, a
defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp.
2001) motion unless the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999); United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). To
succeed on a claim of ineffective assistance of counsel, a defendant
must show his counsel’s performance fell below an objective standard
of reasonableness and that counsel’s deficient performance was preju-
dicial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Because the record does not conclusively show ineffective assistance
of counsel, we decline to entertain Hemphill’s claims on direct
appeal.
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Hemphill’s conviction and sentence.* This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
*We also deny Hemphill’s motion to relieve his attorney.