United States Court of Appeals

For the Eighth Circuit 

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No. 20-3606

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Alex Kellum

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: July 27, 2021

Filed: July 30, 2021

[Unpublished]

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Before SHEPHERD, GRASZ, and STRAS, Circuit Judges.

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PER CURIAM.

Following a bench trial, the district court1 convicted Alex Kellum of three 

counts of distribution of a mixture or substance containing cocaine base. 21 U.S.C. 

§ 841(a)(1), (b)(1). Kellum’s counsel requests permission to withdraw and, in an 

1

The Honorable Laurie Smith Camp, United States District Judge for the 

District of Nebraska, now deceased.
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Anders brief, raises the insufficiency of the evidence as a potential argument on 

appeal. See Anders v. California, 386 U.S. 738 (1967). Kellum has also filed two 

pro se briefs in which he makes a number of other arguments. We affirm.

We conclude that the government presented sufficient evidence of Kellum’s 

guilt. See United States v. Ross, 990 F.3d 636, 639 (8th Cir. 2021) (reviewing the 

sufficiency of the evidence de novo). One witness testified that Kellum sold him 

drugs, and other evidence, including video and telephone recordings, corroborated 

histestimony. See United States v. Hernandez, 569 F.3d 893, 896–97 (8th Cir. 2009)

(stating that the factfinder’s evaluation of “the credibility of criminal witnesses” is 

“virtually unreviewable on appeal” (quotation marks omitted)).

Kellum’s pro se arguments fare no better. The government did not file the 

superseding indictment too late or in retaliation for Kellum’s “exercise[] [of] his 

right to proceed to trial.”2

 See 18 U.S.C. § 3282(a) (setting a five-year statute of 

limitations); Campbell, 410 F.3d at 462 (“A presumption [of vindictive prosecution] 

does not arise just because action detrimental to the defendant was taken after the 

exercise of the defendant’s legal rights[.]”). Nor did it fail to produce the relevant 

“statement[s]” of its witnesses, 18 U.S.C. § 3500(b); see United States v. Green, 151 

F.3d 1111, 1115 (8th Cir. 1998) (explaining the requirements of the Jencks Act), or 

other material evidence in the case, see Brady v. Maryland, 373 U.S. 83, 87 (1963). 

We decline to consider Kellum’s remaining arguments. One of them is a 

Confrontation Clause challenge to forensic lab reports, but Kellum had already

stipulated that, “[b]ased on [] laboratory testing,” the substance he was convicted of 

distributing was cocaine base. See United States v. Robinson, 617 F.3d 984, 989 

(8th Cir. 2010) (“A defendant may waive his confrontation rights . . . by stipulating 

2

The same goes for an information that provided details about a prior drug 

conviction. See 21 U.S.C. § 851(a)(1) (permitting the information to be filed “before 

trial, or before entry of a plea of guilty”); United States v. Campbell, 410 F.3d 456, 

462 (8th Cir. 2005). 
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to the admission of evidence . . . .” (first alteration in original) (quotation marks 

omitted)). Another is ineffective assistance of counsel, but it would be premature to 

consider this claim now without an adequately developed record. See United States 

v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006) (explaining that this 

type of claim is “usually best litigated in collateral proceedings”).

Finally, we have independently reviewed the record and conclude that no 

other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988). 

We accordingly affirm the judgment of the district court and grant counsel 

permission to withdraw.

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