U.S. v. Wagner

• Decision Date: 26 December 1996
• Docket Number: No. 96-2573,96-2573
• Citation: 103 F.3d 551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James R. WAGNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 551

103 F.3d 551

UNITED STATES of America, Plaintiff-Appellee, v. James R. WAGNER, Defendant-Appellant.

No. 96-2573.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 13, 1996.

Decided Dec. 26, 1996.

Rita Marie Klemp (submitted on briefs), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

James R. Wagner, Sandstone, MN, Pro Se.

Ronald G. Benavides, Madison, WI, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

POSNER, Chief Judge.

We write to clarify the standard for determining whether to accept a motion by a criminal defendant's lawyer to withdraw from representing the defendant on appeal on the ground that there are no nonfrivolous grounds for appealing. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Most of the case law concerns the adequacy of the brief that the lawyer is required to file in support of the motion, identifying the grounds that he might have raised in an appeal brief and explaining why they are frivolous. E.g., id. at 744-45, 87 S.Ct. at 1400-01; McCoy v. Court of Appeals 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); Penson v. Ohio, 488 U.S. 75, 81-82, 109 S.Ct. 346, 350-51, 102 L.Ed.2d 300 (1988); United States v. Edwards, 777 F.2d 364 (7th Cir.1985) (per curiam). Less explored, and the focus of this opinion, is how deeply we appellate judges must explore the record in the district court in order to determine whether to grant the motion.

An Anders motion is served on the defendant, and he has a chance to urge the court to deny it. Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400, 7th Cir.R. 51(a). The defendant in this case did not file any response to the motion, and this could be taken as acquiescence in the motion--as a decision to abandon the appeal as hopeless. 7th Cir.R. 51(c). But since the defendant will ordinarily not be learned in the law, his failure to respond may reflect simply an inability to spot possible flaws in his lawyer's legal arguments. So we do not think it proper to attach conclusive weight to the client's failure to respond to an Anders motion.

The opposite extreme would be for us to comb the record even where the Anders brief appeared to be perfectly adequate, searching for possible nonfrivolous issues that both the lawyer and his client may have overlooked and, if we find them, appointing a new lawyer and flagging the issues we've found for him. We have done this on occasion, but have now concluded that it is not a sound practice. It makes this court the defendant's lawyer to identify the issues that he should be appealing on and to hire another member of the bar to argue the issues that we have identified. The defendant ends up in effect with not one appellate counsel but (if he is lucky) six--his original lawyer, who filed the Anders brief; our law clerk or staff attorney who scours the record for issues that the lawyer may have overlooked; a panel of this court that on the advice of the law clerk or staff attorney denies the Anders motion and appoints another lawyer for the appellant; the new lawyer. This is overkill, this six-lawyer representation of criminal defendants that we have described and today renounce; it gives the indigent defendant more than he could expect had counsel (whether retained or appointed) decided to press the appeal, since counsel's decision on which issues to raise on appeal would normally be conclusive. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir.1996); Sharp v. Puckett, 930 F.2d 450 (5th Cir.1991). If after reviewing all the potential issues counsel decided to brief and argue only one, we would not scour the record looking for the other issues--all the other issues would be deemed waived. The Anders procedure implements the Sixth Amendment right of counsel, 386 U.S. at 742, 87 S.Ct. at 1398-99, a right to have counsel of minimum professional competence--not to have a committee of counsel including judges of the court of appeals.

And while in some cases the record-scouring or six-lawyer procedure will help the defendant, in others it will hurt him. Suppose the Anders brief discusses only sentencing issues, and it discusses them very responsibly and competently, but scouring the record we discover that there is a nonfrivolous--indeed a meritorious--issue concerning the validity of the defendant's guilty plea, and we appoint new counsel and direct him to brief the newly discovered issue and he does so and obtains a reversal of the conviction. The client may have pleaded guilty in exchange for a sentencing concession that he very much wants to retain and he may end up with a longer sentence if the plea is reversed and he repleads or stands trial, since the original plea bargain will have been...