United States v. Turner

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 10-4573

______________

UNITED STATES OF AMERICA

v.

JAMES TURNER,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cr-00515)

District Judge: Honorable Legrome D. Davis

______________

Submitted Under Third Circuit LAR 34.1(a)

January 26, 2012

Before: AMBRO, CHAGARES

and HARDIMAN, Circuit Judges.

(Opinion Filed: April 19, 2012)

Jessica Natali

Bea L. Witzleben

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Plaintiff-Appellee

Walter S. Batty, Jr.

101 Columbia Avenue

Swarthmore, PA 19081

Sara M. Webster

Mellon, Webster & Mellon

87 North Broad Street

Doylestown, PA 18901-0000

Attorneys for Defendant-Appellant

________________

OPINION OF THE COURT

_________________

HARDIMAN, Circuit Judge.

James Turner appeals his judgment of conviction

following a jury trial. Turner‘s court-appointed lawyers raise

two issues on appeal. In addition, they have noted nine other

issues they deem frivolous. Further complicating matters,

Turner has filed several documents pro se. The apparent discord

between Turner and his counsel invites us to explain the proper

2

role of appellate counsel who represent intransigent clients and

to clarify the meaning of our Local Appellate Rule 31.3.

I

A

In late 2005 or early 2006, Special Agent Patrick

Edwards of the Bureau of Alcohol, Tobacco, and Firearms

(ATF) began patronizing Kazoo‘s Barber Shop School of Hard

Knocks in downtown Philadelphia. During his periodic visits to

Kazoo‘s, Agent Edwards noticed that his barber—whose real

name was Victor Lawson, but who called himself ―Mikail‖—

always carried guns. Edwards also became aware of illegal

activities at Kazoo‘s, including the sale of stolen and counterfeit

items. This prompted Edwards to investigate, and he learned

that Lawson had been convicted of felonies in Pennsylvania and

New Jersey. Consequently, Edwards decided to try to purchase

firearms at Kazoo‘s.

Edwards made three purchases from Lawson. On a

fourth occasion, Lawson displayed a Kel-Tec rifle that he

boasted could be used for ―urban combat.‖ Edwards expressed

interest in the Kel-Tec rifle and said that he would return with

money for the purchase. He then prepared probable cause

affidavits and obtained a warrant to search Lawson‘s residence

and Kazoo‘s. When ATF agents executed the warrants and

arrested Lawson, they recovered the rifle. Edwards traced the

rifle to Lou‘s Loans, a federal firearms licensee in Upper Darby,

Pennsylvania. The original buyer was Lionel Coates.

Lawson could not have obtained the rifle legally because

he was a felon, so Edwards asked him how he got it. Lawson

3

responded that he bought the rifle from ―Jabriel‖ in

Philadelphia. Edwards showed Lawson a photo array, but

Lawson could not identify the man who sold him the gun.

Turner‘s photo was not part of this array.

Edwards then interviewed Coates, the original purchaser

of the rifle, who said that he bought the gun for ―Jabriel.‖

According to Coates, ―Jabriel‖ really was named ―James‖ and

lived near ―25th and Ritner Street.‖ Edwards entered this

information into a database and retrieved Turner‘s photo. When

presented with an array that included Turner‘s photo, Coates and

Lawson identified him as ―Jabriel.‖

According to Coates, ―Jabriel‖ approached him to buy a

gun. ―Jabriel‖ drove Coates to Lou‘s Loans and pointed to the

Kel-Tec rifle he wanted. A week later, ―Jabriel‖ again drove

Coates to Lou‘s and gave him money to purchase the rifle. Both

men entered the store, and Coates supplied his identification and

paperwork, including a written statement that he was the ―actual

buyer‖ of the firearm. When the purchase was complete, the

men left the store and placed the gun in ―Jabriel‘s‖ car.

―Jabriel‖ paid Coates $250.

Based on this evidence, Turner was indicted for three

weapons offenses. Count One charged him with conspiring to

make false statements to a firearms dealer, see 18 U.S.C. §§

371, 924(a)(1)(A), and alleged that Coates acted as Turner‘s

―straw purchaser‖ at Lou‘s Loans. Count Two charged Turner

with knowingly aiding and abetting Coates in making false

statements to a firearms dealer. See 18 U.S.C. § 924(a)(1)(A),

(2). Count Three charged Turner with knowingly possessing a

firearm after being convicted of a felony. See 18 U.S.C. §§

922(g)(1), 924(e).

4

B

Lawson and Coates entered into plea agreements with the

Government and testified against Turner at trial. Turner‘s

counsel attacked their credibility in his opening statement,

suggesting that Lawson and Coates ―spill[ed] [their] guts . . . to

get a deal.‖ Counsel also referred to the cooperating witnesses

as ―rotten timbers to support the roof‖ of the Government‘s case

and called Lawson a ―bad apple‖ and a ―rat.‖ He concluded his

opening statement by asserting that the Government had nothing

but ―the testimony of two liars.‖

During cross-examination, Turner‘s counsel accused

Agent Edwards of helping to ―orchestrate‖ the Government‘s

case and insinuated that Edwards impermissibly helped Lawson

identify Turner. Counsel also implied that Lawson had lied to

curry favor with the Government, asking Edwards: ―when

Victor Lawson started to spill the beans, you took notes with

respect to all of the individuals that he targeted, correct?,‖ and

―as far as you know how this process works, when he ultimately

gets sentenced, who knows how many years from now, the

judge who‘s going to be sentencing him is going to hear how he

testified [in other cases] whether the testimony was truthful or

not[?].‖

On redirect examination, Edwards testified that Lawson

had cooperated with the Government in other cases against

twelve or thirteen people. According to Edwards, Lawson

provided information regarding home invasions, robberies,

straw purchasers, narcotics traffickers, and counterfeiting.

When the Government asked Edwards, ―[w]hat happened with

the other cases?,‖ Turner objected. The District Court overruled

the objection, and Edwards answered, ―[a]ll of the defendants

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that have been charged to date have either pled guilty or gone to

trial and were found guilty.‖ Turner renewed his objection, but

the District Court denied it because Edwards‘s statement was

―an objective fact.‖

The jury also heard Lawson testify that he initially did

not tell Edwards that ―Jabriel‖ was Turner because Lawson had

been calling Turner ―Jabriel‖ for so long that he had forgotten

Turner‘s real name. On cross-examination, Turner‘s counsel

accused Lawson of ―forget[ting] things that are convenient‖ and

―diming out‖ people to fulfill a ―contract‖ with the Government.

During redirect examination, the Government argued that

Turner had ―opened the door‖ about how well Lawson knew

Turner and sought permission ―to ask [Lawson] how he kn[ew]

what [Turner‘s] real name was as opposed to his Muslim name.‖

The Court allowed the Government to do so but instructed the

Government to use ―pointed questions‖ and to avoid using the

word ―Muslim.‖ When questioning resumed, Lawson stated that

he met Turner through a religious organization in the 1980‘s,

when he knew him both by his ―birth name‖ and as ―Jimmy X

Turner.‖ Lawson used this name in a ―dossier,‖ which was a

―profile on each member of the [religious] organization[,] their

name, their home address, their educational background, their

criminal records, and so on and so forth.‖ Finally, Lawson

testified that by the time Edwards interviewed him, he had

forgotten Turner‘s real name and only referred to him by the

―name that‘s given to [him] in the organization‖ because

―[n]obody uses their Christian name on the streets.‖ Lawson

confirmed that his own ―religious name‖ was ―Mikail.‖

The jury found Turner guilty on all three counts. He was

subject to a mandatory minimum sentence of 180 months‘

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imprisonment pursuant to the Armed Career Criminal Act, 18

U.S.C. § 924(e), and his advisory imprisonment range under the

United States Sentencing Guidelines was 210 to 262 months.

The District Court varied downward, imposing a sentence of

190 months‘ imprisonment. Turner filed a timely notice of

appeal. The District Court then granted trial counsel leave to

withdraw and appointed new counsel for Turner.1

C

Once on appeal, this case took several unusual turns.

First, Turner‘s counsel filed what might be called a ―quasi-

Anders brief,‖ which raised a combination of colorable and

frivolous arguments. As for the colorable arguments, Turner‘s

counsel challenged the District Court‘s failure to give a jury

instruction regarding testimony about the guilty pleas and

verdicts resulting from Lawson‘s cooperation with the

Government. Counsel also challenged the District Court‘s

failure to strike Lawson‘s references to ―Jimmy X Turner‖ and

the ―criminal record[s]‖ in his ―dossier.‖ In addition to these

two arguments, Turner‘s counsel raised nine issues ―in the style

of an Anders brief,‖ explaining why they considered those issues

frivolous.

Taking his cue from counsel‘s brief, Turner filed a pro se

document requesting that his counsel withdraw and advancing

entirely new arguments on the merits. Because Turner styled

this document as a ―supplement to be attached to the brief filed

[by counsel],‖ we construed it as a motion for leave to file a

1

The District Court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231. Our jurisdiction lies under 28

U.S.C. § 1291.

7

supplemental brief. Two weeks later, Turner‘s counsel filed a

separate ―Motion for Leave for the Appellant to File a Pro Se

Supplemental Brief.‖ In doing so, counsel acknowledged that

Third Circuit Local Appellate Rule 31.3 prohibits represented

parties from filing pro se briefs, but they noted that the Rule also

allows counsel ―in the unusual case [to] file a motion to file a

supplemental brief, if appropriate.‖ 3d Cir. L.A.R. 31.3.

Counsel conceded that this case was not governed by Anders

because they had not sought to withdraw from their

representation of Turner. Nevertheless, counsel urged the Court

to accept a supplemental brief from Turner because their ―quasi-

Anders‖ brief rendered this an ―unusual case‖ under Local

Appellate Rule 31.3.

A motions panel of this Court entered an order referring

both Turner‘s and his counsel‘s motions to the merits panel.

The Government filed a motion for reconsideration of that order,

arguing that it contravened Local Appellate Rule 31.3 because it

required the Government to respond to the litany of issues raised

in both counsel‘s ―quasi-Anders brief‖ and Turner‘s pro se

motion. According to the Government, Turner was improperly

seeking ―hybrid representation‖ and ―should [have been]

compelled to determine . . . whether he [was] represented by

counsel or wishe[d] to proceed pro se.‖

Because we had not yet ruled on whether Turner could

file a supplemental brief pro se, Turner and his counsel

responded to the Government‘s motion independently. First,

Turner filed a motion purporting to ―counterattack‖ the

Government‘s motion, as well as requesting ―hybrid

representation by both counsel and defendant‖ because there

were ―issues of merit that [they stood] divided on.‖ Next,

counsel filed their own response to the Government‘s motion,

8

reiterating that this qualified as an ―unusual case‖ under Local

Appellate Rule 31.3. Counsel added that they had filed a

―quasi-Anders‖ brief ―to satisfy [their] dual obligations to the

defendant and to this Court . . . to make any arguments they

could in good faith on the defendant‘s behalf [while addressing]

arguments that the client insisted be made, despite [their]

advice.‖

The motions panel denied the Government‘s motion for

reconsideration. Consequently, the Government filed a merits

brief that addressed the two non-frivolous issues in counsel‘s

―quasi-Anders‖ brief but insisted that pro se briefs by counseled

parties violate our local rules. Turner‘s counsel filed a reply

brief, contending that Local Appellate Rule 31.3 was ambiguous

and could be read to permit counsel ―in the unusual case [to] file

a motion to file a supplemental brief [authored by the pro se

defendant].‖ The case was calendared, and oral argument was

scheduled.

The case took yet another twist, however, when we

granted Turner‘s and counsel‘s long-pending initial motions,

which had requested leave for Turner to file a pro se

supplemental brief. Turner seized on this opportunity to file yet

another brief, which he conceded did not ―quote[] any case law,

states [sic], or rules‖ but which nevertheless raised four

additional issues. Justifiably perplexed, the Government

responded to Turner‘s third and final pro se filing, beginning

with the understatement that ―[t]his appeal has followed a most

unusual course.‖ The Government also expressed confusion

because it believed that Turner already had submitted a

supplemental pro se brief as part of his first motion to this

Court. The Government therefore was ―unclear whether the

opportunity to file a pro se supplemental brief [in the Court‘s

9

latest order] referred to a new brief, or a reply brief to the

government‘s brief.‖ Finally, the Government once again

argued that the Court should not consider Turner‘s pro se

arguments while he was represented by counsel, but ―for the

benefit of the Court‖ the Government responded to ―the latest

four in the apparently endless[] series of pro se issues presented

by Turner.‖

II

Turner concedes that we review the two colorable issues

raised by his appellate counsel for plain error because they were

not raised at trial. See Fed. R. Crim. P. 52(b). ―To find plain

error, we must conclude that (1) there was error; (2) the error

was clear or obvious; (3) the error affected the defendant‘s

substantial rights; and (4) the error seriously affected the

fairness, integrity, or public reputation of the legal proceeding.‖

United States v. Tyson, 653 F.3d 192, 211 (3d Cir. 2011) (citing

United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010)). ―If the

defendant satisfies this showing, we may, but are not required

to, order correction.‖ Id. (citing United States v. Olano, 507

U.S. 725, 735–36 (1993)).

III

Having described the convoluted procedural history of

this case and the applicable standard of review, we turn to the

merits of the non-frivolous issues raised by counsel in Turner‘s

opening brief. Through counsel, Turner argues that the District

Court erred by failing to give a limiting instruction regarding

Lawson‘s cooperation with the Government. Turner concedes,

however, that he has ―not found any case law supporting [his]

position‖ and that his argument ―is not based on any direct

10

precedent.‖ The absence of controlling precedent forecloses

Turner‘s plain error argument on this issue. And while he

contends that United States v. Universal Rehabilitation Services

(PA), Inc., 205 F.3d 657 (3d Cir. 2000) (en banc), is

―analogous‖ to his case, he also candidly admits that there are

―important differences between the two types of situations.‖ We

agree that Universal Rehabilitation Services is distinguishable

and therefore find no ―clear or obvious‖ error in the District

Court‘s failure to give a limiting instruction.

Turner also argues that the District Court plainly erred by

allowing the Government to elicit testimony regarding ―Jimmy

X Turner‖ and Lawson‘s ―dossier,‖ which purportedly contained

Turner‘s ―criminal records.‖ Turner claims the reference to

―Jimmy X Turner‖ had no probative value but ―might be

understood by at least some jurors as a reference to a Muslim

associated with followers of the late ‗Malcom X,‘ who some

might think of as an anti-establishment radical.‖ He also

contends that Lawson‘s ―dossier‖ reference suggested Turner

was in ―a religious organization where it was standard to have a

criminal record.‖

We find no error, let alone plain error, in the District

Court‘s admission of this evidence. Federal Rule of Evidence

403 permits the exclusion of relevant evidence ―if its probative

value is substantially outweighed by the danger of . . . unfair

prejudice.‖ The risk of prejudice from this evidence was slight.

The mere addition of ―X‖ to Turner‘s name was unlikely to

stoke the jury‘s passions. And although Lawson testified that he

kept ―dossiers‖ with information on ―each member of the

organization[,] their name, their home address, their educational

background, their criminal records, and so on,‖ he did not testify

that Turner had a criminal record. Therefore, we reject Turner‘s

11

second argument.

IV

In addition to the colorable issues we have discussed,

Turner‘s counsel have proffered nine arguments ―in the style of

an Anders brief,‖ presenting issues that ―the defendant directed

counsel to raise‖ but explaining why they are frivolous.2

Despite counsel‘s creative attempt to satisfy their client, Turner

himself has filed two documents that raise a host of separate

issues. As a result of this rift in the attorney-client relationship,

Turner urges us to grant ―hybrid representation . . . because there

are issues . . . which [they] stand divided on.‖ As we shall

explain, this is not the proper procedure to follow when counsel

and their clients disagree on which arguments to present to this

Court.

A

We turn now to counsel‘s ―quasi-Anders‖ brief.

Although we have no doubt that it was well-intentioned and

counsel were no doubt perplexed as to what to do, the brief was

improper.

As an initial matter, Turner‘s counsel rightly note that

they had no constitutional obligation to present frivolous issues

in their brief. See Jones v. Barnes, 463 U.S. 745, 751 (1983)

(―Neither Anders nor any other decision of this Court suggests

. . . that the indigent defendant has a constitutional right to

compel appointed counsel to press [even] nonfrivolous points

2

Because we agree with counsel that these issues are

frivolous, we do not address them here.

12

requested by the client, if counsel, as a matter of professional

judgment, decides not to present those points.‖ (emphasis

added)). Nevertheless, counsel contend that ―the ethical rules

applicable here, while they do not create an obligation to present

any or all arguments which the defendant insists be raised, did

provide a backdrop against which counsel made their strategic

decisions.‖ Counsel cite the Pennsylvania Rules of Professional

Conduct, which require a lawyer to ―reasonably consult with the

client about the means by which the client‘s objectives are to be

accomplished.‖ Pa. R. Prof‘l Conduct 1.4.

But the Pennsylvania Rules of Professional Conduct do

―not prescribe how . . . disagreements are to be resolved.‖ Id. at

1.2 cmt. 2. Indeed, other portions of the Rules suggest that

counsel‘s approach was unwarranted. For example, they

provide ―the client may resolve the disagreement by discharging

the lawyer.‖3 Id. The Rules do not require anything like a

―quasi-Anders brief.‖ Id. To the contrary, they state that a

―lawyer is not bound . . . to press for every advantage that might

be realized for a client. For example, a lawyer may have

authority to exercise professional discretion in determining the

means by which a matter should be pursued.‖ Id. at 1.3 cmt. 1.

Moreover, the lawyer ―shall not . . . assert or controvert an issue

. . . unless there is a basis in law and fact for doing so that is not

frivolous.‖ Id. at 3.1. This basic rule accords with the Supreme

Court‘s admonition that ―[a]n attorney, whether appointed or

paid, is . . . under an ethical obligation to refuse to prosecute a

frivolous appeal.‖ McCoy v. Court of Appeals of Wis., Dist. 1,

3

We caution that a motion to discharge appellate

counsel after counsel has filed a brief is likely to be denied.

See Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163

(2000) (no right to self-representation on appeal).

13

486 U.S. 429, 436 (1988). Stated simply, counsel need not, and

should not, present frivolous arguments merely because a client

instructs them to do so.4

Here, counsel‘s ―quasi-Anders‖ brief runs afoul of the

guidance provided by the Supreme Court in McCoy:

It is essential to keep in mind that the so-called

―Anders brief‖ is not expected to serve as a

substitute for an advocate‘s brief on the merits,

for it would be a strange advocate‘s brief that

would contain a preface advising the court that

the author of the brief is convinced that his or her

arguments are frivolous and wholly without merit.

Rather, the function of the brief is to enable the

court to decide whether the appeal is so frivolous

that the defendant has no federal right to have

counsel present his or her case to the court.

Id. at 439 n.13. Anders briefs ensure that constitutional rights

are protected; they are not an opportunity to brief issues that

would otherwise be unacceptable. Id. at 444. By filing an

Anders brief without seeking to withdraw, counsel have

presented issues to the Court that need not have been raised. Id.

at 436.

Attorneys ―need not, and should not, raise every . . .

claim but rather may select among them in order to maximize

4

It is important to remember that the Supreme Court

has held that an indigent appellant has no right to counsel of

choice. United States v. Gonzalez-Lopez, 548 U.S. 140

(2006).

14

the likelihood of success on appeal.‖ Showers v. Beard, 635

F.3d 625, 634 (3d Cir. 2011) (citing Smith v. Robbins, 528 U.S.

259, 288 (2000)).

Experienced advocates since time beyond

memory have emphasized the importance of

winnowing out weaker arguments on appeal and

focusing on one central issue if possible, or at

most on a few key issues. . . . A brief that raises

every colorable issue runs the risk of burying

good arguments—those that . . . ―go for the

jugular‖—in a verbal mound made up of strong

and weak contentions.

Jones, 463 U.S. at 751–53. ―Indeed, an appellate lawyer‘s

exercise of professional judgment in omitting weaker claims is

obviously of benefit to the client: the more claims an appellate

brief contains, the more difficult for an appellate judge to avoid

suspecting that there is no merit to any of them.‖ Johnson v.

Tennis, 549 F.3d 296, 302 (3d Cir. 2008) (citation and internal

quotation marks omitted); see also Ruggero J. Aldisert, The

Appellate Bar: Professional Competence and Professional

Responsibility—A View from the Jaundiced Eye of One

Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)

(―Appellate advocacy is measured by effectiveness, not

loquaciousness.‖). ―[T]o second-guess reasonable professional

judgments and impose on appointed counsel a duty to raise

every ‗colorable‘ claim suggested by a client would disserve the

very goal of vigorous and effective advocacy that underlies

Anders.‖ Jones, 463 U.S. at 754.

15

B

In addition to vetting frivolous issues in their ―quasi-

Anders brief,‖ counsel invite us to consider Turner‘s pro se

filings, which also present frivolous issues, because this is an

―unusual case.‖ We reject that invitation because our local rules

preclude us from considering Turner‘s pro se arguments while

he is represented by counsel. Accordingly, the order filed

December 1, 2011 is hereby vacated.

Pro se litigants have no right to ―hybrid representation‖

because ―[a] defendant does not have a constitutional right to

choreograph special appearances by counsel.‖ McKaskle v.

Wiggins, 465 U.S. 168, 183 (1984). ―Once a pro se defendant

invites or agrees to any substantial participation by counsel,

subsequent appearances by counsel must be presumed to be with

the defendant‘s acquiescence, at least until the defendant

expressly and unambiguously . . . request[s] that . . . counsel be

silenced.‖ Id.

Even absent our longstanding prohibition on ―hybrid

representation,‖ we still could not consider Turner‘s pro se

filings because we are bound by our local rules, which state:

Except in cases in which counsel has filed a

motion under L.A.R. 109.2 to withdraw under

Anders v. California, 386 U.S. 738 (1967), parties

represented by counsel may not file a brief pro se.

If a party sends a pro se brief to the court, the

clerk will forward the brief to the party‘s attorney

of record, with notice to the pro se party. Counsel

may choose to include the arguments in his or her

brief or may in the unusual case file a motion to

16

file a supplemental brief, if appropriate.

3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated

repeatedly in not precedential opinions that we consider pro se

briefs only in situations governed by Anders. See, e.g., United

States v. McCoy, 272 F. App‘x 212, 215 (3d Cir. 2008); United

States v. Reyes, 271 F. App‘x 217, 218 (3d Cir. 2008); United

States v. Awala, 260 F. App‘x 469, 471–72 (3d Cir. 2008);

United States v. Lott, 240 F. App‘x 992, 995 (3d Cir. 2007).

Although in the past we considered counseled parties‘ pro se

filings in ―unusual circumstances,‖ see United States v. Salemo,

61 F.3d 214, 218 n.2 (3d Cir. 1995); United States v. Essig, 10

F.3d 968, 969 (3d Cir. 1994), Local Appellate Rule 31.3 should

have abrogated that practice when it became effective in 2002.

Counsel for Turner argue that Local Appellate Rule 31.3

is ambiguous. In their view, ―[c]ounsel may choose to include

the arguments [of the pro se defendant] in his or her brief or may

in the unusual case file a motion to file a supplemental brief

[authored by the pro se defendant], if appropriate.‖ Counsel

correctly imply that Rule 31.3 does not specify who, in the

―unusual case,‖ may be permitted to file a supplemental brief.

The rule can be read, as counsel suggests, to permit the filing of

pro se briefs by counseled defendants in ―unusual‖ and

―appropriate‖ cases. But the rule also can be read, as the

Government suggests, to require all supplemental briefs to be

filed by counsel.

We find the Government‘s interpretation to be the more

natural reading of Rule 31.3. The Rule states that ―[c]ounsel . .

. may . . . file a motion to file a supplemental brief.‖ 3d Cir.

L.A.R. 31.3 (emphasis added). There is no mention of

represented parties in this sentence. The beginning of Rule

17

31.3, which does mention pro se filings, states that they will be

forwarded to counsel rather than submitted to the Court. Id.

Moreover, allowing represented parties to file pro se

supplemental briefs would contradict the first sentence of Rule

31.3, which states: ―[e]xcept in [Anders cases], parties

represented by counsel may not file a brief pro se.‖ Id.

By requiring that briefs be filed only by counsel, we

ensure that counsel and client speak with one voice. When a

client seeks to raise additional issues, counsel must evaluate

them and present only the meritorious ones, rather than simply

seeking leave for the client to file a supplemental brief. This

promotes effective advocacy because it prevents counsel from

allowing frivolous arguments to be made by the client. See

Jones, 463 U.S. at 751–53.

We also note that the convoluted procedural history in

this case illustrates well the hazards of reading Rule 31.3 as

Turner‘s counsel suggest. If represented parties could file pro se

briefs, their adversaries would have to respond on two distinct

fronts. Apart from the procedural morass that would follow

such ―hybrid‖ advocacy (as occurred in this case), our attention

would be diverted from potentially meritorious arguments.

In light of the foregoing, we now hold that, except in

cases governed by Anders, parties represented by counsel may

not file pro se briefs. When such briefs are filed nonetheless,

the Clerk will refer them to the putative pro se litigant‘s counsel.

At that point, counsel may (1) include the client‘s pro se

arguments in their own briefs or (2) in the appropriate and

unusual case, seek leave to file a separate, supplemental brief

drafted by counsel that advances arguments raised by the client.

Of course, such briefs should make only those arguments

18

counsel believe, consistent with their ethical duty, to be

meritorious.

V

For the reasons stated, we will affirm Turner‘s

conviction.

19