United States v. Mozel Palmer ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2558
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M OZEL P ALMER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-cr-10114-001—Michael M. Mihm, Judge.
S UBMITTED F EBRUARY 10, 2010—D ECIDED A PRIL 12, 2010
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
P ER C URIAM. Mozel Palmer was convicted after a jury
trial of conspiracy to possess and distribute powder and
crack cocaine, 21 U.S.C. §§ 846, 841(a)(1), and possession
with intent to distribute these drugs, id. § 841(a)(1). He
was sentenced to a total of 288 months’ imprisonment.
Palmer filed a notice of appeal, but his newly appointed
appellate lawyer represents that her client’s appeal is
frivolous and seeks leave to withdraw under Anders v.
California, 386 U.S. 738 (1967).
2 No. 09-2558
We held in United States v. Edwards, 777 F.2d 364, 366
(7th Cir. 1985), that an Anders submission must “identify,
with record references and case citations, any feature of
the proceeding in the district court that a court or another
lawyer might conceivably think worth citing to the appel-
late court as a possible ground of error.” This imperative
recognizes that a lawyer submitting an Anders motion is
an officer of the court and is essentially “offering an
expert opinion that the appeal is devoid of merit,” United
States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997), and so
we must have confidence that counsel thoroughly evalu-
ated the record before we will let the lawyer guide our
assessment of the appeal, id. at 585. An Anders sub-
mission provides this assurance when the supporting
brief, at a minimum, fully explains the nature of the case.
See United States v. Hamzat, 217 F.3d 494, 501 (7th Cir.
2000); United States v. Fernandez, 174 F.3d 900, 901 (7th Cir.
1999); Tabb, 125 F.3d at 584; United States v. Wagner, 103
F.3d 551, 553 (7th Cir. 1996). But if the brief falls short
of that mark, we will not have faith in the lawyer’s opin-
ion and must deny the motion to withdraw.
Counsel’s brief in this case mirrors an Anders motion
we rejected in Tabb. One of the defendants in that case
had been convicted after a jury trial, and his lawyer
submitted an Anders brief that discussed potential sen-
tencing issues but said nothing about the conduct of the
trial. 125 F.3d at 585. We declined to require that every
Anders brief filed after a trial include potential claims
about the conviction, but we did emphasize that this
court will not infer that counsel made an informed deci-
sion to include only sentencing issues unless the
No. 09-2558 3
brief sets out the nature of the case and the course of pro-
ceedings in enough detail to demonstrate that counsel
evaluated the entire record. Id. And because counsel had
failed to make any reference to the conduct of his
client’s trial, we explained, we were not convinced that
“he made a reasoned decision not to raise the issues he
has omitted.” Id.We are confronted with the same problem in Palmer’s
case. His lawyer discusses potential sentencing issues in
what appears to be an adequate manner and depth but
does not evaluate even one possible argument about
the underlying convictions. Those convictions followed
a jury trial that spanned five days and produced a tran-
script weighing in at more than 1,200 pages, and it
seems improbable that in those pages or elsewhere in
the pretrial proceedings there is nothing at all that “a
court or another lawyer might conceivably think worth
citing to the appellate court as a possible ground of error.”
See Edwards, 777 F.2d at 366. It could be that Palmer does
not wish to challenge his convictions, and if counsel had
said this in her brief, perhaps we could accept the repre-
sentation without the need for a narrative about the
proceedings leading to the guilty verdicts. Cf. United
States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002) (explaining
that a lawyer moving to withdraw under Anders
should ignore potential issues arising from a guilty plea
unless the defendant wants the plea set aside). Palmer
has not responded to our invitation to comment on coun-
sel’s motion and brief. See C IR. R. 51(b). Such silence
might reflect agreement with counsel’s Anders motion;
however, we cannot consider a defendant’s decision not
4 No. 09-2558
to respond to be conclusive proof of acquiescence. See
Wagner, 103 F.3d at 552. But especially here, where
counsel is also silent about any potential trial errors, an
Anders brief will not be adequate unless its narrative of
the proceedings during and before trial convinces us
that counsel omitted by design, rather than oversight, all
discussion of potential appellate claims arising from
the defendant’s convictions. See Tabb, 125 F.3d at 585;
Wagner, 103 F.3d at 553. So much can happen during a
trial of this length, and when presented with an Anders
motion, we are not free to assume that counsel combed
the entire record but found nothing else worth discussing.
See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429,
442 (1988); United States v. Pippen, 115 F.3d 422, 426 (7th
Cir. 1997).
We are comfortable inferring that counsel exercised
“sound judgment,” see Tabb, 125 F.3d at 585, in deciding to
forego discussing whether Palmer could challenge the
sufficiency of the evidence underlying his convictions.
Counsel includes a robust account of the overwhelming
evidence marshaled against Palmer at trial, and since
she did not represent him until this appeal, her de-
tailed description must have been culled from carefully
reviewing the trial testimony and exhibits. But a claim
of insufficient evidence is just one of many appellate
issues that may arise when a criminal case is decided
at trial, and counsel’s chronicle of the evidence con-
sidered by the jury offers no assurance that she was
attentive to possible errors in the conduct of the trial or
the pretrial proceedings. Counsel does not mention, for
example, that Palmer objected to some of the trial
No. 09-2558 5
evidence, or that he was refused a jury instruction on
his theory of defense, or that he moved for a new trial
after the guilty verdicts. It may be that counsel evaluated
these disputed rulings and did not judge them worthy
of mention as potential issues, but her mastery of the
trial evidence is not enough for us to draw that inference.
It will be the unusual case when a lawyer representing
a defendant convicted at trial cannot identify anything
but sentencing issues to include in an Anders submission.
This appeal may be such an exception, but for now we
cannot rely on counsel’s representation that the case is
frivolous. The problem here is that counsel’s Anders
submission recounts the trial evidence in isolation
without any mention of the pretrial proceedings or the
conduct of Palmer’s trial. If counsel had disclosed the
disputes that arose before and during trial—if she had
provided context for her robust summary of the govern-
ment’s evidence—then we would infer that she made
a reasoned decision not to identify any potential issue
arising from those adverse rulings. But as it now stands
this brief does not reflect the close scrutiny that we
expect from a lawyer who represents that her client’s
appeal is frivolous, and unless counsel revises her sub-
mission to fully explain the nature of the case and course
of proceedings, we cannot be confident that she con-
ducted a thorough examination of the entire record with
an eye to all potential appellate issues. That process may
or may not bring to counsel’s attention additional mat-
ters worthy of inclusion in an Anders brief, but if it does
not, it will at least allow us to rely on counsel’s “expert
opinion” that the appeal is frivolous. See Tabb, 125 F.3d
at 584.
6 No. 09-2558
Counsel’s motion to withdraw is D ENIED. Counsel
will have 60 days to revise her Anders submission to
comply with this opinion or, in the alternative, to file a
merits brief.
4-12-10