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

5
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‘

6
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.

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