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
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) January 26, 2012
Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges.
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 role of appellate counsel who represent intransigent clients and to clarify the meaning of our Local Appellate Rule 31.3.
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 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).
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 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 ...