                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

USA v. Edwin Flamer
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1599




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                           Nos. 07-4151 / 08-1421 / 08-1599


                          UNITED STATES OF AMERICA

                                           v.

                                  EDWIN FLAMER,

                                                Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                      (D.C. Criminal Action No.07-cr-00117-001)
                       District Judge: Honorable James T. Giles


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 30, 2009

         Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges

                           (Opinion filed: February 3, 2009)




                                      OPINION


AMBRO, Circuit Judge

      Edwin Flamer was convicted in the Eastern District of Pennsylvania of distributing

50 grams or more of cocaine base and sentenced to life imprisonment based on two prior

felony drug convictions. He now appeals his conviction and sentence, along with the
District Court’s denial of his post-trial motions for, respectively, additional time to file a

Federal Rule of Criminal Procedure 33 motion for a new trial, and Jencks Act, 18 U.S.C.

§ 3500, and other discovery, material. Flamer’s attorney has moved to withdraw his

representation under Anders v. California, 386 U.S. 738 (1967). We grant the motion and

affirm Flamer’s conviction and sentence, along with the District Court’s denial of his

post-trial motions.1

                                               I.

       Because we write solely for the parties, we recite only those facts necessary to our

decision. On January 11, 2007, Flamer was arrested in Valley Township, Pennsylvania,

for selling cocaine base to an informant who had been working with both local and

federal drug enforcement agents. The sale was recorded by the informant via both audio

and video, while audio recordings were made of the four phone calls during which the

sale was arranged. A subsequent analysis of the substance sold by Flamer revealed it to

be 50.3 grams of cocaine base at 79.8% purity.

       On March 7, 2007, a grand jury returned an indictment against Flamer, charging

him with one count of knowing and intentional distribution of 50 grams or more of

cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). A jury found Flamer

guilty after a three-day trial. Flamer then made a pro se motion requesting more time




   1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                               2
with which to file a Rule 33 motion for a new trial, explaining that he was “in the process

of hiring a new so attorney so that [he] can have him file a Rule 33 [m]otion on a post

trial issue of [i]neffective [a]ssistance of [c]ounsel.” The District Court denied the

motion and Flamer filed an interlocutory appeal. It later imposed a life sentence on

Flamer based on his two prior convictions for sales of cocaine.

         Flamer filed an appeal of his conviction and sentence, but shortly thereafter

submitted a pro se motion seeking to receive all Jencks Act and other discovery material

relating to his case. The District Court denied the motion and Flamer appealed that as

well.2

         His counsel filed an Anders brief, seeking to withdraw his representation. Flamer

declined to file a pro se brief.

                                               II.

         Our rules provide that “[w]here, upon review of the district court record, trial

counsel is persuaded that the appeal presents no issue of even arguable merit, counsel

may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. LAR

109.2(a). If we concur with trial counsel’s assessment, then we “will grant [the] Anders

motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our

“inquiry when counsel submits an Anders brief is . . . twofold: (1) whether counsel

adequately fulfilled the rule’s requirements; and (2) whether an independent review of the



   2
       We have consolidated Flamer’s three appeals.

                                               3
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001).

       We are satisfied that trial counsel’s Anders brief is adequate and that there are no

nonfrivolous grounds on which to challenge either Flamer’s conviction or his sentence.

The evidence of guilt presented at trial was overwhelming—audio and video tapes that

showed Flamer arranging and completing the sale. The tapes were properly admitted by

the District Court. The life sentence imposed on Flamer was required under 21 U.S.C.

§ 841(b)(1)(A) because the drug offense of which Flamer was convicted came after two

prior convictions for felony drug offenses became final.

       In addition, the District Court did not abuse its discretion in denying Flamer’s

post-trial motions. The District Court denied Flamer’s motion for additional time to file a

Rule 33 motion for a new trial on the ground that his ineffective assistance of counsel

claim should be pursued in a collateral proceeding, not in a motion for a new trial. This

was consistent with the practice of our Court. See United States v. Chorin, 322 F.3d 274,

282 n.4 (3d Cir. 2003) (explaining our “preference that ineffective assistance of trial

counsel claims be brought as collateral challenges under 28 U.S.C. § 2255, rather than as

motions for a new trial”).

       The Court also correctly denied Flamer’s motion for Jencks Act and other

discovery material. That motion was submitted after Flamer filed his notice of appeal of

his conviction and sentence, at which time the District Court lost jurisdiction over matters



                                             4
pertaining to the conviction. See Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 58 (1982) (explaining that “[t]he filing of a notice of appeal . . . confers jurisdiction

on the [C]ourt of [A]ppeals and divests the [D]istrict [C]ourt of its control over those

aspects of the case involved in the appeal.”).

                                              III.

       Counsel adequately fulfilled the requirements of Anders. Because our independent

review of the record fails to reveal any nonfrivolous grounds for appeal, we will grant

counsel’s motion to withdraw and affirm the judgments entered by the District Court. In

addition, we certify that the issues presented in the appeal lack legal merit and thus that

counsel is not required to file a petition for writ of certiorari with the Supreme Court. 3d

Cir. LAR 109.2(b).




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