                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2005

USA v. Wallace
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2746




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"USA v. Wallace" (2005). 2005 Decisions. Paper 1028.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                           Nos. 02-2746 / 03-3840 / 04-1939


                          UNITED STATES OF AMERICA

                                           v.

                               CLARENCE WALLACE,

                                                      Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 02-cr-00197-1)
                      District Judge: Honorable R. Barclay Surrick


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 6, 2005


           Before: AMBRO, STAPLETON and ALARCÓN*, Circuit Judges

                             (Opinion filed June 13, 2005 )




                                       OPINION




       * Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
AMBRO, Circuit Judge

       On June 14, 2002, Appellant Clarence Wallace was convicted by a jury of multiple

federal crimes stemming from his participation in the armed robbery of two banks. After

unsuccessfully pursuing various post-conviction motions, Wallace was sentenced to 960

months of imprisonment and five years of supervised release and ordered to make

restitution in the amount of approximately $26,000 – the unrecovered loss to the banks.

After his sentencing, Wallace moved pro se under Fed. R. Civ. P. 60(b)(3) for relief from

the judgment of conviction because of fraud on the District Court. In this post-sentencing

motion, Wallace reasserted a variety of arguments already rejected by the District Court

and introduced additional theories of relief. The Court properly denied this motion for

lack of jurisdiction. Wallace appeals his conviction, the denial of post-conviction relief

and the denial of his post-sentencing motion styled under Rule 60(b).

       Wallace’s appointed counsel on appeal has filed an Anders motion to withdraw as

counsel, asserting that all potential grounds for appeal are frivolous. We consider that

motion here, and for the reasons given below grant it and affirm Wallace’s conviction and

sentence.

                                             I.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be

wholly frivolous, after a conscientious examination of” the case, s/he must advise the

Court of this finding and request permission to withdraw from the case.” Id. at 744. This



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request must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal,”id., “explain to the court why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and in so doing demonstrate

that s/he has “thoroughly scoured the record in search of appealable issues,” id. at 780. A

copy of counsel’s brief must be furnished to the appellant, who must be given time to

raise non-frivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit

LAR 109.2(a) (2000).

       We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.

Youla, 241 F.3d 296, 301 (3d Cir. 2001). We grant a counsel’s Anders motion to

withdraw if “a full examination of all of the proceedings,” Anders, 386 U.S. at 744,

shows “that the attorney has provided the client with a diligent and thorough search of the

record for any arguable claim,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,

442 (1988), and we conclude “that the appeal lacks any basis in law or fact,” id. at 438

n.10. “The Court’s inquiry . . . is thus twofold: (1) whether counsel adequately fulfilled

the rule’s requirements; and (2) whether an independent review of the record presents any

nonfrivolous issues.” Youla, 241 F.3d at 300.

                                             II.

       As we write solely for the parties, we need not detail the facts of this case.

Wallace’s counsel has identified as potential grounds for appeal (1) the District Court’s



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rejection of Wallace’s jury tampering argument, (2) the Court’s lack of jurisdiction to

consider Wallace’s Rule 60(b) motion, (3) alleged perjury by the FBI case agent, (4) the

sufficiency of the testimony by the cooperating defendants, (5) the failure of the

Government to furnish Brady material, (6) the District Court’s participation in the

decision whether to call Wallace’s son as a witness, and (7) the denial of Wallace’s

opportunity to be present at sidebar during the voir dire of potential jurors. Counsel has

thoroughly addressed each of these arguments, demonstrating that they lack any basis in

law or fact.1 The Government, in turn, has reviewed and endorsed counsel’s analysis.

Lastly, we note that most of these arguments were addressed on their merits at least once

by the District Court and roundly rejected.

        As the Government points out, “Wallace has, in numerous letters to the district

court and this Court, in complaints to the bar association, and in his motions, made

facially absurd allegations that government counsel, the case agent, and his trial counsel

are ‘corrupt law handlers’ involved in the creation of evidence and the subornation of

perjury. He claims this ‘conspiracy’ to subvert justice was aided by post-trial counsel,

appellate counsel, and, apparently, even the trial judge.” In fact, in a December 2, 2004

order, we described a litany of claims levied by Wallace against his appellate counsel as

“conclusory and unsubstantiated,” indeed “fantastic and patently frivolous.”

        In this vein, we turn to Wallace’s pro se brief in support of his appeal. As we are



  1
      We conclude that counsel has met his obligations under Anders.

                                              4
unable to extract any meaningful legal arguments, we can only conclude that he has failed

to demonstrate the existence of nonfrivolous appellate arguments.

      We thus affirm Wallace’s conviction and sentence and grant counsel’s motion to

withdraw.




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