Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 5, 1997.
Appeal from the United States District Court for the District of Arizona Richard M. Bilby, District Judge, Presiding.
Before BOOCHEVER and KLEINFELD, Circuit Judges, and WILSON, District Judge.
The Honorable Stephen V. Wilson, United States District Court for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
OVERVIEW
Francisco H. Garcia, Jr. appeals his criminal conviction and sentence, for which final judgment was entered on January 28, 1996. Garcia was found guilty, after a jury trial, on one count of conspiracy to launder money in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 2; one count of conspiracy to engage in monetary transactions in property derived from unlawful activity in violation of 18 U.S.C. §§ 1957 and 2; and one count of conspiracy to possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846. Constance L. Trecartin, who was appointed appellate counsel to Garcia, filed a brief seeking withdrawal as Garcia's counsel pursuant to Anders v. California on the ground that Garcia's appeal is frivolous.
BACKGROUND
On May 24, 1995, at the close of the government's case, Thomas Reed, Garcia's trial attorney, moved for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on the ground that the government offered insufficient evidence to convict Garcia. Reed argued that the only evidence linking Garcia to the conspiracies was uncorroborated testimony of four of Garcia's alleged co-conspirators. Reed urged that although each of the witnesses testified that Garcia had performed certain acts, each witness testified to different acts that did not corroborate the testimony of the other witnesses. Reed contended that such evidence was insufficient to convict Garcia of conspiracy. The court denied the motion. On June 2, 1995, after the jury returned a guilty verdict against Garcia, Reed renewed his motion for acquittal, which the court again denied.
Ms. Trecartin was appointed as Garcia's appellate counsel. She has now filed a brief requesting withdrawal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Her brief states that she "reviewed the record, read all of the transcripts, researched the law, consulted with Mr. Garcia, Jr., and concluded that the appeal is frivolous." (Brief at 32). She certified that she mailed one copy of her Opening Brief/Motion to Withdraw to Garcia on July 1, 1996. Garcia has not filed a supplemental brief.
DISCUSSION
I. Legal Standard for Anders Brief
An indigent criminal defendant has a constitutional right to appointed counsel on his first appeal as of right:
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.... His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
Anders, 386 U.S. at 744. The purpose of this requirement is to afford the indigent defendant "that advocacy which a nonindigent defendant is able to obtain," and to enable "the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel." Id. at 745.
II. Ms. Trecartin's Brief
Turning to the present case, Ms. Trecartin's brief describes the lower court proceedings and reviews the evidence presented at trial with citations to the record. Ms. Trecartin raises on appeal, as an arguable issue, that the district judge erred in denying Garcia's motion for acquittal and renewal of the same on the ground that there was insufficient evidence presented at trial. Ms. Trecartin correctly points out, however, that the law is not in Garcia's favor because a defendant can be convicted on the uncorroborated testimony of an accomplice. United States v. Henderson, 58 F.3d 1145, 1148-49 (9th Cir.1995); United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993).
Upon considering Ms. Trecartin's brief and oral argument, and upon examining the proceedings, the Court finds that there are no non-frivolous issues for appeal.
Accordingly, the Court GRANTS counsel's Motion to Withdraw, DISMISSES this appeal, and AFFIRMS Garcia's conviction.