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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41028
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TRACY JOSEPH WAGNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
October 26, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Counsel for Tracy Joseph Wagner filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Counsel now asks that
he be allowed to withdraw. Wagner similarly requests that counsel
be allowed to withdraw so that he can proceed pro se on appeal.
Wagner further requests that counsel's Anders brief be stricken.
In Anders v. California, 386 U.S. 738 (1967), the Supreme
Court held that after a conscientious examination of the record, if

appointed counsel finds a criminal defendant's case to be wholly
frivolous, he or she should so advise the court and request
permission to withdraw. This request must be accompanied by a
brief referring to anything in the record that might arguably
support the appeal. 386 U.S. at 744. The court further required
that a copy of the brief be furnished to the defendant so as to
allow him an opportunity to raise any issues he so chooses. Id.
The Anders decision reconciled the conflicting interests of
indigent appellants in zealous representation and the judicial
system in the efficient administration of justice.
Anders and its progeny discuss the adequacy of the brief which
the appointed counsel must file in support of the motion to
withdraw. Very little discussion exists, however, about the role
of the courts in reviewing Anders briefs and requests for
withdrawal of counsel. See, e.g., United States v. Wagner, 103
F.3d 551, 553 (7th Cir. 1996) (noting dearth of case law and
holding that "if the brief explains the nature of the case and
fully and intelligently discusses the issues that the type of case
might be expected to involve, we shall not conduct an independent
top-to-bottom review of the record in the district court to
determine whether a more resourceful or ingenious lawyer might have
found additional issues that may not be frivolous.").
This case presents a recurring issue: once appointed counsel
has filed an Anders brief, should the indigent defendant be allowed
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to reject his attorney, have the Anders brief stricken, and proceed
with his appeal pro se? Our circuit as well as others have
routinely allowed indigent defendants to proceed pro se after an
Anders brief has been filed and appointed counsel has been allowed
to withdraw. See, e.g., United States v. Stuttley, 103 F.3d 684
(8th Cir. 1996), cert. denied, 118 S. Ct. 83 (1997); United States
v. Henderson, 72 F.3d 463 (5th Cir. 1995); United States v. Koff,
43 F.3d 417 (9th Cir. 1994); United States v. Balzano, 916 F.2d
1273 (7th Cir. 1990). Underlying this practice is the recognition
that a criminal defendant has a constitutional and a statutory
right to represent himself on appeal. See 28 U.S.C. � 1654; Myers
v. Collins, 8 F.3d 249, 252 (5th Cir. 1993). Although the right
undoubtedly exists, we are compelled to examine closely when that
right must be exercised on appeal and the appropriate standard to
apply in order to further the principles of Anders.
By analogy we look to the right of a defendant to proceed pro
se during a criminal trial. We have noted that although a
defendant does indeed have the right to defend himself without
counsel at his trial, once the trial begins, the right to defend
ceases to be absolute. See, e.g., Moreno v. Estelle, 717 F.2d 171
(5th Cir. 1983). Thus a defendant cannot wait until the eve of
trial to exercise his right to proceed pro se for courts are wary
of last minute requests which "impede the prompt and efficient
administration of justice." McQueen v. Blackburn, 755 F.2d 1174,
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1178 (5th Cir. 1985).
Just as the right to proceed pro se at trial is not absolute
if invoked too late, so too is the right to proceed pro se on
appeal not absolute. Much time, preparation, and careful
consideration goes into the filing of an Anders brief. Indeed, if
done correctly, Anders briefs are more difficult and time-consuming
than ordinary appellate briefs. To allow criminal defendants to
file a request to proceed pro se on appeal only after an Anders
brief has been filed would "open the door to abuse of this valuable
sixth amendment right by allowing it to be used `to obstruct the
orderly procedure in the courts or to interfere with the fair
administration of justice.'" McQueen, 755 F.2d at 1178 (quoting
Bowman v. United States, 409 F.2d 225, 226 (5th Cir. 1969)).
Once an Anders brief has been filed, the appellate court will
conduct the familiar inquiry as to whether there are no
nonfrivolous issues for appeal. Penson v. Ohio, 488 U.S. 75
(1988). The court will consider the arguments made by appointed
counsel in the Anders brief along with any issues raised by the
defendant. Anders, 386 U.S. at 744. We have done so and determine
that in this case there are no nonfrivolous issues for appeal.
We are now faced with the second inquiry, whether Wagner
should nonetheless be allowed to proceed pro se on appeal. We
conclude that he should not. Had Wagner asserted his right to
represent himself prior to the filing of the Anders brief, he would
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have been allowed to file his own brief on appeal. See 28 U.S.C.
� 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir. 1993). Because
he waited until after the Anders brief was filed to inform the
court that he wished to proceed pro se, Wagner's request is too
late.
For the foregoing reasons, Wagner and his counsel's motion to
withdraw is GRANTED. Wagner's request that the Anders brief be
stricken is DENIED. Wagner's motion to proceed pro se on appeal is
DENIED. As there are no meritorious issues for appeal, the appeal
is DISMISSED.
MOTIONS TO WITHDRAW GRANTED. MOTION TO PROCEED PRO SE DENIED.
APPEAL DISMISSED.
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