Edward J. Ellis v. United States of America, Edward J. Ellis v. United States , 249 F.2d 478 ( 1957 )

Circuit Judge Burgee with whom Circuit Judges Prettyman, Millee, Danaher and Bastían concur:

In its order of November 27, 1957, appointing counsel to represent appellant in Case No. 13,511, this court stated : “If counsel finds it impossible to determine without the aid of the stenographic transcript whether the appeal is frivolous or taken for delay, he shall so advise the Court.” This language implies (if it does not affirmatively state) that counsel should determine for the benefit of this court whether the case warranted review. The court order of November 27 cited to counsel’s attention several cases, including United States v. Sevilla, 2 Cir., 1949, 174 F.2d 879, which formulated a procedure to be followed by counsel appointed to advise the court whether an appeal should be allowed. The reference to the Sevilla case plainly told counsel that he was also to advise the court in this matter.

In the memorandum filed April 10, 1957, counsel related: “The following summarization of evidence is presented in the form which counsel believe is appropriate under the cases cited by this Court in its order appointing counsel herein and under the recent holding of the Supreme Court in Johnson v. United States [1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593] * * * ” After making a thorough and detailed statement of the facts, based on interviews with the trial judge, appellant’s trial counsel, the prosecuting attorney, the court reporter, one of the government witnesses, and the defendant, counsel stated there was only one “possible” area of error; this was the ruling, made on three different occasions by two judges, that probable cause existed to make the arrest. However, on the basis of the information available to the police at the time of the arrest, i. e., the description of the culprit, the modus operandi of the crimes committed in that neighborhood, the similarity of appellant’s physical appearance to their description, and the actions of appellant which aroused the officers’ suspicions, counsel concluded there was not such merit even in this aspect of the appeal as to warrant further prosecution of the appeal. In effect, then, whatever language may have been used elsewhere in the memorandum, court-appointed counsel advised this court that no substantial question existed in this case.¹

The dissenting statement recognizes that counsel appointed by the court to represent indigent defendants who wish to appeal their convictions owe an obligation to the court as well as to their clients. The court order appointing counsel in this case reflects this concept. The adequacy of counsel’s representation of a prisoner cannot be measured in these cases by a test of whether counsel, after diligent search, has found a substantial question which warrants review by this court. Not every application for leave to file an appeal in forma pauperis is meritorious and taken in good faith; many are utterly baseless.

This court appointed as counsel for appellant two lawyers, one of whom was formerly employed on the staff of this court and both of whom served as Assistant United States Attorneys in this jurisdiction. Their joint memorandum indicates that they pursued their task with diligence and performed their designated function of representing appellant and advising the court “under the cases cited by this Court in its order * * * and under the recent holding of the Supreme Court in Johnson v. United States * * * ” There is no evidence whatever that they failed to give appellant adequate representation while discharging their obligation to the court. Indeed, the summarization of their efforts shows they represented appellant with vigor and competence. Since we agree with the conclusion of court-appointed counsel that this petition for leave to appeal is lacking in merit, it is immaterial whether we treat counsel’s memorandum as a request for leave to withdraw, a report to the court, a statement in behalf of appellant, or a combination thereof.

The dissenting memorandum suggests that “If the court agrees with that appraisal [of court-appointed counsel], finding that counsel has done all that honestly can be done, no doubt the petition for leave to appeal in forma pauperis may be denied.” A majority of this court, applying this standard and agreeing with counsel’s conclusion, has denied the petition.

1 . On the merits it should be noted that the area where the alleged illegal arrest, search and seizure occurred was under surveillance by several officers because of the epidemic of housebreakings, via entry through doors “jimmied” open during absence of the occupants. Having a description of the suspect, the officers were able to make a tentative identification of the accused when he approached the door near where he was arrested.

He was accosted on the spot, and could give no rational explanation why ho was at that doorway. Searched on the spot, as he should have been to see if he was armed, the sharply filed screwdriver, of the kind known to have been used in the prior robberies, was found along with a stolen diamond. I cannot join in the intimation that such a search, and the subsequent seizure of the specially filed screwdriver and the diamond, should be regarded as unreasonable. We have not yet reached the point where every search of suspected criminals is barred, or that it is limited to searching for weapons.