George H. Cash v. United States , 261 F.2d 731 ( 1958 )

PRETTYMAN, Circuit Judge.

This is a petition for leave to proceed on appeal in forma pauperis. Cash and a co-defendant were convicted of robbery. Cash alone petitioned the District Court for leave to appeal. That court denied the petition with the notation “not taken in good faith.” Cash then filed a similar pro se petition in this court. The Government moved for an extension of time in which to respond, suggesting that as petitioner was then without counsel it would be “appropriate procedure” for this court to appoint counsel to represent him.¹

This court appointed counsel and directed him to prepare a memorandum on behalf of the petitioner. Upon consideration of colmsel’s memorandum, the Government’s opposition, and a reply memorandum submitted by counsel, we con-dude that the petitioner raises no question of law which Justifies authorizing an appeal in forma pauperis. The petition therefore be denied, although at the same time we commend counsel for his diligent efforts on behalf of the petitioner. We also wish to indicate, for the benefit of members of the bar who may be called upon to represent persons in similar situations, approval of what appointed counsel did in this case; although we recognize, of course, that this particular procedure may not be appropriate or available in all cases. And, because there is currently being filed in the District Court and in this court a multitude of Potions to proceed on appeal in criminal cases without prepayment of fees and costs, we consider it appropriate , , . .. I.. to discuss our understanding of the consMeratio„ gOTerilillg the disposition of such ation8

The matter is covered by Section 1915 (a), Title 28 United States Code,² which reads in Pertinent part:

“Any court of the United States may authorize the commencement, prosecution or defense of any suit, atfon or Proceeding, civil or criminal’ or appeal thereln’ wlthout Pre' Payment of fees and costs or securlty ,the.?f°r; by a Cltiz1e1n who makes affidavit that he 18 unable to Pa^ such ^ f glve secunty therefor,

“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”

The substance of this section of the statute is not the bare allowance of an appeal. This court does not allow an appeal; a convicted person always, under our statutes, has a legal right to appeal, provided, of course, he follows the rules and acts within the time prescribed. What the statute provides is that the courts may dispense with the payment of costs under certain conditions. Every phase of the administration of law costs money; judges, judicial personnel, the prosecutor s staff, etc., etc., etc., must be paid, and supplies must be purchased. A portion of those costs is imposed by law upon the litigants. The rationale of tlm statute dispensing with any such contribution by a litigant is that justice should be done even though the accused cannot meet the costs of its administration. If an accused cannot indicate that some error has been committed in the course of his conviction cannot suggest with justification ^ that justice is not being done, there is no reason why the public should pay the costs which necessarily inhere in an appellate consideration. There is no rationale which supports an appeal without cost merely for the sake of appeal, i. e., an appeal without merit or purpose. When justice is at stake, the poor must . ., , „ . receive every consideration vouchsafed ,, , „ the moneyed; the price of justice for ,, , , ... ,, ... the poor must be paid by the public.

The Supreme Court in Griffin ³ struck down a state statute which precluded an appeal unless the appellant, needing a transcript of the trial, bought it. The Court pointed out that under that statute, even if errors were committed which merited reversal, no appeal could be had by an indigent. The Court gave constitutional status to the principle that justice must be available. Mr. Justice Frankfurter, concurring, made clear the point we here make. He said, inter alia, on the subject: “When a State not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent.”⁴

It is sad but true that nobody can supply to the poor every privilege possessed by the well-to-do. Every indigent cannot be afforded defense by one of the most skilled, most experienced lawyers at the bar. People who have the money and wish to spend it for a foolish, useless litigation can do so. No principle, either legal or moral, implies that the public ought to supply indigents with the costs 0f foolish or useless litigation. But, if the achievement of justice is involved in a given matter, the public interest is guch that the public will pay the costs necessary to insure justice to the poor. This is the principle involved in the statute we are considering, and such is its piain provision. The basic problem in the administration of the statute is: when and under what circumstances should the public bear the costs of an appea¡ jn a criminal ease? The short answeris: Whenever justice is at stake.

A petition for leave to proceed on appeal from a judgment m a criminal case under Section 1915(a) without pre-payment of fees or costs proceeds m steps. The first step is that the convicted indigent, or someone in his behalf, prepares and files a petition in the District Court.⁵ Usually this is done pro se. The petitioner in most instances is without extensive education. Almost always he is without legal training. Always he is without funds. Always he seeks escape from the judgment of conviction on any ground which appears to him suitable for that purpose.

The second step is that the District Court acts upon the petition. If it allows the appeal the object of the petition is achieved; no further consideration of the plea to be allowed to appeal is necessary. The appeal proceeds at the expense of the United States in the same manner as does an appeal the costs of which are borne by the appellant. If the District Court denies the petition it may do so either with or without a certification that the appeal is not taken in good faith. Should the District Court deny the petition without certification, the petitioner is then free to proceed in the appellate court with a petition for leave to appeal, seeking allowance on a de novo consideration of the merits of the petition.

If, on the other hand, the District Court certifies in writing that the appeal is “not taken in good faith,” the statute says “[a]n appeal may not be taken”. The statute is as plain as that. But several considerations intrude upon that simplicity. What is meant by “good faith” on the part of a petitioner seeking to take an appeal from a criminal conviction? Of course it does not mean merely a sincere wish on the part of the convicted person for extrication from his predicament or a sincere belief on

his part that injustice has been done. Every convicted person probably has such beliefs, and in that sense every appeal would be in good faith. The statute would then be meaningless. We believe the statute has a meaning. We think “good faith”, as the term appears in this statute, must refer to the substance underlying the assertions of error by the petitioner. If these asserted errors are clearly not grounds for reversal, or if they have no basis of fact in the record, they are “not in good faith”,

In discussing the problem faced by the courts in determining whether or not given criminal appeals are to be allowed in forma pauperis, the Supreme Court has said ⁶ such appeals are to be allowed unless they may be characterized as frivolous . Frivolous has a colloquila meaning of trifling or silly. It also has an established meaning in law, when ie ' aPPeaps> of manifestly insufficient or futile",⁷ "without merit and fultile". ⁸ In sense of being silly or these Petltiona are never frivolous f the ml*d of the Petitioner. Often, owever, t ey are frivolous in the legal sense’ ln the sense of being “without merl ana uti e .

We believe the Supreme Court, in the Johnson and Farley cases,⁹ used the word "frivolous" in its legal meaning. In this sense "frivolous" means without any realistic chance of success on the merits, without an issue warranting consideration by the appellate court, or without substantiation in the record. No lower standard would give realistic effect ~to the statutory provisions.

Assuming that the District Court has denied an application for leave to appeal, the third step in this procedure is a timely petition to this court. If the District Court's denial is without certificate, the question before us is simply whether to dispense with the payment of fees and costs. In the words of the statute we "may authorize" the appeal. In such a case this court may act without the impediment of an adverse certification by the District Court. We merely determine whether we will or will not allow the appeal without the usual payment.

If the District Court has certified that the appeal is not taken in good faith, we have two duties when a petition is presented to us:

First: We must make certain that the petitioner has been "assured some appropriate means * * * of making manifest the basis of his claim that the District Court committed error in certifying that the desired appeal was not pursued in good faith." ¹⁰ At this point petitioner may need the assistance of counsel to enable him to make manifest the basis of his claim of error in the District Court's certificate. Such "appropriate means", the Supreme Court indicated, may be "the district judge's notes or an agreed statement by trial counsel". Sometimes, where there is a conflict as to what the record shows, the petitioner must be afforded the opportunity of reviewing the transcript, or an equivalent of the transcript, of the trial proceedings, so that he may "substantiate his allegations".¹¹ In the case at bar we have made certain of the assistance of counsel, and counsel has reviewed the record of the trial proceedings and has summarized that record in considerable detail for our benefit.¹²

Second: We must determine on the basis of the "appropriate means" whether the trial court erred in its certification. As the Supreme Court indicated in Johnson v. United States, supra,¹³ the petitioner may claim "that the District Court committed error" in its certificate. He may claim that the certificate is "unwarranted" and that despite the District Court's ruling "the appeal should be allowed". The quoted expressions reflect the Supreme Court's views on the point. In the face of a certificate of the District Court our function is a review function. If we decide on the basis of an adequate record that the District Court committed error, we "may authorize" the appeal. But, if petitioner has counsel, and if we have seen an adequate record and decided that the District Court did not commit error, we may not authorize the appeal. The statute so says.¹⁴

The determination that the trial court did or did not commit error depends upon whether the appeal sought would be “manifestly insufficient and futile”. An appeal falls within this definition when applicable law and an adequate record of the trial proceedings amply show that the petitioner cannot realistically hope to succeed on the merits of his appeal.

In making a determination whether a petition to appeal is manifestly insufficient, the District Court and this court look not only at the face of the petition but also at its alleged basis.

The Supreme Court in Johnson¹⁵ vouchsafed to an indigent petitioner opportunity to make manifest “the basis of his claim” in order that he may demonstrate error in the denial of his petition. And in Edwards¹⁶ the Court spoke of the right of the petitioner “to substantiate his allegations.” The bare allegations of the petition must have basis in the record, in the judge’s notes, or in some other appropriate source. So an allegation of error may be manifestly insufficient and futile if in fact it has no basis in law or in the record.

Any point of law raised by a petitioner must have a basis in the record, either of fact or in a pleading or by proffer. Any such point must be procedurally available; e. g., an instruction alleged to be erroneous must have been objected to in compliance with the rule or fall within the orbit of the appellate court’s discretion. Ordinarily, established rules of law will govern, but a petitioner may urge reexamination, and in such event the court will realistically appraise the justification for a reexamination. Statutes will ordinarily be applied as written, but a petitioner may challenge the validity of a statute, or of its application to him, in which event his question must be substantial. If, taking all considerations into account, the appeal is manifestly “insufficient and futile”, the District Court does not err in certifying that it is not taken in good faith. In such event leave to appeal in forma pauperis must be denied.

In the case at bar the Government correctly refrained from opposing the petitioner’s pro se petition for leave to appeal in this court until we were able to appoint counsel and consider the latter’s memorandum and an adequate record of the trial proceedings. His memorandum treated each of the points petitioner sought to raise in his pro se petitions presented to the District Court and to this court. Counsel had discussed these points with petitioner and with the latter’s trial counsel, and he spelled them out for our consideration. He concluded, however, that these were not grounds for appeal and elected instead to support the petition for leave to appeal on what is essentially a single, new point of law which the petitioner could not reasonably have been expected to recognize himself but which counsel, on the basis of his review of the trial transcript, thought was available to petitioner. Counsel digested the account of the trial proceedings (which he had had read to him by the court reporter from the latter’s notes) in the form of a short appendix to his memorandum. The digest consisted of summaries of the direct testimony of each of the witnesses and, separately labeled, such further testimony as was elicited on cross and redirect examination. It also contained a résumé of the crucial points in the judge’s charge to the jury. The Government’s opposition controverted counsel’s arguments of law and made frequent reference to his appendix. Petitioner’s counsel filed a reply memorandum to the Government’s opposition.

These papers, then, form a substantial basis on which we are able to rule. Petitioner asserts as error that his conviction was based upon an uncoerced, extra-judicial confession, corroborated principally by the tangible fruits of the confession. Prior to his arrest or arraignment petitioner voluntarily confessed to a friend on the police force that he had committed the pickpocketing for which he stands convicted. He then directed the policeman to the alley where he had discarded the stolen wallet after removing the cash from it. The wallet was not found where petitioner said he had discarded it, but identification papers that had been in it were found there. At the trial these papers were introduced into evidence to corroborate the confession to which the police officer testified. There was considerable other circumstantial evidence tending to corroborate the confession: The complaining witness identified the recovered papers as having been in his wallet; he also identified petitioner and the co-defendant as having been on the crowded bus with him at the time his wallet was stolen and as the two persons who had jolted him as the three were alighting from the bus; the co-defendant testified he had been on the bus at the time; and a written confession (later repudiated) by the co-defendant was introduced.

The Supreme Court has recently discussed the extent to which voluntary confessions must be corroborated by independent evidence in order to sustain a conviction.¹⁷ The Court held that the corroborating evidence must both justify an inference by the jury that the confession is true and tend to establish the corpus delicti, and that, when so corroborated, the confession is sufficient to sustain a conviction. The independent evidence need not, itself, establish the corpus delicti; its function is corroboration.

The identification papers recovered at petitioner’s direction were strong corroboration. They were not “tainted”, in the sense that evidence obtained through a coerced confession is tainted, and were as admissible as the voluntary confession itself. These papers clearly showed the veracity of the confession and, when taken together with circumstantial evidence that was more consistent with guilt than with innocence,¹⁸ established the corpus delicti and were more than sufficient to sustain the jury’s verdict.

In sum petitioner says his conviction should be reversed because his admission to the police officer was not sufficiently corroborated. Manifestly, on this record, this is an insufficient and futile ground for appeal. The attempt is frivolous in the legal meaning of that term.

Finding no suggestion that the petitioner has any realistic chance of success were the appeal to be allowed, we hold that the District Court did not err in certifying that the appeal was not sought in good faith. Accordingly, as the statute provides, an appeal may not be taken in forma pauperis. The petition is denied.

Petition denied.

1 . Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957); Ellis v. United States, 101 U.S.App.D.C. 386, 249 F.2d 478 (D.C.Cir.1957).

2 . 62 Stat. 954 (1948).

3 . Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ot. 585, 100 L.Ed. 891 (1956).

4 . Id., 351 U.S. at page 24, 76 S.Ct. at page 593.

5 . A Court of Appeals may not ordinarily consider a petition for leave to appeal in forma pauperis unless an application for such leave was first made to, and denied by, the District Court. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807 (D.C.Cir.1943), certiorari denied, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1580 (1944).

6 . Johnson v. United States, supra note 1, 352 U.S. at page 566, 77 S.Ct. at page 550; Farley v. United States, 354 U.S. 521, 523, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957).

7 . Oxford English Dictionary (1933); Bouvier, Law Dictionary (3d rev. ed. 1914).

8 . In United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946), the Supreme Court, Mr. Justice Black writing and citing many cases, held that the Circuit Court of Appeals on its own motion should have dismissed the appeal “as frivolous”. Id., 327 U.S. at page 113, 66 S.Ct. at page 550. Appellate review had been sought on the alleged ground that the trial court made erroneous findings of fact, whereas, the Court found, the findings were indeed supported by evidence. See also the grounds upon which appellate courts dismissed as frivolous the appeals in Piuma v. United States, 126 F.2d 601 (9 Cir., 1942), cer-tiorari denied, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513 (1942); National Surety Corporation v. Clement, 133 N.J.L. 22, 42 A.2d 387 (1945); Mead v. Rudnick, 306 Mass. 616, 35 N.E.2d 485 (1940); Columbia Finance v. Romaguera, 40 So. 2d 749 (La.App.1949) ; Klade v. Palmer, 237 Wis. 581, 297 N.W. 365 (1941); Flanary v. Briscoe, 189 Okl. 34, 113 P. 2d 366 (1941); Leaver v. Parker, 121 F.2d 738 (9 Cir., 1941), certiorari denied, Leaver v. Citizens Nat. Trust & Savings Bank, 314 U.S. 700, 62 S.Ct. 480, 86 L.Ed. 560 (1942); Fransen v. Ranzino, 85 So.2d 311 (La.App.1956). See also the following cases in which federal appellate courts have denied appeals in forma, pauperis: Gomez v. United States, 245 F.2d 346 (5 Cir., 1957); Parsell v. United States, 218 F.2d 232 (5 Cir., 1955) ; Higgins v. Steele, 195 F.2d 366 (8 Cir., 1952). Cf. Poulas v. United States, 95 F.2d 412 (9 Cir., 1938).

9 . Supra note 6.

10 . Johnson v. United States, supra, 352 U.S. at page 566, 77 S.Ct. at page 550.

11 . Edwards v. United States, 350 U.S. 35 7S S.Ct. 124, 2 L.Ed.2d 72 (1957); Farley v. United States, supra. Cf. Griffin v. People of State of Illinois, supra.

12 . A stenographic transcript of the trial proceedings could have been ordered prepared at the expense of the United States, had petitioner or his counsel so requested. 62 Stat. 922 (1948), 28 U.S.C. § 753. See orders of this court in Alexander v. United States, Misc. 795, July 1, 1057; Isaac v. United States, Misc. 830, Aug. 2, 1957; Collins v. United States, Misc. 854, Aug. 26, 1957. It was not requested, however, and we believe the record prepared by counsel himself was adequate for evaluating the claims of error.

13 . 352 U.S. at pages 366, 77 S.Ct. at page 550.

14 . More emphatically, the precise words of the statute are that "[a]n appeal may not be taken". (Emphasis supplied.)

15 . 352 U.S. at page 566, 77 S.Ct. at page 550.

16 . Edwards v. United States, supra note 11.

17 . Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

18 . Cf. Wigfall v. United States, 97 U.S.App.D.C. 252, 230 F.2d 220 (D.C.Cir. 1956).