Bandy v. United States

• Decision Date: 12 May 1960
• Docket Number: No. 16479.,16479.
• Citation: 278 F.2d 214
• Parties: Roger S. BANDY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

278 F.2d 214 (1960)

Roger S. BANDY, Appellant, v. UNITED STATES of America, Appellee.

No. 16479.

United States Court of Appeals Eighth Circuit.

April 25, 1960.

Rehearing Denied May 12, 1960.

Ralph B. Maxwell, West Fargo, N. D., and Francis J. Magill, Fargo, N. D., for appellant.

Robert Vogel, U. S. Atty., Fargo, N. D., for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

PER CURIAM.

The motion of Roger S. Bandy for leave to prosecute in forma pauperis an appeal from a judgment of conviction and sentence, notwithstanding the certificate of the trial court that his appeal is not taken in good faith,¹ has been submitted to this Court upon the original papers of the District Court, an agreed statement of the case, a brief on Bandy's behalf asserting that his appeal is not frivolous, and a response by the United States Attorney in support of the certificate of the trial court. By an opinion dated December 10, 1959 (272 F.2d 705), and in conformity with the procedure prescribed by the Supreme Court in Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529, this Court appointed Mr. Ralph B. Maxwell, of the North Dakota Bar, — who, under court appointment, had represented Bandy at his trial — to assist him in procuring an agreed statement of the case, and in demonstrating here, if possible, that the trial court's certificate was arbitrary and unwarranted. On December 21, 1959, Mr. Francis J. Magill, also of the Bar of North Dakota, was appointed by this Court to assist Mr. Maxwell in representing Bandy. They have complied with the requirements of our opinion of December 10, 1959, both in letter and spirit and have done their utmost to demonstrate that Bandy's appeal is not frivolous. We acknowledge our indebtedness to them for their services, rendered at our request, on his behalf.

In considering the motion of Bandy for leave to appeal as an indigent at the expense of the Government, we find it unnecessary to state in complete detail the facts disclosed by the record before us. The question we must determine is whether the appeal presents some issue which is not plainly frivolous. See Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060.

Briefly and generally stated, what befell Bandy may be stated as follows: In January 1959, on six separate days, someone using fictitious names filed with the District Director of Internal Revenue at Fargo, North Dakota, a false and fictitious income tax return claiming overpayment of income taxes for the year 1958. The filing of these tax returns constituted six separate violations of 18 U.S.C. § 287. Refund checks were mailed to the fictitious claimants by the Director, and were returned unclaimed. An investigation by a Special Agent of the Intelligence Division of the Internal Revenue Service indicated that all the returns were prepared by the same person and that a comparison of the handwriting on each return with the known handwriting of Bandy indicated that he was that person. He was arrested in New York and removed to North Dakota, where he arrived July 11, 1959, and was placed in the Cass County Jail in Fargo, North Dakota. On July 17, 1959, the District Court appointed Mr. Maxwell, a former United States Attorney for the District of North Dakota, to represent Bandy, who, on July 31, 1959, was, by a six-count indictment, charged with the six violations of 18 U.S.C. § 287 before referred to. On August 12, 1959, he was arraigned, and entered a plea of not guilty. The court reduced his bail, set his trial for September 8, 1959, and authorized his counsel, Mr. Maxwell, to employ, on Bandy's behalf, a handwriting expert at Government expense. No such expert was selected by or on behalf of Bandy.

At a hearing on September 2, 1959, of pretrial motions relating to discovery, the United States Attorney agreed to produce, for inspection and copying, all specimens of the defendant's handwriting intended to be used as the basis for expert testimony at the trial — stating that some items were in the mail but would be presented for inspection when received. The court ordered that charts and diagrams, prepared and to be used at the trial by handwriting experts, be produced when received in Fargo.

At the trial, which commenced September 8, 1959, the Government proved that the false and fictitious tax returns specified in the indictment had been made and presented. To prove that Bandy was the person who had presented the returns, the Government introduced specimens of his handwriting and produced expert...