Cash v. United States, Misc. No. 878.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation104 US App. DC 265,261 F.2d 731
Docket NumberMisc. No. 878.
PartiesGeorge H. CASH, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date16 June 1958

COPYRIGHT MATERIAL OMITTED

Mr. Eugene Gressman, Washington, D. C. (appointed by this Court), for petitioner.

Mr. Oliver Gasch, U. S. Atty., and Messrs. Lewis Carroll and Nathan J. Paulson, Asst. U. S. Attys., for respondent. Mr. Milton Eisenberg, formerly Asst. U. S. Atty., also entered an appearance for respondent.

Before EDGERTON, Chief Judge, and PRETTYMAN and BURGER, Circuit Judges.

Judgment Vacated June 16, 1958. See 78 S.Ct. 1365.

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 counsel's memorandum, the Government's opposition, and a reply memorandum submitted by counsel, we conclude that the petitioner raises no question of law which justifies authorizing an appeal in forma pauperis. The petition will 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 petitions to proceed on appeal in criminal cases without prepayment of fees and costs, we consider it appropriate to discuss our understanding of the considerations governing the disposition of such petitions.

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, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security 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 the 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 Griffin3 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 of foolish or useless litigation. But, if the achievement of justice is involved in a given matter, the public interest is such 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 plain provision. The basic problem in the administration of the statute is: When and under what circumstances should the public bear the costs of an appeal in a criminal case? The short answer is: Whenever justice is at stake.

A petition for leave to proceed on appeal from a judgment in a criminal case under Section 1915(a) without prepayment of fees or costs proceeds in 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 "an 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 said6 such appeals are to be allowed unless they may be characterized as "frivolous". "Frivolous" has a colloquial meaning of trifling or silly. It also has an established meaning in law, when applied to appeals, of "manifestly insufficient or futile",7 "without merit and futile".8 In the sense of being silly or trivial these petitions are never frivolous in the mind of the petitioner. Often, however, they are frivolous in the legal sense, in the sense of being "without merit and futile".

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 * *...

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    • United States
    • U.S. Supreme Court
    • April 30, 1962
    ...suits. And see Jaffe v. United States, 246 F.2d 760 (C.A.2d Cir.) (civil case). But in criminal cases cf. Cash v. United States, 104 U.S.App.D.C. 265, 269, 261 F.2d 731, 735, vacated, 357 U.S. 219, 78 S.Ct. 1365, 2 L.Ed.2d 1361; Parsell v. United States, 218 F.2d 232 (C.A.5th Cir.). See als......
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    • U.S. Court of Appeals — District of Columbia Circuit
    • November 9, 1964
    ...D.C. 394, 240 F.2d 632 (1957); Barry v. United States, 109 U.S.App.D.C. 301, 287 F.2d 340 (1961). 8 Cash v. United States, 104 U.S.App.D.C. 265, 272, 261 F.2d 731, 738 (1958), rev'd on other grounds, 357 U.S. 219, 78 S.Ct. 1365, 2 L.Ed.2d 1361 (1958); Fisher v. United States, 324 F.2d 775, ......
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    • December 7, 1959
    ...there were trial errors and that his appeal is meritorious. We quote with approval the following statement in Cash v. United States, 104 U.S.App.D.C. 265, 261 F.2d 731, at page 735: 'What is meant by 'good faith' on the part of a petitioner seeking to take an appeal from a criminal convicti......
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