Ingram v. United States

• Decision Date: 06 December 1962
• Docket Number: Misc. No. 1797.
• Parties: Julius INGRAM, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 US App. DC 283, 315 F.2d 29 (1962)

Julius INGRAM, Petitioner, v. UNITED STATES of America, Respondent.

Misc. No. 1797.

United States Court of Appeals District of Columbia Circuit.

December 6, 1962.

Messrs. Barron K. Grier and Philip S. Neal, Washington, D. C. (both appointed by this court) were on petitioner's motion for reconsideration.

Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson and Anthony G. Amsterdam, both Asst. U. S. Attys., at the time the opposition was filed, were on respondent's opposition to the motion for reconsideration.

Before BAZELON, Chief Judge, and WILBUR K. MILLER and BURGER, Circuit Judges, in Chambers.

PER CURIAM.

The motion before us presents a simple but important issue. Petitioner filed in this court, pursuant to 28 U.S.C. § 1915, a pro se petition for leave to prosecute an appeal in forma pauperis, which in a confused and inartful way complained of his conviction in the District Court under an indictment charging assault with a dangerous weapon and assault with intent to kill. In accordance with our practice, we appointed counsel for the reason that petitioner personally was not qualified to analyze his case or perfect and present points for appeal. Later, at the request of assigned counsel, a second attorney was appointed to assist him, and a period of 30 days was allowed in which to file a memorandum in support of the petition. At their request, this time was twice extended to enable them to file motions for preparation of a complete trial transcript at the expense of the United States. We denied the motion without prejudice, and the present motion for reconsideration followed.

At the outset, we note that court-appointed counsel do not adopt the claims of error advanced by their client in the pro se petition, but on the contrary seem to take pains to avoid asserting any error. Indeed, they frankly concede they are unable to claim error, but say their inability to do so is due to the fact that they have not been provided with a complete transcript. It is their view that, having been unable to discover a ground for appeal through the available sources of information, they are entitled to a transcript to conduct a search for error as a matter of due process of law. We now consider this argument and the contention that it is supported by Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

We recognize that the Coppedge case established a new standard for providing an indigent petitioner with an "adequate record" to enable him "to attempt to make a showing that the District Court's certificate of lack of `good faith' is in error," and we have implemented a new procedure to comply with its directive. Prior to the Coppedge decision, however, we decided motions for transcripts upon the standards set forth in Whitt v. United States, 104 U.S.App.D. C. 1, 259 F.2d 158 (1958). To meet those requirements it was necessary for appointed counsel to demonstrate (1) that the petition for leave to appeal in forma pauperis contained a claim of error which, placed in its factual setting, was non-frivolous on its face, and (2) that a transcript was essential to make manifest this claim of error because counsel, after conducting an extensive investigation of the District Court proceedings, including interviews with defense counsel, the prosecuting attorney and the trial judge, was unable to develop the point independently. Under this system, obviously, a transcript could not be granted until after counsel was appointed and had conducted a thorough investigation of the case.

It is clear that the Coppedge decision no longer permits us to employ this procedure. We are now instructed (369 U.S. at 446, 82 S.Ct. at 922) that:

"* * * If, on the other hand, the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant\'s application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing that the District Court\'s certificate of lack of `good faith\' is in error and that leave to proceed with the appeal in forma pauperis should be allowed. * * *"

The Court later observed (369 U.S. at 450, 82 S.Ct. at 924) that:

"* * * Statistics demonstrate the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached. Delays described in years between trial and final decision in criminal cases are the unhappy result of separate considerations of motions for the appointment of counsel, for the preparation of a transcript of the trial proceedings and, ultimately, for the leave to appeal in forma pauperis. * * *"

This demonstrates quite clearly that an adequate record must be provided when counsel is appointed. Accordingly, we have devised the following implementing procedure: when a pro se petition is filed, upon direct appeal from judgment of conviction, and the claims of error stated therein (e. g., "insufficiency of evidence," "unlawful search and seizure,") are so conclusory in nature that "their substance cannot adequately be ascertained," counsel will be appointed and, simultaneously, the portion of the transcript of proceedings which relates to the conclusory allegations will be ordered so that appointed counsel may determine their merit. Of course, counsel will not be limited to the transcript initially allowed if he can in good conscience advance other claims of error requiring additional portions of the transcript.

By this procedure much of the attributed "inevitable delay" caused by "piecemeal attention to the series of motions that indigents must make" is ended. It is based on our belief that the Coppedge opinion does not require a complete transcript to be prepared in every case, and that to obtain even a partial transcript some showing of error, if only vague and conclusory, must be made.

Applying this procedure to the present case, it is plain that counsel for petitioner have not complied with our view of the standard enunciated in the Coppedge case. As stated previously, it appears that counsel have deliberately avoided asserting error in order to buttress their argument that their inability to claim error entitled them to a complete transcript under due process principles. Apart from the merits of this contention, which we will shortly consider, it is obviously unrelated to the question of whether a transcript should be granted under the Coppedge case. If counsel wish to press their motion for transcript under that case they must meet its terms by claiming some error. If, on the other hand, they seek a transcript as a matter of due process of law to search for some claim of error not suspected or articulated, they must recognize, as we now hold, that the Coppedge case is not applicable. If our position is not correct, then the rule is that a transcript must be furnished to every indigent appellant at Government expense so that he may search for error, even though he has alleged none. The Supreme Court has not yet gone so far.

We come now to the actual root of appellant's argument. His counsel say that, since interviews with the principals to the proceedings in the District Court have not revealed a basis for claiming error, a complete transcript must be granted so they may search for error. Otherwise, they continue, no effective means exists for attacking petitioner's conviction, and a barrier is thus erected that would not confront a non-indigent defendant in a similar situation. We are not unsympathetic with this view. Indeed, without relying expressly upon due process principles, we have in the past required the Government to provide transcripts to indigent petitioners where their counsel demonstrated the complete inadequacy of the sources of information in the District Court. In Dean v. United States, Misc. No. 1644, for example, we ordered a transcript where counsel for petitioner brought to our attention that defense counsel at trial had since died, that the prosecutor had since resigned from the...