SANBORN, Circuit Judge.
Carroll Robinson has applied to this Court for leave to prosecute an appeal in forma pauperis from his conviction by a jury under a six-count indictment charging six separate violations of the laws of the United States relating to marihuana. Judge Nordbye, the trial judge, imposed a general sentence of ten years upon all six counts, which was the minimum sentence which could lawfully have been imposed. The defendant was permitted to file notice of appeal without prepayment of Clerk's fees, but was denied leave to prosecute the appeal at Government expense. Judge Nordbye, in deference to 28 U.S.C. § 1915(a), providing that no indigent appeal may be taken "if the trial court certifies in writing that it is not taken in good faith," and being convinced that the proposed appeal of the defendant was frivolous and not taken in good faith, denied his application to proceed on appeal at Government expense. This on January 17, 1962. Judge Nordbye's order, which explains fully his reasons for his action, reads as follows:
"The defendant in the above matter has filed a notice of appeal from the sentence and judgment thereon. The sentence of ten years was mandatory in that the defendant was a second offender. The Court imposed the minimum sentence under the law.
"The question is now presented as to whether or not the defendant should be permitted to appeal in forma pauperis. That he is indigent and unable to pay the costs of an appeal is not controverted. It may be noted that the petition of the defendant dated November 13, 1961, in connection with his motion for an order directing the court reporter to prepare a transcript and that the United States should bear the costs thereof, and the showing made thereon, may be considered as an application to appeal in forma pauperis herein with the same force and effect as if the motion had been filed after the notice of appeal was filed on January 5, 1962.
"The Court is convinced, however, that the appeal is frivolous and is not taken in good faith. This case involves the transfer and sale of marihuana by the defendant to a government informer on April 4, 1961, which gives rise to the first, second and third counts of the indictment, and the transfer and sale of marihuana on May 5, 1961, which gives rise to the fourth, fifth and sixth counts of the indictment. According to the evidence, the sale and transfer was made in person by Robinson on each of these occasions to one Sanders, a special employee of the Government. Sanders positively identified Robinson as the man who had made the sale and transfer of marihuana to him on each of these occasions. Robinson was a well-known character to the police officers of Minneapolis and to the narcotic officers assigned to this District. There was credible evidence offered by these officers to the effect that on one of these occasions Robinson was the person who was seen transferring some object to Sanders. The latter was searched immediately before each of these occasions and no narcotics were found on his person or in his car. After the sale and transfer, Sanders on each of the occasions immediately came over to the officers and delivered to them the marihuana he contended he had purchased from Robinson.
"Robinson did not take the witness stand to deny the transfer and sale of marihuana to Sanders. His defense consisted of some evidence which bore upon the ability of the police officers to see the transaction which allegedly took place between Robinson and Sanders on the night of May 5, 1961. Consequently, the evidence before the jury presented a fact question as to whether Robinson was the person who sold and transferred marihuana to Sanders. The substance allegedly transferred to Sanders by Robinson was admittedly marihuana. Therefore, if the jury believed the Government\'s evidence as to the sale and transfer of marihuana to Sanders, the defendant under the evidence was guilty of the offenses set forth in the six counts. The evidence was conclusive that no order form was presented to Robinson by Sanders at the time of the sale and transfers as required by law. Likewise, the evidence was conclusive that no tax was paid on the transfers according to law. No evidence whatsoever was offered to overcome the presumption of the statute in this regard. Moreover, no evidence was offered to overcome the presumption that Robinson received, concealed and transported the marihuana unlawfully after it had been imported into the United States.
"Defendant\'s counsel urges error because the Court permitted the Government to introduce in evidence certain empty paper coin envelopes and cigarette paper found in the rooms occupied by the defendant as a result of the search made by the officers in connection with his arrest. These envelopes were identical with the envelope which contained the marihuana delivered to Sanders on April 4, 1961. Therefore, they constituted relevant evidence as to the offenses arising from the April 4, 1961, sale and transfer of marihuana. There was an utter absence of any showing that the search made as an incident to a lawful arrest was unreasonable. The marihuana involved in the sale and transfer on May 5, 1961, however, was contained in a small plastic bottle.
"Error is predicated in the motion for a new trial by the general statement that the Court erred in charging the jury and in refusing to charge the jury as requested. Defendant\'s requested instructions and the transcript of the Court\'s charge to the jury are on file and are hereby made a part of the record in support of this order. It may be noted that no exceptions were made whatsoever to the Court\'s charge, although the defendant was allowed an exception to any failure on the part of the Court to grant defendant\'s requested instructions. An examination of the requests and the adverse rulings thereon will indicate that no substantial prejudicial error exists. The following observations may be made as to the requests which were not substantially covered by the Court\'s charge. As to request No. II, there was no evidence as to defendant\'s good character, and hence this request was overruled. As to request No. XXVIII, there was no evidence whatsoever as to marihuana growing in Minnesota or other States of the Union. And as to request No. XXX, which pertains to the definition of marihuana, there was no issue as to the identity of the substances allegedly sold and transferred to Sanders by Robinson.
"The Court is not unmindful of the problems presented to the Court of Appeals whenever the trial court denies an application to appeal in forma pauperis. However, the framers of the statute authorizing such an appeal must have contemplated that the trial court should examine each application with care, and if convinced that the appeal was without any merit and hence frivolous, an order denying the request should be entered. Obviously, a request to appeal in forma pauperis places the trial court in an unenviable position because in effect he is required to certify whether an indigent litigant should or should not be foreclosed from having an Appellate Court review the trial court record. However, where the trial court is convinced that the appeal is frivolous, and therefore is not taken in good faith, it would seem that there should be no hesitancy on the part of the trial court to so certify. Otherwise, every indigent defendant in a criminal case would feel free to apply for the right to appeal in forma pauperis knowing that, regardless of its merit, the Government and court-appointed counsel should be required to bear the burden of a futile appeal.
"My considered view is that there is an absence of any merit to the appeal of this defendant and that it should be characterized as frivolous and hence not taken in good faith. Therefore, I conclude that the petition should be in all things denied, except that the defendant may file his appeal without the payment of any Clerk\'s fees. It is so ordered."
Upon the filing of the defendant's application with this Court for leave to proceed on appeal as a poor person at Government expense notwithstanding the certificate of Judge Nordbye, we appointed Mr. Douglas W. Thomson of the St. Paul, Minnesota, bar, who was counsel for the defendant at his trial, to represent him here in furtherance of his application; to see that the procedural requirements specified in Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593, Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529, and Ellis v. United States, 356 U.S. 674, 78 S.Ct. 874, 2 L.Ed.2d 1060, were complied with; to procure, if possible, a statement of the case, agreed to by the United States...
