United States v. Sevilla
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | L. HAND, , and SWAN and FRANK, Circuit |
| Citation | 174 F.2d 879 |
| Parties | UNITED STATES v. SEVILLA. |
| Decision Date | 26 May 1949 |
174 F.2d 879 (1949)
UNITED STATES
v.
SEVILLA.
United States Court of Appeals Second Circuit.
Argued May 2, 1949.
Decided May 26, 1949.
Caledonia Sevilla, pro se.
John F. X. McGohey, United States Attorney, New York City (Bruno Schachner, Assistant United States Attorney, New York City, of counsel), for the United States.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
FRANK, Circuit Judge.
As the defendant is an alien, he may not appeal in forma pauperis. 28 U. S.C.A. § 1915(a). Nor does § 1915(b) apply to an alien.1 However, we have authority to appoint a lawyer to act for defendant on this appeal. It will be that lawyer's duty to present to the district judge a statement of the evidence and of the events at the trial, "made up from the best sources available," in the manner stated by the Supreme Court in Miller v. United States, 317 U.S. 192, 198, 601, 63 S.Ct. 187, 87 L.Ed. 179. It "will then become
the duty of the district judge to assist in amplifying, correcting, and perfecting" that statement from "the best sources available" to him.2 He may, to that end, interrogate the witnesses, the counsel who appeared at the trial for the government and for the defendant, and any other persons having reliable information.3 Among such persons are the court reporters who took stenographic notes of the testimony and remarks at the trial; the judge may properly require them to read their notes to him.4Section 753(b) of Title 28 states that the trial judge may require the official reporter to transcribe his notes and deliver the transcript to the judge. It is arguable that, were the judge so to require in a case like this, the result would be to circumvent 28 U.S.C.A. § 1915(b). However that may be, we think Congress did not intend to put a district judge, in such circumstances, to the laborious task of obtaining the needed information without a transcript when one is easily accessible to him.
There is nothing in this procedure inconsistent with Rule 39 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which requires records to be prepared in the same way as records in civil actions, that is, in accordance with Rule 75 of the Federal Rules of Civil Procedure, 28 U. S.C.A. Bills of exception are, of course, abolished.5 But since the adoption of the Rules of Criminal Procedure the Supreme Court has recognized that the substance of the procedure set forth in Miller v. United States may still be followed "in unusual circumstances" where the appellant has no transcript of the record available.6
We deny defendant's motion for leave to appeal in forma...
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People v. Brown, Cr. 6655
...involving consultation with the defendant, to insure consideration of meritorious grounds of appeal. See United States v. Sevilla, 2 Cir., 174 F.2d 879, 880. Should he then conclude that the appeal is frivolous, he should so advise the court and the defendant. He need not proceed with the a......
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State v. Delaney
...defendant was entitled to court-appointed counsel upon appeal. We will now take note of some of them. United States v. Sevilla, 2 Cir., 174 F.2d 879, held that although no statute authorized it to do so, the court nonetheless had authority to appoint counsel on appeal for a convicted destit......
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United States v. Johnson
...the equivalent, in the manner described in Miller v. U. S., 317 U.S. 192, 63 S.Ct. 187, 87 L.Ed. 179 and United States v. Sevilla, 2 Cir., 174 F.2d 879:7 If competently advised by counsel, the defendant will present to the trial judge a statement of the proceedings at the trial, "made up fr......
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Cole v. United States, 79-1231.
.... . . for the purpose of supplementing the record," rather than issuing a decision on the merits). 9. Cf. United States v. Sevilla, 174 F.2d 879 (2d Cir.1949) (once appellant has submitted a substitute statement of the evidence and events at the trial, "[i]t `will then become the duty of th......
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People v. Brown, Cr. 6655
...involving consultation with the defendant, to insure consideration of meritorious grounds of appeal. See United States v. Sevilla, 2 Cir., 174 F.2d 879, 880. Should he then conclude that the appeal is frivolous, he should so advise the court and the defendant. He need not proceed with the a......
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State v. Delaney
...defendant was entitled to court-appointed counsel upon appeal. We will now take note of some of them. United States v. Sevilla, 2 Cir., 174 F.2d 879, held that although no statute authorized it to do so, the court nonetheless had authority to appoint counsel on appeal for a convicted destit......
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United States v. Johnson
...the equivalent, in the manner described in Miller v. U. S., 317 U.S. 192, 63 S.Ct. 187, 87 L.Ed. 179 and United States v. Sevilla, 2 Cir., 174 F.2d 879:7 If competently advised by counsel, the defendant will present to the trial judge a statement of the proceedings at the trial, "made up fr......
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Cole v. United States, 79-1231.
.... . . for the purpose of supplementing the record," rather than issuing a decision on the merits). 9. Cf. United States v. Sevilla, 174 F.2d 879 (2d Cir.1949) (once appellant has submitted a substitute statement of the evidence and events at the trial, "[i]t `will then become the duty of th......