Weber v. United States

• Decision Date: 21 April 1958
• Parties: Issac WEBER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F.2d 713 (1958)

Issac WEBER, Appellant, v. UNITED STATES of America, Appellee.

United States Court of Appeals Eighth Circuit.

April 21, 1958.

Before GARDNER, Chief Judge, and SANBORN, Circuit Judge.

PER CURIAM.

The appellant has applied to this Court for leave to prosecute in forma pauperis his appeal from a judgment and sentence based upon the verdict of a jury finding him guilty under an indictment charging, in one count, an unlawful sale of narcotics in violation of 26 U.S.C. § 4705 (a), and, in a second count, the unlawful receipt and concealment of narcotics in violation of 21 U.S.C.A. § 174. He also asks for appointment of counsel, and for permission to be heard on the typewritten transcript and the original files of the District Court.

The trial court has certified that the appeal is not taken in good faith, and has furnished us with a memorandum, in support of the certificate, indicating that the appeal is without merit and is frivolous.

The assertions of error in the appellant's application are: (1) the failure of the trial court to grant a request to separate the government's witnesses; (2) the denial of a motion for a verdict of acquittal "made at the conclusion of the government's evidence"; (3) the refusal to strike the evidence of Rencie McNulty apparently the witness who testified to having purchased narcotics from the appellant; (4) the refusal of the trial court to instruct the jury that an offense to which McNulty had entered a plea of guilty (but had not yet been sentenced), carried a maximum sentence greater than the minimum sentence. The appellant also asserts in his application that the verdict is against the weight of the evidence.

The applicable provisions of 28 U.S.C. § 1915 — headed "Proceedings in forma pauperis" — read as follows:

"(a) 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. Such affidavit shall state the nature of the action, defense or appeal and affiant\'s belief that he is entitled to redress.

"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

If it were not for the decisions of 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 (see, also, Edwards v. United States, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed.2d 72), we would be of the opinion that the appellant's application should be denied without further proceedings. There is no showing that the certificate of the trial court was arbitrary or unwarranted or not in good faith. See Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 87 L.Ed. 746.

The Supreme Court in the Johnson case said (at page 566 of 352 U.S., at page 551 of 77 S.Ct.):

"* * * Of course, certification by the judge presiding at the trial carries great weight but, necessarily, it cannot be conclusive. Upon a proper showing a Court of Appeals has a duty to displace a District Court\'s certification. Moreover, a Court of Appeals must, under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, afford one who challenges that certification the aid of counsel unless he insists on being his own. Finally, either the defendant or his assigned counsel, must be enabled to show that the grounds for seeking an appeal from the judgment of conviction are not frivolous and do not justify the finding that the appeal is not sought in good faith. This does not require that in every such case the United States must furnish the defendant with a stenographic transcript of the trial. It is essential however, that he be assured some appropriate means — such as the district judge\'s notes or an agreed statement by trial counsel — of making manifest the basis of his claim that the District Court committed error in certifying that the desired appeal was not pursued in good faith. See Miller v. United States, 317 U.S. 192, 198, 63 S.Ct. 187, 190, 87 L.Ed. 179.

"Since here the Court of Appeals did not assign counsel to assist petitioner in prosecuting his application for leave to appeal in forma pauperis and

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