256 F2d 119 Weber v. United States

256 F.2d 119

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

United States Court of Appeals Eighth Circuit.

May 28, 1958.

Rehearing Denied June 27, 1958.

Harry N. Fisher, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before SANBORN, JOHNSEN and MATTHES, Circuit Judges.

PER CURIAM.

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1

Isaac Weber appealed 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 applied to this Court for leave to prosecute his appeal in forma pauperis, notwithstanding the certificate of the trial court that the appeal is not taken in good faith, and the provision of 28 U.S.C. § 1915 that "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

2

United States District Judge Randolph H. Weber, the trial judge, has filed with this Court a memorandum, in support of his certificate and conclusion that the appeal is frivolous, without merit, and not taken in good faith.

3

In conformity with 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, this Court on April 21, 1958, by a per curiam opinion and order (254 F.2d 713), appointed Mr. Harry N. Fisher, of the St. Louis, Missouri, bar, who had, by designation of the District Court, represented the appellant at his trial, to represent him in connection with his application to this Court for leave to prosecute his appeal in forma pauperis, and to assist him in "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." Johnson v. United States, supra, at page 566 of 352 U.S., at page 551 of 77 S.Ct. We requested Mr. Fisher to procure, if possible an agreed statement by trial counsel of the proceedings at the trial and to furnish us with a report pointing out in what respects, if any, the trial court had erred in certifiying that the appeal was not taken in good faith. We set the matter down for hearing on May 13, 1958. At the hearing both the appellant and the Government were represented.

4

We are greatly indebted to Mr. Fisher, who, without compensation or hope of reward, has furnished us with a detailed statement of the testimony and proceedings at the trial of the appellant (which statement is agreed to by the Government), together with an excellent brief. He has made a forceful argument in support of the appellant's claim that his appeal has merit, is not frivolous, and is taken in good faith.

5

The question for our determination is whether, upon the showing made on behalf of the appellant, it is the duty of this Court to displace as erroneous the trial court's certification. Johnson v. United States, supra, at page 566 of 352 U.S., at page 550 of 77 S.Ct. Despite the argument of appellant's counsel to the contrary, we are convinced that nothing which is shown to have occurred at the trial furnishes any basis for a conclusion that the trial court committed error in certifying that this appeal was not taken in good faith. The certificate, in our opinion, was not arbitrary, unwarranted, or erroneous.

6

The appellant's application to prosecute his appeal in forma pauperis is therefore denied.