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UNITED STATES of America, Plaintiff-Appellee, v. Robert Timothy SCULLY, Defendant-Appellant.

No. 74-8120.

United States Court of Appeals, Ninth Circuit.

June 20, 1974.

*549Richard P. Alexander, San Francisco, Cal., for defendant-appellant.

James Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

CHAMBERS, Chief Judge:

Robert Timothy Scully asks that Richard P. Alexander, his trial attorney, be appointed under the Criminal Justice Act for his appeal.

The district court clearly thinks that Scully is able to finance his own appeal. The United States attorney supports the district court. The basis of this thought seems to be that the whole record of the trial indicates it. I do not have that record.

A panel of this court has authorized Scully to be released on bail of $50,000, to include a cash deposit of $5,000. It is par for the course that “friends” will put up the $5,000, but will decline to pay. Alexander, or at least will wait to see if the taxpayers (the government) will pay.

I could order a transcript of the trial and then decide the question of appointing counsel. And, if there be an eventual affirmance (I do not say there will be one, but across the boards that happens in about two-thirds of the cases), Scully will have delayed his appeal an extra four months or so while he is on bail.

I am inclined to appoint an attorney, but Alexander has received about $17,500 in cash for the extended trial. It is reported Scully still owes Alexander more for the trial.

To me it is just not right for Alexander, after collecting $17,500 for the trial work, to ask the taxpayers to take over now. So I am inclined to appoint another attorney of my choice.

Therefore, counsel will advise the clerk of this court within ten days from the date of this order whether he and Scully desire that another be appointed or whether Scully can make his own arrangements, himself or through friends, to take care of the Alexander fees on appeal.

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