Eddie Lee White, Appellant, v. United States of America, Appellee, 266 F.2d 597 (8th Cir. 1959)

Eddie Lee White was sentenced by the United States District Court for the District of Minnesota on January 26, 1959, to fifteen years imprisonment upon the verdict of a jury finding him guilty under an indictment in four counts charging four separate violations of the narcotics laws of the United States. The sentence was within the maximum term of imprisonment authorized by law.

At his trial, White was represented by Mr. Don E. Morgan, appointed by the court. Since White's conviction he has acted as his own counsel. The District Court permitted him to file notice of appeal without prepayment of costs, but denied him leave to prosecute his appeal further in forma pauperis, the trial judge certifying that the appeal is not taken in good faith and is without merit. White has petitioned this Court for leave to proceed here in forma pauperis, notwithstanding the certificate of the trial judge and the following provision of 28 U.S.C. 1915(a):

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

White's petition presents the same problem with which we were confronted in Weber v. United States, 8 Cir., 254 F.2d 713, 256 F.2d 119, 257 F.2d 585, certiorari denied 358 U.S. 912, 79 S. Ct. 241, 3 L. Ed. 2d 233, namely, how to give proper effect to the statutory provision quoted, without disregarding the teachings of the Supreme Court 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. 974, 2 L. Ed. 2d 1060.

We have a detailed statement from Judge Devitt, the trial judge, in support of his certificate, showing what occurred at the trial. Apparently this was a conventional narcotics case, made in the usual way against a peddler of contraband heroin, who was arrested with such narcotics in his possession.

We do not have a transcript of the evidence nor an agreed statement of the case by trial counsel. While we have no reason to believe that White's appeal presents any substantial question for review, we shall follow the course pursued in the Weber case.

We appoint Mr. Don E. Morgan, of the Minnesota Bar, who was White's trial counsel, to represent him in this Court in connection with his petition to prosecute his appeal in forma pauperis, and request Mr. Morgan to see that the procedural requirements specified in the Johnson, Farley and Ellis cases are complied with. He is also requested to procure, if possible, an agreed statement of the case by trial counsel, and to file it, together with a typewritten report, with the Clerk of this Court within sixty (60) days, pointing out in what respects the trial judge erred in certifying that the appeal of White is not taken in good faith. A copy of the report shall be served upon the United States Attorney, who, if so advised, may file, within twenty (20) days thereafter a typewritten response. The appellant may file a reply to the response within ten (10) days after the response has been filed.

The appellant's petition for leave to proceed in forma pauperis, notwithstanding the certificate of the trial judge, will be set for submission to this Court at its September, 1959, session in St. Louis, Missouri.