United States of America, Plaintiff-appellee, v. Roger Lee Foster, A/k/a Red, Defendant-appellant, 948 F.2d 1283 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 948 F.2d 1283 (4th Cir. 1991) Submitted Oct. 28, 1991. Decided Nov. 19, 1991

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CR-89-145-2-1; CA-90-973-2)

Roger Lee Foster, appellant pro se.

Hunter P. Smith, Jr., Assistant United States Attorney, Charleston, W.Va., for appellee.

S.D.W. Va.

AFFIRMED.

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

OPINION

PER CURIAM:


Roger Lee Foster appeals from the district court's order denying his request for copies of documents and for transcripts. Our review of the record and the district court's opinion discloses that this appeal is without merit. There was no 28 U.S.C. § 2255 (1988) motion pending before the district court when Foster made his request. Therefore, 28 U.S.C.A. § 753(f) (West 1968 & Supp.1991) does not entitle Foster to a free transcript. See United States v. MacCollom, 426 U.S. 317 (1976). Foster may be entitled to copies of some of the documents requested under the Freedom of Information Act, 5 U.S.C.A. §§ 552, 552a (West 1977 & Supp.1991). However, he must first make a request to the agency possessing the documents. See United States Dep't of Justice v. Julian, 486 U.S. 1 (1988). The court is not such an agency. 5 U.S.C.A. § 551(1) (B). (West 1977 & Supp.1991). Foster may resort to the courts if his request to the appropriate agency is unsuccessful. 5 U.S.C.A. §§ 552(a) (4) (B); 552a(g) (1). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED.