Coppedge v. United States
Opinion of the Court
delivered the opinion of the Court.
Tried and convicted in a Federal District Court for an offense against the United States, petitioner applied for leave to appeal his conviction to the Court of Appeals in forma pauperis. His application was denied. The case presents this question: What standard is to be applied by the lower federal courts in passing upon such applications? The articulation of a usable standard has been the source of considerable recent litigation.
Statutory provision for litigation in forma pauperis in the federal courts is made by 28 U. S. C. § 1915, authorizing “[a]ny court of the United States” to allow indigent persons to prosecute, defend, or appeal suits without prepayment of costs. Before discussing our understanding of the proper manner in which a Court of Appeals is to exercise its authority to allow a criminal appeal in forma pauperis, we believe it would be helpful to indicate briefly the law applicable to criminal appeals generally. The provisions of § 1915 can be understood and applied in such cases only when read together with the other provisions of the Judicial Code and the Federal Rules governing criminal appeals.
Present federal law has made an appeal from a District Court’s judgment of conviction in a criminal case what is, in effect, a matter of right.
The indigent defendant will generally experience no material difficulty in filing a timely notice of appeal.
What meaning should be placed on the “good faith” of which the statute speaks? In the context of a criminal appeal, we do not believe it can be read to require a District Court to determine whether the would-be appellant seeks further review of his case in subjective good faith, i. e., good faith from his subjective point of view.
If the District Court finds the application is not in good faith, and therefore denies leave to appeal in forma pauperis, the defendant may seek identical relief from the Court of Appeals.
In so holding we have been impelled by considerations beyond the corners of 28 U. S. C. § 1915, considerations that it is our duty to assure to the greatest degree possible,
“[u]nless the issues raised [by the indigent seeking leave to appeal in forma pauperis] are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed. Rules Crim. Proc. 39 (a), the request of an indigent for leave to appeal in forma pauperis must be allowed.” Ellis v. United States, 356 U. S. 674, 675.
The point of equating the test for allowing a pauper’s appeal to the test for dismissing paid eases, is to assure equality of consideration for all litigants. The equation is intended to place the burdens of proof and persuasion in all cases on the same party — in these cases, on the Government. Since our statutes and rules make an appeal in a criminal case a matter of right, the burden of showing that that right has been abused through the prosecution
Two additional factors have relevance to our view of the proper disposition of motions for leave to perfect criminal appeals in forma pauperis. These factors are the foundation for Rule 39 (d) of the Federal Rules of Criminal Procedure, specifying that preference shall be given by the Courts of Appeals to criminal cases. This Rule, first, acknowledges the importance to the sovereign,
Both of these considerations are particularly pertinent to criminal appeals in forma pauperis. Statistics compiled in the court below illustrate the undeniable fact that as many meritorious criminal cases come before that court through applications for leave to proceed in forma pau-peris as on the paid docket, and that no a priori justification can be found for considering them, as a class, to be more frivolous than those in which costs have been paid.
Similarly, statistics demonstrate the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached. Delays described in years between trial and final decision in criminal cases are the unhappy result of separate considerations of motions for the appointment of counsel, for the preparation of a transcript of the trial proceedings and, ultimately, for the leave to appeal in forma pauperis. The case before us illustrates the point. Petitioner was indicted on June 16, 1958, for offenses alleged to have been committed in early December 1957. He was first tried and convicted in December 1958. Leave to appeal in forma pauperis was
In the light of this delay, it is not surprising that petitioner asks us to reach the merits of his case immediately. However, delay alone, unfortunate though it is, is not sufficient cause to bypass the orderly processes of judicial review. Contrary to the Government’s assertion here that petitioner has already received what amounts to
The first of numerous claims asserted by the petitioner is that the indictment against him was procured through the use of perjured testimony before the grand jury. This Court has not yet decided whether such a charge, if proven, would require the reversal of a criminal conviction based upon an indictment returned by a grand jury hearing the perjury. But we have granted certiorari and given full consideration to related issues in other cases. See, e. g., Costello v. United States, 350 U. S. 359 (hearsay evidence considered by grand jury); Lawn v. United States, 355 U. S. 339 (illegally seized evidence considered by grand jury); Beck v. Washington, post, p. 541 (alleged inflammatory publicity surrounding state grand jury deliberations).
Petitioner also claims that he has been unable to prove his charge that perjured testimony was presented to the
A number of other arguable claims were also made by petitioner to support his application for leave to appeal. But we believe those mentioned would alone have warranted the allowance of an appeal in forma pauperis. They meet the test of being sufficiently reasonable to withstand a claim that their frivolity is so manifest that they merit no further argument or consideration, and that dismissal of petitioner’s case is, therefore, in order. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
During the past five Terms of the Court, we have found it necessary to vacate and remand for reconsideration 14 cases in which a Court of Appeals has applied an erroneous standard in passing on an indigent’s application for leave to appeal. Johnson v. United States,
28 U. S. C. §§ 1291, 1294; Fed. Rules Crim. Proc. 37 (a). Cf. Carroll v. United States, 354 U. S. 394, 400-401.
Fed. Rules Crim. Proc. 37 (a); United States v. Robinson, 361 U. S. 220.
Fed. Rules Crim. Proc. 39 (c) (record on appeal to be docketed in Court of Appeals within 40 days of filing of notice of appeal) ; Rules of the Court of Appeals for the District of Columbia Circuit 33 (b) (application for copies of stenographic transcript of trial proceedings to be made within 3 days of filing of notice of appeal, or within 10 days if appellant is incarcerated), 33 (c) (appellant’s designation of record on appeal to be filed within 20 days of filing notice of appeal), 18 (a) (appellant’s briefs due within 20 days of filing record on appeal).
Although the timely filing of a notice of appeal is a jurisdictional prerequisite for perfecting an appeal, United States v. Robinson, 361 U. S. 220, a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal, has been used to preserve the jurisdiction of the Courts of Appeals. See, e. g., Lemke v. United States, 346 U. S. 325 (notice of appeal filed prior to judgment); O’Neal v. United States, 272 F. 2d 412 (C. A. 5th Cir.) (appeal bond filed in District Court); Tillman v. United States, 268 F. 2d 422 (C. A. 5th Cir.) (application for leave to appeal in forma pauperis filed in District Court); Belton v. United States, 104 U. S. App. D. C. 81, 259 F. 2d 811 (letter written to District Court); Williams v. United States, 88 U. S. App. D. C. 212, 188 F. 2d 41 (notice of appeal delivered to prison officials for forwarding to District Court). See also Jordan v. United States District Court, 98 U. S. App. D. C. 160, 233 F. 2d 362, vacated on other grounds sub nom. Jordan v. United States, 352 U. S. 904 (mandamus petition filed in Court of Appeals held equivalent of notice of appeal from
Further, Fed. Rules Crim. Proc. 37 (a)(2) expressly provides:
“When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.”
The salutary purpose of this provision may, however, not be achieved when the defendant appears at sentencing with counsel. If neither counsel, whether retained or court appointed, nor the district judge imposing sentence, notifies the defendant of the requirement for filing a prompt notice of appeal, the right of appeal may irrevocably be lost. Cf. Hodges v. United States, 108 U. S. App. D. C. 375, 282 F. 2d 858, cert. granted, 365 U. S. 810, cert. dismissed as improvidently granted, 368 U. S. 139, 140-141 (dissent); Lewis and Simms v. United States, 107 U. S. App. D. C. 353, 278 F. 2d 33, 111 U. S. App. D. C. 13, 294 F. 2d 209.
The fee for docketing an appeal in the Court of Appeals is $25. Stenographic transcripts in the federal courts cost $0.65 per page for the first copy, and $0.30 per page for additional copies. Transcripts in excess of 100 pages are not uncommon. The cost of printing briefs, records, and appendices, as illustrated by the present charge for printing records in this Court, may be $3.80 per page or more. The printing requirements are generally waived in appeals proceeding in forma pauperis. Cf. Fed. Rules Civ. Proc. 75 (m). But if, in such cases, printing is required by the Court of Appeals, the expense is borne by the United States. 28 U. S. C. § 1915 (b).
The statute appears to contemplate an initial application to the District Court by providing “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in
In discussing the “good faith” requirement of what is now 28 U. S. C. § 1915 (a), Senator Bacon of the Senate Judiciary Committee said:
“When a judge has heard a case and it is about to be carried to an appellate court, he ... is in a position to judge whether it is a case proceeding captiously, or viciously, or with prejudice, or from any other improper motive, or whether the litigant is proceeding in good faith.” 45 Cong. Rec. 1533 (1910).
However, he was discussing primarily civil suits. And see Jaffe v. United States, 246 F. 2d 760 (C. A. 2d Cir.) (civil case). But in criminal cases cf. Cash v. United States, 104 U. S. App. D. C. 265, 269, 261 F. 2d 731, 735, vacated, 357 U. S. 219; Parsell v. United States, 218 F. 2d 232 (C. A. 5th Cir.). See also United States v. Visconti, 261 F. 2d 215 (C. A. 2d Cir.) (proceeding under 28 U. S. C. § 2255).
And see Fed. Rules Grim. Proc. 39 (a); Fed. Rules Civ. Proc. 12 (f).
28 U. S. C. § 1915 expressly authorizes “[a]ny court of the United States” to permit a litigant to proceed in forma pauperis. Thus it is not necessary to consider the application to the Court of Appeals a separate “appeal” from the order of the District Court denying relief, to which the time requirements of the Federal Rules of Civil Procedure would be applicable as they are to appeals in other ancillary post-conviction proceedings. Cf. Roberts v. United States District Court, 339 U. S. 844, 845. The court below has, by its own Rule 41 (b), required all persons seeking leave to appeal a judgment of the District Court in forma pauperis, to apply for such leave from the Court of Appeals within 30 days of the date on which their applications for such relief from the District Court have been denied. The instant petitioner has complied with this Rule.
Johnson v. United States, 352 U. S. 565, 566.
Johnson v. United States, 352 U. S. 565, 566. See also Farley v. United States, 354 U. S. 521; Ellis v. United States, 356 U. S. 674; Whitt v. United States, 104 U. S. App. D. C. 1, 259 F. 2d 158.
Cf. Griffin v. Illinois, 351 U. S. 12, in which we were presented with a state law requiring defendants in all criminal cases in that State to furnish a bill of exceptions to the appellate court in which they sought review of their convictions. The bill of exceptions was difficult, if not impossible, to prepare without a stenographic transcript of the trial proceedings. Persons sentenced to death received transcripts at the expense of the State; all others were required to purchase a transcript. We found the failure of the State to provide for appellate review for indigents in non-capital cases, when such review was available for all defendants able to purchase transcripts, an “invidious discrimination” inconsistent with the guarantees of due process and equal protection of the laws of the Fourteenth Amendment. See also Eskridge v. Washington State Board, 357 U. S. 214; Ross v. Schneckloth, 357 U. S. 575; Burns v. Ohio, 360 U. S. 252; Douglas v. Green, 363 U. S. 192; McCrary v. Indiana, 364 U. S. 277; Smith v. Bennett, 365 U. S. 708, in which comparable state rules and practices, effectively limiting the poor person’s access to courts ostensibly open to all, similarly have been found vulnerable.
See Brown v. United States, 110 U. S. App. D. C. 310, 293 F. 2d 149; United States v. Nudelman, 207 F. 2d 109 (C. A. 3d Cir.). Cf. United States v. Johnson, 327 U. S. 106; Smith v. United States, 105 U. S. App. D. C. 414, 267 F. 2d 691; Young v. United States, 105 U. S. App. D. C. 415, 267 F. 2d 692; United States v. Peltz, 246 F. 2d 537 (C. A. 2d Cir.).
Justice Schaefer of the Supreme Court of Illinois, in the 1956 Oliver Wendell Holmes Lecture at the Harvard Law School, reprinted as Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956).
Jones v. United States, 105 U. S. App. D. C. 326, 328, 266 F. 2d 924, 926. There, Judge Bazelon pointed out that of 86 criminal appeals considered by the Court of Appeals within a period of approximately 15 months, 18 were prepaid, while 68 were considered after either the District Court or the Court of Appeals had granted leave to appeal in forma pauperis. Of this total, 14 of the prepaid appeals resulted in a judgment affirming the conviction; a similar majority of the paupers’ appeals resulted in affirmance. However, during a comparable span between September 1, 1957, and February 28, 1959, 24 criminal appeals were decided by the Court of Appeals in which the
The instant case is not unique in this regard. See, e. g., Johnson: Indicted (March 1956), tried (May 1956), appeal in forma pauperis denied, 238 F. 2d 565 (C. A. 2d Cir. 1956), vacated, 352 U. S. 565 (1957), conviction affirmed on the merits, 254 F. 2d 175, petition for certiorari dismissed per stipulation of parties, 357 U. S. 933 (June 1958); Farley: Indicted (December 1955), tried (May 1956), application for leave to appeal in forma pauperis remanded to District Court, 238 F. 2d 575 (C. A. 2d Cir. 1956), appeal in forma pauperis denied, 242 F. 2d 338, vacated, 354 U. S. 521 (1957), remanded to District Court for settling transcript (December 1960), appeal in forma pauperis granted by District Court (May 1961), conviction affirmed on the merits, 292 F. 2d 789 (1961), cert. denied, 369 U. S. 857 (April 1962); Ellis: Indicted (April 1956), tried (September 1956), appeal in forma pauperis denied, 101 U. S. App. D. C. 386, 249 F. 2d 478 (1957), vacated, 356 U. S. 674 (1958), conviction affirmed on the merits, 105 U. S. App. D. C. 86, 264 F. 2d 372, cert. denied, 359 U. S. 998 (May 1959), motion for leave to file petition for rehearing denied, 361 U. S. 945 (January 1960).
This argument was also presented by the Government, and then rejected by us, in Lurk v. United States, 366 U. S. 712.
See, e. g., Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399-400; De Binder v. United States, 110 U. S. App. D. C. 244, 246, 292 F. 2d 737, 739; United States v. Rose, 215 F. 2d 617, 628-630 (C. A. 3d Cir.); Parr v. United States, 265 F. 2d 894, 901-904 (C. A. 5th Cir.), reversed on other grounds, 363 U. S. 370. Cf. United States v. Procter & Gamble Co., 356 U. S. 677, 682-684. See Louisell, Criminal Discovery: Dilemma Real or Apparent? 49 Calif. L. Rev. 56, 68-71 (1961); Note, Inspection of Grand Jury Minutes by Criminal Defendants, 1961 Wash. U. L. Q. 382.
Concurring Opinion
concurring.
In joining the opinion and judgment of the Court, I think it appropriate to add a few words. The rule of Ellis v. United States is a simple one. An appeal in forma pauperis must be allowed in a criminal case “unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant.” 356 U. S. 674, 675. The difficulties which the Courts of Appeals have encountered in applying this simple and practical test are largely, I think, of their own making.
These difficulties may stem in part from a failure to consider the in forma pauperis statute in the context of the over-all scheme governing criminal appeals. Our statutes and rules make an appeal in a criminal case a matter of right. The provisions governing appeals in forma pauperis are not to be read as diluting that right by imposing a more stringent test of merit. Rather, 28 U. S. C. § 1915 provides at most a device for advance screening of appeals which, if paid, would upon motion be dismissed before argument as frivolous. The only justification for such a preliminary screening is the absence of the built-in pecuniary brake upon frivolous appeals which is present in nonindigent cases. There is no other difference between paid and unpaid appeals. In both, the burden of showing that the right to appeal has been abused is on the party making the suggestion.
It has been said that a District Court’s certification that an appeal is not taken in good faith is entitled to great weight. Johnson v. United States, 352 U. S. 565, 566. Nevertheless, if a District Court has denied leave to appeal in forma pauperis, the Court of Appeals has the ultimate responsibility of deciding for itself whether the appeal is frivolous. Justice demands an independent and objective assessment of a district judge’s appraisal of his
When a Court of Appeals chooses to utilize the preliminary screening device permitted by § 1915, difficulties of the kind evident in this case frequently arise. The bare application for leave to appeal in forma pauperis seldom furnishes sufficient material for evaluating the weight of the issues involved. For this reason, we have held that in such cases a Court of Appeals must provide the applicant with the assistance of counsel and with a record of sufficient completeness to give him full opportunity to show that the appeal is in “good faith.” Johnson v. United States, supra; Farley v. United States, 354 U. S. 521. In the course of such proceedings, however, experience has shown that there may be a tendency to lose sight of the precise issue before the court at this point — whether the appeal is so frivolous that it would be dismissed even if all the fees had been paid. Obviously arguments concerning the weight of the issues raised by an appeal are difficult to disengage from arguments dealing with the ultimate merits of these same issues. Understandably and commendably, counsel for indigent defendants often exert every effort to prove the substantial nature of their clients’ claims — -an exertion of energy which draws a similar effort from government counsel. The product of these forces is a procedure which may bear close superficial resemblance to the appeal itself.
The result is that a Court of Appeals may come to think of these preliminary proceedings as tantamount to appeals on the merits, and may tend to decide whether or
This attempted conversion of the proceedings to determine good faith into a truncated substitute for appeal distorts the purpose of § 1915, and, if accepted, would raise serious questions of due process. The filing of memoranda in support of an application for leave to appeal is not an appeal. The merits of the ultimate issues are not logically involved at this point, but only the weight of those issues. Appellate briefs are not written or submitted. There is no oral argument. The court’s mode of considering such memoranda, as a matter of internal machinery, may markedly differ from the process employed in the decision of cases actually on appeal. For all these reasons the interim proceeding permitted by § 1915 cannot itself be deemed to constitute the appeal to which a person convicted of crime in the federal courts is entitled.
In addition to the danger of equating the “good faith” determination with the appeal itself, there are other disadvantages inherent in compelling the parties to go through the preliminary procedure permitted by § 1915. It is a serious imposition upon appointed counsel to require dissipation of energy and time in preliminary skirmishing. Moreover, the delay occasioned by this extended interim proceeding is itself offensive to the ideal of speedy administration of criminal justice.
The primary responsibility for containing within limited bounds the separate “good faith” proceeding permitted by § 1915 rests upon those Courts of Appeals
This suggests that each Court of Appeals might well consider whether its task could not be more expeditiously and responsibly performed by simply granting applications to appeal from criminal convictions in forma pauperis as a matter of course, and appointing counsel to brief and argue each case on the merits. The Government would then be free in any case to file before argument a motion to dismiss the appeal as frivolous, as every appellee is always free to do. In the absence of such a motion an appeal which after argument appeared clearly without merit could be expeditiously disposed of by summary affirmance, in the secure knowledge that all the issues had been fully canvassed. This procedure, it seems to me, would not only save the time and energy of court and counsel, but would obviate the many difficulties which, as the present case shows, the complicated two-step system is all too likely to produce.
Dissenting Opinion
MR. Justice Clark,
dissenting.
I.
Congress has provided that no indigent appeal may be taken “if the trial court certifies in writing that it is not taken in good faith,” i. e., is frivolous'. 28 U. S. C. § 1915 (a). With the opinion today the Court for all practical purposes repeals this statute by placing the burden on the Government to sustain such a certification
The Court does not make clear on what grounds it bases its assumption that the Government has the burden of showing frivolity. It professes to act “within the statutory framework for appeals created by Congress”; but it intimates that it is “impelled by considerations beyond the corners of 28 U. S. C. § 1915,” and the touchstone of its opinion is a principle arising from cases based on the Equal Protection Clause of the Fourteenth Amend
HH HH
The Court holds that petitioner is entitled to oral argument in the Court of Appeals on new briefs. An examination of the record shows that the action of the Court of Appeals was on the basis of a complete transcript and extensive briefs filed by counsel. With due deference to the Court’s suggestion that these briefs were only preliminary, I find them to be substantially similar in both bulk and substance to the ones filed here on which petitioner asks for a decision on the merits. Upon such
The Court, however, is remanding the case for further review proceedings because it has concluded that at least two of petitioner’s claims are not frivolous and that the Court of Appeals therefore erred in not allowing the review to run its full length. The Court in reaching this conclusion has, in my view, misplaced the burden on the issue of frivolity, but even assuming arguendo that petitioner’s contentions are not frivolous, I cannot agree to the fruitless approach the Court has taken.
To be sure, frivolity or some analogous standard delimits those appeals, paid or nonpaid, which can be decided without oral argument. However, it would seem that any error by a Court of Appeals in evaluating frivolity upon such a full presentation as was had below is often not only incorrectable but harmless. Concededly, this Court has of late consistently remanded cases in which a Court of Appeals has mistakenly characterized contentions as frivolous. Experience has shown this tack to be unsatisfactory, and perhaps it is now time to re-evaluate our approach.
Ellis v. United States, 356 U. S. 674 (1958), is inapposite. There the Court was concerned with the standard governing the allowance of appeals in forma pauperis, not with where rests the burden of showing frivolity in the face of a certification by the trial court.
For a case in which a similar warning was sounded, see Lurk v. United States, 366 U. S. 712 (1961) (dissenting opinion). Subsequent events have shown this admonition to be words of wisdom indeed. See 111 U. S. App. D. C. 238, 296 F. 2d 360, certiorari granted, 368 U. S. 815. [For subsequent decision of this Court, see 370 U. S. 530 (1962).]
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