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United States v. Sevilla.

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided.: May 26, 1949.

UNITED STATES
v.
SEVILLA.

Author: Frank

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

FRANK, Circuit Judge.

As the defendant is an alien, he may not appeal in forma pauperis. 28 U.S.C.A. § 1915(a). Nor does § 1915(b) apply to an alien.*fn1 However, we have authority to appoint a lawyer to act for defendant on this appeal. It will be that lawyer's duty to present to the district judge a statement of the evidence and of the events at the trial, "made up from the best sources available," in the manner stated by the Supreme Court in Miller v. United States, 317 U.S. 192, 198, 601, 63 S. Ct. 187, 87 L. Ed. 179. It "will then become the duty of the district judge to assist in amplifying, correcting, and perfecting" that statement from "the best sources available" to him.*fn2 He may, to that end, interrogate the witnesses, the counsel who appeared at the trial for the government and for the defendant, and any other persons having reliable information.*fn3 Among such persons are the court reporters who took stenographic notes of the testimony and remarks at the trial; the judge may properly require them to read their notes to him.*fn4

Section 753(b) of Title 28 states that the trial judge may require the official reporter to transcribe his notes and deliver the transcript to the judge. It is arguable that, were the judge so to require in a case like this, the result would be to circumvent 28 U.S.C.A. § 1915(b). However that may be, we think Congress did not intend to put a district judge, in such circumstances, to the laborious task of obtaining the needed information without a transcript when one is easily accessible to him.

There is nothing in this procedure inconsistent with Rule 39 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which requires records to be prepared in the same way as records in civil actions, that is, in accordance with Rule 75 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Bills of exception are, of course, abolished.*fn5 But since the adoption of the Rules of Criminal Procedure the Supreme Court has recognized that the substance of the procedure set forth in Miller v. United States may still be followed "in unusual circumstances" where the appellant has no transcript of the record available.*fn6

We deny defendant's motion for leave to appeal in forma pauperis. We also deny his application to us for a transcript of the record. We shall appoint a lawyer for him to perform the duty above stated. After the record on appeal is filed,*fn7 that lawyer will advise us whether he thinks there is such merit in the appeal as to make it desirable that he should further act in prosecuting the appeal. When so advised, we will take further appropriate steps.


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