Before FRANK, MEDINA and HINCKS, Circuit Judges.
This is a motion addressed to this court for leave to appeal in forma pauperis and for assignment of counsel. The petition also, at least impliedly, seeks an order requiring the United States "to prepay the costs of the minutes and records of all proceedings."
The movant after a five days' trial by jury in the District Court for the Eastern District of New York was convicted and on May 24, 1956 sentenced to a term of three years. On May 25, 1956 the movant filed a notice of appeal from said judgment. On May 25, 1956 he also addressed a petition to the trial court for leave to appeal in forma pauperis supported by a poverty affidavit the sufficiency of which is not disputed. In said petition he asserted, without further particularity, that "many prejudicial errors were committed against me and I therefore need the records and minutes to present them to the United States Circuit Court of Appeals for the Second Circuit."
In a written opinion dated June 1, 1956 Judge Rayfiel denied the petition saying: "The issues in the case were simple. The jury was adequately and properly instructed as to the law. The evidence amply supported its verdict. I am satisfied, and accordingly certify that the appeal is frivolous, lacking in merit, and not taken in good faith."
The petition addressed to this court, like that denied below, includes a poverty affidavit and a sworn statement that the petition is made in good faith, under belief that the movant is entitled to the relief sought. But there is nothing in the pending petition and nothing elsewhere in the record now presented to us, which shows that the certificate below was made without warrant and not in good faith.
Title 28 U.S.C.A. § 1915(a) provides: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." This statutory prohibition is applicable to the instant petition. Wells v. United States, 318 U.S. 257, 63 S. Ct. 582, 87 L. Ed. 746; Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 877 and 878, certiorari denied 325 U.S. 890, 65 S. Ct. 1580, 89 L. Ed. 2003; Bernstein v. United States, 4 Cir., 195 F.2d 517, certiorari denied 343 U.S. 980, 72 S. Ct. 1081, 96 L. Ed. 1371; Johnson v. Hunter, 10 Cir., 144 F.2d 565; Parsell v. United States, 5 Cir., 218 F.2d 232. The books are replete with other federal decisions to the same effect.
In Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 589, the majority opinion proceeded on the assumption that in that case "errors were committed in the trial which would merit reversal": it was not addressed to the problems involved in frivolous appeals. In his concurring opinion, Justice Frankfurter said, 351 U.S. at page 24, 76 S. Ct. at page 593, "When a State not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent." Such self-protection, we suggest, is also in the public interest for its impact on the prompt disposition of criminal administration: court dockets crowded with meritorious appeals should not be further burdened by frivolous appeals. In the federal system these considerations are dealt with in 28 U.S.C.A. § 1915. We see nothing in Griffin which suggests that the protection to the Government and the public afforded by that statute, as interpreted by the long line of federal cases referred to above, offends the Due Process or the Equal Protection Clauses, Const. Amend. 5.
We do not view the instant case as one of a person who is punished because he is guilty of the crime of being poor. He is punished because a jury in a court of unquestioned jurisdiction found him guilty of a serious crime beyond a reasonable doubt. And he is not entitled to the assistance which the law provides for a poor person in the prosecution of an appeal because Congress, by 28 U.S.C.A. § 1915(a), has directed that such assistance shall be withheld if the trial judge shall certify that the appeal is not taken in good faith. Certainly the deprivation of aid to prosecute a frivolous appeal is not "punishment." And it laid well within the Congressional power to designate the trial judge as the authority to determine whether a given appeal is frivolous. Such a determination is final, absent a showing that the trial judge acted "without warrant or not in good faith." Wells v. United States, supra [318 U.S. 257, 63 S. Ct. 584]. As noted above, there is no such showing here.
The motion is wholly denied.
FRANK, Circuit Judge (dissenting).
1. Before 1956 when the Supreme Court decided Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, the courts, in cases cited by my colleagues, had held in effect that no constitutional question arose when there existed a discrimination against a man, solely because of his poverty, seeking to appeal from a judgment of conviction; the courts reasoned that no one had a right to appeal and therefore such a discrimination did not affect any constitutional rights.*fn1 But in Griffin the Supreme Court declared that, once a state provides for appeals from convictions, such a discrimination against the poor violates the Fourteenth Amendment's guaranty of due process and equal protection of the laws. It would seem clear that the Griffin doctrine, via the due process provision of the Fifth Amendment, applies as well to a poor man's appeal from a federal conviction.*fn2
The Griffin doctrine therefore brings sharply into focus the correct interpretation and effect of that part of 28 U.S.C.A. § 1915(a) which reads, "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." Were that language interpreted literally - so that the trial judge's certificate, his mere fiat, would not be reviewable - the statute, I think would fall foul of the Griffin doctrine, for it would mean this:
(1) If a convicted man has the money to pay the docket fee and for a transcript of the proceedings at his trial, the upper federal court, by at least reading the transcript, will ascertain whether or not there was reversible error at the trial, or whether or not there was such a lack of evidence ...