No. 99-1014
In the Supreme Court of the United States
GERALD JONES AND THELBERT STATEN, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel Of Record
JAMES K. ROBINSON
Assistant Attorney General
ELIZABETH D. COLLERY
Attorney
Department Of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals erred in denying petitioners' motion for a
free trial transcript pursuant to 28 U.S.C. 1915 (Supp. III 1997).
In the Supreme Court of the United States
No. 99-1014
GERALD JONES AND THELBERT STATEN, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals (Pet. App. 21a-22a) denying petitioners'
motion for a free transcript is unreported. The order of the district court
requiring counsel to reimburse the court for the transcript costs (Pet.
App. 26a-27a) is also unreported.
JURISDICTION
The order of the court of appeals was entered on July 14, 1999. The petition
for a writ of certiorari was filed on October 12, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Southern
District of Alabama, petitioner Gerald Jones was convicted of conspiracy
to possess cocaine with intent to distribute it, conspiracy to possess marijuana
with intent to distribute it, attempted possession of marijuana with intent
to distribute it, and two counts of attempted possession of cocaine with
intent to distribute it, all in violation of 21 U.S.C. 846 and 841. Jones
Presentence Investigation Report 7. Petitioner Thelbert Staten was convicted
of conspiracy to possess cocaine with intent to distribute it, in violation
of 21 U.S.C. 846 and 841. Staten Presentence Investigation Report 7. Jones
was sentenced to life imprisonment, to be followed by five years of supervised
release. Jones Judgment in a Criminal Case 2-3. Staten was sentenced to
188 months of imprisonment, to be followed by five years of supervised release.
Staten Judgment in a Criminal Case 2-3.
Both petitioners filed timely notices of appeal and sought to obtain free
trial transcripts for use on appeal. Although the district court originally
granted that request, the court ordered the appellate counsel that petitioners
had retained to reimburse the court for the transcript costs upon learning
that counsel had been paid $10,000 in attorneys' fees by petitioners' families.
Pet. App. 26a-27a. Petitioners then moved in the court of appeals for transcripts
provided at government expense. That motion was denied on July 14, 1999.
1. Petitioner Gerald Jones was the head of a large drug trafficking organization
that operated in and around Uniontown, Alabama. As the leader of that organization,
petitioner orchestrated the interstate transportation of multiple-kilogram
shipments of marijuana and powder and crack cocaine. Jones Presentence Investigation
Report 8-9, 15-16. Petitioner Thelbert Celester Staten became involved in
the drug trafficking organization in the early 1990s. He obtained kilogram
quantities of crack cocaine from Jones and another source and distributed
those drugs in the Uniontown area. Staten Presentence Investigation Report
17.
2. Petitioners and 35 others were charged in a 75- count superseding indictment
with drug and weapons offenses. Jones Presentence Investigation Report 7;
Staten Presentence Investigation Report 7. After judgment was entered on
their convictions, petitioners appealed. Through appellate counsel retained
by their families, petitioners moved in the district court to obtain trial
transcripts at government expense. In support of those motions, each petitioner
submitted an affidavit attesting to his own indigency, and a pleading signed
by counsel averring that, although petitioner's relatives were willing to
pay her fees, they denied having "any funds whatsoever to purchase
the transcript." Staten Motion Requesting Declaration of Appellant
as Indigent for Free Transcript 2 (filed July 9, 1998); Jones Motion Requesting
Declaration of Appellant as Indigent for Free Transcript 1 (filed July 10,
1998).
On July 20, 1998, the district court ordered counsel to submit, in camera,
"a statement of the amount she has been, or expects to be, paid by
defendant's family for her services at sentencing and on appeal and the
estimated cost of the transcript." Pet. App. 29a-30a. The court indicated
that it needed that information "to determine whether there are sufficient
funds available to pay for the transcript." Id. at 29a. Petitioners'
counsel then notified the court that each family had agreed to pay her $7,500
for her services at sentencing and on appeal, but that no money had yet
been received from either family. Staten Response to the Court's Order of
July 20, 1998, at 1; Jones Response to the Court's Order of July 20, 1998,
at 1.
On November 5, 1998, the district court issued an order finding that "counsel's
fee is sufficient to require defendants to bear a proportionate share of
the cost of the transcript." 11/5/98 Order 1 (reprinted in App. A,
infra, 2a). Nonetheless, the court granted the motion for a free transcript
"at this time," because counsel had not yet been paid for her
services. Ibid. Counsel was ordered to file supplemental information regarding
payment of her fee at which time "the Court will reexamine whether
counsel should be required to reimburse this Court's CJA fund for a proportionate
share of the cost of the transcript." Ibid.
Subsequently, counsel notified the court that she had received $7,500 from
Jones's family, and $2,500 from Staten's family.1 Upon receipt of that information,
the district court issued an order on February 12, 1999, requiring counsel,
within 30 days, to reimburse the court's Criminal Justice Act fund $1,320
to cover petitioners' proportionate share of the transcript cost. Pet. App.
26a-27a.2 That order was stayed by the district court on August 19, 1999.
App. B, infra, 3a.
3. On February 26, 1999, petitioners moved in the court of appeals for a
free transcript on appeal pursuant to 28 U.S.C. 1915 (Supp. III 1997). App.
C, infra, 4a-10a.3 On July 14, 1999, the court of appeals denied the motion
without explanation. Pet. App. 21a. At the same time, the court of appeals
notified petitioners' counsel that the appeal would be dismissed within
fourteen days unless she ordered the transcript as required under Federal
Rule of Appellate Procedure 10(b)(1). Petitioners' counsel did not order
the transcript, but filed this petition for a writ of certiorari. Petitioners
then moved successfully to stay the appeal pending resolution of their petition.
App. D, infra, 11a.
ARGUMENT
Petitioners contend (Pet. 8) that the court of appeals "affirm[ed]"
the district court's order requiring their counsel to reimburse the court
for the cost of their trial transcripts. Petitioners claim (Pet. 8-12, 14-18)
that this purported holding is inconsistent with the Criminal Justice Act
of 1964 (CJA), 18 U.S.C. 3006A (1994 & Supp. IV 1998), and violates
their rights to due process and equal protection (Pet. 12-14). Those claims
are not properly before this Court: petitioners did not rely on the Criminal
Justice Act in the court of appeals, and the court of appeals did not construe
that Act. Further, the court of appeals did not "affirm" the district
court's order requiring counsel to reimburse the court for the cost of the
trial transcripts. Accordingly, the petition should be denied.
1. Federal Rule of Appellate Procedure 10(b)(1) provides that "[w]ithin
10 days after filing the notice of appeal * * * , the appellant must * *
* order from the reporter a transcript of such parts of the proceedings
not already on file as the appellant deems necessary, subject to a local
rule of the court of appeals." Federal Rule of Appellate Procedure
10(b)(4) provides that, "[a]t the time of ordering, a party must make
satisfactory arrangements with the reporter for payment of the cost of the
transcript." "[I]f the cost of the transcript is to be paid by
the United States under the Criminal Justice Act, the order [requesting
the transcript] shall so state." Fed. R. App. P. 10(b)(1).
The Criminal Justice Act of 1964, 18 U.S.C. 3006A (1994 & Supp. IV 1998),
requires each United States district court to adopt a plan for furnishing
legal representation to persons who are financially unable to obtain adequate
representation on their own. See 18 U.S.C. 3006A(a). Under the CJA, an indigent
defendant with court-appointed counsel may obtain a trial transcript at
government expense if he wishes to appeal. See 18 U.S.C. 3006A(d)(7) (Supp.
IV 1998) ("If a person for whom counsel is appointed under this secion
appeals to an appellate court or petitions for a writ of certiorari, he
may do so without prepayment of fees and costs or security therefor and
without filing the affidavit required by section 1915(a) of title 28.");
28 U.S.C. 753 ("Fees for transcripts furnished in criminal proceedings
to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A) *
* * shall be paid by the United States out of moneys appropriated for those
purposes.").
The CJA, however, does not expressly permit the court to provide transcripts
at government expense to defendants represented by retained counsel. Cf.
Miller v. Smith, 115 F.3d 1136 (4th Cir.) (en banc) (upholding constitutionality
of state law denying transcript to indigent defendant represented by private
counsel), cert. denied, 522 U.S. 884 (1997).
Even assuming that the CJA allows defendants like petitioners who are represented
by retained counsel to obtain transcripts at government expense, petitioners
did not ask the court of appeals to grant them a free transcript under the
CJA. Instead, petitioners asked the court of appeals to provide them a free
transcript under 28 U.S.C. 1915 (Supp. III 1997), a statute that contains
an alternative procedure whereby an indigent defendant may obtain a trial
transcript at no expense. App. C, infra, 6a.4 Thus, contrary to petitioners'
claim (Pet. ii, 8-12, 14-18), the order of the court of appeals presents
no issues regarding the interpretation and application of the CJA.5
2. Nor does the petition present any other issue that warrants this Court's
review. Petitioners urge (Pet. 12-14) this Court to determine whether the
district court's February 12, 1999, order, which required their counsel
to reimburse the CJA fund for the transcript costs, violates their constitutional
rights. The record, however, does not establish that the court of appeals
ruled on the propriety of that order.
The court of appeals simply declined to require the government to pay for
petitioners' trial transcripts; its order nowhere references, much less
purports to affirm, any district court order. The court of appeals may have
declined to order the government to pay for the transcripts because the
district court had (on November 5, 1998) already ordered that the transcripts
be provided at government expense. See App. A, infra, 2a. Alternatively,
the court of appeals may have concluded that petitioners were not entitled
to free transcripts under 28 U.S.C. 1915 (Supp. III 1997) because they had
not secured the necessary certifications that their appeals present a substantial
question. See n.4, supra; 28 U.S.C. 753(f).
Although petitioners contend (Pet. 5) that they "appealed" the
district court's order requiring their counsel to reimburse the transcript
costs, the record does not support that claim. Petitioners' motion asked
the court of appeals to award them a free transcript under 28 U.S.C. 1915
(Supp. III 1997). App. C, infra, 6a. Although petitioners argued that the
district court's reimbursement order was "unfair and inappropriate,"
id. at 8a, they never argued that the district court had violated its authority
under the CJA or any other statute or had acted unconstitutionally in ordering
reimbursement. The order of the court of appeals does not refer to the district
court's order. Accordingly, there is no reason to conclude that the court
of appeals passed on the legality of the district court's order in denying
petitioners' motion, under 28 U.S.C. 1915 (Supp. III 1997), for a free transcript
on appeal.6
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
ELIZABETH D. COLLERY
Attorney
MARCH 2000
1 Counsel has since received an additional $5,000 from Staten's family,
which brings her total receipts from petitioners to $15,000. See Pet. 4
n.1.
2 Although the proceedings in the district court relating to the trial transcript
were originally filed under seal, they were unsealed by the district court
on February 7, 2000.
3 That motion was unsealed by the Eleventh Circuit on February 14, 2000.
4 Section 1915 allows the court to authorize the commencement of a criminal
appeal by a person who has filed an affidavit attesting to his indigency.
28 U.S.C. 1915(a)(1) (Supp. III 1997). Upon the filing of the appropriate
affidavit, the court may direct the United States to bear the expense of
preparing a trial transcript. 28 U.S.C. 1915(c) (Supp. III 1997). When the
defendant proceeds under Section 1915 instead of the CJA, 28 U.S.C. 753(f)
requires a judge to certify that "the appeal is not frivolous (but
presents a substantial question)" before the court may order the government
to pay for the transcript. See 98-6008-I Motion for Free Transcript 3, reprinted
in App. C, infra, 6a (arguing that appeal is not frivolous). No such certification
was made in this case.
5 Although petitioners now argue that the plain language of 18 U.S.C. 3006A(f)
precludes the district court from ordering retained counsel to pay for the
trial transcripts (Pet. 8-12), and that the CJA precludes consideration
of the assets of a defendant's family in determining whether a defendant
is indigent under the CJA (Pet. 14-18), petitioners raised neither argument
in the court of appeals. Indeed, they did not cite the CJA in their Motion
for Free Transcript. See App. C, infra, 4a-8a.
6 Even if the court of appeals understood petitioners to seek review of
the district court's order, the court of appeals might well have concluded
that it lacked jurisdiction to review that order by motion. Federal Rule
of Appellate Procedure 24 allows appellate review by motion of a district
court order denying a criminal defendant in forma pauperis status on appeal,
but the district court did not enter any order denying IFP status in this
case. Indeed, the district court's November 5, 1998, order granted petitioners'
request for a free transcript on appeal. App. A, infra, 2a. Accordingly,
there is a strong argument that the district court's later order requiring
counsel to reimburse the CJA fund may be reviewed only by appeal, not by
motion. Petitioners did not file a notice of appeal from the district court's
reimbursement order.
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CRIMINAL ACTION NO. 97-00099-CB
UNDER SEAL
UNITED STATES OF AMERICA,
v.
GERALD L. JONES AND
THELBERT STATEN, DEFENDANTS.
[Filed: Nov. 5, 1998]
ORDER
This matter is before the Court on the in camera responses to the Court's
order of July 20, 1998, requiring defendant's attorney to disclose information
regarding her fee arrangements with the above-named defendants. The purpose
of this information was to allow the Court to determine whether the defendant's
[sic] should be permitted to obtain a free transcript. Based on the financial
information provided by the defendants, it appears that each of the defendants
is indigent. According to counsel's response, she has agreed to represent
each defendant at sentencing and on appeal for a fee of $7,500 each. Counsel
states that the defendants' family members have made fee arrangements with
her, but that she had [sic] not yet received any money from either defendant
toward her fee and did not expect to receive any payment before the appellate
brief was filed.
The Court is also of the opinion that counsel's fee is sufficient to require
defendants to bear a proportionate share of the cost of the transcript.
However, because counsel avers that she has not yet been paid for her services,
and it appears that there is no set time for payment, the Court finds it
necessary to GRANT the motion for a free transcript at this time. Upon filing
of the appellate briefs, counsel shall supplement her in camera response
to the Court with information regarding the status of her fee. At that time
the Court will reexamine whether counsel should be required to reimburse
this Court's CJA fund for a proportionate share of the cost of the transcript.
DONE and ORDERED this the 5th day of November, 1998.
/s/ CHARLES R. BUTLER, JR.
CHARLES R. BUTLER, JR.
CHIEF DISTRICT JUDGE
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CRIMINAL ACTION NO. 97-00099-001/034
UNITED STATES OF AMERICA,
vs.
GERALD JONES &
THELBERT STATEN
[Date: Aug. 19, 1999]
NOTICE OF RULING
TO: ALL COUNSEL OF RECORD
You are advised that on the 19 day of August, 1999, the following action
was taken in the above styled case by Honorable Charles R. Butler, Jr.,
CHIEF, UNITED STATES DISTRICT JUDGE
RENEWED MOTION TO STAY PAYMENT OF TRANSCRIPT FEE-endorsed-GRANTED.
DEBORAH S. HUNT, CLERK
By: /s/ NETTIE PENDLETON
NETTIE PENDLETON
Deputy Clerk
APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Case No. _________
DC # CR-97-99-01
CR-97-99-22
(Under seal)
UNITED STATES OF AMERICA,
PLAINTIFF/APPELLEE
v.
GERALD JONES AND
THELBERT STATEN, DEFENDANTS/APPELLANTS.
[Filed: Feb. 26, 1999]
MOTION FOR FREE TRANSCRIPT
COME NOW Defendants/Appellants Gerald Jones and Thelbert Staten, by and
through the undersigned counsel, and hereby move this Court for an order
granting them free transcripts on appeal, and as grounds therefore would
show this Court as follows:
1. The above-named defendants were convicted in the above-styled case before
the United States District Court for the Southern District of Alabama, CR-97-99-01
and CR-97-99-22.
2. The defendants were granted in forma pauperis status for their trial.
3. On appeal, the families of the above-named defendants retained the undersigned
counsel. The undersigned counsel agreed to represent both defendants at
sentencing and on appeal for $7,500 apiece, which is substantially less
than the undersigned counsel's customary fee and represents an economic
detriment to the undersigned counsel.
4. Defendant Gerald Jones' family has paid Jones' $7,500 fee. Defendant
Staten's family has paid approximately $2,500 of his $7,500 fee. The undersigned
counsel does not anticipate any additional monies forthcoming from Staten's
family or Staten himself.
5. In an order dated February 12, 1999, the United States District Court
for the Southern District of Alabama ordered the undersigned counsel to
pay $1,320.00 (One thousand, three hundred and twenty dollars), to the Court's
CJA fund, said amount apparently being a two-sevenths pro rata share of
the transcript's cost. A copy of said order is attached hereto as Exhibit
A.
6. Jones and Staten remain indigent, despite their families' partial payments
towards the undersigned counsel's legal fee.
7. Jones' and Staten's appeals are not frivolous and are not taken for the
purposes of delay. Jones received a sentence of life imprisonment without
the possibility of parole, and Staten received a lengthy non-parolable sentence.
8. 28 U.S.C. §1915 authorizes any court of the United States to allow
indigent persons to prosecute, defend, or appeal suits without prepayment
of costs. All persons convicted of crimes in the United States district
court have the right to appeal the conviction to the Court of Appeals, provided
that he meets the statutory requirements of filing a timely notice of appeal
and designating the transcript, the record on appeal, and filing the appellate
briefs.
9. A defendant who is indigent, or unable to pay the costs of an appeal
may apply in the district court in which he is convicted for leave to appeal
in forma pauperis, provided that the appeal is taken in good faith. 28 U.S.C.
§ 1915. "Good faith," in this context, is demonstrated when
the defendant seeks appellate review of any issue which is not frivolous.
Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L.Ed.2d
21 (1962). In the current case, the district court did not find that Jones'
and Staten's appeals were in bad faith.
10. The Eleventh Circuit has held that in forma pauperis status should be
evaluated on a case-by-case basis. Cofield v. Alabama Public Service Commission,
936 F.2d 512, 519 (11th Cir. 1991). The facts of Jones' and Staten's financial
status are not in dispute. Indigency affidavits were prepared before and
after trial and no finding has been made that either defendant has the financial
resources to hire counsel or pay for a transcript. The presentence reports
for both defendants note each defendant's indigency. Both the Jones family
and the Staten family have advised the undersigned counsel that they are
financially unable to pay for the costs of a transcript.
11. In the instant case, Jones and Straten were indigent and were granted
in forma pauperis status for their trial. Whether the defendant has assets
is critical to a determination of indigency. Sellers v. United States, 881
F.2d 1061 (11th Cir. 1989).
12. The fact that the defendants' families were able to pay a portion of
the undersigned counsel's fee does not defeat a finding of indigence. First,
as noted above, Jones and Staten did not pay the portion of the undersigned
counsel's fees. Jones' and Staten's families did. Second, one need not be
absolutely destitute to enjoy the benefit of proceeding in forma pauperis.
An affidavit to proceed in forma pauperis is sufficient if it states that
one cannot, because of poverty, afford to pay for the costs of litigation
and still provide for himself/ herself and any dependents. See, e.g., Jones
v. Texas, 893 F. Supp. 643, 646 (E.D. Tex. 1995) (citing Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 69 S. Ct. 85, 93 L.Ed. 43 (1948).
13. In the instant case, Jones and Staten were granted in forma pauperis
status for trial. Jones was unable to pay the undersigned counsel's $7,500
fee, so Jones' relatives paid the $7,500. Staten was unable to pay the $7,500,
so Staten's relatives paid $2,500 towards Staten's sentencing and appellate
costs. The undersigned counsel does not anticipate additional or forthcoming
monies from Staten's family.
14. The undersigned counsel agreed to represent Jones and Staten for $15,000
for the pair, which represented an economic detriment to the undersigned
counsel. Collectively, Jones' and Staten's families have paid the undersigned
only $10,000 of the $15,000 total, which represents an additional economic
detriment to the undersigned. Requiring the undersigned counsel to pay the
CJA fund $1,320 for a pro rata share of Jones' and Staten's transcripts
represents an additional and unwarranted economic detriment on the undersigned
counsel. Further the undersigned counsel's representation of Jones and Staten
never contemplated the undersigned counsel's paying any transcript costs.
The district court's order requiring the undersigned counsel to pay a portion
of the transcript costs for indigent clients is unfair and inappropriate.
15. WHEREFORE, for the above-cited reasons and citations to authority, the
undersigned counsel prays that this Court will enter an order reversing
the district court's order requiring the undersigned counsel to pay $1,320
to the CJA fund for the United States District Court for the Southern District
of Alabama, and order that said transcripts be provided to the defendant/appellants
for free.
Respectfully submitted this 26th day of February, 1999.
/s/ SUSAN G. JAMES
SUSAN G. JAMES
Alabama Bar No. JAM012
Counsel for Appellants
Address of Counsel:
Law Office of
Susan G. James & Associates
600 S. McDonough St.
Montgomery, AL 36104
334/269-3330
CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the foregoing was served
upon AUSA Gloria Bedwell, 169 Dauphin St., Suite 200, Mobile, AL 36602,
by first-class mail, postage prepaid, this 26th day of February, 1999.
/s/ SUSAN G. JAMES
SUSAN G. JAMES
Of Counsel
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Case No. _________
DC # CR-97-99-01
CR-97-99-22
(Under seal)
UNITED STATES OF AMERICA,
PLAINTIFF/APPELLEE
v.
GERALD JONES AND
THELBERT STATEN, DEFENDANTS/APPELLANTS.
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Local Rule 26.1, Appellants Gerald Jones and Thelbert Staten
herewith submit this Certificate of Interested Persons and Corporate Disclosure
Statement.
1. Gloria Bedwell, AUSA
2. Hon. Charles Butler, United States District Judge
3. Susan G. James, Esq., Appellate Counsel
4. Gerald Jones, Appellant
5. Thelbert Staten, Appellant
/s/ SUSAN G. JAMES
SUSAN G. JAMES
Of Counsel
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 98-6008-I
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
CHRIS LIPSCOMB, WILMER KEITH
BRECKENRIDGE, a.k.a SONNY, ET AL.,
Defendants, Appellants
On Appeal from the United States District Court
for the Southern District of Alabama
[Filed: Jan. 21, 2000]
ORDER
Attorney Susan James' motion to stay this appeal pending resolution of her
petition for certiorari to the Supreme Court is GRANTED. Ms. James is directed
to file status reports on the fifteenth of every month, beginning January
15, 2000.
/s/ signature illegible
UNITED STATES CIRCUIT JUDGE