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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