JOE BERTRAM, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-5361

   In The Supreme Court Of The United States

   October Term, 1989

   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 denying petitioner leave to
appeal in forma pauperis from the denial of his motion for a new trial
(Pet. Exh. C) is unreported.  The opinion of the court of appeals on
direct appeal is reported at 805 F.2d 1524.

                             JURISDICTION

   The judgment of the court of appeals (Pet. Exh. C) was entered on
April 4, 1989.  A petition for rehearing (Pet. Exh. D) was denied on
May 19, 1989.  The petition for a writ of certiorari was filed on July
17, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals abused its discretion in denying
petitioner's motion to proceed in forma pauperis on appeal from the
denial of his motion for new trial on the ground that petitioner
failed to establish his indigence.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Middle District of Georgia, petitioner was convicted of conspiracy to
possess methamphetamine with intent to distribute (count 1) and two
completed substantive offenses (counts 2 and 5).  He was sentenced to
consecutive terms of imprisonment for five years, to be followed by
concurrent five-year special parole terms.  The court of appeals
affirmed.

   Thereafter, petitioner filed a motion for a new trial, alleging
that the government had failed to disclose to him the full extent of
an agreement reached with a prosecution witness regarding the
disposition of pending charges against the witness.  On January 6,
1989, the district court denied the motion for a new trial.
Petitioner filed a notice of appeal and sought leave to proceed in
forma pauperis.  On January 24, 1989, the district court denied such
leave on the ground that petitioner's claim was frivolous (Pet. Exh.
B).  On April 4, 1989, the court of appeals denied petitioner leave to
appeal in forma pauperis because he had failed to establish that he
was without funds to pursue his appeal.

   1. The pertinent evidence, set forth largely in the opinion of the
court of appeals affirming petitioner's conviction, showed that
petitioner, aided by two individuals, manufactured phenyl-2-propanone
(P-2-P), an immediate precursor of methamphetamine.  The P-2-P was
converted into methamphetamine by a chemist.  Petitioner sold the
finished product.  Among his customers was David Carringer.  On August
3, 1984, petitioner distributed seven grams of methamphetamine to
Carringer.  Two weeks later petitioner distributed eleven grams of
methamphetamine to Carringer.

   2. The two distributions of methamphetamine to Carringer formed the
subject matter of counts 2 and 5, the two substantive counts on which
petitioner was convicted.  Testifying as a government witness,
Carringer implicated petitioner in those distributions.  Carringer
also testified that he had pleaded guilty to a single drug charge
arising from the distributions, that he had no previous convictions,
and that in exchange for the plea and his testimony the government had
promised not to charge him with any other offenses arising from his
drug activities occurring before the date of the agreement.  A copy of
the plea agreement was introduced in evidence.  On July 3, 1985, the
jury found petitioner guilty on all counts with which he was charged,
and petitioner was sentenced on August 29, 1985.

   3. On October 10, 1985, the government moved to dismiss the charge
against Carringer in order to put him in a pretrial diversion program.
 That motion was granted.  Petitioner's conviction was affirmed on
December 17, 1986.

   Almost two years later, in November 1988, petitioner filed a motion
for a new trial pursuant to Fed. R. Crim. P. 33.  He alleged that the
government had failed to disclose an agreement with Carringer to
dismiss the charge against him in exchange for his cooperation.
Attached to the motion was an affidavit executed by petitioner,
stating that after his conviction but before he was sentenced,
petitioner had a conversation with Carringer.  Carringer allegedly
told petitioner of an offer made by the government whereby, in
exchange for testifying against petitioner, Carringer would not be
required to serve a jail sentence and would be recruited to work for
the government.  The government responded to petitioner's Rule 33
motion by stating that the agreement to dismiss Carringer's criminal
charge had been reached after petitioner's conviction, and that it had
had no agreements with Carringer other than those to which he had
testified.

   On January 6, 1989, the district court denied the motion for a new
trial.  The court determined that petitioner's claim did not satisfy
the elements of the applicable test for granting new trials under Rule
33:  (1) the evidence must be discovered after trial;  (2) the movant
must show due diligence in discovering the evidence;  (3) the evidence
may not be merely cumulative or impeaching;  (4) the evidence must be
material to the issues before the court;  and (5) the evidence must be
of such a nature that a new trial would probably produce a new result.
 /1/ The court noted that petitioner's affidavit was uncorroborated by
any affidavit from Carringer, that petitioner had made no attempt to
show due diligence, that the evidence in question was merely
impeaching, that the evidence did not appear material to the issue of
guilt or innocence, and that, in the court's view, disclosure to the
jury of an agreement to dismiss the charge against Carringer would not
have affected the result.  App., infra, 2a.

   4. Petitioner filed a timely notice of appeal.  He also filed a
motion for leave to appeal in forma pauperis and furnished the court
with a declaration regarding his financial condition.  That
declaration was accompanied by a certificate from an officer at the
institution where petitioner is confined indicating that he had
$561.54 in a prison savings account.  On January 24, 1989, the
district court denied petitioner's motion to proceed on appeal in
forma pauperis.  The court's reason was that petitioner's appeal was
not taken in good faith because petitioner's claim was frivolous.
Pet. Exh. F.  The court of appeals also denied petitioner leave to
appeal in forma pauperis.  In its order, the court stated that
petitioner "ha(d) failed to establish that he (was) without sufficient
funds to proceed with this matter." Pet. Exh. C.

                               ARGUMENT

   1. Petitioner contends (Pet. 10-13) that the court of appeals erred
in denying him leave to appeal in forma pauperis on the ground that he
did not satisfy the applicable standard of indigence.  That contention
does not merit this Court's review.

   Pursuant to 28 U.S.C. 1915(a), a court may allow a litigant to
proceed without payment of costs by filing an affidavit demonstrating
that he is unable to bear the costs of proceeding with his cause of
action.  The decision whether a litigant has adequately demonstrated
an inability to pay costs lies within the sound discretion of the
court considering the application.  See, e.g., Prows v. Kastner, 842
F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988).  On the
facts presented to it, the court of appeals did not abuse its
discretion here.

   Petitioner's declaration stated that he was employed in prison
industries (but did not state whether he was paid for that work), that
he had no outside sources of income, and that his prison account had a
balance of between $300 and $500.  The declaration also contained a
certification from an officer of the institution in which petitioner
is confined stating that his inmate account stood at $561.54 at the
time the affidavit was prepared.  Petitioner has never furnished any
supplemental documents reflecting any changes in his financial status.
 Nor has petitioner indicated that he bears financial responsibility
for the support of any other persons, and petitioner of course is
currently being supported by the federal government during the term of
his incarceration.  We are advised by the clerk of the court of
appeals that the filing costs in the Eleventh Circuit amount to $105.
That being less than 20% of petitioner's funds, the court of appeals
did not err in determining that petitioner had not demonstrated an
inability to bear the cost of an appeal and was not entitled to pursue
his claim free of charge.

   While a litigant need not establish that he has exhausted his last
dollar in order to qualify for leave to proceed in forma pauperis, see
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948),
courts are fully justified in ensuring that a litigant's indigence
under Section 1915(a) be genuine in light of the actual litigation
costs at stake and the showing of financial resources made.  In light
of the fact that petitioner had ample funds in his inmate account to
cover the filing fees required here, the court did not depart from a
permissible range of discretion in denying him leave to proceed in
forma pauperis.  See Williams v. Estelle, 681 F.2d 946, 947 (5th Cir.
1982) (per curiam) (district court did not abuse its discretion in
requiring payment of $8 filing fee when inmate had $27.40 in his trust
account and received $30 per month from his family), cert. denied, 469
U.S. 1075 (1984);  In re Stump, 449 F.2d 1297 (1st Cir. 1971)
(district court did not abuse its discretion in requiring payment of
$15 filing fee when inmate had $78 cash credit with warden);  Evans v.
Croom, 650 F.2d 521, 525 (4th Cir. 1981) (approving district court
rule requiring prisioner plaintiffs in actions under 42 U.S.C. 1983 to
make a partial payment of filings fees, not to exceed 15% of the
prisoner's prision trust account), cert. denied, 454 U.S. 1153 (1982).
 Cf. Jones v. Zimmerman, 725 F.2d 76, 79 (3d Cir. 1985) (finding an
abuse of discretion in denying a prisoner leave to proceed in forma
pauperis when filing fee was $5 and inmate had $17.39 in prison
savings account and monthly wages of $15).

   In considering whether a prisoner's resources are adequate to
justify the payment of costs, some courts have adopted a flexible
approach for prisoners that requires the partial payment of such
costs.  See, e.g., Lumbert v. Illinois Dept. of Corrections, 827 F.2d
257 (7th Cir. 1987);  Prows v. Kastner, supra (upholding a requirement
that inmates pay partial fees, even when their trust accounts have
virtually no funds, if the inmates have monthly income from prison
employment);  Collier v. Tatum, 722 F.2d 653, 655-656 (11th Cir. 1983)
(upholding requirement of partial payment of fees).  If petitioner
believed that payment of the full amount of court costs would cause
him to suffer severe hardship, he could have sought a reduction in the
fees.  Under those circumstances, this Court's review is not
warranted.

   2. The court of appeals has not yet addressed the merits of the
district court's denial of petitioner's new trial motion.  Nor has the
court reviewed the basis for the district court's denial to petitioner
of in forma pauperis status -- that petitioner's legal claim on appeal
is frivolous.  Cf. Neitzke v. Williams, 109 S. Ct. 1827 (1989)
(discussing standards for frivolity for purposes of Section 1915(a) in
a civil case).  Consequently, the correctness of the district court's
decision on those issues is not before this Court.

   At all events, the denial of petitioner's motion for a new trial
under Fed. R. Crim. P. 33 was proper.  Courts have generally held that
a "motion for new trial based on newly discovered evidence 'may not be
granted unless . . . the facts discovered are of such nature that they
will probably change the result if a new trial is granted . . . they
have been discovered since the trial and could not by the exercise of
due diligence have been discovered earlier, and . . . they are not
merely cumulative or impeaching.'" Taylor v. Illinois, 108 S.Ct. 646,
655 n.18 (1988) (quoting Lloyd v. Gill, 406 F.2d 585, 587 (5th Cir.
1969).  Here, petitioner's motion did not satisfy those standards.

   As the district court observed, petitioner's allegation deals with
a matter limited to impeachment of the government's witness David
Carringer, and the alleged new evidence would have had little
incremental value in light of the testimony actually elicited.
Carringer testified that he expected to benefit from more lenient
treatment from the government in return for his cooperation.  This
testimony permitted petitioner to argue to the jury that Carringer was
biased and had incentives to testify against petitioner.  Petitioner's
new evidence would simply contribute to that line of impeachment of
Carringer.  Moreover, there is little probability that the verdict
would have been different if the jury had been informed that Carringer
expected to be freed from all charges rather than merely immunized
against further charges after testifying against petitioner.
Accordingly, petitioner's claim of entitlement to a new trial is
without merit.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   MERVYN HAMBURG

      Attorney

   OCTOBER 1989

   /1/ This is the test generally used by the courts of appeals.  See
United States v. Sjeklocha, 843 F.2d 485, 487 (11th Cir. 1988);
United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert. denied,
108 S.Ct. 89 (1987);  United States v. Miliet, 804 F.2d 853, 859 (5th
Cir. 1986);  United States v. Lopez, 803 F.2d 969, 977 (9th Cir.
1986), cert. denied, 481 U.S. 1030 (1987);  United States v. Kelly,
790 F.2d 130, 133 (D.C. Cir. 1986).  See also United States v.
Johnson, 327 U.S. 106, 110 n.4 (1946).

   APPENDIX