Roger S. BANDY, Appellant, v. UNITED STATES of America, Appellee, 272 F.2d 705

PER CURIAM. Appellant seeks leave to proceed in forma pauperis on the appeal taken by him from his conviction and sentence. The trial judge allowed him to file his notice of appeal without payment of costs but refused to let him proceed further in forma pauperis, certifying that the appeal was not taken in good faith. The question on his motion here is whether this certificate was arbitrary or unwarranted, on the basis of the test prescribed by Ellis v.

United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060, that the appeal presents some issue “that is not plainly frivolous.” “The * * * test must not be converted into a requirement of a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed.Rules of Crim.Proc. 39 (a), 18 U.S.C.A., the request of an indigent for leave to appeal in forma pauperis must be allowed.” Ibid. In accordance with the procedure indicated in Johnson v.

United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593, and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529, appointment is hereby made of Mr. Ralph B. Maxwell, of West Fargo, North Dakota, who served as court-appointed counsel for appellant on his trial, to represent him in relation to his motion here for leave to prosecute his appeal in forma pauperis.

In the responsibility thus imposed of assisting appellant to make manifest the basis of his claim that the district judge was not warranted in certifying that the appeal was not taken in good faith, it is hoped that counsel may, with the cooperation of the United States Attorney, be able to work out an agreed statement, such as was suggested by us and effected in Weber v. United States, 8 Cir., 254 F.2d 713; Id., 8 Cir., 256 F.2d 119, 120.

If this is capable of being accomplished, counsel is requested to file such statement, together with a typewritten report pointing out in what respects, if any, the District Court erred in certifying that the appeal was not taken in good faith, such filing to be made with the Clerk of this Court on or before January 20, 1960. A copy of the report shall be served upon the United States Attorney, who may, if he so desires, file a typewritten response thereto within 15 days thereafter.

The Clerk will be directed to make filing of appellant’s motion without prepayment of costs, and also of the report of his counsel and any supporting statement or brief.