Opinion
No. 10539.
August 27, 1943.
Appeal from the District Court of the United States for the Northern District of California, Southern Division; Michael J. Roche, Judge.
Philip Gargano was convicted of violating the statute penalizing unlawful importation of narcotic drugs and concealment, receipt, purchase, or sale of imported narcotic drugs, and, from an order denying his motion to vacate a judgment on the verdict, in part, he appeals. On appellant's motions for leave to proceed in forma pauperis and for appointment of counsel.
Motion for leave to proceed in forma pauperis dismissed, and motion for appointment of counsel denied.
Philip Gargano, in propria persona, for appellant.
No other appearances were entered.
Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.
Appellant, after conviction and sentence for violations of 21 U.S.C.A. § 174, moved the trial court to vacate judgment in part, on the ground that two counts under which he was convicted and sentenced stated but one offense. But see Palmero v. United States, 1 cir., 112 F.2d 922 ; Silverman v. United States, 1 cir., 59 F.2d 636, certiorari denied 287 U.S. 640, 53 S.Ct. 89, 77 L.Ed. 554; Parmagini v. United States, 9 cir., 42 F.2d 721, 724, 725, certiorari denied 283 U.S. 818, 51 S.Ct. 344, 75 L.Ed. 1434. Within three months after denial of that motion he petitioned the trial court for allowance of an appeal therefrom, as is required by 28 U.S.C.A. § 230 in case of appeals to which Rule III of the Criminal Rules 18 U.S.C.A. following section 688, does not apply (United States ex rel. Coy v. United States, 316 U.S. 342, 345, 62 S.Ct. 1137, 86 L.Ed. 1517), and for leave to proceed on appeal in forma pauperis. Both petitions were granted. Appellant now moves this court for leave to proceed herein in forma pauperis, and for appointment of counsel.
Leave to proceed on appeal in forma pauperis having been granted by the court below, to which application was properly first made (Smith v. Johnston, 9 cir., 109 F.2d 152), no other action in furtherance of that right is necessary by that court or this. The motion to proceed herein in forma pauperis is accordingly dismissed.
This court has held that the defendant in a criminal case has no constitutional right to have counsel appointed by the court to represent him on an appeal. Lovvorn v. Johnston, 9 cir., 118 F.2d 704, 707, certiorari denied 314 U.S. 607, 62 S.Ct. 92, 86 L.Ed. 488; Brown v. Johnston, 9 cir., 126 F.2d 727. We are not disposed to appoint counsel for indigent appellants where, as is the case here, there is no showing of merit in the appeal.
Motion for leave to proceed in forma pauperis dismissed. Motion for appointment of counsel denied.