Opinion
No. 35071.
Argued August 12, 1970.
Decided August 12, 1970.
H. Kenneth Schroeder, Jr., U.S. Atty., for the Western District of New York, for appellant.
Sheldon M. Markel, Buffalo, N.Y., for appellee.
We affirm, in open court, the order of the Western District, pursuant to 28 U.S.C. § 1915(b), which granted forma pauperis relief to the appellee by directing that the minutes of the trial, at which appellee was convicted for consiracy, 18 U.S.C. § 371, be transcribed at government expense.
We believe the order, which involves an expenditure of approximately $3,000, to be appealable, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as there is no other way in which the government can test the direction to disburse a considerable sum of money.
As to Judge Curtin's finding that the defendant had insufficient assets and was financially unable to pay for a transcript of proceedings at trial, we cannot say that he was clearly erroneous. The appellee's assets consisted of interests in four parcels of real estate, revenue from which was largely consumed in carrying charges. The appellee himself has no other income as he has been incarcerated in a New York State prison following his conviction for burglary. We are advised that counsel retained for his trial will continue to represent him on the appeal.
Our affirmance is without prejudice to any proceedings the government may bring to recover reimbursement from the appellee for any part or all of the cost of transcribing the minutes, or applying to the district court for any security for reimbursement.
The appellee is directed to docket the record on or before October 1, 1970, and file his brief by October 31, 1970, failing which the clerk is directed forthwith to dismiss the appeal. The government's brief is due November 30, 1970, and the court will hear the appeal during the week of December 7, 1970.