IN RE FREDERICK W. BAUER, PETITIONER No. 90-6351 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Mandamus To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals has not yet decided petitioner's motion for leave to appeal his judgment of conviction in forma pauperis. JURISDICTION The petition for a writ of mandamus was filed on November 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1651. QUESTION PRESENTED Whether mandamus should be issued to compel the court of appeals to decide a pending motion for leave to appeal a judgment of conviction in forma pauperis. STATEMENT Following a jury trial in the United States District Court for the Western District of Wisconsin, petitioner was convicted on ten counts of distributing controlled substances and possessing controlled substances with intent to distribute them, in violation of 21 U.S.C. 841(a)(1), and one count of conspiring to commit those offenses, in violation of 21 U.S.C. 846. The substantive counts included seven counts involving a total of 4100 pounds of marijuana, two counts involving a total of 112 kilograms of cocaine, and one count involving six gallons of hashish oil and a package of black gum hashish. Petitioner was sentenced to 360 months' imprisonment on the conspiracy count, to run concurrently with a total of 25 years' imprisonment on the other counts. He was also ordered to pay a fine of $250,000 on the conspiracy count. His prison term were ordered to run concurrently with the prison term that he was serving for a previous conviction under the federal income tax laws. /1/ 1. Before trial, petitioner claimed that he was indigent and requested that counsel be appointed for him. After an extensive hearing before a magistrate, the request was denied. See Sept. 26, 1989, Tr. (Dkt. No. 67). The magistrate found that petitioner's testimony was "ambiguous, evasive and in many respects completely incredible"; that he had failed to furnish the court with records which he claimed would establish his indigency and which he acknowledged were available to him; and that his claim of indigency was contradicted by a financial statement he had signed in December 1988 in connection with the presentence report prepared on his tax fraud case. The presentence report indicated that petitioner's unencumbered assets totaled almost $500,000. Tr. 32-33. 2. Petitioner represented himself at trial. After conviction, he requested that counsel be appointed to represent him at sentencing and on appeal. Dkt. No. 262. The district court noted that petitioner has filed numerous requests for appointment of counsel, all of which have been denied because of his unwillingness to disclose information about his finances that would permit an informed determination of his eligibility for court-appointed counsel and because of the strong evidence that he possesses substantial assets that could be used to pay for the services of counsel. His statements to the probation officer in 1989, the testimony of witnesses at his January 1990 trial, and evidence proffered by the government in a hearing before the magistrate held on January 12, 1990 suggest that (petitioner) has assets of well over a half-million dollars. Dkt. No. 264 (Order, Mar. 28, 1990). Although the court found petitioner's latest claim of indigency "particularly unconvincing," it directed the magistrate to conduct a hearing on the matter before sentencing. Ibid. After a hearing at which the magistrate heard testimony from petitioner, a probation officer, and an FBI agent, the magistrate denied the request for appointed counsel. Dkt. No. 287 (Order, Apr. 20, 1990). The magistrate also denied petitioner's motion for leave to appeal in forma pauperis. Dkt. No. 288 (Order, Apr. 20, 1990). In his order denying the motion, the magistrate found that, although an appeal would be "in good faith and not frivolous," petitioner was capable of paying the fees and costs of an appeal. Ibid. The magistrate noted, inter alia, that the evidence at trial showed that petitioner had distributed some $11 million worth of controlled substances during the conspiracy; that "the great weight of the credible evidence" at the hearing indicated that petitioner had between $400,000 and $500,000 in assets, which was "more than adequate to permit him to pay the fees and costs of his appeal"; that "over $1,200,000 of assets are reliably attributed to (petitioner) during the 12-month period preceding his trial," but there was "scant evidence to account for the disposition of any of them"; and that although petitioner had been given "abundant opportunity" to gather and furnish evidence in support of his claimed indigency, "he has never done so." Ibid. The magistrate found that petitioner's testimony was "vague and conclusory with respect to those assets he did discuss," and that he was not "a credible witness given his obvious self-interest, his continued motive to conceal assets to avoid forfeiture, his prior criminal record, and the evidence of a number of attempts to conceal assets through the use of nominees or bogus transactions." Ibid. 3. Thereafter, petitioner filed a document entitled "Motion to Require Decision" (Dkt. No. 292), which the district court construed as a motion for it to review the magistrate's decisions denying petitioner's requests for appointed counsel and for leave to appeal in forma pauperis. Dkt. No. 296 (Order, May 1, 1990). The court noted that the motion was unsupported by a "description of those findings of fact or conclusions of law made by the magistrate that (petitioner) deems to be clearly erroneous or contrary to law. Instead, his representations of wrongdoing are general and vague, and not limited to any one particular hearing." Ibid. Accordingly, the court denied the motion without prejudice to petitioner's refiling a sufficiently specific motion. Ibid. The district court's docket sheets do not indicate that petitioner ever refiled the motion. 4. Petitioner filed a timely notice of appeal from the judgment of conviction on April 13, 1990. Dkt. No. 281. He then filed two documents with the court of appeals. One of them was dated May 16, 1990, and was entitled "Petition for Leave to File and to Proceed on Appeal In Forma Pauperis" (Pet. Exh. B). That document included two attachments: an "Affidavit of Financial Status," in which petitioner claimed to have debts totaling more than $765,000 and no assets; and a "Motion to Proceed In Forma Pauperis," in which he denied having any assets. On June 20, 1990, petitioner filed a second document with the court of appeals. That document, entitled "Amendment Motion for Leave to Appeal In Forma Pauperis," included several attachments: a "Financial Affidavit," dated May 31, 1990, in which petitioner claimed to have debts totaling $635,977.15 and assets totaling $1,283.35; a three-page balance sheet purporting to support the figures set forth in the Financial Affidavit; nine pages /2/ denominated "Notes to Financial Statement," containing material that petitioner had never presented to the district court and on which he had never been cross-examined; and a letter to the court of appeals in which petitioner claimed to have described his financial status "in conformity with generally accepted accounting principles." The government filed a consolidated response to those documents with the court of appeals, opposing petitioner's attempt to appeal in forma pauperis on the ground that he was continuing to conceal substantial assets. /3/ Petitioner's motion for leave to appeal in forma pauperis is pending before the court of appeals. 5. The instant petition for a writ of mandamus is accompanied by a letter, dated September 17, 1990, from petitioner to the clerk of the court of appeals. Pet. Exh. C. In the letter, petitioner asks if the court "has ruled and issued an order on the outstanding matter of my request to have counsel appointed to represent me during the appeal process." The letter appears to have been returned to petitioner with the following typed notation from the clerk: "Mr. Bauer, the docket does not reflect a motion for appointment of counsel has been filed. Your motion for leave to proceed on appeal in forma pauperis is still pending as of this date. I have presented your letter to the court. Pro Se Clerk." In the instant petition, petitioner does not indicate whether he has filed or sought to file a motion for appointment of counsel, as opposed to a "Motion to Proceed In Forma Pauperis" and a "Petition for Leave to File and to Proceed on Appeal In Forma Pauperis." ARGUMENT Petitioner asks this Court to issue a writ of mandamus to the court of appeals -- specifically, to Chief Judge William J. Bauer -- directing the court of appeals to "rul(e) within a reasonable time" on his motion for leave to appeal in forma pauperis from his controlled substances convictions. Pet. Affirmation at 2. Although petitioner claims that he is entitled to immediate relief because of "exceptional circumstances" (Motion for Leave to Proceed In Forma Pauperis for Writ of Mandamus at 2), he does not indicate what those circumstances are. In view of the extensive litigation conducted in the district court on petitioner's financial status, as well as his belated proffer of information that he had withheld from the district court, it is hardly surprising that the matter is still under consideration by the court of appeals. Petitioner has thus failed to show that it is either necessary or appropriate for his Court to issue the writ. See Supreme Court Rule 20 (issuance of writ is a matter "of discretion sparingly exercised"); Kerr v. United States District Court, 426 U. S. 394, 402, 403 (1976) (mandamus is a "drastic" and "extraordinary" remedy justified only in "exceptional circumstances amounting to a judicial usurpation of power"; petitioner bears burden of showing that his right to issuance of the writ is "clear and indisputable") (internal citations and quotation marks omitted); Mallard v. United States District Court, 109 S. Ct. 1814, 1822 (1989) ("demanding standard" for issuing writ requires petitioner to show judicial usurpation or clear abuse of discretion). CONCLUSION The petition for a writ of mandamus should be denied Respectfully submitted KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney JANUARY 1991 /1/ The presentence report in the instant case indicates that petitioner pleaded guilty to tax fraud, for which he was sentenced to three years' imprisonment and a fine of $5,000 on January 30, 1989. Presentence Report at 17; United States v. Bauer, 88-CR-55-C (W.D. Wis.). /2/ The pages are numbered five to fourteen, but the papers received by the U.S. Attorney's Office from petitioner and from the court of appeals did not contain a page twelve. /3/ We are lodging a copy of the government's response with the Clerk of this Court.