The opinion of the court was delivered by: HERMAN
The court has before it a narrow question of law which is apparently one of first impression: whether an indigent defendant convicted of a federal offense may secure, as a matter of right, a free trial transcript for use in a motion for a new trial. The defendant was convicted by a jury on November 9, 1973 of violating 18 U.S.C. § 1001. He is presently free on bail pending disposition of post-trial motions and preparation of a pre-sentence report.
The defendant's court-appointed counsel timely filed a motion for a new trial pursuant to Rule 33, Fed. R. Crim. P. Simultaneously therewith counsel filed a motion for a copy of the trial transcript, asking that it be provided without cost to the defendant.
The motion for a new trial alleges that the verdict is against the weight of the evidence, against the law and against the evidence generally. The two motions are symbiotic in that the motion for a new trial attempts to reserve assignment of additional grounds after examination of the transcript and the motion for a free transcript is requested "for the purposes of assigning further error."
This court is mindful of the admonition that we must not "interpose any financial considerations between an indigent . . . and his . . . right to sue for his liberty." Smith v. Bennett, 365 U.S. 708, 709, 81 S. Ct. 895, 896, 6 L. Ed. 2d 39 (1961).
It is equally true that:
" [A] rich defendant may have the right to waste his money on unnecessary and foolish trial steps, but that does not, in the name of necessary constitutional equality, give the indigent the right to squander government funds merely for the asking." Slawek v. United States, 413 F.2d 957, 960 (8th Cir. 1969), Blackmun, J.
The court begins with the proposition that an indigent is entitled to a trial transcript for appeal purposes pursuant to 28 U.S.C. § 1915. See also, Hardy v. United States, 375 U.S. 277, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). It is important to note that § 1915(b) speaks only in terms of appeals
and has been so interpreted. United States v. Newsome, 257 F. Supp. 201 (N.D. Ga. 1966); United States v. Bernett, 92 F. Supp. 26 (D. Md. 1950).
For virtually all other purposes a free transcript is a privilege committed to the discretion of the trial judge. Whitt v. United States, 104 U.S. App. D.C. 1, 259 F.2d 158 (1958). The courts have also rejected requests by indigents for daily transcripts at government expense, although a wealthy defendant could have daily transcripts if he chose. Gordon v. United States, 438 F.2d 858, 876 (5th Cir.), cert. denied, Crandall v. United States, 404 U.S. 828, 92 S. Ct. 63, 30 L. Ed. 2d 56 (1971); Leyvas v. United States, 264 F.2d 272, 277 (9th Cir.), cert. denied, 359 U.S. 936, 79 S. Ct. 651, 3 L. Ed. 2d 637 (1959). The court must look in such circumstances to an existing proceeding, Culbert v. United States, 325 F.2d 920 (8th Cir. 1964), and to a showing of particularized need. Alfinito v. United States, 305 F. Supp. 568 (D.S.C. 1969).
In Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971) the court noted that as a matter of equal protection an indigent prisoner should be provided "the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Id. at 227, 92 S. Ct. at 433 (Emphasis added) The language in Britt notes that indigency should not compromise a person's defense or statutory appeal procedure. However, post-trial motions committed to the trial judge's discretion plainly fall between the two into a grey area as yet unresolved.
The court's decision in Britt involved a request for the transcript of a trial which ended in a hung jury. The defendant sought the transcript as an aid in his defense at the retrial. A contrary result was reached in a case involving a federal prisoner in United States v. Brown, 143 U.S. App. D.C. 244, 443 F.2d 659 (1970). Griffin, supra, and its progeny involve failure to provide a trial transcript for use on appellate review. See, e.g., Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958). In both Britt, supra, and Griffin the Court found a clear denial of equal protection of the laws and ordered the petitioners to be provided the appropriate transcripts. In each circumstance financial standing was determinative of the quality of trial and appeal.
Draper overturned a state requirement that an indigent must show specific contentions of error in order to qualify for a free transcript on appeal. Were this court to find Griffin and Draper controlling in this situation, then an indigent defendant would have a nearly automatic right to a transcript of an entire trial merely for the asking.
Such a result is neither justified by previous Supreme Court rulings, nor is it necessary to preserve equal protection of the laws. A motion for a new trial is consistently placed in a different category than the original trial or an appeal from a conviction. In Dirring v. United States, 353 F.2d 519 (1st Cir. 1965), the court concluded that neither the Sixth Amendment nor the Criminal Justice Act (18 U.S.C. § 3006A) requires court-appointed counsel to pursue a motion for a new trial.
Further analogous support is found in Rule 33 itself which requires that the grounds for a new trial must be specified within seven days after the verdict. A defendant cannot, without express permission of the court, "reserve" grounds that may be discovered upon examination of the transcript.
United States v. Kane, 319 F. Supp. 527 (E.D. Pa.), aff'd, 433 F.2d 337 (3d Cir. 1970), cf. United States v. Mathews, 335 F. Supp. 157 (W.D. Pa. 1971).
It seems incongruous to this court that a defendant could be required to state all grounds for a new trial within seven days (and without benefit of a transcript) and yet secure a free transcript for the asking to search for additional grounds.