Opinion
Vernol R. Jansen, Jr., U.S. Atty., Mobile, Ala., for plaintiff.
Thomas M. Haas, Mobile, Ala., for defendant.
ORDER DENYING DEFENDANT'S MOTION TO APPEAL IN FORMA PAUPERIS
PITTMAN, District Judge.
Defendant was tried by jury for the armed robbery of the Bank of Pine Hill, Alabama, and was sentenced on May 13, 1969. On the same date he gave notice of appeal. On May 19, 1969, he filed a statement of indigency which is treated as a motion to proceed in forma pauperis.
Additional testimony on the motion was taken on the 26th day of June, 1969.
FINDINGS OF FACT
The uncontradicted testimony in this case for which the defendant stands convicted was that two persons, one identified as the defendant, entered the bank, assaulted an official with a .375 magnum revolver, and robbed the bank of, to wit, $39,159.60. If the defendant and the other robber split the proceeds, he would have received approximately $20,000.00 none of which was reported for income tax purposes. On May 26, 1969, he was convicted in the Mobile Circuit Court of robbing a Prichard, Alabama grocery store of $1,369.00. (There are pending against this defendant two other bank robbery cases in which it is alleged more than $32,000.00 was taken.)
The defendant was tried in Selma, Alabama, approximately 160 miles from Mobile, his home. His wife was registered and stayed at the Holiday-Inn Motel. While there she had not less than one meal served in her room and made approximately a dozen long distance telephone calls for which she paid when checking out. She testified she used a credit card of a friend (who was indicted together with this petitioner and others in an alleged bank robbery in Mobile County within a few weeks of the instant offense).
The defendant and his wife appeared in court during the week of trial smartly dressed and better than most of the jurors, lawyers, or others. (When the court, in connection with an indication by the defendant that an informa pauperis request might be made, made a remark concerning his mode of dress, he appeared in court thereafter in a markedly different manner.) He testified his home is air conditioned. He employed counsel of the Mobile Bar of his own choosing for this and two other bank robbery cases pending in this court.
The petitioner and his wife testified the only income he had during the last year was for a period of six months of $80.00 a week. They have two children.
It is obvious that the defendant has a source of income and the only reasonable inference is that in the two cases for which he has been convicted, he received substantial amounts of money tax-free, now being used.
This court does not believe that it is required to 'bury its head in the sand' in the face of such facts and speculate that possibly he is unable to bear the cost of this appeal or to say that he is an indigent.
CONCLUSION
The defendant's motion to proceed in forma pauperis is denied.