Opinion
8:96CR33.
May 29, 2007
MEMORANDUM AND ORDER
This matter is before the court upon the defendant's notice of appeal and motion for appointment of counsel on appeal (filing 86) which were unaccompanied by either the $455.00 appellate filing fee or by a motion to proceed in forma pauperis on appeal. The Federal Rules of Appellate Procedure provide that
a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that: (A) shows in the detail prescribed by Form 4 of the Appendix of Forms [to the Federal Rules of Appellate Procedure] the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal.
Fed.R.App.P. 24(a). If the motion is granted after the necessary documentation is filed with the district court, the party may proceed on appeal without prepayment of fees or costs in either court or the giving of security therefor. I shall order the defendant to either file a motion to proceed in forma pauperis on appeal, along with the information needed to support such a request as stated above, or pay the $455.00 appellate filing fee.
Because this court does not have jurisdiction to appoint counsel for purposes of appeal, the defendant's motion for appointment of counsel on appeal shall be denied. Defendant is directed to request that the Eighth Circuit Court of Appeals appoint her counsel for purposes of appeal.
IT IS ORDERED:
1. On or before June 29, 2007, the defendant shall either (a) file in this court a motion to proceed in forma pauperis on appeal as well as an affidavit complying with Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure showing the defendant's inability to pay or to give security for fees and costs, an entitlement to redress, and a statement of the issues the defendant intends to present on appeal (see form attached to this order), or (b) pay the $455.00 appellate filing fee;
2. The processing of the defendant's notice of appeal (filing 86) shall be delayed pending the defendant's submission of the above-described motion and affidavit;
3. When the defendant files the above-described affidavit, the Clerk of the United States District Court for the District of Nebraska shall immediately direct such affidavit to the chambers of the undersigned United States district judge;
4. Defendant's motion for appointment of counsel on appeal (filing 86) is denied.
Westlaw.
Federal Rules of Appellate Procedure Form 4, 28 U.S.C.A. C Currentness (Refs Annos) Form 4. Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis 28 U.S.C. § 1746
United States Code Annotated Federal Rules of Appellate Procedure Appendix of Forms United States District Court for the ________ District of ________ A.B., Plaintiff v. Case No. _______________ C.D., Defendant __________________________________________________________________________________________ Affidavit in Support of Motion Instructions I swear or affirm under penalty of Complete all questions in this perjury that, because of my poverty, I application and then sign it. Do cannot prepay the docket fees of my not leave any blanks: if the answer appeal or post a bond for them. I to a question is "0," "none," or believe I am entitled to redress. I "not applicable (N/A)," write in swear or affirm under penalty of that response. If you need more perjury under United States laws that space to answer a question or to my answers on this form are true and explain your answer, attach a correct. (; 18 U.S.C. separate sheet of paper identified § 1621.) with your name, your case's docket number, and the question number. Signed: ___________________________________ Date: ______________________________ __________________________________________________________________________________ My issues on appeal are: 1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly amount Amount expected next during the past 12 month months Income source Average monthly amount Amount expected next during the past 12 month months You Spouse You Spouse Employment $_______ $_______ $______ $_______ Self-employment $_______ $_______ $______ $_______ Income from real property $_______ $_______ $______ $_______ (such as rental income) Interest and dividends $_______ $_______ $______ $_______ Gifts $_______ $_______ $______ $_______ Alimony $_______ $_______ $______ $_______ Child support $_______ $_______ $______ $_______ Retirement (such as $_______ $_______ $______ $_______ social security, pensions, annuities, insurance) Disability (such as $_______ $_______ $______ $_______ social security, insurance payments) Unemployment payments $_______ $_______ $______ $_______ Public-assistance (such $_______ $_______ $______ $_______ as welfare) Other (specify): ________ $_______ $_______ $______ $_______ Total monthly income: $_______ $_______ $______ $_______ 2. List your employment history, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay ___________________ _______________ ___________________ ____________________ ___________________ _______________ ___________________ ____________________ ___________________ _______________ ___________________ ____________________ 3. List your spouse's employment history, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay ___________________ _______________ ___________________ ____________________ ___________________ _______________ ___________________ ____________________ ___________________ _______________ ___________________ ____________________ 4. How much cash do you and your spouse have? $_______ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial Type of account Amount you have Amount your spouse institution has _______________ ________________ $________________ $_________________ _______________ ________________ $________________ $_________________ _______________ ________________ $________________ $_________________ If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. 5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Home (Value) Other real (Value) Motor vehicle #1 (Value) estate _______________________ _______________________ Make year: __________ _______________________ _______________________ Model: __________ _______________________ _______________________ Registration #: __________ Motor vehicle #2 (Value) Other assets (Value) Other assets (Value) Make year: _____________ ________________ __________________ Model: _____________ ________________ __________________ Registration #: _____________ ________________ __________________ 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your Amount owed to you Amount owed to your spouse spouse money __________________________ ______________________ ____________________________ __________________________ ______________________ ____________________________ __________________________ ______________________ ____________________________ 7. State the persons who rely on you or your spouse for support. Name Relationship Age __________________________ ______________________ _______________ __________________________ ______________________ _______________ __________________________ ______________________ _______________ 8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your Spouse Rent or home-mortgage payment $_____ $____ (include lot rented for mobile home) Are real-estate taxes included? [ ] Yes [ ] No Is property insurance included? [ ] Yes [ ] No Utilities (electricity, heating fuel, $______ $______ water, sewer, and Telephone) Home maintenance (repairs and upkeep) $______ $______ Food $______ $______ Clothing $______ $______ Laundry and dry-cleaning $______ $______ Medical and dental expenses $______ $______ Transportation (not including motor $______ $______ vehicle payments) Recreation, entertainment, $______ $______ newspapers, magazines, etc. Insurance (not deducted from wages or $______ $______ included in Mortgage payments) Homeowner's or renter's $______ $______ Life $______ $______ Health $______ $______ Motor Vehicle $______ $______ Other: ___________________________ $______ $______ Taxes (not deducted from wages or $______ $______ included in Mortgage payments) (specify): _________________________ Installment payments $______ $______ Motor Vehicle $______ $______ Credit card (name): _______________ $______ $______ Department store (name): __________ $______ $______ Other: ____________________________ $______ $______ Alimony, maintenance, and support $______ $______ paid to others Regular expenses for operation of $______ $______ business, profession, or farm (attach detailed statement) Other (specify): ____________________ $______ $______ Total monthly expenses: $______ $______ 9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? [ ] Yes [ ] No If yes, describe on an attached sheet. 10. Have you paid — or will you be paying — an attorney any money for services in connection with this case, including the completion of this form? Yes No If yes, how much? $__________ If yes, state the attorney's name, address, and telephone number: _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 11. Have you paid — or will you be paying — anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form? [ ] Yes [ ] No If yes, how much? $__________ If yes, state the person's name, address, and telephone number: _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ 12. Provide any other information that will help explain why you cannot pay the docket fees for your appeal. 13. State the address of your legal residence. _____________________________________________________________________________________________ _____________________________________________________________________________________________ Your daytime phone number: ____ ______________ Your age: ________ Your years of schooling: _______ Your social-security number: _______________ CREDIT(S) (As amended Apr. 24, 1998, eff. Dec. 1, 1998.) F. R. A. P. Form 4, 28 U.S.C.A., FRAP Form 4 Amendments received to 02-08-07 Copr. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.