He does contend, however, that it is a denial of due process when such witnesses have been made unavailable by the conduct of the Government. In Ferrari v. United States, 244 F.2d 132 (9th Cir. 1957), cert. den. sub nom. Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78, the court stated at page 141: "The appellee was under no obligation to look for the appellant's witnesses, in the absence of a showing that such witnesses were made unavailable through the suggestion, procurement, or negligence of the appellee."

" See also Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529; Edwards v. United States, 1957, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed.2d 72. Clearly the Court implied that in some "such case" provision of a transcript would be appropriate or even necessary. And this court has frequently exercised its power to order transcripts prior to determining whether to allow an appeal in forma pauperis.

And, while we recognize that no single word or group of words can provide a precise formula that will dispose of every case, we think it appropriate to indicate in somewhat greater detail than in the past, the approach a Court of Appeals must take toward an indigent's application for leave to take a direct appeal from his criminal conviction in forma pauperis. During the past five Terms of the Court, we have found it necessary to vacate and remand for reconsideration 14 cases in which a Court of Appeals has applied an erroneous standard in passing on an indigent's application for leave to appeal. Johnson v. United States, Page 441 352 U.S. 565; Farley v. United States, 354 U.S. 521; Delbridge v. United States, 354 U.S. 906; Edwards v. United States, 355 U.S. 36; Ellis v. United States, 356 U.S. 674; Hill v. United States, 356 U.S. 704; Cash v. United States, 357 U.S. 219; Hansford v. United States, 357 U.S. 578; Kitchens v. United States, 358 U.S. 42; Smith v. United States, 358 U.S. 281; Smith v. United States, 361 U.S. 13; Smith v. United States, 361 U.S. 38; McAbee v. United States, 361 U.S. 537; Lurk v. United States, 366 U.S. 712. See also Page v. United States, 359 U.S. 116; Willis v. United States, 362 U.S. 216. Cf. Simcox v. Madigan, 366 U.S. 765; Ragan v. Cox, 369 U.S. 437. Statutory provision for litigation in forma pauperis in the federal courts is made by 28 U.S.C. § 1915, authorizing "[a]ny court of the United States" to allow indigent persons to prosecute, defend or appeal suits without prepayment of costs.

The court quotes language from an earlier Ninth Circuit opinion which indicates that the defendant's Constitutional rights are violated whenever "witnesses [are] made unavailable through the suggestion, procurement, or negligence of the [government]." Ferrari v. United States, 244 F.2d 132, 141 (9th Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78 (1957). The holding in Mendez-Rodriguez was adopted in United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974).

The motion is a step in a federal civil proceeding available to test the validity of a prisoner's detention. Gershon v. United States, 8 Cir., 243 F.2d 527, 530, certiorari denied 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78; Hill v. Settle, 8 Cir., 244 F.2d 311; Young v. United States, 8 Cir., 246 F.2d 901; Anderson v. Heinze, 9 Cir., 258 F.2d 479, 481, certiorari denied 358 U.S. 889, 79 S.Ct. 131, 3 L.Ed.2d 116. Taylor was not only furnished by the District Court with the assistance and advice of able counsel at every step of the criminal proceeding brought by the Government against him, but also at every step of the civil proceeding brought by him against the Government under § 2255; and this Court appointed counsel to assist Taylor in his attempt to impeach as arbitrary, erroneous or unwarranted the certificate of Judge Devitt that the appeal of Taylor is not taken in good faith.

Not only was there no reversible error in this incident; but Judge Byrne pursued the proper course and exercised wise discretion. See Campbell v. United States, 9 Cir., 221 F. 186, 188; Jenkins v. United States, 5 Cir., 149 F.2d 118, 119; Ferrari v. United States, 9 Cir., 244 F.2d 132, 143-146, certiorari denied Cherpakov v. United States; and Darneille v. United States, 355 U.S. 873, 78 S.Ct. 124, 125, 2 L.Ed.2d 78; Peppers v. United States, 6 Cir., 37 F.2d 346. The court committed no error in instructing the jury in the language of section 7491, Title 26 U.S.C.A. Appellant Robert Johnson introduced no evidence to the effect that he had complied with section 4742, Title 26 U.S.C.A. See United States v. Williams, 2 Cir., 161 F.2d 835, 837.

Johnson v. United States, supra, 352 U.S. at page 566, 77 S.Ct. at page 550. Edwards v. United States, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed.2d 72 (1957); Farley v. United States, supra. Cf. Griffin v. People of State of Illinois, supra. A stenographic transcript of the trial proceedings could have been ordered prepared at the expense of the United States, had petitioner or his counsel so requested.

Our denial of leave to appeal in forma pauperis was vacated, and the case was remanded to us "with instructions to afford the petitioner an opportunity to substantiate his allegations," citing Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L. Ed.2d 1529; Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L. Ed.2d 593. 1957, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed. 2d 72, filed in this court January 3, 1958. We have set forth these facts in detail because we are satisfied that the mandate of the Supreme Court was based upon an assumption that the scope of review was as of an appeal from the original sentence, and that the mandate would not have issued had the Court's attention been called to the fact that they were dealing with an appeal from a corrective resentence imposed nearly two years after the original trial and sentence. Petitioner's fact statement in his brief in support of the writ correctly set forth the bare sequence of events, but in the written argument the facts were presented in such a way as to suggest that the entire case was open to review.

"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." If it were not for the decisions of the Supreme Court in Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed. 2d 593, and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (see, also, Edwards v. United States, 355 U.S. 36, 78 S.Ct. 124, 2 L.Ed.2d 72), we would be of the opinion that the appellant's application should be denied without further proceedings. There is no showing that the certificate of the trial court was arbitrary or unwarranted or not in good faith.

Ferrari v. United States, 244 F.2d 132, 141-142 (C.A.9, 1957), cert. den. sub nom. Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78 (1957); United States v. Di Gregorio, 148 F. Supp. 526, 528 (S.D.N Y 1957). However, it is clear that the Sixth Amendment's right to compulsory process is violated by the prosecution deliberately sending a witness beyond the jurisdictional reach of a court's compulsory process.