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United States v. Bailey

United States District Court, D. Nebraska

September 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
BRENT BAILEY, Defendant.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Currently before the Court are several pro se submissions from defendant Brent Bailey: a notice of appeal, a motion for leave to proceed in forma pauperis, a motion to appoint counsel, and a motion for bond. Filings 58, 59, 60, and 61. For the reasons discussed below, the Court finds that Bailey's appeal is frivolous and not brought in good faith, and will therefore deny his motion to proceed in forma pauperis. See , 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). Bailey's remaining motions will be denied as moot.

I. BACKGROUND

In September 2012, the Court sentenced Bailey to 156 months' imprisonment after he pleaded guilty to receipt or distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). See filing 44. Over a year later, in October 2013, Bailey filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which the Court denied in an order and judgment dated December 19, 2013. See filings 50, 53, 55, and 56.

II. ANALYSIS

Bailey filed his current notice of appeal and accompanying motions on July 7, 2014. Filings 58, 59, 60, and 61. Bailey seeks to have his conviction overturned and requests a certificate of innocence. See 28 U.S.C. § 2513. He raises several new arguments in support of these requests, which were not included in his § 2255 motion. The Court therefore understands Bailey to be appealing his original conviction and sentence, and not the Court's denial of his § 2255 motion, which he has not mentioned and which concerned separate issues.

A litigant seeking to appeal a judgment must either pay the required filing fees, see Fed. R. App. P. 3(e), or proceed in forma pauperis. Because Bailey was previously found to be eligible for appointment of counsel, he would normally be allowed to proceed on appeal in forma pauperis without further authorization. Fed. R. App. P. 24(a)(3). But an appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).

An appellant demonstrates good faith by seeking appellate review of any issue that is not frivolous. Coppedge v. United States , 369 U.S. 438, 445 (1962); Ellis v. United States , 356 U.S. 674, 674 (1958). An indigent appellant should be allowed to proceed in forma pauperis unless the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant. Coppedge , 369 U.S. at 447; Ellis , 356 U.S. at 675. An appeal is frivolous where none of the legal points are arguable on their merits-when the result is obvious or the appellant's argument is wholly without merit. See, Neitzke v. Williams , 490 U.S. 319, 325 (1989); Misischia v. St. John's Mercy Health Sys. , 457 F.3d 800, 806 (8th Cir. 2006).

Bailey raises several arguments in his notice of appeal, and the Court finds each to be frivolous. At the outset, the Court notes that Bailey's notice of appeal has arrived extremely late. Pursuant to Fed. R. App. P. 4(b), a criminal defendant's notice of appeal must be filed within 14 days of the entry of judgment. Bailey's notice of appeal comes nearly 2 years after judgment was filed in this case. Bailey has offered no reason for this delay. There is nothing about any of his arguments that suggest they could not have been raised in a timely notice of appeal. The Court questions whether Bailey's appeal can be said to have been brought in good faith when it has arrived so late. But procedure aside, Bailey's grounds for appeal are substantively frivolous.

A. INSUFFICIENT EVIDENCE - DATE OF OFFENSE

Bailey first asserts that his conviction should be overturned because there was insufficient evidence that he committed any crime during the period alleged in the indictment. He asserts that

[m]y computer was only a few months old at most when they arrested me on Dec[.] 21, 2011. They allege I committed a crime on or about Oct[.] 8, 2008 and since I didn't even have my computer then, there's absolutely no way they can substantiate a charge let alone a conviction.

Filing 58 at 1.

Bailey's argument misunderstands the nature of the charge against him. The indictment charged that he received child pornography from on or about October 8, 2008 and continuing to on or about December 21, 2011. Filing 1 at 1. The use of "on or about" in an indictment relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified. United States v. Youngman , 481 F.3d 1015, 1019 (8th Cir. 2007). And time is not a material element of a criminal offense unless made so by the statute creating it. Id. The date of the offense is not a material element of receipt of child pornography. See 18 ...


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