359 F.2d 245
123 U.S.App.D.C. 261
Frank A. TATE, Appellant,v.UNITED STATES of America, Appellee.Robert M. EDELIN, Appellant,v.UNITED STATES of America, Appellee.
Nos. 19177, 19556.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 19, 1965.Decided March 28, 1966.

Mr. Richard A. Baenen, Washington, D.C.  (appointed by this court), for appellant in No. 19177.
Mr. John D. Hawke, Jr., Washington, D.C.  (appointed by this court), for appellant in No. 19556.
Mr. Frank Q. Nebeker, Asst. U.S. Atty., for appellee.  Mr. John C. Conliff, Jr., U.S. Atty., at the time the brief was filed, was on the brief for appellee in No. 19177.  Mr. David G. Bress, U.S. Atty., was on the brief for appellee in No. 19556.  Mr. Allen M. Palmer, Asst. U.S. Atty., also entered a appearance for appellee in No. 19177.  Mr. John A. Terry, Asst. U.S. Atty., also entered an appearance for appellee in No. 19556.
Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.
LEVENTHAL, Circuit Judge:

1
In these two cases we granted appellants' petitions for leave to appeal from decisions by the District of Columbia Court of Appeals (D.C. Court of Appeals).  That court withdrew leave to appeal in forma pauperis from judgments of the Court of General Sessions (General Sessions) in prosecutions brought by the United States, and withdrew appointments of counsel in connection therewith.

2
These cases present important questions with respect to the handling of in forma pauperis appeals in the D.C. Court of Appeals.  We shall first outline the facts of each case, then discuss the general principles pertinent to the questions raised by the cases, and finally dispose of these appeals in the light of the principles adduced.  We make clear at the outset that we confine our discussion to prosecutions brought by and in the name of the United States.

3
* Edelin v. United States, No. 19556: While he was under arrest on a false pretenses charge, appellant's home was searched by the police pursuant to a search warrant authorizing seizure of a check writing machine and blank payroll checks, the proceeds of the crime with which appellant was charged.  What the police found and seized, however, were a hypodermic needle and a silver spoon wrapped in a brown silk stocking.  The false pretenses charges were dropped, and appellant was instead charged by information in the Court of General Sessions with possessing narcotics in violation of D.C.Code 33-402(a).  The trial judge denied his motion to suppress the evidence.  After a trial without a jury, recorded by a court reporter, at which appellant was represented by retained counsel, he was found guilty and sentenced to 360 days, with 180 days suspended.

4
On April 21, 1965, the D.C. Court of Appeals granted appellant leave to appeal in forma pauperis, and appointed new counsel to represent him.  This attorney submitted a 'report' to the court on April 28, 1965.  This set forth the chronology of the case in the trial court.  Counsel related that on April 26 he had both telephoned appellant's trial counsel, who advised that without funds he would not represent appellant further, and discussed the case with the prosecutor (whom he described as courteous, fairminded and cooperative), and that on April 27 he had consulted with appellant in the rear of the U.S. Branch of General Sessions.  He set forth:

5
The appellant stated to the undersigned that he had the following complaints: (a) Ineffective Counsel, in that the Attorney did not make the proper motions.  (b) Unfair conviction, since he is a drug addict.  (c) Judge denied appellant's motions.  (d) No proof that appellant was in possession of narcotics.

6
Counsel's report sets forth a two-paragraph conclusion.1 This report barely takes cognizance of the issues in this case, cites no cases, and lacks any real analysis of the issues (e.g. whether the objects seized were contraband or instrumentalities of crime, seizable without a warrant, or merely evidence of crime).  The final conclusion was that 'investigation FAILS to establish the denial of a fair and impartial trial to the appellant.'

7
On the same day, April 28, the D.C. Court of Appeals granted appointed counsel leave to withdraw from the case and revoked its permission to appellant to proceed on appeal in forma pauperis.  In a subsequent 'Show Cause Order,' filed pro se on May 3, appellant inquired why appointed counsel, who allegedly told appellant during their conversation that the points of law appellant raised were unfamiliar to him and would require research, devoted less than one day to his case (before submitting his report to the court), and why appointed counsel did not 'seek to review the transcript of the trial for errors, instead of (asking) appellant for his layman's opinion of what points and etc. were raised at the trial.'  On June 15, the Clerk belatedly sent appellant a copy of counsel's report, reproached him for his 'temerity' in inquiring why he was denied leave to proceed in forma pauperis, stated that the order was based on the attorney's report, and that 'there will be no action on the irregular Show Cause proceeding.'

8
Tate v. United States, No. 19177: On July 2, 1964, appellant, represented by court-appointed counsel, pleaded guilty in the Court of General Sessions to charges in three informations filed against him that day-- for possession of narcotics, D.C.Code 33-402(a), narcotics vagrancy, D.C.Code 33-416a, and petit larceny, D.C.Code 22-2202.  The court imposed consecutive sentences for the three offenses, totalling 720 days.

9
On July 16, 1964, appellant filed a pro se motion to vacate his sentence on the ground that his guilty pleas were involuntary because he was suffering at the time from the effects of narcotics withdrawal.  New counsel was appointed to represent appellant on this motion, and a hearing was held on July 28.  The motion was denied by the court without opinion, findings of fact, or conclusions of law.  No appeal was taken.

10
On September 18, 1964, appellant, again acting pro se, filed a motion for rehearing of the motion to set aside his pleas of guilty.  He alleged that counsel appointed to represent him on that motion had not subpoenaed witnesses and documents which would have supported his allegation that the plea was involuntary.  This motion was denied summarily.

11
On September 25, appellant filed his notice of appeal.  The D.C. Court of Appeals granted leave to appeal in forma pauperis from the judgments of conviction2 and appointed counsel to represent appellant.

12
Appointed counsel filed his report to the court on December 1, 1964, two months after he had been appointed.  He stated that there was nothing for the court to review, at least for the time being, on the issue of voluntariness vel non of the guilty pleas, since that was an issue of fact which had been determined against appellant by the trial court after hearing and testimony.  He recommended, however, that the court retain jurisdiction over the appeal while remanding the case to General Sessions for a hearing on the issue of ineffective assistance of counsel at the July 28 hearing on the motion to vacate for involuntariness of the guilty plea, and if necessary further hearing on the motion to vacate itself.  The D.C. Court of Appeals declined to remand as suggested.  It revoked appellant's leave to appeal in forma pauperis, and withdrew appointment of counsel 'for the reason that it appears that the motions to vacate were denied after full hearing, that the motions for reconsideration presented no new matter, and that the record discloses no basis for an appeal.'

13
The 'record' before the D.C. Court of Appeals and this court contains no transcripts of any of the proceedings.  Apparently none of the proceedings was recorded by a court reporter.3 Nor does that 'record' contain any statement of proceedings and evidence with respect to either the July 2 proceedings on appellant's guilty pleas, or the July 28 hearing on the motion to vacate sentence.

II

14
We consider for the first time the standards applicable to the conduct and decision of in forma pauperis appeals in the D.C. Court of Appeals.  There is concurrent criminal jurisdiction in the District of Columbia in cases other than felonies.  The United States District Court for the District of Columbia has original jurisdiction of all 'offenses committed within the District' with certain exceptions not here material.  D.C.Code 11-521(a) (Supp.  V. 1966).  The Court of General Sessions has original jurisdiction, concurrently with the District Court, of offenses punishable by fine only or by imprisonment for one year or less.  D.C.Code 11-963(a) (Supp.  V. 1966).  We are not here concerned with offenses against municipal ordinances, which are prosecuted in General Sessions by the District of Columbia.4 We are concerned with prosecutions by and in the name of the United States, and these are prosecutions for serious crimes, whether technically for violations of the United States Code or the District of Columbia Code.  The United States Attorney, it was admitted on oral argument, has prosecutorial discretion in many cases whether to prosecute the defendant in the District Court or the Court of General Sessions.

15
With respect to appeals by indigent defendants who are prosecuted by the United States in the Court of General Sessions, two sets of problems fraught with constitutional overtones arise: first, to what extent must opportunities and facilities on appeal be equal to those provided nonindigent defendants; and second, to what extent must those opportunities and facilities approximate those of indigent defendants appealing from District Court convictions.

16
The Supreme Court has made clear that the guiding principle governing indigent appeals in the federal courts and in states which make available appellate review is equality of treatment with paid appeals.  Coppedge v. United States, 369 U.S. 438, 446-447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. People of State of Illinois, 351 U.S. 12, 16-17, 76 S.Ct. 585, 100 L.Ed. 891 (1956).  'Both equal protection and due process emphasize the central aim of our entire judicial system all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'  Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716.'  Griffin v. People of State of Illinois,supra, at 17, 76 S.Ct. at 590.

17
With respect to the states, the Supreme Court has enforced the standard of equality of treatment through decisions based on the equal protection and due process clauses of the Fourteenth Amendment.  In addition to Griffin, supra, see Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); and Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959).

18
In regard to indigent appeals in the federal courts, the Supreme Court has not had occasion to invoke constitutional protections.  Requirements of equality of treatment with non-indigents have been predicated on 28 U.S.C. 1915, the statute providing for in forma pauperis proceedings, including appeals, in 'courts of the United States.'5 In a series of decisions over the last decade, the Supreme Court has expounded the meaningful content inhering in the framework of 28 U.S.C. 1915.  In Johnson v. United States,352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), the Court held that a transcript, or some appropriate substitute, and appointed counsel must be furnished an indigent defendant for the purpose of enabling him to demonstrate that he is entitled to appeal in forma pauperis.  The 'good faith' provision of28 U.S.C. 1915 requires only that a non-frivolous ground of appeal be shown to exist, as appears from Johnson, supra, and Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957).  Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), emphasized the further requirement that leave to appeal in forma pauperis may not be denied until the indigent appellant has had effective assistance of counsel in his search for a non-frivolous issue, and that adequate representation entails active advocacy in an adversary proceeding, and not mere impartial evaluation and advice to the court as amicus curiae.  The Court said (356 U.S. at 675, 78 S.Ct. at 975):

19
If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account.  If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.

20
In Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), the Court discussed the subject of in forma pauperis appeals at length, and held that the burden is on the Government to demonstrate that any issue presented by appellant is frivolous.  Finally, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), the Court held that a complete transcript must be made available by the Government to an indigent defendant seeking leave to appeal in forma pauperis who is represented by an attorney other than trial counsel.  Four justices would have ruled that a complete transcript is required for all indigent appeals.

21
There has been much discussion before us as to whether the Court of General Sessions is a 'court of the United States' within the meaning of 28 U.S.C. 1915.  The section with those words predates the 1948 revision assigning section number 1915.  The 1948 revision inserted for the first time 28 U.S.C. 451, providing that, as used in title 28, the term 'court of the United States' includes certain enumerated courts 'and any court created by Act of Congress the judges of which are entitled to hold office during good behavior.'6

22
If section 451 is deemed to govern the scope of section 1915, the latter section is not applicable to the Court of General Sessions, since the judges of that court are appointed for a term of ten years.  And there are decisions of the D.C.Court of Appeals, or its predecessor, ruling or indicating that one or another provision of Title 28 is inapplicable to the legislative courts in the District of Columbia.7

23
On the other hand, the Supreme Court has held that courts properly depart from the literal meaning of words when at variance with the intention of the legislature as otherwise revealed.  United States v. American Trucking Associations, 310 U.S. 534, 542-543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).  It is pointed out that the addition of 451 to Title 28 in 1948 was not intended to be a change of substance, but rather only 'to make possible a greater simplification in consolidation of the provisions incorporated in (that) title. * * *'  H.R.Rep. No. 308, 80th Cong., 1st Sess.  A52 (1947).  It is suggested to us that the D.C. Court of Appeals and Court of General Sessions, or their predecessors were considered 'courts of the United States' prior to 1948.  See Huyler's v. Houston, 41 App.D.C. 452 (1914); Tipp v. District of Columbia, 69 App.D.C. 400, 102 F.2d 264 (1939); Green v. Peak, 62 App.D.C. 176, 65 F.2d 809 (1933).  But see United States v. Mills, 11 App.D.C. 500 (1897).  It is argued that prior to 1948, the predecessor of 28 U.S.C. 1915 would have been applicable to the predecessors of General Sessions and the D.C.Court of Appeals, and that a tidying-up provision like 451 may not fairly be read as accomplishing a substantive turn-about that would affect basic rights.

24
We do not feel it necessary to determine the reach of 28 U.S.C. 1915, for the result in these cases is the same whether or not that provision is applicable.  This court has the function and responsibility of exercising supervisory powers to the end of obtaining fair administration of criminal justice within the District of Columbia.  The Supreme Court outlined our duties in the exercise of that supervisory power in Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949), and Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946).  That responsibility has called forth significant rulings of this court relating to right to counsel.8 Of particular interest in the current context is Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959), where we held that the them Municipal Court of Appeals was required to appoint counsel to assist indigent defendants seeking to appeal convictions involving serious moral turpitude even where there was no appeal as of right because the penalty imposed was less than $50.  We stated (106 U.S.App.D.C. at 340, 273 F.2d at 75):

25
In exercise of our powers and responsibility in relation to the administration of justice in the courts of the District, we should give effect to the spirit of Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 and Farley v. United States, 1957, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529.

26
Our opinion in Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964), related to stenographic recording and transcription of preliminary hearings before the United States Commissioner.

27
We think that the interest of justice requires the application of the principles and spirit not only of the Johnson and Farley decisions of the Supreme Court to which we referred in Wildeblood, but also the subsequent Supreme Court decisions-- in Ellis, Coppedge and Hardy, discussed above, and the incorporation of the substance of their requirements into the system of in forma pauperis appeals administered in the D.C.Court of Appeals, pursuant to Rule 43 of that court, from convictions in the United States branch of General Sessions.

28
The same fundamental considerations of fairness and equality of treatment that led Congress to set up a system of in forma pauperis appeals in28 U.S.C. 1915, that led the Supreme Court to build up a dody of law giving greater meaning and vitality to the principles of equal treatment for rich and poor, that led the D.C.Court of Appeals to set up its own in forma pauperis system, and that led the Attorney General's Committee on Poverty and the Administration of Criminal Justice to make its cogent suggestions for improvement in access to appellate review in the federal courts,9 lead us to take steps to ensure that indigent defendants who have been tried in the U.S. branch of the D.C. Court of General Sessions have the same rights and opportunities on appeal, as nearly as is practicable, as do non-indigent defendants in the same situation, and as do indigent defendants appealing from judgments of the United States District Court.  Absolute equality is perhaps impossible in the context of the limited facilities of the local courts.  Nevertheless, equal justice remains a meaningful goal, with our practical task being the minimizing, if not eliminating, of financial resources as a weight in the scales of criminal justice.10

III

29
Indigent appellants in the D.C. Court of Appeals are entitled to representation by counsel acting, pursuant to the standards of Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), not as a passive friend of the court, but as a diligent, conscientious advocate in an adversary process.  The D.C. Court of Appeals is required to enforce these standards by taking greater care than is evidenced in the two cases before us to assure that no appointed counsel is permitted to withdraw from an appeal unless he has satisfied the court that after thorough investigation of the facts of the case and research of all legal issues involved he has discovered no nonfrivolous issue on which an appeal might be argued.  The fact that the chances of prevailing are slim is not a reason for withdrawal, but is rather a summons to conscientious counsel to devote his professional skill and pertinacity to the most effective presentation of which he is capable.

30
Furthermore, as a symbolic but not insignificant procedural implementation of this approach, we are of the view that counsel should be required to file a formal motion to withdraw.  The current practice of permitting attorneys to file 'reports' has overtones of the office of amicus curiae that tend to gloss over rather than highlight the affirmative aspects of the duty of court-appointed counsel to his client.

31
The D.C. Court of Appeals should consider taking steps to inform counsel, at the time they are appointed, of their responsibilities.  We have found that a printed sheet of instructions, distributed to appointed counsel, is both helpful to counsel and easy for the court to administer.11

IV

32
We further hold that the standards announced by the Supreme Court with respect to provision of transcripts to indigent appellants must be applied by the D.C. Court of Appeals and Court of General Sessions in all cases in which the trial court proceedings in the United States branch have been recorded by a court reporter.  The principle underlying this requirement is the need for avoiding arbitrary discrimination in treatment of defendants, whether based on their resources or the court where they are tried.

33
Translating this requirement into specific guidelines we note that where counsel on appeal is not the same as trial counsel, a complete transcript is necessary.12 Where counsel on appeal represented the appellant at trial, a transcript relevant to the points of error assigned is a minimal requirement.

34
In our view D.C.Code 11-935 (Supp.  V, 1966) is soundly interpreted to authorize charging the United States for transcripts in cases prosecuted by it in the Court of General Sessions.  This construction avoids serious constitutional questions, and thus discharges a timehonored responsibility of the courts.13

35
Section 11-935, which grants reporters in the Court of General Sessions authority to collect fees for transcripts, provides in part: 'The court shall prescribe such rules, practice, and procedure pertaining to fees for transcripts as it deems necessary, conforming as nearly as practicable to the rules, practice, and procedure established for the United States District Court for the District of Columbia.'  Part of the 'rules, practice and procedure' relating to fees for transcripts in force in the District Court is the following, emanating from subsection (f) of the Court Reporters' Act, 28 U.S.C. 753(f): 'Fees for transcripts furnished in criminal or habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis shall be paid by the United States out of money apropriated for that purpose.'  Although the Court Reporters' Act does not apply in and of itself, and in all its terms, to the Court of General Sessions, this fee provision in subsection (f) is made applicable to the Court of General Sessions reporters by virtue of the mandate of D.C.Code 11-935.  It may be that the immediate purpose of 11-935 when passed in 1947 was to equalize compensation of reporters in the then Municipal Court with that of reporters in the District Court.14 However, it is plainly no bar to interpretation of a statute as applicable that 'the question raised was not considered by the legislature,'15 at least where the construction flows naturally from the statutory language.  These considerations are all the more compelling in a case like that under discussion, where a contrary construction would force us to face constitutional questions of a serious nature and threaten the continued existence of divided criminal jurisdiction in the District of Columbia between the District Court and the Court of General Sessions.

36
This construction of D.C.Code 11-935 comports with the general objective of Congress that the procedures and rights of parties in the Court of General Sessions parallel those in the District Court as closely as practicable.  D.C.Code 13-101 (Supp.  V, 1966).16 Although we were not persuaded by its reasoning, we did study the 1964 ruling of the Comptroller General, which recognized the constitutional implications but concluded that there was no authority to pay for the transcripts.  Comp.Gen.Rep. B 153485, March 17, 1964.  Our construction of D.C.Code 11-935 may not properly be gainsaid on the ground that it will result in increased costs to the Government.  Moreover, if no funds for transcripts were available, constitutional considerations might compel reversal of convictions and a resultant transfer of prosecutions of many indigent defendants to the U.S. District Court, at greater cost to the Government, in addition to delay, confusion, and inconvenience to court personnel, and frustration of the Congressional scheme for entrusting General Sessions with major responsibility for dispatch of this task.

37
Of course, a guarantee of availability of transcripts on appeal does not solve the problem of cases where no reporter is present at the trial court proceedings.  The vehicle of appellate review in the D.C. Court of Appeals in cases where no transcript is available is the 'statement of proceedings and evidence' prepared by trial counsel and approved by the trial judge.  D.C.Ct.App.Rules 21, 23-25;17 Young v. Tune, 172 A.2d 558 (Mun.Ct.App.1961).  Such a system of review has inherent disadvantages in terms of providing an accurate record of proceedings below, as was recognized by the Municipal Court of Appeals itself in Premier Poultry Co. v. Wm. Bornstein & Sons, Inc., 61 A.2d 632, 633 (1948).18 There may therefore be problems as to whether and to what extent this procedure satisfies the constitutional requirement that in the absence of a transcript the appellate court must be provided with a 'picture' of trial proceedings reasonably equal to that provided by a transcript.  Compare Draper v. State of Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Griffin v. People of State of Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956); cf. Miller v. United States, 317 U.S. 192, 198-199, 63 S.Ct. 187, 87 L.Ed. 179 (1942).

38
We need not consider, however, whether or how General Sessions could make do with a substitute for transcripts if the legislature had failed to provide it with reporters.  The fact is that Congress has provided that court ten official court reporters.  That does not provide a reporter for every judge and hence choices must be made.  Rule 82(b) of the court provides that the use of an official court reporter in a case is a matter for decision of the trial judge, taking into consideration 'the nature of the case, the necessity or advisability of having an official transcript, and the availability of an official court reporter.'  Traditionally preference has been given to civil litigation in making use of the court's limited reportorial resources.  In our view preference must be given to criminal proceedings, at least where prosecuted by the United States.  These are not petty offenses, but serious crimes, though classified as misdemeanors.  The manifest concern of Congress for improvement in the administration of criminal justice repels any supposition that Congress was ready to relegate such proceedings to second place in the allocation of the reporters for whose salaries it made appropriations.  The problem is not as acute on the civil side where litigants often have the means to hire private reporters.

39
The Court of General Sessions may have some adjustments to work out in implementing our ruling, but they should not be insuperable.  We were advised at oral argument that reporters would be provided by the United Planning Organization (UPO), and understand that this program has been put into effect and has resulted in assignment of reporters to all proceedings in the United States and criminal jury branches.  If at some future date the UPO-provided reporters are unavailable, and there is no increase in staff of court reporters, the Court of General Sessions will be called upon to administer the staff provided by Congress, perhaps with rotation, in such fashion as to assure availability of the reporters necessary daily to cover all criminal proceedings prosecuted by the United States.

V

40
We now turn to disposition of the cases before us and to application therein of the principles developed above.

41
In Edelin v. United States, No. 19556, the D.C. Court of Appeals erred in granting appellant's attorney leave to withdraw and in revoking permission to appellant to proceed in forma pauperis.  Since the trial was recorded by a court reporter, and appellant was represented on appeal by a court-appointed attorney who had not represented him at trial, it was error not to have ordered a transcript of the trial prepared to enable appellant's attorney to prepare his appeal.  Even apart from this, we think it improper for the court to have allowed counsel to withdraw and to have revoked leave to appeal in forma pauperis on the basis of the conclusory statements in counsel's 'report' to the effect that no non-frivolous issue existed.  Appellant did not receive adequate representation by counsel acting as his advocate under the standards of Ellis v. United States.  See also Williams v. United States,109 U.S.App.D.C. 18, 283 F.2d 382 (1960).  We reverse the judgment of the D.C. Court of Appeals and remand with instructions that new counsel be appointed to represent appellant and that the court order preparation of a transcript of the trial at the expense of the United States.

42
In Tate v. United States, No. 19177, the order of the D.C. Court of Appeals withdrawing appointment of counsel on appeal and withdrawing leave to appeal in forma pauperis also cannot stand.  On this record we cannot say whether the D.C. Court of Appeals should have done what it did, or should have allowed the appeal, or should have followed the recommendation of appellant's court-appointed attorney that it remand the case for a hearing on his allegations that witnesses had been available to substantiate his claim, of narcotics withdrawal, underlying his contention that his guilty pleas had not been voluntarily given.  No transcript was made of the hearing held on appellant's motion to vacate sentence, and apparently no court reporter was present at that hearing.

43
No statement of proceedings and evidence was made for purposes of the appeal.  In the absence of such a statement, we cannot see how appellant could be effectively represented, or how the D.C. Court of Appeals could meaningfully consider his appeal, especially in view of the fact that the trial judge made no findings of fact or conclusions of law and wrote no opinion in support of his decision, after hearing, to deny the motion to vacate sentence.  In view of the long lapse of time since the hearing we think it appropriate that the case be remanded to the Court of General Sessions for a new hearing on the motion to vacate sentence, with new counsel appointed to represent appellant.

44
These cases are reversed and remanded to the D.C. Court of Appeals with the following instructions:

45
In No. 19556, counsel is to be appointed to represent appellant on his appeal and a transcript of the trial is to be prepared at the expense of the United States.

46
In No. 19177, the case is to be remanded to the Court of General Sessions with instructions to appoint counsel to represent appellant on his motion to vacate sentence.

47
It is so ordered.

1
 The conclusion to the report of Edelin's appointed counsel reads as follows:
There appears to be no basis to support appellant's contention that he was ineffectively represented.  On the contrary, it appears that the trial attorney was called upon to make decisions and did make such decisions vigorously and effectively as competent counsel may be expected to make.  The Appellant himself stated that counsel did make and argue motions to suppress the evidence, which the Judge overruled.  Counsel did agrue that the Appellant was no in control of the room at the time of search by the police, hence the appellant should not be convicted.  However, the father of the appellant on cross examination stated that the room was the appellant's-- the room was occupied by someone else, but not at the time in question.  The fact that the result of the trial was adverse to the appellant, gives no ground for the COURT to undertake an appraisal of the qualities, strategies which a trial attorney presents.  Furthermore, because of the attorney's conviction that a Narcotics Addict was a mentally ill individual and not criminally responsible, he requested a mental examination, as indicated in the chronology.  The appellant did not take the stand to testify because as appellant told me, he has had prior convictions.  The appellant had every opportunity to be heard.
There being no evidence that the findings of such trier of facts on April 8, 1965 were contrary to the credible weight of testimony and evidence, it is RESPECTFULLY represented to this HONORABLE COURT that investigation FAILS to establish the denial of a fair and impartial trial to the appellant.
We note, without comment, that many of the phrases in appointed counsel's conclusion to his report to the D.C. Court of Appeals in this case are identical to those employed by counsel in a similar report in Bond v. United States, D.C.Circuit No. 19281, a case pending before this court.  (123 U.S.App.D.C. , 360 F.2d 504.)

2
 The D.C. Court of Appeals was apparently willing to consider the appeal from the conviction as being timely because there had been a timely notation of appellant's intention to appeal on the petit larceny information

3
 The record does not reveal whether or not appellant requested that a reporter be present at the time of the hearing on the motion to vacate sentence

4
 See D.C.Code 28-101 (1961 ed.), providing for prosecution by the Corporation Counsel, in the name of the District of Columbia, for violation of 'all police or municipal ordinances or regulations and * * * all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year.'  All criminal prosecutions for which punishment may be by fine and imprisonment are therefore brought by the United States.  See United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955)

5
 28 U.S.C. 1915(a) provides:
Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor.  Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.
An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

6
 The first paragraph of 28 U.S.C. 451 presently reads:
As used in this title:
The term 'court of the United States' includes the Supreme Court of the United States, courts of appeals, district courts constituted by chapter 5 of this title, including the United States District for the District of Puerto Rico, the Court of Claims, the Court of Customs and Patent Appeals, the Customs Court and any court created by Act of Congress the judges of which are entitled to hold office during good behavior.
From 1948 to 1959 the definition also specifically included the District Court of Hawaii.  After statehood was granted the reference became unnecessary.

7
 See Branson v. Harris, 100 A.2d 38 (Mun.Ct.App.1953), holding the Municipal Court not to be a 'court of the United States' for purposes of the Declaratory Judgments Act, 28 U.S.C. 2201; Burke v. United States, 103 A.2d 347 (Mun.Ct.App.1954), holding that 28 U.S.C. 2255 did not apply to the Juvenile Court, even though the language of that statute had been changed so as to apply to 'court(s) established by Act of Congress'; Ingols v. District of Columbia, 103 A.2d 879 (Mun.Ct.App.1954), applying the identical reasoning to the Municipal Court; Brown v. Plant, 157 A.2d 289 (Mun.Ct.App.1960), holding that 28 U.S.C. 1915 did not apply to the local courts and that it was hence powerless to order a transcript prepared at public expense; Blair v. District of Columbia, 200 A.2d 93 (D.C.Ct.App.1964) (dictum to same effect)

8
 Most recently we noted a juvenile's right to the aid of counsel in presenting relevant information prior to any determination of the Juvenile Court to transfer the juvenile to the regular criminal courts.  Black v. United States, 122 U.S.App.D.C. , 355 F.2d 104 (1965).  An earlier ruling had declared the juvenile's right to counsel in involvement proceedings.  Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666, 60 A.L.R.2d 686 (1956)

9
 See generally Report of the Attorney General's Committee on Poverty and the Administration of Criminal Justice, pp. 90-124 (1963)

10
 'One basic objective of a system of criminal appeals is * * * the establishment of procedures adequate to protect the legitmate interests of the accused irrespective of his financial status.'  Id. at 90.  Compare Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v, People of State of Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 100 L.Ed. 891 (1956)

11
 The Statement to be Handed by the Clerk to Appointed Counsel, approved by this court on December 13, 1963, apprises appointed counsel of his responsibilities and duties under the standards laid down in Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), and in Canons 4 and 5 of the American Bar Association Canons of Professional Ethics.  It makes clear the kind of showing that must be made before counsel is permitted to withdraw, and that withdrawals will be allowed only in exceptional cases
In addition, this court has found it useful to distribute a brief statement to indigent appellants at the time counsel is appointed, informing them of the nature of the appointed counsel system, the duties and responsibilities of their counsel, and the need for cooperation between client and counsel.  Included is a specific warning that the court does not look with favor on ill-considered attempts by indigent appellants to replace appointed counsel.

12
 See Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); but see concurring opinion of Mr. Justice Goldberg, id. at 282, 84 S.Ct. at 428 urging that complete transcripts be provided indigents in all appeals

13
 Construing statutes with an eye toward avoidance of constitutional issues is a technique often endorsed and employed by the Supreme Court.  International Ass'n. of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770 (1953); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)
The Supreme Court has indicated that its expansive interpretation of 28 U.S.C. 1915 to protect equal rights of indigent appellants in the federal courts has been motivated by constitutional problems lurking in the background.  See Coppedge v. United States, 369 U.S. 438, 446-447, 82 S.Ct. 917, 8 L.Ed.2d 21, where the Court stated that its holdings with respect to in forma pauperis appeals were 'impelled by considerations beyond the corners of 28 U.S.C. 1915.'  For a view that the Court's holding in Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), must in fact have been a constitutional one, see Note, 58 Colum.L.Rev. 832, 848 (1958).

14
 S.Rep. No. 381, 80th Cong., 1st Sess.  (1947); H.R.Rep. No. 894, 80th Cong., 1st Sess.  (1947)

15
 Cardozo, Nature of Judicial Process, 15 (1921).  Cf. Clemmer v. Alexander, 111 U.S.App.D.C. 189, 190-191, 295 F.2d 176, 177-178 (1961); Eastern Air Lines, Inc. v. CAB, 122 U.S.App.D.C. 375, 379, 354 F.2d 507, 511 (1965)

16
 D.C.Code 13-101 authorizes the D.C. Court of Appeals and Court of General Sessions to promulgate rules of practice and procedure 'for efficient administration of justice,' and specifically provides that the civil rules adopted shall 'conform as nearly as may be practicable' to the Federal Rules of Civil Procedure.  Section 13-101(d) is of special interest; it provides that 'Rules adopted pursuant to this section * * * may not abridge, enlarge, or modify the substantive rights of a litigant.'

17
 And see Rule 26, providing for an 'agreed statement on appeal' which may be prepared and submitted by parties to be certified as the record on appeal in cases where the questions on appeal 'can be determined without an examination of all the pleadings, evidence and proceedings in the trial court.'

18
 The court stated that one of the purposes of providing official court reporters was 'to preserve a full and accurate record of proceedings * * * in preference to the less satisfactory form of narrative statement based on the memory of court and counsel and their notes.'


                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             NOV 14 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 96-4186
 v.                                                   (D.C. No. 95-CR-187)
                                                        (District of Utah)
 THOMAS DONALD JARAMILLO,

          Defendant - Appellant.

                             ORDER AND JUDGMENT *

Before BALDOCK, MCKAY and LUCERO, Circuit Judges.

      Thomas Donald Jaramillo, appearing pro se, appeals from his conviction

under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Construing Jaramillo’s appeal

liberally, we find that he raises two grounds for appeal: (1) the district court

inappropriately considered Jaramillo’s 1973 conviction for burglary in the second

degree; and (2) the district court failed to calculate his offense level and criminal

history categories correctly, resulting in an erroneous sentence. We affirm.

      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
                                            I

      On September 14, 1995, a federal grand jury charged Thomas Jaramillo in a

three-count indictment. Count One charged Jaramillo, having been convicted of a

crime punishable by imprisonment for more than one year, with being in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);

Counts Two and Three charged him with distribution of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Pursuant to a plea agreement, Jaramillo

entered a plea of guilty to Charge One in return for the government’s agreement

to dismiss Counts Two and Three.

      Jaramillo was sentenced on November 5, 1996. Prior to the sentencing

hearing, Jaramillo moved the district court to adjust his sentence downward

pursuant to 18 U.S.C. § 3553(b) and U.S. Sentencing Guidelines §§ 5H1.6 and

5K2.0. The district court denied the defendant’s motion for downward departure.

At the sentencing hearing, the district court sustained all of Jaramillo’s objections

to the presentence report. The district court sentenced Jaramillo to 16 months in

prison, followed by three years of supervised release. Sixteen months is the

maximum sentence for the defendant’s offense level (11) and criminal history

category (II). See U.S.S.G. ch. 5, pt. A.

                                        -2-
                                          II

       The appellant claims that the district court erroneously considered his prior

convictions in the determination of his sentence. Only two of the appellant’s

previous convictions played any role in this case: (1) a 1973 conviction for

burglary in the second degree, a felony; and (2) a 1988 conviction for theft, a

misdemeanor. The 1973 conviction did not factor into the determination of the

appellant’s sentence. Rather, that conviction appropriately served as the predicate

felony under 18 U.S.C. § 922(g)(1), providing the factual support for the

defendant’s plea of guilty. The 1988 conviction did affect the appellant’s

sentence. Under § 4A1.1(b) of the U.S. Sentencing Guidelines, the 1988

conviction elevated the appellant to criminal history category II. See U.S.S.G. ch.

5, pt. A.

       Contrary to the appellant’s claim, the district court properly determined the

appellant’s base offense level at 14. See U.S.S.G. § 2K2.1(a)(6). The district

court then allowed a 3 level deduction for the appellant’s acceptance of

responsibility, arriving at an offense level of 11. See U.S.S.G. § 3E1.1. Using

the appellant’s correct criminal history category of II, the district court arrived at

a sentence of 16 months. Although 16 months is the highest allowable sentence

for the appellant’s offense level and criminal history category, the appellant’s

                                         -3-
claim that the district court erred in its determination of his sentence is without

merit.

         To the extent that we construe Jaramillo’s appeal as an appeal of the

district court’s decision to refuse a downward departure of Jaramillo’s sentence,

we do not have jurisdiction to review such a decision unless the trial court

“erroneously believed it lacked authority to depart.” United States v. Segien, 114

F.3d 1014, 1024 (10th Cir. 1997). The record does not reflect that the district

court based its decision on an erroneous belief that it lacked authority.

Accordingly, we affirm. The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT

                                         Carlos F. Lucero
                                         Circuit Judge

                                          -4-


People v Patterson (2019 NY Slip Op 07796)

People v Patterson

2019 NY Slip Op 07796

Decided on October 30, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
JOSEPH J. MALTESE
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.

2016-08972
 (Ind. No. 3471/15)

[*1]The People of the State of New York, respondent,
vCleon Patterson, appellant.

Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Frederick C. Arriaga, J.), rendered July 13, 2016, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).
LEVENTHAL, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court

                           People v. Solis, 2013 IL App (1st) 102756

Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DARLENE SOLIS, Defendant-Appellant.

District & No.             First District, Second Division
                           Docket No. 1-10-2756

Filed                      March 12, 2013

Held                       Defendant’s conviction for prostitution was upheld over her contention
(Note: This syllabus       that the prostitution statute was unconstitutional to the extent that it
constitutes no part of     improperly merged the inchoate offense of attempted prostitution with the
the opinion of the court   completed offense of prostitution, since prostitution is committed when
but has been prepared      an agreement is made to perform an act of sexual penetration for money,
by the Reporter of         not just when the act is actually performed.
Decisions for the
convenience of the
reader.)

Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CR-10964; the
Review                     Hon. James M. Obbish, Judge, presiding.

Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Annette Collins, and Veronica Calderon Malavia, Assistant State’s
                           Attorneys, of counsel), for the People.

Panel                      JUSTICE QUINN delivered the judgment of the court, with opinion.
                           Presiding Justice Harris and Justice Simon concurred in the judgment and
                           opinion.

                                             OPINION

¶1          Following a bench trial, defendant Darlene Solis was found guilty of prostitution, then
        sentenced to 27 months’ imprisonment. On appeal, defendant contends that the prostitution
        statute is unconstitutional because it improperly merges the inchoate offense of attempted
        prostitution with the completed offense of prostitution. For the following reasons, we affirm.
¶2          On the evening of June 1, 2010, Chicago police officer George Dunn was driving a
        covert vehicle down North Avenue when he saw defendant standing on the north side of the
        street and waving at passing vehicles. He turned around and parked about 30 feet away from
        her, and she walked to his car and entered it. Inside the car, Officer Dunn asked defendant
        if she had a place to go, and she responded, “well, what do you want, a blow job?” The
        officer took this to mean oral copulation and replied in the affirmative. He then asked
        defendant “what she needed.” She requested $20, and he agreed to the amount, then drove
        her up the block to his waiting partner, who arrested her. The trial court found defendant
        guilty of prostitution, a Class 4 felony due to a prior prostitution conviction, and sentenced
        her to 27 months’ imprisonment.
¶3          In this appeal, defendant challenges the constitutionality of her felony conviction for
        prostitution. She claims that the inclusion of the phrase “performs, offers or agrees to
        perform” in the prostitution statute improperly combines both an inchoate and a completed
        offense, i.e., the Class A misdemeanor of attempted prostitution and the Class 4 felony of
        prostitution. As a result, she claims, the statute: (1) abrogates section 8-5 of the Criminal
        Code of 1961 (Code) (720 ILCS 5/8-5 (West 2010)); (2) violates the proportionate penalties
        clause of the Illinois Constitution; and (3) creates an ambiguity which must be resolved in
        her favor under the rule of lenity.
¶4          The State responds that in People v. Thompson, 85 Ill. App. 3d 964 (1980), this court
        rejected defendant’s argument that an “offer or agreement to perform” a sexual act
        constitutes the inchoate offense of attempted prostitution. The State also responds that under

                                                 -2-
     the clear and unambiguous language of section 11-14(a) of the Code (720 ILCS 5/11-14(a)
     (West 2010)), an agreement to perform an act of sexual penetration for anything of value
     constitutes the completed offense of prostitution.
¶5        The State initially maintains that defendant has forfeited this issue on appeal because she
     failed to raise it in the trial court. We disagree. Defendant claims that the prostitution statute
     is unconstitutional, and a challenge to the constitutionality of a statute may be raised at any
     time. People v. McCarty, 223 Ill. 2d 109, 123 (2006). Under the circumstances, the bar of
     forfeiture does not prevent us from addressing the merits of defendant’s claim.
¶6        In turning thereto, we observe that statutes are presumed to be constitutional and that it
     is the burden of the party challenging the statute to demonstrate its invalidity. People v.
     Graves, 207 Ill. 2d 478, 482 (2003). A reviewing court has a duty to construe statutes in a
     manner that upholds their validity and constitutionality where it reasonably can be done.
     Graves, 207 Ill. 2d at 482. We review the constitutionality of a statute de novo. Graves, 207
     Ill. 2d at 482.
¶7        Under the Code, a person commits an act of prostitution when she “performs, offers or
     agrees to perform any act of sexual penetration *** for any thing of value.” 720 ILCS 5/11-
     14(a) (West 2010). A person commits attempt when, with intent to commit a specific
     offense, she does any act that constitutes a substantial step toward the commission of that
     offense. 720 ILCS 5/8-4(a) (West 2010). Here, defendant was found guilty of prostitution in
     that she “KNOWINGLY AGREED TO PERFORM” an act of sexual penetration upon
     Officer Dunn for money. Her conviction was also elevated to a Class 4 felony due to a prior
     prostitution conviction. 720 ILCS 5/11-14(b) (West 2010).
¶8        Defendant now challenges her conviction on the grounds that the prostitution statute is
     unconstitutional, claiming that an agreement to perform an act of sexual penetration for
     money, such as occurred here, constitutes both the completed offense of prostitution and the
     inchoate offense of attempted prostitution. In Thompson, 85 Ill. App. 3d at 967, a case
     analogous to the one at bar, defendant was convicted of prostitution and similarly claimed
     that the statute defining the offense was unconstitutional because it defined an inherently
     inchoate offense as a specific substantive offense. Defendant argued that “an offer or an
     agreement to perform an act of sexual intercourse for money is an inchoate offense because
     there has been no completion of the act of intercourse.” Thompson, 85 Ill. App. 3d at 967.
     This court disagreed, stating:
              “Our legislature has not attempted to treat an offer or agreement to perform an act of
          intercourse as the completed act itself. It has simply defined three categories of
          prohibited conduct which constitute the crime of prostitution. The legislature apparently
          has determined that the offer or the agreement to perform a sexual act is as serious a
          social problem as the act itself.” Thompson, 85 Ill. App. 3d at 967.
     We thus affirmed defendant’s conviction for prostitution. Thompson, 85 Ill. App. 3d at 969.
¶9        Defendant’s argument in the case at bar suffers from the same flaw as the one raised in
     Thompson in that it assumes the offense of prostitution is only “completed” when defendant
     actually performs an act of sexual penetration, thereby equating prostitution with a sexual
     act. As this court made clear in Thompson, however, the offense of prostitution is comprised

                                                -3-
       of three types of prohibited conduct, one of which is an agreement to perform an act of
       sexual penetration for money. Thompson, 85 Ill. App. 3d at 967.
¶ 10       Defendant, nonetheless, maintains that Thompson was wrongly decided and cannot be
       “squared” with the supreme court’s ruling in People v. Wallace, 57 Ill. 2d 285 (1974). In that
       case, defendants were convicted of attempted bribery and claimed on appeal that the attempt
       provision of the Code did not pertain to the offense of bribery. Wallace, 57 Ill. 2d at 287,
       291. The supreme court rejected their claim, noting that factual situations may exist in which
       the conduct of a defendant does not amount to bribery, but might be construed as a
       substantial step toward the completion of the offense. Wallace, 57 Ill. 2d at 292. The supreme
       court held that absent a manifest legislative intent to exclude bribery from the purview of the
       attempt provision, defendants’ indictment charging attempted bribery was valid. Wallace,
       57 Ill. 2d at 292.
¶ 11       Defendant argues that the bribery statute in Wallace, like the prostitution statute, merged
       both the inchoate and completed offense into a single substantive offense, and that the
       supreme court held that “this did not negate application of the attempt statute to those facts.”
       In making this argument, it is clear that defendant has completely misconstrued Wallace. The
       supreme court did not hold in Wallace that the bribery statute merged the inchoate and
       completed offense; to the contrary, the supreme court expressly recognized attempted bribery
       as a distinct offense which may occur when a defendant’s conduct does not constitute
       bribery, but might be construed as a substantial step toward the completion of the offense.
       Wallace, 57 Ill. 2d at 292.
¶ 12       That said, it is not entirely clear from defendant’s brief why she believes that Wallace and
       Thompson cannot be squared. Although she points out that the State “admits” the legislature
       provided no manifest intent to exclude the offense of prostitution from the purview of the
       attempt statute, she does not explain the import of this admission and simply concludes that
       “this was a quintessential exemplar of an inchoate offense.” We independently ascertain no
       conflict between Wallace and Thompson, and thus reject defendant’s claim as inconsistent
       with the latter. Thompson, 85 Ill. App. 3d at 967.
¶ 13       Having so concluded, we need not address the remainder of defendant’s arguments which
       rely on her faulty interpretation of the prostitution statute as encompassing both the inchoate
       and completed offense. For the reasons stated, we affirm the judgment of the circuit court of
       Cook County.

¶ 14      Affirmed.

                                                 -4-


762 So.2d 1259 (2000)
Carmela C. BREHM
v.
Milton L. BREHM, Jr.
No. 00-CA-201.
Court of Appeal of Louisiana, Fifth Circuit.
June 27, 2000.
*1261 Jana E. Smith, Bertrand & Smith, Metairie, Louisiana, Counsel for plaintiff-appellee.
Pat M. Franz, Metairie, Louisiana, Counsel for defendant-appellant.
Court composed of Judges CHARLES GRISBAUM, Jr., MARION F. EDWARDS and CLARENCE E. McMANUS.
McMANUS, Judge.
Plaintiff, Carmella C. Brehm, and defendant, Milton C. Brehm, Jr., appeal from a district court judgment partitioning the community. For the following reasons, we affirm in part, reverse in part and render.
On appeal, Mr. Brehm assigns these trial court errors:
1. The trial court erred as a matter of law in holding that the matrimonial domicile on the separate estate of Mr. Brehm became community property through the use of community funds to construct improvements.
2. The trial court erred in holding that funds received by Mr. Brehm from his mother became commingled with community funds so as to become community property.
Ms. Brehm assigned these trial court errors:
1. In the event that this Court finds that the matrimonial domicile is Mr. Brehm's separate property, the trial court erred in failing to find that Ms. Brehm is entitled to the increased value of the property attributable to common labor of the spouses.

*1262 2. The trial court erred in finding that the money that Ms. Brehm inherited is community property.
3. The trial court erred in finding that Ms. Brehm owed reimbursement to community regime for her liquidation of the Lincoln National Life Insurance Policies.
4. The trial court erred in finding that Ms. Brehm owed reimbursement to Mr. Brehm for paying her alimony, and health and automobile insurance premiums during the pendency of the appeal on the permanent alimony issue.

FACTS
The parties, Mr. Brehm and Ms. Brehm, were married for approximately thirty years, and had four daughters. The record reflects that Ms. Brehm left the matrimonial domicile in August of 1993. On January 13, 1994, the parties were granted a judgment of divorce.
On May 17, 1994, Ms. Brehm filed a petition of community property. On March 16, 1998, the parties entered into a consent judgment which reflected those issues on which the parties agreed. On March 27, 1998, the court rendered a judgment in open court. On September 9, 1999, the court signed a written judgment in accordance with the court's oral judgment. In its judgment, the trial court ruled that the marital domicile, valued at $140,000, is community property, and that the money inherited[1] by both Mr. and Ms. Brehm is community property because it was commingled. The trial court further ruled that Ms. Brehm owes reimbursement to the community for cashing the Lincoln National Life Insurance policies in the amount of $15,856.68, subject to a credit of all fees. The trial court further ruled that Ms. Brehm owes reimbursement to Mr. Brehm for permanent periodic alimony, and health insurance and automobile insurance premiums. The trial court further ruled that Mr. Brehm is entitled to reimbursement for paying the homeowners' insurance premiums to Liberty Mutual Insurance Company (Liberty Mutual) and Prudential Property and Casualty Insurance Company (Prudential), flood insurance, property and casualty insurance, and termite and pest control costs. The trial court further ruled that the lot adjacent to 1721 High Street is Mr. Brehm's separate property. Finally, the trial court ordered that both parties be responsible for the tax consequences of the rendered judgment.

STANDARD OF REVIEW
It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99, 101-102. A court of appeal may not set aside a trial court's finding of fact in absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989); Madere v. Madere, 93-610 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180, 1182. In light of these precepts, we will now address the specifications of error of the community property partition.

VALUATION OF MATRIMONIAL DOMICILE
Mr. Brehm argues that the matrimonial domicile did not become community property by the use of community funds to construct the house and subsequent improvements. Ms. Brehm responds that the matrimonial domicile became community property through the uncompensated labor of the spouses. She further responds that the couple re-financed the *1263 matrimonial domicile for $10,000 on August 6, 1969, and that the sale and re-sale was an act of donation which gave her an undivided half interest in the house.
The matrimonial domicile of the parties is located at 1721 High Avenue in Metairie, Louisiana. There were two adjoining, vacant lots before the parties were married. After the parties were married, they spent $23,588.93 of community funds to build a home on one of the vacant lots. There is no dispute on appeal as to the separate nature of the lots that belong to Mr. Brehm.
LSA-C.C. art. 2366 provides, in pertinent part:
Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community assets belong to the owner of the ground. Upon termination of the community, the other spouse is entitled to one-half of the amount or value that the community assets had at the time they were used.
Since the matrimonial domicile was built with community funds on Mr. Brehm's separate property, Ms. Brehm is entitled to a claim for reimbursement for one half of the funds used to build the home. See Barr v. Barr, 613 So.2d 1159, 1164 (La. App. 5 Cir.1993); McDonald v. McDonald, 607 So.2d 984, 987 (La.App. 3 Cir.1992); Bordelon v. Cobb, 596 So.2d 268, 270 (La. App. 3 Cir.1992).
Ms. Brehm argues that she is entitled to the increased value of the property from the spouses' uncompensated labor. We disagree.
LSA-C.C. art. 2368 states:
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.
A claimant spouse under LSA-C.C. art. 2368 has the burden of proving: (1) the property is separate, (2) the property increased in value, and (3) the increase in value was based on the uncompensated or undercompensated labor of the other spouse; the burden then shifts to the other spouse to prove that the increase in value was due to factors other than the uncompensated or undercompensated labor. Salley v. Salley, 95-0387 (La.10/16/95), 661 So.2d 437, 438; Krielow v. Krielow, 93-2539 (La.4/11/94), 635 So.2d 180, 183.
In Stubbs v. Stubbs, 610 So.2d 892 (La. App. 1 Cir.1992), writ denied, 612 So.2d 62 (La.1993), the First Circuit found that the increase in value of the home, which was separate property, was attributable to common labor of the parties. In Stubbs, the testimony of the parties established that during the marriage, the parties shared the labor required to expand the roof of the house, add a porch, add a living room and add a garage to the house. Id. at 897. The parties also placed paneling in the house and installed new carpeting. Id.
In this case, the marital domicile was built with community funds during Mr. and Ms. Brehm's marriage. The cost of building the house was $23,588.93. Both Mr. and Ms. Brehm testified that improvements were made to the house. The record reflects that Ms. Brehm painted, installed new wallpaper, and performed other routine repairs and improvements while Mr. Brehm added a new roof and a new patio to the house. While the Brehms did perform routine maintenance during the marriage, the record indicates that the substantial part of the significant work was performed by hired contractors. Therefore, Ms. Brehm is not entitled to the increased value of the house.
Ms. Brehm also argues that the sale and resale of the house to Citizens Homestead Association constituted an act of donation effecting a change in ownership which provided her with one half interest in the house. We disagree. In *1264 1969, the Brehms sold the property for $10,000.00 to Citizens Homestead Association and simultaneously Citizens Homestead Association resold the property to the Brehms. The sale and resale of the property effected no change in the ownership of the matrimonial domicile because the transaction was entered into for the purpose of providing the homestead with a vendor's lien and first mortgage. Succession of Tucker v. Poche, 449 So.2d 1020, 1022 (La.1984).
Therefore, Ms. Brehm is only entitled to $11,794.47, which is half of the initial construction costs of building the house. Since we find that the matrimonial domicile is Mr. Brehm's separate property, Mr. Brehm is not entitled to a claim of reimbursement for paying the homeowner's insurance, flood insurance, property and casualty insurance, and termite and pest control costs.

MONETARY GIFTS FROM THE SPOUSE'S PARENTS
Both Mr. and Ms. Brehm argue that they are entitled to a claim of reimbursement from the community for using their separate funds for the benefit of the community. Specifically, Mr. Brehm argues that his mother gave him $22,000 as a gift and therefore, he is entitled to reimbursement for $17,772.00 of those funds that were traced to the purchase of a community vehicle. Ms. Brehm argues that the $14,600.00 that she inherited from her mother was spent on the community, and she is entitled to a claim for reimbursement.
Under Louisiana law, property is characterized as either community or separate. LSA-C.C. art. 2335; Curtis v. Curtis, 403 So.2d 56, 58 (La.1981). Separate property includes property acquired by the spouse prior to the marriage; property acquired with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; and property acquired individually by gift or inheritance. LSA-C.C. art. 2341.
The intent of the donor controls or determines the identity of the donee or donees. Allbritton v. Allbritton, 561 So.2d 125, 127 (La.App. 3 Cir.1990), writ denied, 565 So.2d 445 & 565 So.2d 454 (La.1990). If the donor is deceased, then the intention of the decedent is inferred from the relation of the parties and all of the facts and circumstances in the case. Purcell v. Purcell, 29,663 (La.App. 2 Cir. 6/23/97), 697 So.2d 728, 734.
The mere mixing of separate funds and community funds in the same account does not, of itself, convert an entire account into community property; however, when separate funds are commingled with community funds indiscriminately, so that the separate funds cannot be identified or differentiated from the community funds, then all the funds are characterized as community funds. Curtis v. Curtis, 403 So.2d at 58. The burden of proof is on the party claiming reimbursement to show that separate funds existed and that those funds were used for the benefit of the community. Sherrod v. Sherrod, 97-907 (La.App. 5 Cir. 3/25/98), 709 So.2d 352, 356, writ denied, 98-1121 (La.6/5/98), 720 So.2d 687.
Mr. Brehm made the necessary showing that the $22,000.00 that he received from his mother was a gift to him individually. Further, Mr. Brehm traced $17, 771.15 of those funds to the purchase of a vehicle that was used by the community.
The record reflects that there are two check stubs dated June 10, 1993, and June 15, 1993, both in the amount of $8,000.00. The funds were deposited in the Jefferson Parish School Board Employee Credit Union Savings Account S-1 in the name of Mr. Brehm. There is a check dated July 15, 1993 in the amount of $6,000. Also, there is a bank statement dated July 16, 1993 indicating a deposit of $6,630.70 to *1265 the Jefferson Parish School Board Savings Account S-1.
On July 16, 1993, a 1993 Buick was purchased with a total sales price of $18,735.83. The record reflects that the Brehms financed $17,772.00 to purchase the car. On July 19, 1993, there was a withdrawal of $4,000.00 from the Jefferson Parish School Board Savings Account S-1. On August 12, 1993, there was a withdrawal of $13,271.15 from the same account. Testimony from Mr. Brehm and his sister, Ms. Barbara Calongne, established that the $22,000.00 received from Mr. Brehm's mother was a gift. Ms. Calongne testified that each sibling received $22,000.00 from Mr. Brehm's mother. The deposits of those funds which went into the Jefferson Parish School Board Savings Account S-1 were so close in time as the withdrawals which came from the account that there is a valid reimbursement claim by Mr. Brehm for the $17,771.15 that he traced to the purchase of the community vehicle.
Ms. Brehm claims that she received $14,600.00 from her mother's inheritance, however, she did not provide documentation that the separate funds existed and were used for the benefit of the community. Accordingly, we find that Mr. Brehm is entitled to a claim for reimbursement for $17,771.15 and we find that Ms. Brehm is not entitled to a claim for reimbursement.

REIMBURSEMENT FOR LIFE INSURANCE POLICIES
Ms. Brehm argues that Mr. Brehm is not entitled to reimbursement for half of the proceeds from two life insurance policies issued through Liberty Mutual because she needed the money to support herself because she was not gainfully employed.
The assets in question were acquired during the existence of the legal regime and are presumed to be community property. LSA-C.C. Art. 2340. Whether a life insurance policy is the separate property of the insured, or belongs to the community existing between the insured and his or her spouse, is determined by the marital status of the insured at the time the policy is issued. LSA-C.C. Art. 2340; Berry v. Metropolitan Life Insurance Company, 327 So.2d 521, 523 (La.App. 1 Cir.), writ denied, 329 So.2d 760 (La.1976).
At the time that the Lincoln National Life Insurance Policies were issued, Mr. and Ms. Brehm were married. Therefore, the policies are community property. Ms. Brehm, without the consent of Mr. Brehm, cashed both policies for $16,856.68. While Ms. Brehm stated that she needed to cash the policies because she did not have the money she needed to support herself, she did not produce receipts to show any of her living expenses prior to award of alimony pendente lite except medical bills that totaled $521.71. Therefore, Mr. Brehm is entitled to reimbursement for half of the proceeds subject to Ms. Brehm's credit for $521.71.

REIMBURSEMENT FOR ALIMONY, HEALTH INSURANCE, AND CAR INSURANCE
Subsequent to this Court's reversing the trial court's award of permanent alimony to Ms. Brehm in Brehm v. Brehm, 685 So.2d 377 (La.App. 5 Cir. 11/26/96), writ denied, 688 So.2d 505 (La.2/7/97), Mr. Brehm requested reimbursement for the permanent periodic alimony, and health and automobile insurance premiums that he paid during the time period that the issue of permanent alimony remained unresolved. Ms. Brehm argues that Mr. Brehm is not entitled to reimbursement for the total amount paid to Ms. Brehm for alimony, and health insurance and automobile insurance premiums. Ms. Brehm further argues that the trial court erred in granting Mr. Brehm reimbursement for this claim because he received tax benefits.
The legal regime of community property is terminated by the judgment of divorce. LSAC.C. art. 2356. An obligation incurred during the existence of the community *1266 for the common interest of the spouses or for the interest of the other spouse is a community obligation. LSAC.C. art. 2360. An obligation is separate when incurred prior to marriage, or during the community, though not for the common interest of the spouses or for the interest of the other spouse, or when incurred after termination of a community property regime. LSAC.C. art. 2363. If community property has been used to satisfy a separate obligation of an individual, the other individual is entitled to reimbursement upon the termination of the community, for one-half of the amount the property had at the time it was used. LSAC.C. art 2364.
The termination of the community occurred on January 13, 1994 and Mr. Brehm paid Ms. Brehm's health and automobile insurance premiums until the issue of permanent alimony was resolved. Since Ms. Brehm was not awarded permanent alimony, Mr. Brehm is entitled to reimbursement for the permanent periodic alimony, and health and automobile insurance premiums that he paid.
For the foregoing reasons, we reverse the trial court's judgment finding that the matrimonial domicile is community property, and we reverse the trial court's judgment granting Mr. Brehm reimbursement for the homeowner's insurance premiums, flood insurance, and termite and pest control costs. We further reverse the trial court's judgment ruling that all of the funds which Mr. Brehm received from his mother is community property and we find that Mr. Brehm is entitled to a reimbursement claim for $17,771.15. We affirm all other portions of the trial court judgment.
REVERSED IN PART; AFFIRMED IN PART, AND RENDERED.
NOTES
[1]  The funds were actually gifts from each party's parent.


       NOTE: This disposition is nonprecedential.

United States Court of Appeals
    for the Federal Circuit
                ______________________

               TERESA L. HILLIARD,
                    Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
              ____________________

                      2011-3198
                ______________________

   Petition for review of the Merit Systems Protection
Board in case no. DC0752100451-I-3.
                 ______________________

                     JUDGMENT
                ______________________

   JOHNNIE ALLEN LANDON, JR., of Washington, DC,
argued for petitioner.

   JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
                ______________________
THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

    PER CURIAM (LINN, PLAGER, and DYK, Circuit Judges).

           AFFIRMED. See Fed. Cir. R. 36.

                      ENTERED BY ORDER OF THE COURT

 June 13, 2012               /s/ Jan Horbaly
   Date                         Jan Horbaly
                                   Clerk