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United States v. Bevans-Silva

United States District Court, S.D. Georgia, Savannah Division

January 11, 2019

UNITED STATES OF AMERICA
v.
MICHAEL BEVANS-SILVA

          ORDER

          CHRISTOPHER L, RAY, UNITED STATES MAGISTRATE JUDGE

         Michael Bevans-Silva has moved the Court for transcripts, prepared at public expense, of "all proceedings" in his case. See docs. 114 & 118 (seeking, in particular, a copy of the transcript for his sentencing on June 15, 2018). He has also filed a motion for leave to appeal in forma pauperis. Doc. 117. That motion is before the District Judge.

         In the underlying criminal case, Bevans-Silva was permitted to proceed pro se, with standby-counsel.[1] See doc. 80. He then entered into a plea agreement with the Government and changed his plea to guilty. See doc. 85 (Change of Plea); doc. 86 (Plea Agreement). Judgment was entered on June 15, 2018. Doc. 108. Bevans-Silva filed his notice of appeal three days later.[2] See doc. 109.

         Congress has provided for publicly-funded transcripts for indigent criminal defendants appealing their conviction. See 28 U.S.C. § 753(f) ("Fees for transcripts furnished ... to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question)."). Given the present state of the record, the Court is unable to determine that publicly-funded transcripts are appropriate.

         In the first place, courts have explained that "[a]n appeal may not be frivolous under the 'good faith' test of the [in forma pauperis statute and Fed. R. App. P. 24] and yet may be frivolous as not presenting a 'substantial question' for the purposes of Section 753(f)." Linden v. Harper & Row Inc., 467 F.Supp. 556, 558 (S.D.N.Y. 1979). Further, the statute "contemplates that the appeal already has been certified [i]n forma pauperis and authorizes determination at that point of whether a free . . .transcript is warranted on the ground that 'the appeal is not frivolous (but presents a substantial question).'" Id.

         Leave to appeal in forma pauperis has not been granted here. Further, Bevans-Silva's plea agreement contains an appeal waiver. See doc. 86 at 6. If that waiver is enforceable, it would render any appeal frivolous. Finally, his statements of the issues for appeal are threadbare, at best. See doc. 117 at 1 ("My issues on appeal are: Jurisdiction, Inaffective sufficient counsel [sic] & Any Constitutional Violation"). The abbreviated description and the substantive issues implicated[3] leave the Court with serious concerns about whether he will be permitted to pursue his appeal in forma pauperis.

         Bevans-Silva's motions are, therefore, DENIED. Docs. 114 & 118. Should he be granted leave to appeal in forma pauperis, he is free to renew his request for transcripts. Any such motion should include sufficient information about the issues to allow the Court to make the determination required by § 753(f).

         SO ORDERED.

---------

Notes:

[1] At his sentencing, the Court indicated that his appointed stand-by counsel would continue her role in any appeal. See doc. 107 at 2.

[2] There is no indication that stand-by counsel participated in the preparation of that notice.

[3] Reference to an appeal on "jurisdictional" grounds particularly triggers the Court's concern. Throughout this case, Bevans-Silva has consistently taken positions typical of the so-called "Sovereign Citizen" movement. See, e.g., doc. 31 at 2 (letter from Bevans-Silva to the Court stating he "do[esl not consent to be under the jurisdiction of any maritime or admiralty court of any land or government, nor do I consent to being addressed as a defendant, fiction, corporation or being identified in any color thereof."); doc. 25-2 at 1-2 (document captioned "Notice of Affidavit of Truth in the Nature of an Ascertion [sic] of Facts and a Challenge of Jurisdiction," stating "I Michael-Raymond: Bevans-Silva [sic] am not an Artificial Person, Corporation, Fiction or Trust like the Entity who is named as "Defendant" on indictment #CR416-352, and that the court has been notified of my standing as a Natural Man, a Private Man and separate entity from the "Defendant" and therefore as I am not the Defendant, there is no valid Jurisdiction over me as I am not the accused."). But see doc. 23 at 1 (letter from Bevans-Silva protesting he is not "an affiliate of any 'Sovereign Citizens' movement").

It is absolutely clear that arguments based on "sovereign citizen "-type reasoning, however they are described, are "attempts to delay judicial proceedings" and courts "have summarily rejected their legal theories as frivolous." See United States v. Sterling,738 F.3d 228, 233 n. 1 (11th Cir. 2013) (citing United States v. Benabe,654 F.3d 753, 761-67 (7th Cir. 2011) (recommending that sovereign citizen theories "be rejected summarily, however they are presented")); Roach v. Arrisi, 2016 WL 8943290 at *2 (M.D. Fla. 2016) (noting that sovereign citizen theories have not only been consistently rejected by the courts, but they have been described as "utterly frivolous," "patently ludicrous," and "a waste of . .. the court's time, which is being paid for by hard-earned tax dollars") (cite omitted). His reference to himself as a "Natural Man" is typical of such sovereign-citizen theories. Trevino v. Florida,687 Fed.Appx. 861, 862 (11th Cir. 2017) (dismissing as frivolous sovereign citizen lawsuit filed by a "living, breathing, flesh and blood human being"); United States v. Alexio, 2015 WL 4069160 at *3 (noting that sovereign citizens believe in a "somewhat mystical distinction ...


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