United States District Court for the District of Columbia
January 28, 2004.
UNITED STATES OF AMERICA
NELSON VALDES, Defendant
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE DEFENDANT'S THIRD IN FORM A
This criminal case comes before the court on the defendant's third
application for in forma pauperis ("IFP") certification.*fn1
Previously, the court denied the defendant's June 10, 2003 application to
proceed IFP on appeal because the defendant had failed to provide
information requested in the form application. Order dated June 13, 2003.
In doing so, the court allowed the defendant to refile his application by
providing complete answers to all questions no later than August 8, 2003.
Id. On August 18, 2003, the defendant late-filed a second IFP
application along with a supporting personal affidavit that attested to
the information provided in his new application. On August 21, 2003, the
court referred the defendant's second application to the defendant's
probation officer for verification of the statements provided by the
defendant in that application. Order dated Aug. 21, 2003. Specifically,
the court asked the probation officer to report his independent findings
regarding the defendant's monthly salary/wages, the current value of the
defendant's home(s), and the total monthly rental payments that the
defendant receives from his tenant(s).
Upon review, the probation officer identified discrepancies between the
information provided in the defendant's second application and other
sources reflecting the defendant's actual assets and income. In
particular, it became evident that the defendant had failed to accurately
report, inter alia, his net income, employment, valuable
personal property, and equity in real property.*fn2
To provide the defendant with an opportunity to explain these
discrepancies, the court directed him to show cause in writing by October
23, 2003 as to why the court should not deny his second application. On
October 22, 2003, the defendant filed his response to the court's
show-cause order. Instead of responding to the court's noted concerns
regarding his failure to accurately report information pertaining to his
actual assets and income, the defendant simply stated that "Mr. Valdes
has a net worth of negative $44,128 and a monthly cash flow of negative
$2,178." Def.'s Resp. to Show Cause at 1.
On November 18, 2003, the court held a hearing on the defendant's
second application. At that hearing, the defendant failed to demonstrate
his alleged poverty or account for the
erroneous information provided to the court. It also became evident
that the defendant had been less than sincere in his allegations of
poverty. The court denied the defendant's second application, but granted
his request for leave to file a third application that establishes his
eligibility for IFP support on appeal. Once again, the court asked the
probation officer to investigate the information submitted in the
forthcoming third IFF application to ensure its accuracy.
On January 12, 2004, the court received a report from the probation
officer that confirms the validity of the information submitted in the
defendant's third application. Thus, the court is once again called upon
to determine whether the defendant is entitled to IFF support on appeal.
The federal IFP statute originally enacted in 1892, and the
substance of which was later codified in 28 U.S.C. § 1915 is
intended to benefit those too poor to pay or give security for costs of
litigation. Neitzke v. Williams, 490 U.S. 319, 324 (1989)
(citing Adkins v. E. I. Du Pont de Nemours & Co.,
335 U.S. 331, 342-43 (1948)). The Supreme Court has noted that, in its general
terms, 28 U.S.C. § 1915(a) prevents federal courts from denying a
person the opportunity to commence, prosecute, or defend a civil or
criminal action solely because their poverty makes it impossible to pay
or secure the costs of litigation. Id. The individual seeking
IFP certification, however, must submit an affidavit of indigency or
poverty that sufficiently demonstrates his inability to both provide
himself with the necessities of life and pay the costs of litigation.
28 U.S.C. § 1915(a); Adkins, 335 U.S. at 339-40. "The
determination of a court whether to allow one to proceed in forma
pauperis must be made separately in every case." In re
Green, 669 F.2d 779, 786 (D.C. Cir. 1981).
The defendant's third application seems to remedy several of the
in the first two applications. For example, the defendant now
reports that he holds two jobs that together yield a total monthly income
of $2,116.66. On top of that income, the defendant reports a $450 monthly
income from his tenant. In addition, the probation officer verifies that
the defendant has over $80,000 of equity in real estate located at 4433
5th Street, N.W., Washington, B.C., which carries a present value of
$253,333. Furthermore, the defendant acknowledges his ownership of two
fairly new automobiles a 2003 Pontiac Grand Prix and a 2001
Nissan Altima which have a combined value of approximately
In light of the defendant's reported income from both his employment
and tenant, the equity in his real estate, and the value of his
automobiles, the court determines that the defendant has once again
failed to evidence indigency in his IFP application. Although the
defendant avows that "because of my poverty, I am unable to pay the costs
of said proceeding or give security therefor [and] that I believe I am
entitled to relief," his reported assets and income suggest that he is
not an individual of modest means and is perfectly able to pay
the costs associated with his appeal without depriving himself of life's
necessities. 28 U.S.C. § 1915(a); Adkins, 335 U.S. at
339-40; Def.'s 3d Application at 1. This is not to say that the court
requires a party seeking IFP certification to demonstrate penniless
destitution, or that such an individual must forego sufficient food,
shelter, clothing, or support for dependants in order to pursue his
appeal. See Neitzke, 490 U.S. at 324; Adkins, 335 U.S.
at 342-43. To the contrary, no man should be forced to go hungry to
maintain his appeal, otherwise he himself may become a public charge and
contravene the very purpose of the federal IFP statute. See id.
something more than a mere statement of poverty is necessary before
the court can confer IFP status on the defendant.
28 U.S.C. § 1915(a); Adkins, 335 U.S. at 339-40.
The simple fact remains that the defendant's third application
disqualifies him from a "poverty" classification because it confirms his
comfortable lifestyle with valuable disposable assets. The court does not
reach the question of whether the defendant carelessly, willfully, or
stubbornly endeavors to saddle the public with wholly uncalled-for
expense that is a separate issue relating to the principles of
perjury and bad faith. See Adkins, 335 U.S. 338-39 (recognizing
that "[o]ne who makes this affidavit exposes himself to the pains of
perjury in a case of bad faith" and that it is "important [to] protect[ ]
the public against a false or fraudulent invocation of the statute's
benefits"). Suffice it to say that allowing the defendant to proceed IFP
would require the court to turn a blind eye to the defendant's
actual financial circumstances. Such a ruling would render the
court an unfit steward of the public purse.
For all of the foregoing reasons, it is this 28th day of
ORDERED that the defendant's third application is