United States v. Olsen

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 15, 1998
• Docket: 97-1271
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

JAN 15 1998 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1271 v. D. Colorado STANLEY H. OLSEN, (D.C. No. 93-M-1012)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

Stanley H. Olsen appeals the district court’s denial of his motion requesting

that a trial transcript be prepared at government expense; he also challenges the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. sufficiency of the evidence supporting the injunction prohibiting him from acting

as an income tax preparer. We affirm.

The United States brought a civil action against Mr. Olsen pursuant to

§ 7402(a) of the Internal Revenue Code (26 U.S.C.) to enjoin him from acting as

an “income tax preparer” as defined in I.R.C. § 7701(a)(36)(A). The district court

judge referred the matter to the Magistrate Judge, and after a five-day trial, the

Magistrate Judge, sitting as Special Master, recommended that judgment be

entered against Mr. Olsen, permanently enjoining him from acting as an income

tax preparer. In July 1997, the district court adopted the findings, conclusions,

and recommended disposition of the Magistrate Judge and issued the injunction.

Later that same month, Mr. Olsen filed a timely notice of appeal and the district

court granted Mr. Olsen leave to proceed on appeal in forma pauperis pursuant to

28 U.S.C. § 1915.

Mr. Olsen then filed a motion requesting that a trial transcript be prepared

at the government’s expense, which the district court denied in August 1997.

Mr. Olsen then filed a second notice of appeal, which the district court treated as

an amendment to his original notice of appeal, stating that he was appealing the

district court’s denial of his motion for the trial transcript to be prepared at

government expense.

-2- Later that same month, Mr. Olsen filed a motion in this court to have a trial

transcript prepared at government expense, which this court denied “without

prejudice to renewal upon a specified showing under 28 U.S.C. § 753(f) that Mr.

Olsen is entitled to transcripts at government expense.” United States v. Olsen,

No. 97-1271 (10th Cir. Aug. 25, 1997) (order denying free transcript). In

particular, this court directed Mr. Olsen to show “that the appeal is not frivolous

but presents a substantial question.” Id. Mr. Olsen chose not to file a renewed

motion, and instead filed his opening brief in this appeal. 1

Mr. Olsen’s opening brief argues primarily that the district court erred in

denying his request to have the trial transcript prepared at government expense.

See Appellant’s Br. at 1-2. However, as we stated in our order of August 25,

1997, Mr. Olsen was not entitled to have the government pay for the transcript

since he had not made the required showing under 28 U.S.C. § 753(f) that his

appeal was not frivolous. Because Mr. Olsen still has not made the required

showing either in a renewed motion or in his opening appellate brief, 2 we

1 In October 1997, Mr. Olsen timely filed a document captioned “Opening Brief.” In an order on October 31, 1997, the Clerk of the Court stated that this court was considering the document to be Mr. Olsen’s opening brief rather than a renewed motion to have the trial transcript prepared at government expense. 2 In his brief, Mr. Olsen merely asserts that the transcript is essential “so he can prove to the 10th Circuit that the evidence does not point to this injunction being issued against [him].” Appellant’s Br. at 1. Conclusory allegations do not satisfy the requirements of § 753(f). Sistrunk v. United States, 992 F.2d 258, 259 (10th Cir. 1993).

-3- conclude that the district court correctly denied his request to have the transcript

prepared at government expense. 3

Because Mr. Olsen has filed his opening appellate brief rather than a

renewed motion for a free transcript, we must also address his original challenge

to the sufficiency of the evidence. Mr. Olsen asserts that “the facts DO NOT

support an injunction being issued against [him].” Appellant’s Br. at 2.

However, because Mr. Olsen has failed to satisfy his burden as appellant of

providing this court with the trial transcript, 4 we must affirm the district court’s

ruling. See Collins v. Romer, 962 F.2d 1508, 1514 (10th Cir. 1992).

Accordingly, we AFFIRM both the district court’s denial of appellant’s

motion for a free transcript and the issuance of the injunction against him.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

3 In the alternative, Mr. Olsen requests that he “be allowed to view and study a transcript that may exist.” Appellant’s Br. at 1. Assuming such a transcript exists in the office of the clerk, it “shall be open during office hours to inspection by any person without charge.” 28 U.S.C. § 753(b). Mr. Olsen is also free to have a transcript prepared at his own expense. 4 See Fed. R. App. P. 10(b); 10th Cir. R. 10.1.1; United States v. Hubbard, 603 F.2d 137, 139-40 (10th Cir. 1979); see also Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (stating that pro se status does not relieve a petitioner from the burden of complying with federal rules of civil and appellate procedure).

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