     Case: 08-10923     Document: 00511073477          Page: 1    Date Filed: 04/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 7, 2010
                                       No. 08-10923
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee

v.

DANIEL A FISHER,

                                                    Defendant-Appellant


                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 3: 04-CR-172-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Daniel A. Fisher, federal prisoner # 32412-177, appeals, pro se, from the
denial of his motion for the production (at the Government’s expense) of two
postconviction detention hearing transcripts. He contends: he is indigent; and,
the    transcripts    are   necessary     for   a    comprehensive       appellate    record.
DISMISSED.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-10923    Document: 00511073477 Page: 2       Date Filed: 04/07/2010
                                 No. 08-10923

                                         I.
      In 2004, Fisher was charged with 34 counts of aiding and assisting the
filing of fraudulent tax returns, one count of making a false statement to a bank,
one count of bank fraud, and one count of making a false statement before a
court. He was convicted of all counts.
      Prior to sentencing, Fisher moved for a detention hearing to assess
whether he should be released pending sentencing. The district court referred
the motion to a magistrate judge.        See 28 U.S.C. § 636(b)(1)(B) (granting
magistrate judge authority to conduct such hearings). The magistrate judge
found Fisher was a flight risk and, in December 2004, denied the requested
release.
      Fisher then moved to reopen the detention hearing, asserting a family
member’s illness warranted reconsideration of his motion. The district court
referred that motion to the same magistrate judge who conducted the prior
hearing. In May 2005, after a second detention hearing, the magistrate judge
again determined Fisher had not provided “clear and convincing” evidence that
he was not a flight risk.
      The district court sentenced Fisher, inter alia, to 235 months’
imprisonment. Our court affirmed his conviction and sentence. United States
v. Fisher, 236 F. App’x 54, 55 (5th Cir. 2007).
      Subsequently, Fisher moved in district court for a new trial under Federal
Rule of Criminal Procedure 33(a) and (b)(1). That motion was denied. Fisher
then moved for reconsideration of his motion. In April 2008, it was also denied.
      Regarding his appeal from the denial of his new-trial motion, in June
2008, the district court granted Fisher’s motion to proceed on appeal in forma
pauperis (IFP). (As discussed infra, that appeal has been decided by our court;
the denial was affirmed. United States v. Fisher, No. 08-10307, 2010 WL 445495
(5th Cir. 3 Feb. 2010).)



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   Case: 08-10923   Document: 00511073477 Page: 3        Date Filed: 04/07/2010
                                No. 08-10923

      For that appeal, Fisher moved for the production of transcripts from his
postconviction detention hearing and his motion to reopen the detention hearing.
In August 2008, the district court denied the motion, concluding it could not
certify Fisher’s appeal as not frivolous and presenting a substantial question.
                                       II.
      This appeal is similar to that in No. 08-10516 (dismissed in part and
remanded in part). For the following reasons, it is moot.
      Pursuant to 28 U.S.C. § 753(f), the United States shall pay the fee for a
transcript in a criminal proceeding for a person permitted to appeal IFP, “if the
trial judge or a circuit judge certifies that the appeal is not frivolous (but
presents a substantial question)”. Further, that person must also show why the
transcript is necessary for his appeal. See Norton v. Dimazana, 122 F.3d 286,
293 (5th Cir. 1997) (citing Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985)).
      Our court, however, as stated supra, has previously affirmed the denial of
Fisher’s new-trial motion. See Fisher, 2010 WL 445495. We are, therefore,
unable to grant Fisher any relief in this appeal. Consequently, it must be
dismissed as moot. See Church of Scientology of Cal. v. United States, 506 U.S.
9, 12 (1992) (“It has long been settled that a federal court has no authority ‘to
give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case
before it.’” (quoting Mills v. Green, 159 U.S. 651, 653 (1895))). Further, it is
without significance that this appeal was rendered moot by a ruling that
occurred while this appeal was pending. See id. (“[I]f an event occurs while a
case is pending on appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the appeal must be dismissed”.
(quoting Mills, 159 U.S. at 653)).
                                       III.
      For the foregoing reasons, this appeal is DISMISSED.



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