Opinion
Criminal Action No. 3:03-CR-330-D.
August 3, 2005
FINDINGS, CONCLUSIONS, RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
John Wright, Esquire ("Wright"), appointed counsel for Defendant Joseph Daniel Anderson, III ("Defendant"), has applied for attorney's fees in the amount of $24,120.21, a fee in excess of the statutory maximum. Wright's fee application has been referred to this court pursuant to 28 U.S.C. § 636(b)(1)(B) for recommendation concerning the amount that should be certified, or, if less than the statutory maximum, the amount that should be approved. Having reviewed the fee application and the guidelines and law applicable to the case, the Court finds that Wright should be compensated a total of $5,404.20 for his representation of Defendant.
I. BACKGROUND
On September 4, 2003, Defendant was indicted on one count of possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At his initial appearance on October 10, 2003, the Court appointed Wright, a CJA Panel attorney, to represent Defendant. In the course of his representation of Defendant, Wright appeared at the arraignment, filed several pretrial motions, including two motions to suppress, appeared at an evidentiary hearing on one of the motions to suppress, and negotiated a plea agreement. On May 28, 2004, Defendant pled guilty to the indictment. Sentencing was originally set for August 27, 2004, but was postponed twice upon Wright's motions for continuances. On March 25, 2005, Defendant was sentenced to 188 months in the custody of the Bureau of Prisons and a term of three years of supervised release.
Upon the conclusion of the case, Wright submitted a CJA payment voucher in the amount of $24,120.21. By an order of reference dated May 12, 2005, Wright's fee application was referred to this Court for recommendation.
II. ANALYSIS
The Criminal Justice Act ("CJA") governs the appointment and compensation of counsel for defendants who are financially unable to obtain adequate representation in federal criminal proceedings. 18 U.S.C. § 3006A (2004). Under 18 U.S.C. § 3006A(d)(2), a court-appointed attorney may receive a maximum of $7,000 in compensation for representing a defendant charged with one or more felonies. Payment in excess of the CJA maximum may be made "for extended or complex representation whenever the court in which the representation was rendered . . . certifies that the amount of the excess payment is necessary to provide fair compensation . . ." 18 U.S.C. § 3006A(d)(3).
In evaluating a request for payment in excess of the maximum, the threshold determination is whether the representation was extended or complex. See, e.g., United States v. Vead, 2005 WL 1025798, at *2 (N.D. Tex. Apr. 29, 2005) (Kaplan, M.J.), adopted by ORDER, No. 3:03-CV-422-D (May 16, 2005) (Fitzwater, J.) (citing United States v. Walder, 2001 WL 881275 at *1 (N.D. Tex. Jul. 27, 2001) (Maloney, J.)); United States v. Brown, 1998 WL 740832 at *1 (N.D. Tex. Oct. 20, 1998) (Fish, J.)). Next, if the Court finds that the representation was extended, complex, or both, the Court must examine whether an award of excess compensation is necessary to provide fair compensation. See, e.g., Vead, 2005 WL 1025798, at *3.
A. Extended or Complex Representation
Based on the supplemental information statement submitted with Wright's application for attorney's fees, it is not clear whether he bases his request for fees over the statutory maximum on grounds that the representation provided was extended, complex, or both. The Court therefore will examine whether the representation provided was extended or complex.
Wright did not submit a "`detailed memorandum supporting and justifying counsel's claim that the representation given was in an extended or complex case, and that the excess payment is necessary to provide fair compensation," as required by Paragraph 2.22C(2) of the Guidelines for the Administration of the Criminal Justice Act, in Volume VII of the Guide to Judiciary Policies and Procedures.
1. Extended Representation
According to the CJA Guidelines, "[i]f more time is reasonably required for total processing than the average case, including pre-trial and post-trial hearings, the case is `extended.'" Guide to Judiciary Policies and Procedures, Vol. VII, Guidelines for the Administration of the Criminal Justice Act ("CJA Guidelines"), § 2.22(B)(3). Typically, extended representation involves a protracted case that requires a substantial investment of time by the attorney. Vead, 2005 WL 1025798, at *2; United States v. Reece, 1998 WL 740754, at *1 (N.D. Tex. Oct. 16, 1998) (Fish, J.). Courts in the Northern District of Texas have found representation to be extended in several different situations. In Vead, the defendant had been charged with 33 overt acts of conspiracy and mail fraud over a period of approximately three-and-a-half years. Vead, 2005 WL 1025798, at *2. The magistrate judge found that the case involved extended representation due to the scope and duration of the conspiracy, as well as the mental condition of the defendant, who suffered from depression and a possible stroke. Id. at *3. In Walder, the district judge found that counsel's representation was extended because the action included a two-day jury trial and "somewhat extensive pretrial proceedings." 2001 WL 881275, at *1. In both Reece and Brown, the district judge found that counsel provided extended representation where the defendants were charged in an indictment alleging 26 counts of mail fraud and bank fraud offenses. 1998 WL 740754, at *1; 1998 WL 740832 at *1. Because the government introduced extensive testimony and documentary and physical evidence, the jury trial lasted six weeks. 1998 WL 740754, at *1; 1998 WL 740832 at *1. Finally, in United States v. Terry, the district court found that counsel provided extended representation to a client charged in an indictment alleging multiple counts of drug-related offenses, including a conspiracy charge. 1996 WL 734954, at *1 (N.D. Tex. Dec. 11, 1996). Counsel secured an acquittal for his client after a twelve-day trial in which the government introduced extensive testimony and evidence. Id. Thus, extended representation has been found only where an indictment charges numerous offenses occurring over an extended period of time, a jury trial is had, or other significant challenges to providing representation are present.
In contrast to the cases above, the instant case did not involve either a multi-count indictment or a jury trial. Defendant was charged and pled guilty to a single offense arising from a single episode of activity. The non-extended nature of the case is reflected in Wright's request for only four and a half hours of time spent in court, including an evidentiary hearing on Defendant's first motion to suppress, plus the arraignment, rearraignment, and sentencing hearing. Wright does state in his supplemental information statement that an armed career criminal case requires "extensive research" on the sentencing guidelines. To the extent that Wright argues that his representation was extended based on the need to conduct lengthy research on a sentencing issue, the Court notes that it has found no cases supporting such a contention. Moreover, even if extensive research on sentencing issues was required, that factor alone would not result in a need for total processing time greater than the average case, particularly where, as here, Defendant pled guilty to a single felon-in-possession charge. The Court therefore finds that the time required to represent Defendant's case has not been shown to be greater than average. United States v. Diaz, 802 F. Supp. 304, 310 (C.D. Cal. 1992) (finding that representation was not extended where time reasonably required to represent defendant was not greater than the time required to process the average case). Accordingly, the Court finds that the representation provided by Wright was not extended.
2. Complex Representation
The CJA Guidelines provide that a case is complex "[i]f the legal or factual issues in a case are unusual, thus requiring the expenditure of more time, skill and effort by the lawyer than would normally be required in an average case[.]'" § 2.22(B)(3). Complex representation "refers to the intricacies of the case and its corresponding call on counsel's intellectual resources." United States v. Bailey, 581 F.2d 984, 987 (D.C. Cir. 1978).
No courts in the Northern District of Texas have certified an award of attorney's fees in excess of the statutory maximum strictly on the basis of the complexity of the representation. Courts outside the Northern District have found that representation was complex in a variety of circumstances. In Kubat v. Thieret, a habeas corpus case, the district judge found that the representation provided was complex, noting that a "simple reading of the 56-page memorandum order . . . underscores the variety of significant and unique legal and factual issues raised in [defendant's] petition." 690 F. Supp. 725, 727 (N.D. Ill. 1988). In United States v. Carnevale, the government charged six defendants in a 57-count indictment on charges including different aspects of interstate transportation, concealment, and sale of 27 stolen motor vehicles, as well as conspiracy. 624 F. Supp. 381, 386 (D.R.I. 1985). The district court stated that:
The standard set forth in 18 U.S.C. § 3006A(d)(3) for determining whether payment in excess of the statutory maximum may be permitted applies both to representation in a felony case as well a habeas corpus proceeding.
the magnitude and intricacy of this case, the attendant avalanche of papers to be perused and sorted out, the variety of the transactions, and the diversity of the charges combined, in the context of a multi-defendant trial, to complicate the task of assigned defense counsel to a degree sufficient to merit the label "complex."Id. In United States v. Johnson, a case involving a seven-count indictment on charges of kidnapping, kidnapping while armed, armed robbery, and other offenses, the legal issues presented at the motions stage were described as "far from routine." 549 F. Supp. 78, 81-82 (D.D.C. 1982). Thus, complex cases are generally characterized by multi-count indictments, a number of significant and unique legal or factual issues, and/or voluminous evidence.
In contrast to the cases cited above, the instant case involved a single, straightforward charge. As Wright notes in his supplemental information statement, "[t]his was a guilty plea case from the time of appointment." Wright appears to assert that the representation provided was complex based on issues related to sentencing. He wrote in his supplemental information statement "[t]his was an exceptional case because it turned on the outcome of Booker and Fanfan." (no italics in original). After a thorough review of the relevant case law, the Court finds that this case cannot be considered complex based on the grounds asserted by Wright.
While some courts have considered challenging issues in sentencing or new developments in the law as bases for determining that a case should be considered complex within the scope of § 3006A(d)(3), those court have made such a determination in the context of additional factors. For example, in United States v. Johnson, counsel filed a motion during the trial "concerning the recent Supreme Court opinion of Apprendi v. New Jersey, involving the proper role of the judge and the jury in determining drug weight calculations." In addition, at the sentencing stage counsel "raised several complex issues regarding the proper amount of drugs attributable to each defendant." 214 F. Supp. 2d 488, 491 (E.D. Pa. 2002). However, the district court also noted the case was not a routine drug conspiracy matter, and that counsel filed a number of pretrial motions and served as lead counsel in a two-week jury trial. Id. at 489, 491. In Chamblin v. I.N.S., a habeas corpus proceeding, "the case involved complex legal issues, arising from Congress' recent amendments to the immigration laws . . . [and] matters pending before the United States Supreme Court." 176 F. Supp. 2d. 99, 105 (D.N.H. 2000). The district court also stated that "[a]mong other things, I note that the INS itself had difficulty construing the relevant statutory and regulatory provisions, [and has] since revised its interpretation of a relevant statute . . ." to permit the release of the defendant, following a decision in the defendant's favor. Id.
In contrast to the cases discussed in the preceding paragraph, the outcome of the instant criminal representation did not turn on Supreme Court precedent. In Booker, the Supreme Court held that:
we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.United States v. Booker, 125 S. Ct. 738, 756 (2005). Booker specifically excludes prior convictions as facts that must be established by a guilty plea or jury verdict in order to serve as the basis for a sentence beyond the maximum established by that plea or verdict. In addition, Defendant admitted in the factual resume that he had been convicted of a felony. Wright himself acknowledges in his supplemental information statement that Booker did not "materially alter the outcome of this case[.]" Wright's representation therefore cannot be found to be complex on the basis of Booker. Wright has not otherwise demonstrated that this case "requir[ed] the expenditure of more time, skill and effort by the lawyer than would normally be required in an average case." CJA Guidelines § 2.22(B)(3). Accordingly, the Court finds that the representation provided by Wright was not complex.
As discussed above, the Court finds that the representation provided by Wright in this case was neither extended nor complex. Thus, his compensation cannot exceed the statutory maximum of $7,000. See 18 U.S.C. § 3006A(d)(3); United States v. Diaz, 802 F. Supp. at 309 ("before granting any amount of fees in excess of the statutory maxima pursuant to the Criminal Justice Act, the court must determine that representation was either extended or complex.").
B. Reduction of Requested Compensation
The CJA provides that "[t]he court shall fix the compensation and reimbursement to be paid to the attorney[.]" 18 U.S.C. § 3006A(d)(5). Furthermore, the CJA Guidelines allow the reviewing judicial officer to approve compensation in an amount less than that requested. § 2.22(D). This Court concludes that an additional reduction from in the statutory maximum is appropriate in this case.
Courts have observed that the Criminal Justice Act was intended to provide some but not full compensation to attorneys. United States v. Stout, 109 F. Supp. 2d 982, 984 (C.D. Ill. 2000) (citing Mills v. United States, 713 F.2d 1249, 1256 (7th Cir. 1983)); United States v. Jewett, 625 F. Supp. 498, 500 (W.D. Mo. 1985). Courts must consider the element of public service expected from appointed counsel when authorizing the expenditure of the very limited resources available to pay for attorneys under the CJA. United States v. Thompson, 361 F. Supp. 879, 887 (D.C.D.C. 1973) (citing United States v. James, 301 F. Supp. 107, 116 (W.D. Tex. 1969)). To assess the appropriate level of compensation, the Court must evaluate whether the time spent was reasonably expended in the course of the representation. Stout, 109 F. Supp. 2d at 984. Such a finding "calls for consideration of the nature of the case as well as its legal and factual difficulties." Id. "Counsel is entitled to be paid only for hours that are necessary for reasonably diligent, conscientious, and competent representation." Id. (citing Ellzey, 29 F. Supp. 2d. at 507.)
Based upon a review of the docket and the billing records provided, the Court questions the reasonableness of the 254.4 hours of out-of-court time claimed by Wright. In several instances, the time claimed for work on certain motions does not appear to be consistent with the filings themselves. For example, with respect to a three-page motion for continuance filed December 3, 2003, 1.0 hours of time is claimed for drafting the motion, 0.7 hours for redrafting the motion, and 1.0 hours for preparing exhibits. (Out of Court Hourly Worksheet at 4-5.) However, while the motion refers to an attached factual resume, no exhibits are actually attached to the motion. As another example, billing record entries for December 16, 2003 state that 2.0 hours were expended drafting motions, and 0.7 hours for reviewing, finalizing, and signing four motions. Id. at 5. It is not clear based on those records which motions are included in the entries, but only three motions were filed on December 18, 2003, including a motion for disclosure of exculpatory evidence, a motion for a mental competency hearing, and a second motion to suppress evidence of drugs, drug paraphernalia, and hearsay evidence, and 0.4 hours was separately attributed to reviewing and revising an order on the hearsay motion. Id. A fourth motion, to reveal names of confidential sources, was filed on December 22, 2003, but 1.6 hours of time for drafting and revising that motion were documented on December 19, 2003. Id. at 6. In addition, on December 22, 2003, 1.0 hour of time was documented for drafting the motion for a mental competency hearing, which had been filed four days earlier. Id.
Next, the time claimed for reviewing documents appears to be excessive. For example, a total of 2.1 hours of time is claimed for review of the government's responses to the motion for disclosure of disculpatory evidence, the motion to reveal names of confidential sources, and the second motion to suppress — in sum, a total of 15 pages. Id. at 6. In addition, 0.3 hours are claimed for review of file-marked copies of Wright's own filings, such as the file-marked, one paragraph notice of appeal, as well as orders issued by the District Court, including the one-page notice of rearraignment. Id. at 13, 21. Also, a total of 1.2 hours is claimed for review of four executed subpoenas. Id. at 10.
In addition, there are a number of duplicate entries within the billing records. Duplicate entries of 0.3 hours occur for reviewing the order on investigative funds, the five-page plea agreement, and the government's response to the presentence report. Id. at 7, 12, 15. In addition, there are duplicate entries of 0.4 hours for reviewing the order on the writ of habeas corpus. Id. at 8-9.
Furthermore, a total of 10.1 hours are claimed for legal research for which the topic of research was not specified. Id. at 3, 4, 9, 15, 16, 19. Thus, it is not possible for the Court to evaluate the reasonableness of those hours claimed.
Finally, the Court notes that compensation is requested for 13.4 hours of legal research and brief writing related to Defendant's appeal; however, a new CJA appointment is required for representation in an appeal, and compensation for such work should not be claimed in the instant application for fees.
Accordingly, based upon the circumstances of this case and the Court's review of the documentation of hours expended, the Court recommends that Wright be compensated a total of $5,404.20 for his representation of Defendant. This amount includes $405 for 4.5 hours expended in court, $4,500 for 50 hours expended out of court, and $499.20 for allowable expenses.
III. CONCLUSION
For the reasons herein stated, the Court RECOMMENDS that the District Judge certify payment to Counsel John Wright in the amount of $5,404.20.
SO RECOMMENDED.