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stating that "[d]efense counsel has presented no argument or evidence that the services provided . . . were of 'an unusual character or duration'"
Summary of this case from United States v. GuobadiaOpinion
Case No. 00-20027-JWL
February 8, 2001
MEMORANDUM AND ORDER
The court writes today to discuss the process which should be followed when an indigent defendant seeks compensation for expert services under the Criminal Justice Act (CJA). 18 U.S.C. § 3006A (e). On September 26, 2000, defense counsel, William Dunn, filed a CJA Form 21 seeking pre-authorization to obtain the expert services of chemist Robert Casad. Defense counsel stated that Mr. Casad's testimony on the production capacity of a methamphetamine lab operated by defendant was critical to protect defendant's interests at the sentencing hearing. Defense counsel estimated the cost of such expert service at $1,000. Based on this estimate, the court authorized the requested services. After the sentencing hearing, at which defendant found it unnecessary to call Mr. Casad as a witness, defense counsel submitted a voucher asking the court to compensate Mr. Casad in the amount of $1,960. The court approved payment to Mr. Casad in the amount of $1,000. The court now explains its reasoning for limiting the compensation of Mr. Casad to the amount initially authorized.
I. The CJA Payment Process
Pursuant to the CJA, an attorney appointed to represent an indigent defendant in a criminal case may request the court to allow the defense to engage the services of an expert if the attorney believes such services are "necessary" to an adequate defense. 18 U.S.C. § 3006A(e)(1). Defense counsel makes such a request for expert service by submitting CJA Form 21. See United States v. Gonzales, 150 F.3d 1246, 1251 (10th Cir. 1998). Form 21 requires the attorney to state a "description" of the services sought and a "justification" for such services, as well as an estimate of the amount of compensation that will be sought by the expert. These requirements inherently place a duty on defense counsel to communicate with the proposed expert in order to ensure that the expert understands what services are sought and the attorney understands what services will be provided. Only then will the attorney be able to submit his or her best estimate of the amount of compensation that will be sought by the expert. If the court authorizes the expert services sought by defense counsel, defense counsel should provide a copy of the signed Form 21 to the expert so that the expert is aware of the services and amount of compensation authorized by the court. If, despite the initial communication between the attorney and the expert regarding the services sought and their costs, the expert later determines that the cost of the services "will exceed the initial estimate by a significant amount," the defense attorney should then "seek further prior authorization for the additional amount from the presiding judicial officer." Instructions for CJA Form 21 (emphasis added). See also, Administrative Office of United States Courts' Guide to Judiciary Policies Procedures, volume VII.
II. Discussion
In this case, defense counsel estimated the cost of the services to be provided by Mr. Casad at $1,000, which the court approved. Counsel later submitted a copy of Mr. Casad's bill of $1,960, and requested that the court approve compensation to Mr. Casad in the higher amount. The wide disparity in the estimated cost of the services sought and the actual cost of the services provided-indeed, the near doubling of the amount-indicates that defense counsel did not communicate with Mr. Casad at the level required by the CJA payment process before submitting his Form 21 request. Indeed, defense counsel has provided the court with no other reason for the large discrepancy in the amounts. Moreover, in disregard of the Instructions for CJA Form 21, defense counsel failed to seek further prior authorization for the cost of services which significantly exceeded the estimated amount.
Even if defense counsel had properly followed the CJA payment process outlined above, he did not address the $1,000 statutory limit to CJA expert funds when submitting the voucher in the amount of $1,960. See 18 U.S.C. § 3006A(e)(3); Instructions for CJA Form 21; United States v. Crim, 527 F.2d 289, 296 (10th Cir. 1975) (overturned on other grounds). Congress has prescribed that the $1,000 limit may only be waived if "payment in excess of that limit is certified by the [district] court . . . as necessary to provide fair compensation for services of an unusual character or duration, and the amount of excess payment is approved by the chief judge of the circuit." 18 U.S.C. § 3006A(e)(3). Defense counsel has presented no argument or evidence that the services provided by Mr. Casad were of "an unusual character or duration," nor that services performed that exceeded the $1,000 limit were necessary to aid the court in its duty of "approximating" the quantity of methamphetamine that the laboratory was capable of producing. See U.S.S.G. 2D1.1, n. 12 ; see also United States v. Napert, No. 94-5615, 1995 WL 627708, (4th Cir. 1995) (limiting compensation of tax expert to $1,000 where "the tax liability issues were not so complex as to warrant a higher sum" because the Sentencing Guidelines only required the court to make a "reasonable estimate" of the amount of tax loss). Additionally, the court notes that defense counsel described the services requested as "testimony opinion of amount of `lab capacity' in meth case," yet Mr. Casad was never called upon to testify in this case. The court approved no services other than Mr. Casad's testimony, and although the court realistically anticipated that Mr. Casad would likely spend some time preparing for his testimony, the court concluded from the information presented that the $1,000 ceiling, which was the amount requested, would be adequate to compensate Mr. Casad for the preparation time which inherently accompanies testimony. See Martin v. Dugger, 708 F. Supp. 1265, 1267 (S.D. Fl. 1989) (limiting compensation of medical experts-who submitted bills of $8,102, $4,027, and $3,740-to $1,000 because "[w]hile all three witnesses spent some time preparing for their testimony out of court, each alone only testified for less than one day."). For all these reasons, the court found it appropriate to approve payment to Mr. Casad in the amount of the statutory limit for CJA expert services.
IT IS THEREFORE ORDERED BY THE COURT THAT the amount of compensation paid to Mr. Casad is limited to the $1,000 for which prior authorization was obtained by counsel. The clerk is directed to mail a copy of this order to Mr. Casad at 811 New Jersey, Lawrence, KS 66044.
IT IS SO ORDERED.