Opinion
CASE NO. 04CR1342-LAB.
September 15, 2005
ORDER REJECTING REPORT AND RECOMMENDATION AND AUTHORIZING VOUCHER WITH ADJUSTMENTS
Appointed defense counsel Robert L. Swain, Esq. submitted a voucher dated May 5, 2005 seeking payment of $22,624.91 for his representation of Moises Lopez-Frausto ("Lopez-Frausto") for the period May 7, 2004 through April 8, 2005, in this multiple-defendant alien smuggling case. The expenses component totals $273.41. He claims 248.35 hours of attorney services at the statutory hourly rate of $90.00, totaling $22,351.50. The claim exceeds by more than three times the Criminal Justice Act ("CJA") statutory maximum of $7,000.00 for representation in felony cases. 18 U.S.C. § 2006A(d)(2). Although the case was twice scheduled for trial, the case was never tried.
Mr. Swain claims $2,407.50 (26.75 hours) for courtroom appearances, 22.15 hours of which were for motion hearings. He explains in letters to the Court in support of his voucher he "specially appeared for co-counsel" on a number of occasions. Mr. Swain claims $19,944.00 (221.60 hours) for "out of court" activity, comprised of: 55.2 hours for interviews and conferences; 69.6 hours obtaining and reviewing records; 52.8 hours of legal research and brief writing; and 44.0 hours of investigatory and "other" work. He provides seven pages of line items keyed to the voucher form categories.
Mr. Swain's voucher was referred to Magistrate Judge Barbara L. Major for a Report and Recommendation ("RR") regarding certification. In an RR filed under seal, Judge Major recommends the voucher be authorized in its entirety. She found Mr. Swain's services "were both extended and complex," justifying the "payment of attorney's fees in excess of the statutory maximum." RR 6:6-7. She concluded Mr. Swain's requested fees were reasonable and fair compensation, "well supported by the evidence, the record and information provided by Mr. Swain and Mr. Alexander," the prosecutor in the case. RR 6:8-9.
Full payment of the claim would exceed by six times the former $3,500.00 statutory maximum figure the RR recites as the reimbursement baseline. See RR 1:20.
"This Court has reviewed the submitted CJA voucher and supporting documentation as well as Mr. Swain's letters dated May 11, 2005 and July 21, 2005. This Court also has reviewed the docket and conducted a lengthy conference with Mr. Swain on June 27, 2005. Finally, this Court also met with the prosecutor, Christopher Alexander, to discuss the case and Mr. Swain's representation of Mr. Lopez-Frausto." RR 3" 21-25. "The Court also handled a settlement conference involving all of the defendants and the prosecutor." RR 4:20-21.
The government is obligated to pay counsel to preserve the rights of indigent criminal defendants through "adequate representation." 18 U.S.C. § 3006A. "Attorneys may be reimbursed for expenses reasonably incurred . . . [for] fair representation." 18 U.S.C. § 3006A(d)(1), (3). "Each claim shall be supported by a sworn written statement specifying the time expended, services rendered, and expenses incurred while the case was pending before the . . . court, and the compensation and reimbursement applied for or received in the same case from any other source." 18 U.S.C. § 3006A(d)(5).
To qualify for compensation in excess of the $7,000 statutory maximum (approximately 78 hours) allotted for felony cases, counsel must show the case was either extended or complex and why the statutory limit is not fair compensation. 18 U.S.C. § 3006A; see United States v. Bailey, 581 F.2d 984, 990 (D.C. Cir. 1978); United States v. Diaz, 802 F.Supp. 304, 308 (C.D.Cal. 1992), citing Bailey, 581 F.2d 984. As noted in the RR, a case is "extended" if "more time is reasonably required for total processing than the average case, including pre-trial and post-trial hearings," citing Guide to Judiciary Policies and Procedures, Guidelines for the Administration of the Criminal Justice Act, Vol. VII, Section A, Chapter II, 2.22(B)(3) (March 23, 2005). RR 2" 11-13. A case is "complex" if the "legal and 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 the average case." RR 2:13-15. The standard for an award of excess payment is "fair compensation." 18 U.S.C. § 3006A(d)(3); but see United States v. Carnevale, 624 F.Supp. 381, 386, 383 (D.R.I. 1985) (CJA compensation has never been intended to mirror private sector rates; it was intended to partially relieve the financial burden associated with services traditionally provided pro bono and, although the Act recognizes adequate compensation must be provided to appointed criminal defense attorneys, there remain fiscal limitations).
"Counsel is entitled to be paid only for hours that are necessary for reasonably diligent, conscientious, and competent representation," a showing that cannot be satisfied based on generalities in the descriptions of activities or on conclusory characterizations. Diaz, 802 F.Supp. at 309 (emphasis added), citing United States v. Kilroy, 563 F.Supp. 304, 306 (E.D.Wis. 1983). "Broad categories such as `legal research' or `interviews' or `other services' cannot be found to have been reasonably expended unless counsel's supporting memorandum furnishes sufficiently detailed descriptions of services to warrant that finding." Id. at 308-09; see Carnevale, 624 F.Supp. at 385-86 (the applicant has the burden to "provide sufficient details to support the premises that the representation was indeed extended or complex and that the excess is essential to fairness of the remuneration"), quoting Bailey, 581 F.2d at 900; Diaz, 802 F.Supp. at 309 ("Any vagueness in the nature of the representation must be resolved against counsel who has the burden of showing the justification for waiver of the maximum amount and reasonableness of hours").
Courts are expected to analyze the fairness of all claimed compensation. "[R]egardless of the amount of fees requested," the "Court must determine what fee constitutes `fair compensation.'"Diaz, 802 F.Supp. at 308 n. 10 ("petitions are often filed requesting fees for less than the maximum, yet still in excess of the fees that should be granted"). Criteria applied to an analysis of the fairness of a claimed fee include: "responsibilities involved measured by the magnitude and importance of the case; manner in which duties were performed; knowledge skill, efficiency, professionalism and judgment required of and used by counsel; nature of counsel's practice and injury thereto; any extraordinary pressure of time or other factors under which services were rendered; and any other circumstances relevant and material to a determination of a fair and reasonable fee." Diaz, 802 F.Supp. at 308, relying on the Guidelines for the Administration of the Criminal Justice Act.
This Court is familiar with this case and rejects the recommendation that Mr. Swain's voucher be authorized in full. The Court considers the facts, among others: the case was never tried; the issues were not of a complexity warranting the extraordinary deviation from the presumptively reasonable statutory rate; the extent of the motion practice is insufficiently justified; purportedly significant assistance to other defendants in the case, whom Mr. Swain did not represent, appears to be charged against Lopez-Frausto's representation; and the claim is insufficiently supported to permit a conclusion that adequate representation of Lopez-Frausto required an investment of all the claimed time. The RR characterizes issues in this case, such as those involving the admission of prior bad act evidence, the legality of deporting the alien identified in the section 1327 count, and the validity of the section 1327 count, as "somewhat unusual," a less rigorous standard than that required before approval of excess fees is proper, particularly when the claim is more than treble the statutory maximum, on the summary grounds Mr. Swain "devote[d] more time, skill and effort than is normally required in alien smuggling cases." RR 4:22-26. While he may well have done so, the showing that he was "required" to do so has not been made.
This result should not be construed in any sense as reflecting negatively on the competency or professionalism of Mr. Swain.
"There was a superseding indictment that was not brought until October. The matter was set for trial on November 16, and was continued on November 5, after substantial new discovery was disclosed." July 21, 2005 Letter, p. 2. The trial was reset for a date in January 2005. The case settled several days before trial.
This Court finds the complexity of the case is overstated. In his July 21, 2005 letter to Judge Major in support of his voucher, Mr. Swain describes the case as initially charged as a 22-count indictment, then a 16-count superseding indictment "involving alien smuggling, a shooting, dangerous driving and injuries, and a charge of bringing an aggravated felon deported alien in violation of 8 U.S.C. § 1327." Nevertheless, Lopez-Frausto's defense was and remained primarily one of identity. These facts and circumstances do not deviate substantially from the usual hot pursuit alien smuggling cases. The legal issues facing the seven defendants in this case devolved to an assignment of blame. The changes in charges after the case was filed did not fundamentally alter the nature of the criminal activity to be defended.
"Mr. Lopez-Frausto's defense was that he just happened to be in the area of the alien smuggling venture." RR 4:8-9.
Mr. Swain claims "trial preparation" totaling 10.5 hours ($945.00) in advance of the initial trial date and an additional 7.9 hours ($711.00) in advance of the reset trial date, less than two months later. He contends he had to fully prepare for trial twice because the government's position until a few days before the second trial was that it would not offer his client a plea bargain below the five-year mandatory minimum unless he cooperated. He represents the case "involved more than 35 witnesses and voluminous material including 32 audio tapes, 8 video tapes, approximately 1100 pages of discovery, 280 pages of hearing transcripts, and 350 pages of transcriptions." Swain 7/11/05 Letter p. 1. Mr. Swain states he prepared five large three-ring binder trial notebooks after spending considerable time reviewing tapes, videos, transcripts, and documents relating to all the witness and cooperating co-defendants. Preparation for the second trial date should have involved only updates based on intervening new evidence applicable to Lopez-Frausto, the nature of which is not described with respect to its actual effect on Lopez-Frausto's defense. The Court rejects as unreasonable the additional 7.9 hours attributed to preparation for the second trial date.
"The government only changed its position at the final hour and agreed to an offer below the mandatory minimum without cooperation after the government knew I was prepared for trial." July 21, 2005 Letter, p. 2.
Although the Court finds the "complexity" showing is not met, the Court finds the threshold temporal criterion is satisfied in this case by the eleven-month period of representation, permitting the Court to consider authorizing some compensation in excess of the statutory maximum. Counsel must make a "reasonable necessity" showing before the Court will authorize more than $7,000.00. 18 U.S.C. § 3006A(d)(1), (3). The fair compensation showing necessarily requires individualized detail to support waiver of that limit. Bailey, 581 F.2d 984, 990 (D.C. Cir. 1978). Mr. Swain's demonstration is comprised of the one-page claim form bearing his signature in a block with the preprinted oath: "I swear or affirm the truth of the above statements." He supplements the form with a summary page of costs in the amount of $273.41 with supporting documentation, and with seven pages briefly listing by date and time activities keyed to each line item entry on the voucher form. He also provided two letters to the court.
In addition to charged line items, Mr. Swain lists numerous "N/C" ("No Charge") conferences in his detail listing with his client's family members, the investigator, co-counsel, the Assistant U.S. Attorney, court chambers, his client's surety, and the like.
In a May 11, 2005 letter addressed to the undersigned District Judge, Mr. Swain explains the necessity of exceeding "the normal hour limit in this case to provide for the proper representation" of Lopez-Frausto. Swain 5/11/05 Letter, p. 1. He describes the case as presenting "unique characteristics" rendering it "complex and extended." However, his explanations are largely conclusory and predicated on a difficult working relationship with his client, whom he described as dissatisfied with the proceedings and "particularly demanding," which he contends prolonged trial preparations. Co-counsel purportedly "confirmed that my client was the most difficult to handle," with a contentious personality and an unrealistic assessment of the strength of his position, justifying the extraordinary amount of time invested in client conferences. Mr. Swain also represents he spent considerable time convincing his client not to continue efforts to have new counsel appointed. Speculation about what additional expenses associated with Lopez-Frausto's representation were avoided through Mr. Swain's efforts to avert substitution of counsel do not support reimbursement for time spent "by repeatedly meeting with Mr. Lopez-Frausto and by talking to him directly in Spanish" on that issue. RR 5:23-26. Mr. Lopez-Frausto's application for substitute counsel was denied, disposing of Mr. Swain's need to continue to incur expenses associated with conferences on the representation issue. Cost savings Mr. Swain suggests were achieved due to counsel's ability to forgo the assistance of an interpreter "for the numerous client conferences" is a circumstance that does not address whether the number and actual duration of client conferences were all reasonably necessary to an adequate defense.
Mr. Swain also states he undertook preparations on behalf of the joint defense, conferring a benefit of less time spent by the other defense counsel on the case, although he neither quantitatively nor qualitatively supports that generalization. Mr. Swain "took the lead in litigating numerous legal issues" that arose pre-trial and for trial. He describes his contributions as: organizing joint applications for interpreters and transcriptions; filing motions on statutory challenges, severance, release of witnesses; various challenges to the 8 U.S.C. § 1327 count; admissibility of evidence; reviewing audio and video tapes; and taking he lead in witness depositions. Mr. Swain cites as topics he undertook to research for the joint defense: sufficiency of the charges; elements of the offenses; admissibility of statements; use of a different grand jury for the superseding indictment; legal issues surrounding the arrest; admissibility of evidence; release of material witnesses; severance of defendants; admission of prior bad act evidence; legality of the deportation for the alien named in the 1327 count and whether the alien's conviction was an aggravated felony; sentencing and guideline issues; and preparation of a detailed settlement memorandum for the magistrate judge. He emphasizes the work he did on the joint defense was not duplicated by co-counsel.
The RR adopts Mr. Swain's representation he "took the lead in reviewing audio and video tapes and deposing material witnesses," so that "the other defense attorneys were able to charge less for their representation because he took the lead on these matters." RR 4:26-5:1. However, no evidence of co-counsel's compensation claims is presented or discussed. There is no foundation for a finding that paying Mr. Swain treble the maximum statutory CJA recovery would somehow average out, even if that were a proper consideration. He does not differentiate in the list of activities time spent in joint defense activities versus his efforts with respect to Lopez-Frausto's separate representation. The claim lacks specificity for purposes of assessing whether Mr. Swain's efforts were reasonably necessary to Lopez-Frausto's defense. Mr. Swain represents "[t]he government's case was predicated on numerous percipient witnesses, material witnesses and cooperating witnesses," causing the defense to have "to prepare for approximately thirty five witnesses, most of whom [were] involved in the arrest in May of 2004, and the others who were involved in several prior bad acts occurring years before." Swain 5/11/05 Letter p. 2. To "adequately prepare," Mr. Swain represents he "had to review tapes, videos, transcripts and documents relating to all the witness statements as well as the cooperating co-defendants," requirements that "meant much more time was required to be spent with the defendant discussing all aspects of the case." Id. However, he describes Lopez-Frausto's uncomplicated defense theory as "that the defendant only happened to be in the area of the alien smuggling venture, after the border crossing crash, the shots fired, and the transfer of the aliens was long completed." Swain 5/11/05 Letter, p. 2.
The supporting documentation refers to nine motions Mr. Swain argued before the undersigned District Judge, one motion before Judge Major, and attendance at seven status hearings between June 4, 2004 and December 13, 2004. While hearings to resolve criminal discovery disputes are "not required," Judge Major recalls "hearing counsel argue about several significant discovery disputes relevant to the material witness' motion for a videotaped deposition." RR 4:18-20. Mr. Swain identifies 21 hours of the 52.8 hours in the category Legal Research And Brief Writing, or about 40% of the total claimed compensation in that category, as time spent "drafting motions," "working on motions," finishing and filing motions," and "drafting responses," excluding motions in limine and sentencing pleadings. In the category Investigative And Other Work, Mr. Swain claims 14.4 hours in time spent "preparing for hearings," or nearly 30% of the total claimed compensation in that category. Mr. Swain does not identify the particular subject matter of any of the motion hearings nor does he discuss those efforts in terms of success or their actual contributions to the Lopez-Frausto defense. The Court finds none of the issues Mr. Swain identifies, nor motions involving them, is particularly novel, out of the ordinary, or unusually complex. The "in court" time component of the voucher may have been unavoidable because of the number of motions he brought, but the motion practice appears to this Court to reflect work in excess of that reasonably necessary to provide Lopez-Frausto with a fair and adequate defense.
This Court is also not persuaded that Mr. Swain was reasonably required "to spend an inordinate amount of time with Mr. Lopez-Frausto explaining ( and re-explaining) the government's evidence and his motion practice, trial strategy, plea negotiations, and sentencing arguments." RR 5: 17-23 (emphasis added). The RR uncritically accepts the full claim for the questionable component of "inordinate" time and considerable effort "to satisfy Mr. Lopez-Frausto's concerns about the evidence and case preparation." RR 6:1-2. "Handholding" client conferences falls outside the scope of compensable time. See Diaz, 802 F.Supp. at 311. The Court finds a defendant's constitutional guarantee of participation in his or her own defense does not require personal involvement and endorsement of all aspects of counsel's defense strategy, "motion practice," or other purely legal and procedural matters. Mr. Swain's billings reflect considerable time spent with his client before and after hearings, whereas it appears to this Court a number of the hearings were of a technical nature not requiring client involvement, such as motions to exclude tardily-produced evidence.
Finally, Mr. Swain asks the Court to weigh the effect on his small practice of devoting substantial time to the Lopez-Frausto defense, resulting in his having had to turn away other work. His voluntary "taking the lead" in coordinated defense tasks and appearing for others at hearings and the like suggest diligence, but perhaps insufficient consideration of the fiscal constraints on compensation for CJA service. Mr. Swain also represents he actually "subtracted substantial time" he had logged in his files and excluded time spent "brainstorming the case, talking to other attorneys about the [unspecified and not demonstrably unusual] difficult issues in the case and the problems with the defendant." Swain 7/21/05 letter p. 4. The Court finds those activities, while commendable, do not inform the excess compensation decision.
The fundamental alien smuggling nature of the charges and the straightforward theory of Lopez-Frausto's defense did not significantly change over the course of the case, although the modifications to charges required examination and consultation, and added additional discovery analysis to the defense. Other than that, this Court concludes the voucher is replete with hours spent in excess of those "necessary for reasonably diligent, conscientious, and competent representation," the only time the CJA authorizes be paid. Diaz, 802 F.Supp. at 309. The quality and zeal of the defense Mr. Swain actually provided Lopez-Frausto is not in question, nor are his competency and professionalism. The Court does not question that Mr. Swain spent the claimed time and believed the amount of work was necessary to provide "top quality representation," but that is not the compensable standard. Kilroy, 563 F.Supp. at 306.
In summary, although this case may have been "exhaustively and extensively litigated" (RR 4:21), this Court finds the voucher for Mr. Lopez-Frausto's defense is predicated on unnecessarily "exhaustive" work in excess of that required by the complexity of the case that does not qualify for reimbursement above the statutory maximum. Although the Court will construe the eleven months of representation as sufficiently "extensive" to qualify for consideration of compensation in excess of the statutory maximum, the supporting documentation does not convince this Court the voucher amount is "reasonable" within the meaning of the CJA. Mr. Swain's showing in support of his voucher does not "justify a confident conclusion that [the requested] excess compensation is essential to fairness." Bailey, 581 F.2d at 990. Payment can only be authorized for hours "necessary for reasonably diligent, conscientious, and competent representation." Diaz, 802 F.Supp. at 309. The Court finds counsel devoted too much time for a case of this nature, and his petition for attorney fees is not sufficiently detailed for the exercise of informed judicial discretion to deviate from the statutory maximum other than as authorized in this Order.
For the forgoing reasons, the Report and Recommendation is REJECTED. The Court authorizes the statutory maximum $7,000.00 for the Lopez-Frausto defense. The Court authorizes payment of an additional $3,000.00 to compensate for the extended nature of the case and for Mr. Swain's efforts to coordinate the expected joint defense. The Court further authorizes payment of the $273.41 in documented costs. In addition, the Court finds fair and reasonable additional fee compensation as follows: $261.00 (2.9 hours) for the court-ordered "settlement statement preparation; $117.00 (1.3 hours) to attend the settlement conference; and $639.00 (7.1 hours) recorded for the month of October 2004 — the month the superseding indictment and additional discovery were produced — in conferences with the client and with co-counsel, and in defense meetings. The voucher request is accordingly authorized in the adjusted amount of $11,290.41. This Order shall serve as the certification required under 18 U.S.C. § 3006A(d)(3).
Attendance at the settlement conference is not a readily identifiable line item in the activities list Mr. Swain provides in support of his voucher. However, he lists preparation of the settlement statement as having occurred on September 2 and 3, 2004. The longest "In-Court" line items involving Judge Major thereafter are .50 hours and .80 hours, both on September 7, 2005. The Court accordingly credits for reimbursement 1.3 hours presumptively for the settlement conference.