Opinion
00-CR-0053A.
September 14, 2004
DECISION AND ORDER
BACKGROUND
In April 2000, a twelve-count indictment was filed against the defendant, Darnyl Parker, and five others. Parker and three of the defendants were City of Buffalo Police Officers. Parker was charged with conspiracy to violate civil rights in violation of 18 U.S.C. § 241, conspiracy to steal government-owned property in violation of 18 U.S.C. § 641, theft of government-owned property and money in violation of 18 U.S.C. § 641, conspiracy to interfere with interstate commerce under color of official right (Hobbs Act) in violation of 18 U.S.C. § 1951, interference with interstate commerce under color of official right (Hobbs Act) in violation of 18 U.S.C. § 1951, possession of firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), money laundering in violation of 18 U.S.C. § 1956(a)(3)(A), and conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846.
The remaining two defendants were: William Parker, Darnyl Parker's son, and Reno Sayles.
Parker retained attorney Mark Mahoney, Esq., to represent him. During Mr. Mahoney's first appearance on behalf of Parker, Magistrate Judge Leslie G. Foschio asked Mr. Mahoney whether he was "fully retained" for the duration of the criminal proceedings. Mr. Mahoney assured Magistrate Judge Foschio that he was.
The practice of asking defense counsel whether he is "fully retained" for the entire criminal case is explained below.
The parties appeared for jury selection on September 11, 2001. However, due to the tragic events of that day, the trial was adjourned until January 8, 2002. On December 12, 2001, the United States Probation Office filed a pretrial violation report alleging that Parker had violated the conditions of his pretrial release by attempting to tamper with a witness. On December 20, 2001, the Court issued a Decision and Order finding that Parker had committed the alleged pretrial violation and ordered Parker detained pending trial.
Trial commenced on January 8, 2002. On that same date, Mr. Mahoney filed a motion to be appointed as counsel under the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(c). The motion was filed ex parte and under seal, and consisted of an affidavit from Mr. Mahoney and a financial affidavit from Parker. In his affidavit, Mr. Mahoney stated:
7. Darnyl Parker has no funds, and he has no access to funds or assets of any kind, except his house valued at $15,000 and automobile valued at $2,500. He has exhausted his entire retirement savings ("deferred compensation") in order to partially pay for services rendered to date.
8. Although [Parker] was initially suspended with pay from the Buffalo Police Department, he is now suspended without pay as a result of this Court's finding of tampering. All monies previously received, including any savings and his deferred compensation plan, have gone to the costs of representation, child support, and additional financial support to his two young grandchildren to whom he is their primary financial source.
9. Therefore, while Mr. Parker may have been eligible for CJA relief prior to this point in time, I nonetheless subsidized the costs of representation. With all monies exhausted, and no potential to receive any more compensation from Mr. Parker, my effective rate of compensation for tasks already performed is approximately between $70-75 per hour, an amount comparable to the rate paid to appointed CJA counsel. This of course does not include any of the work that will be needed to be performed in trying the actual case scheduled for this week, which will likely cut the effective rate of compensation in half.
10. Darnyl Parker is now incarcerated and receives no income from the Buffalo Police Department.
11. Previous to his present incarceration, Mr. Parker was receiving a pay check from the Buffalo Police Department, which were [sic] used to support himself, his family, and pay his legal fees.See Dkt. No. 417, Aff. of Mark Mahoney dated January 7, 2002, at ¶¶ 7-11 (emphasis in original).
Parker provided a financial affidavit (CJA Form 23) in which he claimed that he was "suspended without pay from the Buffalo Police Dept. [on] 12/01," and that prior to being suspended without pay, his gross salary was $1,400 per week. See Dkt. No. 417, Financial Affidavit of Darnyl Parker dated January 7, 2002. He claimed that he paid $800 per month in child support payments and had $2,000 in credit card debts. Id. In terms of assets, he stated that he owned a house at 635 Northumberland Avenue, Buffalo, New York, valued at $15,000, and a car valued at $2,500. Id.
On January 25, 2002, this Court issued an Order stating that it had insufficient information to rule on the CJA application and ordered counsel to provide further information. See Dkt. No. 208, Order dated January 25, 2002. Specifically, the Court requested: (1) a copy of the retainer agreement between Parker and counsel; (2) an affidavit stating the amount of all payments made to counsel to date, and the dates when those payments were made; (3) a copy of the defendant's 2000 and 2001 tax returns; and (3) the age of each dependant that Parker claimed on his financial affidavit. In its order, the Court recognized that appointment of a retained attorney under the CJA is appropriate in the "unusual case" where "a defendant is no longer able to afford retained counsel," id. at 3, but noted that such circumstances should be the exception, not the rule. As the Court stated:
The CJA is not intended to be a "form of federal fee insurance" guaranteeing payment to counsel when a client fails to honor a fee arrangement. See United States v. Herbawi, 913 F.Supp. 170, 172 (W.D.N.Y. 1996) (Feldman, M.J.) (quoting United States v. Thompson, 361 F.Supp. 879, 887 (D.D.C. 1973), vacated in part, aff'd in part without opinion, 489 F.2d 1273 (D.C. Cir. 1974)). Nor is its purpose to bail out an attorney who fails to make adequate fee arrangements before accepting representation.Id. at 4. The Court also ordered Parker to show cause as to why the application should remain under seal and ex parte.
On February 4, 2002, Mr. Mahoney filed an ex parte response addressing the issue of whether the documents should remain under seal. See Dkt. No. 418. Mr. Mahoney claimed that unsealing the CJA application would potentially result in "disclosure of information about the defense of the case or information about the attorney-client relationship itself, or facts about the attorney's practice which otherwise would be entitled to be kept secret." Id. at 2.
On February 15, 2002, Mr. Mahoney responded to the Court's request for more information regarding the merits of the CJA application. He provided an affirmation which, for the most part, was not based upon his personal knowledge. See Dkt. No. 419, Affirmation of Mark Mahoney dated February 15, 2002. Rather, the information was based upon Parker's personal knowledge, though Parker himself did not provide an affidavit. The absence of an affidavit from Parker was significant because there were statements made in the CJA application (by Mr. Mahoney) that were either inaccurate or contradicted statements made in Parker's financial affidavit. For example, Mr. Mahoney continued to represent that Parker was financially eligible for CJA appointment "now that he has been suspended without pay." Id. at 27. However, contrary to that representation, Parker was no longer suspended without pay. His suspension had been lifted as of January 31, 2002, and Parker was using his accrued vacation time to receive his full salary. See Trial Tr. at 5614-17. Mr. Mahoney also claimed that Parker paid his mother a $950 rent payment to live in her house. No such rental payment was listed by Parker in his financial affidavit (CJA Form 23). Nor did Parker list his grandchildren as dependents in his financial affidavit, even though Mr. Mahoney claimed that Parker was their "primary financial source." See Dkt. No. 417, at ¶ 8.
Despite their clear obligation to provide accurate information, neither Mr. Mahoney nor Parker advised this Court that Parker's suspension had been lifted and that Parker was still getting paid. The Court learned of this fact when it asked government witness Cpt. Mark Morgan of the Buffalo Police Department to obtain payroll information for Parker. See Dkt. No. 457 (Trial Tr. at 5587-90, 5614-17).
In any event, Mr. Mahoney stated that Parker earned $70,613 in income in 1998. See Dkt. No. 419, at ¶ 5. No information was provided as to Parker's salary for 1999 or 2000. In 2001, Parker was suspended with pay and earned his annual base salary of $54,000. Id. ¶ 6. Mr. Mahoney stated that Parker had a net earnings of $1,400 per month, $950 of which he paid to his mother as rent. Id. at ¶ 8. Mr. Mahoney also stated that Parker owned two properties — a 4-unit rental property at 844 Prospect Avenue in Buffalo (which was vacant) and a house at 635 Northumberland Avenue in Buffalo, where his mother resided. Mr. Mahoney stated that the Northumberland Avenue property was assessed at $33,100, but claimed that it was only worth $15,000. Id. at ¶ 10.
Mr. Mahoney stated that this property was in foreclosure proceedings. See Dkt. No. 419, at ¶ 14.
Despite the Court's explicit request, Mr. Mahoney failed to provide a sworn affidavit addressing his fee arrangement with Parker. Instead, he provided a memorandum addressing the issue.See Dkt. No. 420. Mr. Mahoney stated that there was no written retainer agreement with Parker. He acknowledged receiving a $10,000 retainer fee from Parker, eight additional payments for $1,000 each, and a payment of $33,225 from Parker when Parker liquidated his retirement account. Mr. Mahoney did not indicate when any of the payments were made even though the Court had specifically requested that information. Nor did he identify the ages of Parker's dependents, as requested.
Ethical Consideration 2-19 of the New York Code of Professional Responsibility advises attorneys to put retainer agreements in writing. See Code of Prof. Resp., EC 2-19.
Later filings reflect that Parker actually paid Mr. Mahoney nine additional payments of $1,000 each. See Dkt. No. 352, Aff. of Mark Mahoney dated March 14, 2002, at ¶ 15.
In an Order dated March 4, 2002, this Court denied Parker's request for appointment of counsel under the CJA because: (1) the Court had not been provided with all of the information that was requested; (2) the information that was provided was inaccurate (as Parker was in fact getting paid); (3) the information that was provided showed that Parker was not financially eligible for appointment of counsel; and (4) Mr. Mahoney had already been paid "a significant amount of money to represent [Parker]." See Dkt. No. 279, Decision and Order dated March 4, 2002, at 4. With respect to the amount of money that Mr. Mahoney was paid, the Court stated
[t]he Court is satisfied that the fee given to counsel to date is sufficient to ensure that counsel will be able to adequately represent the defendant throughout the duration of this trial.Id. at 4-5. In other words, the Court found that Mr. Mahoney had already been paid a reasonable fee for his services ($52,225.00 in total) and that further compensation under the CJA was not warranted. However, because Parker was scheduled to receive his last pay check on April 11, 2002, the Court advised Mr. Mahoney that he could renew his application for CJA appointment at that time. Id. at 5, n. 4.
Although not addressed in the March 4th Decision and Order, the Court also determined that it was appropriate for the CJA application to remain under seal until the trial was over so as to ensure that the defendant suffered no prejudice. The trial ended on March 15, 2002, with the jury finding Parker guilty of ten of the eleven counts with which he was charged.
The trial was receiving significant media attention at the time.
On March 14, 2002, Mr. Mahoney moved for reconsideration of this Court's Order denying appointment under the CJA. On May 20, 2002, the Court denied the reconsideration motion, but granted CJA appointment effective April 12, 2002, upon finding that Parker's financial circumstances had changed as of that date because he had received his last pay check from the Buffalo Police Department.
Mr. Mahoney remained appointed under the CJA until Parker's sentencing on August 20, 2002. He submitted a CJA voucher for $19,748.52 for his post-trial work (that is, the work that he performed after trial until Parker's sentencing). This amount was far in excess of the $5,200 permitted under the CJA. See 18 U.S.C. § 3006A(d)(2). Nevertheless, the Court recognized that Mr. Mahoney's work on this case was extensive and approved the voucher under 18 U.S.C. § 3006A(d)(3). As a consequence, Mr. Mahoney has been paid a total of $71,973.52 to represent Parker from his initial appearance in the case until Parker's sentencing.
Mr. Mahoney appealed the Court's March 4, 2002 Decision and Order denying his request for CJA appointment. The appeal proceeded ex parte and under seal, as it had in this Court.
On March 23, 2004, the United States Court of Appeals for the Second Circuit vacated this Court's March 4th Decision and Order denying CJA relief and remanded for further proceedings. In a summary order, the Second Circuit noted this Court's reference to its "`practice of inquiring into whether counsel has been `fully retained' for the purposes of all the proceedings in the case,'" see Summary Order filed March 23, 2004, at 2 (quoting the Court's January 25th Order), and stated that the Court's Orders "neither elaborate on the nature or justifications for the referenced practice, nor directly address the compatibility of such a practice with the CJA." Id. Without addressing the merits of the CJA application, the court remanded for further elaboration and reconsideration. Upon remand, the Circuit suggested that this Court appoint pro bono counsel "to represent the interests of the District Court and to represent it in any later appeal." Id. at 3.
On May 11, 2004, the Court appointed Carol E. Heckman, Esq., as pro bono counsel for the Court in accordance with Second Circuit's suggestion. On May 18, 2004, a status conference was held to discuss how the matter should proceed. Upon the Court's request, Ms. Heckman, counsel for Parker, the government and the Federal Public Defender appeared at the conference. The Court told counsel that it wanted to further review the record to determine whether additional briefing was necessary or whether the matter could be decided based upon the existing record. The Court also informed counsel that it was inclined to unseal the proceedings since the trial and appeal had concluded. Counsel was advised to let the Court know of any objection. The matter was adjourned until June 9, 2004, at which time the Court advised counsel that, upon further review of the record, it seemed appropriate for the Court to issue a decision addressing the merits of the CJA application, this District's practice of asking counsel whether he or she is "fully retained," and the compatibility of that practice with the CJA.
Attorney James Harrington, Esq., appeared on behalf of Mr. Mahoney, who was out of the District on another matter.
The Court believes that this Decision and Order adequately explains the District's practices and addresses the concerns raised by the Second Circuit in its summary order, thereby obviating the need for further briefing and/or a hearing.
Before addressing the merits of the CJA application, it must be emphasized that the issue here is whether Mr. Mahoney should have been appointed as CJA counsel for Parker as of January 8, 2002, when the application was first made, instead of April 12, 2002, when he was actually appointed. In other words, the issue is whether Parker was eligible for CJA appointment between January 8th and April 12th of 2002. Furthermore, because Parker's trial and appeal have long since concluded, there can be no question that Parker received adequate assistance of counsel. Therefore, at this juncture, the issue is not whether CJA appointment is necessary to ensure adequate representation of Parker. Rather, the question is whether Mr. Mahoney is entitled to further compensation beyond what he has already been paid.
In later filings in support of the CJA application, Mr. Mahoney claimed that Parker had been eligible for CJA appointment from the outset. The Court need not consider this argument because counsel did not move for CJA appointment nunc pro tunc. Nor would such a motion have been granted under the circumstances of this case.
It is not clear whether the Second Circuit was made aware of Mr. Mahoney's April 12th appointment under the CJA. In its summary order, the Second Circuit stated that "[d]efendant argues on appeal that the District Court improperly denied him mid-case appointment of counsel under the CJA." Summary Order, at 2 (footnote omitted). On the contrary, Parker was not denied a mid-case appointment. Mr. Mahoney was appointed as Parker's CJA counsel, mid-case, effective April 12, 2002.
DISCUSSION
I. Standards for Appointment of CounselThe CJA provides for appointment of counsel for a "financially eligible person" who is unable to obtain adequate representation.See 18 U.S.C. § 3006A(a)(1). The defendant bears the burden of showing that he is "financially eligible" for CJA appointment. To be "financially eligible" the defendant must be unable to afford representation, though he need not prove that he is indigent or destitute. See United States v. O'Neil, 118 F.3d 65, 74 (2d Cir. 1997), cert. denied, 522 U.S. 1064 (1998); United States v. Harris, 707 F.2d 653, 660 (2d Cir.), cert. denied, 464 U.S. 997 (1983).
A person is "financially unable to obtain counsel" within the meaning [of the CJA] if his net financial resources and income are insufficient to enable him to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to (a) the cost of providing the person and his dependents with the necessities of life, and (b) the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the case deposit the defendant is required to secure his release on bond.See Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures ("Guide"), vol. VII, at § 2.04. "Any doubts as to a person's eligibility should be resolved in his favor; erroneous determinations of eligibility may be corrected at a later time." Id.
Where a defendant has some financial resources, but those resources are insufficient to fully retain counsel, the defendant may be eligible for "partial" appointment of CJA counsel. Section 2.05 of the Guide provides:
If a person's net financial resources and income anticipated prior to trial are in excess of the amount needed to provide him and his dependents with the necessities of life and to provide the defendant's release on bond, but are insufficient to pay fully for retained counsel, the judicial officer should find the person eligible for the appointment of counsel under the Act and should direct him to pay the available excess funds to the Clerk of the Court at the time of such appointment or from time to time thereafter. Such funds shall be held subject to the provisions of subsection (f).Id. at § 2.05.
The CJA also provides for appointment of an attorney who had previously been retained by the defendant if the interests of justice so dictate. Section 3006A(c) provides:
If at any stage of the proceedings, including an appeal, the United States magistrate judge or the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel as provided in subsection (b) and authorize payment as provided in subsection (d), as the interests of justice may dictate.18 U.S.C. § 3006A(c) (emphasis added). Parker's CJA application was made under this provision.
1. Parker Failed to Establish that he was Financially Eligible for CJA Appointment prior to April 12, 2002
The threshold issue is whether Parker was "financially unable to pay counsel" at the time that his application was made on January 8, 2002. See 18 U.S.C. § 3006A(c).
Parker's initial CJA application was premised entirely upon his purported change in financial circumstances as a result of being incarcerated for his bail violation. He claimed in his application that he had "no funds, and . . . no access to funds or assets of any kind," and was "receiv[ing] no income from the Buffalo Police Department" as a result of being incarcerated.
Although Parker was initially suspended without pay on January 2, 2002, he was reinstated as of January 31st and continued to receive his full salary. Pay records submitted in support of Parker's motion for reconsideration show that Parker continued to receive pay checks during the suspension period. Specifically, from January 4, 2002 to April 12, 2002 (the day on which counsel was appointed), Parker received a gross income of approximately $12,836.25, and a net income was approximately $5,460.09. Parker's necessities during this period were minimal because he was incarcerated. His children's necessities were addressed by virtue of his monthly child support payments which were automatically deducted from his gross salary.
Parker was ordered to return to work at the Buffalo Police Department on January 31, 2002. However, because he was incarcerated, he used his accrued vacation time to receive his salary until April 12, 2002.
This amount is based upon pay records submitted in support of Parker's motion for reconsideration. Those records reflect that Parker received gross payments of: $1,947.50 on 1/04/02; $1,947.50 on 1/18/02; $973.75 on 2/15/02; $1,947.50 on 3/15/02; $1,947.50 on 3/29/02; and a longevity check for $2,125.00 in March 2002. Although not included in Parker's pay records, the Court will infer based on other evidence that he received a check on 4/11/02 in the gross amount of $1,947.50.
Pay records show that Parker received the following net payments for the period in question: $714.96 on 1/04/02; $738.06 on 1/18/02; $135.70 on 2/15/02; $890.25 on 3/15/02; $890.25 on 3/29/02; and a longevity check for $1,200.62 in March 2002. Although not included in Parker's pay records, the Court will infer based on other evidence that he received a check on 4/11/02 in the net amount of $890.25.
The Court does not consider Parker's purported rental payment to his mother to be a "necessity" during this period because Parker: (1) did not list the rent payment in his CJA application or otherwise attest to the $950 payment to his mother; (2) was incarcerated during the period in question and therefore did not need to make any rent payments; and (3) owned two other properties where he could have lived (a house on Northumberland Avenue where he let his mother live rent free, and a 4-unit apartment building that he admits was partially vacant). With respect to the 4-unit apartment building, Mr. Mahoney stated that it was in foreclosure proceedings. That information was not based upon Mr. Mahoney's personal knowledge, and Parker himself never provided an affidavit attesting to that fact. Nor was any evidence of the foreclosure proceeding provided.
There is no evidence that Parker supported his children beyond those mandatory child support payments, and in fact, the evidence is to the contrary. See Presentence Investigation Report ("PSR"), at ¶ 108.
In terms of other necessities, Mr. Mahoney claimed that Parker was the primary provider for two of his grandchildren. Parker himself did not identify those grandchildren as dependants in his CJA Form 23 Financial Affidavit. Nor did he provide any evidence attesting to the amount of support that he provided. Those two grandchildren lived with their mother (Parker's adult daughter, Jada) in Parker's mother's home. Jada was employed at the time and presumably was able to satisfy her children's necessities during the period in question.
See PSR, at ¶ 107.
Parker's net income of over $5,000 during this 14-week period should have been sufficient to pay counsel even after his necessities were satisfied. Accordingly, Parker failed to establish that he was financially eligible for CJA appointment before April 12, 2002.
2. Counsel was Paid a Reasonable Fee
Even if the Court had found that Parker was financially eligible for CJA appointment before April 12, 2002, the application still would have been denied. As noted, Mr. Mahoney sought appointment under 18 U.S.C. § 3006A(c). That provision permits the Court to appoint an attorney who had previously been retained, where "the interests of justice" so dictate. See 18 U.S.C. § 3006A(c).
Contrary to Mr. Mahoney's reading of the statute, this provision does not automatically entitle a defendant to appointment of counsel under the CJA. Rather, a proper reading of that provision requires the Court to inquire into the fee arrangement between counsel and the defendant to determine whether the "interests of justice" merit CJA appointment. As one district court explained:
Where . . . the client, in order to pay the fee demanded by his attorney . . ., depletes his resources to the point where he has become destitute, and then seeks the right to prosecute . . . in forma pauperis, it becomes the duty of the Court to meticulously examine into the nature and extent of the services rendered for the purpose of determining whether or not the fees charged were reasonable under the circumstances. United States v. Lopez-Flores, 701 F. Supp. 597, 597 (S.D. Tex. 1988) (quotation omitted).
Having conducted such an inquiry in this case, the Court found that Mr. Mahoney was more than adequately compensated for the work that he performed. He was paid $52,225.00 by Parker. After the Court appointed Mr. Mahoney under the CJA effective April 12, 2002, Mr. Mahoney was paid an additional $19,748.52 in CJA funds. Accordingly, Mr. Mahoney has been paid a $71,973.52 fee to represent Parker at the district court level.
In other words, Mr. Mahoney was paid $71,973.52 for the work that he performed from his initial appearance in this case until sentencing. This figure does not include any amount that Mr. Mahoney was paid to represent Parker on appeal.
Counsel argues that this amount is insufficient, and that "[c]onservatively, defending this case would require a fee in excess of $125,000." See Dkt. No. 352, Ex Parte Affirmation of Mark Mahoney, Esq., dated March 14, 2002, at ¶ 31. The issue is not whether Mr. Mahoney believes that he was reasonably compensated for his services. Nor is reasonableness determined in reference to market rates. Instead, "[r]easonableness as to the fees charged [by a retained attorney] should be determined in reference to what [counsel] would have received if [the defendant] had proceeded in forma pauperis from the onset."Lopez-Flores, 701 F. Supp. at 597. Indeed, it has long been recognized that the purpose of the CJA is to provide "fair" but not "full" compensation. See United States v. Tutino, 419 F. Supp. 246, 248 (S.D.N.Y. 1976); see also United States v. Carnevale, 624 F. Supp. 381, 384 (D.R.I. 1985) ("The legislative history [of the CJA] reveals an intention to upgrade compensation not to market levels, but to a degree satisfactory `to ensure that those attorneys who accept appointments do not suffer economic hardship.'") (quoting H. Rep. No. 98-764, 98th Cong., 2d Sess. 1, reprinted in 1984 U.S. Code Cong. Ad. News 3667, 3668) (emphasis added); United States v. Self, 818 F. Supp. 1442, 1446 (D. Utah 1992) ("[A]ppointments under the Criminal Justice Act `are to protect the rights of the indigent accused, and they are neither to be sought nor made for the purpose of providing income to attorneys.'") (quoting United States v. Cook, 628 F. Supp. 38, 41 (Colo. 1985)).
If Mr. Mahoney had been appointed as CJA counsel at the outset, he would not have received the purported market rate of $125,000, or even the $71,973.52 fee that was actually paid. The presumptive maximum compensation permitted under the CJA is $5,200. See 18 U.S.C § 3006A(d)(2). Mr. Mahoney was paid more than 13 times the presumptive maximum. In United States v. Calle, 178 F. Supp. 2d 309, 311 (E.D.N.Y. 2001), the district court denied an application by retained counsel for appointment under the CJA where counsel had already been paid nearly the presumptive maximum CJA compensation. Similarly, in United States v. Alexander, 742 F. Supp. 54 (N.D.N.Y. 1990), the district court denied an application for CJA appointment by a retained attorney who had been paid $11,000, more than twice the presumptive maximum under the CJA. See also United States v. Littlehale, 2004 WL 1087374 (S.D. Ind. Apr. 13, 2004) (denying counsel's request for $125,000 in CJA fees, but granting payment for $5,200).
Of course, a court can waive the $5,200 presumptive maximum if it certifies that counsel's representation was "extended or complex" and the amount sought is necessary to provide for "fair compensation" to counsel. See 18 U.S.C. § 3006A(d)(3). Indeed, the Court invoked this provision when it certified Mr. Mahoney's voucher for $19,748.52. However, the Court's generosity toward Mr. Mahoney must end there. Mr. Mahoney's work in this case was not so extensive as to require compensation beyond what he has already been paid.
This Court has an obligation to ensure that CJA funds are not abused, either intentionally or unintentionally. United States v. Martinez, 385 F. Supp. 323, 326 (W.D. Tex. 1974). The Court is also mindful that the public funds available for CJA services are "severely limited." See United States v. Thompson, 361 F. Supp. 879, 888 (D.D.C. 1973), vacated in part, aff'd. in part without opinion, 489 F.2d 1273 (D .C. Cir. 1974), and overruled on other grounds by United States v. Hunter, 394 F. Supp. 997 (D.D.C. 1975). Given the substantial amount of money that Mr. Mahoney has already been paid, it would be an abuse of CJA resources to compensate him for anything beyond what he has already received.
Furthermore, while Mr. Mahoney no doubt expended a considerable amount of time in representing Parker, "expenditure of time and energy alone is not dispositive" and "[o]nly reasonably productive time is deserving of recompense" under the CJA. Carnevale, 624 F. Supp. at 384. Not all of Mr. Mahoney's time would have been deserving of compensation. For example, Mr. Mahoney made three separate motions for reconsideration of the Court's bail revocation Order, one of which was made after the Second Circuit affirmed the decision. See Dkt. 278, Decision and Order dated May 4, 2002. He also spent a significant amount of time and money producing transcripts of the government's recorded conversations, which failed to identify any material differences from those transcripts offered by the government. Such expenditures would not have been authorized under the CJA.
As an experienced defense attorney, Mr. Mahoney was fully aware of the costs involved in defending Parker. He was also fully aware of the extent of Parker's financial resources. He readily admits that he agreed to take the case with the understanding that he "was not going to make a significant amount of profit on the matter." See Dkt. No. 418, at 3. He cannot now claim that it is unfair for this Court to hold him to an agreement that he himself found acceptable. See United States v. James, 301 F. Supp. 107, 141 (W.D. Tex. 1969) (CJA should not be used "to pay an attorney who took the case with open eyes," knowing his client's financial circumstances at the time). II. District's Practice of Inquiring into the Fee Arrangement
In this Court's earlier Orders denying CJA relief, the Court referenced this District's practice of inquiring into whether an attorney is "fully retained" for the purposes of the criminal proceedings. The Second Circuit remanded for an elaboration of that practice, as well as consideration as to whether the practice is compatible with the CJA.
This District has a practice of asking retained counsel during his or her initial appearance in a criminal case whether he or she is "fully retained" for the entire case. The practice consists of simply asking retained counsel whether counsel is "fully retained." If counsel responds affirmatively, the inquiry ends there. However, if counsel states that he or she is not fully retained, the Court will not permit counsel to appear until such a representation can be made.
By asking counsel whether he or she is "fully retained," the Court is asking counsel whether he or she agrees to represent the defendant for the duration of the criminal proceedings in the district court. This practice was developed to prohibit an attorney from trying to limit his representation of a defendant to only a discrete stage of the criminal proceedings, as has occurred in the past. For example, an attorney would seek to appear as "partially retained," meaning that he was retained to represent the defendant only for the detention hearing, or only for a suppression hearing, or only to negotiate a plea agreement. Counsel would then accept an undisclosed partial retainer fee that was sufficient to cover only that particular service for which he or she was retained. When the retainer fee ran out, counsel sought to withdraw or be appointed under the CJA claiming that the defendant did not have sufficient funds to retain counsel for the duration of the criminal proceedings.
Permitting an attorney to appear on an ad hoc basis in a criminal case is disruptive to the criminal proceedings, causes unnecessary delay (including potential speedy trial problems), and is prejudicial to the administration of justice. See e.g. United States v. Zaccaria, 1997 WL 642985 (W.D.N.Y. Apr. 11, 1997) (explaining that it would "wreak havoc" on the defendant's case if retained counsel was permitted to withdraw and CJA counsel was appointed two weeks before trial). The criminal justice system simply cannot function if attorneys are permitted to appear and withdraw as they see fit. It is also a violation of counsel's ethical obligations to do so. Pursuant to 22 N.Y.C.R.R. § 1022.11 (Special Rules of the New York State Appellate Division, Fourth Department), which are made applicable to this Court under the District's Local Rules, "counsel assigned or retained to represent a defendant in a criminal case [must] represent that client until the matter has been terminated in the trial court." See also Code of Prof. Resp., DR 1-102(A)(5) ("A lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration of justice."); Id. at DR 2-110 (A)(1) ("[A] lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission."); Id. at EC 2-32 ("A decision by a lawyer to withdraw should be made only on the basis of the most compelling circumstances" and should not occur "without considering carefully and endeavoring to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client as a result of withdrawal.").
See Rule 57.2 of the Federal Rules of Criminal Procedure for the Western District of New York and Rule 83.1(b)(5)(G) and (b)(6) of the Federal Rules of Civil Procedure for the Western District of New York.
See also 22 N.Y.C.R.R. 606.5 (1st Dep't) (same rule); 22 N.Y.C.R.R. 671.2 (2d Dep't) (similar rule); 22 N.Y.C.R.R. 821.1 (3d Dep't) (same rule).
Allowing counsel to appear ad hoc also renders the carefully crafted CJA procedures subject to abuse by the defendant or counsel. As one court explained:
[t]here is a danger that the client will use the initial retainer to circumvent the prohibition against selection of a particular Criminal Justice Act attorney, or that the attorney will utilize his initial appearance as retained counsel to secure Criminal Justice Act appointments and compensation without regard for the procedures outlined in our implementation plan.Thompson, 361 F. Supp. at 888.
It would also permit the retained counsel to deplete whatever financial resources a defendant does have at an hourly rate far in excess of that charged under the CJA. Then, when the defendant has no money left, counsel would expect to be appointed under the CJA, thereby guaranteeing counsel a fee in excess of what he would have received if he had been appointed under the CJA at the outset.
This District's practice of inquiring into whether an attorney has been "fully retained" serves to put defense counsel on notice at the outset that he will not be permitted to appear only for a limited purpose, and that if he undertakes representation of a criminal defendant, he will be expected to do so until the matter is terminated in the district court. The practice is intended to ensure continuity in representation to the defendant. If the retainer fee runs out, counsel will not be permitted to withdraw simply because his client is unable or refuses to pay. See e.g. O'Neil, 118 F.3d at 72 (holding that the denial of a motion to withdraw by retained counsel for nonpayment of fees did not constitute a conflict of interest between the defendant and counsel); see also United States v. Rodriguez-Baquero, 660 F. Supp. 259 (D. Me. 1987) (denying defense counsel's motion to withdraw based upon the defendant's failure to honor a retainer agreement). The "fully retained" inquiry is not only consistent with the spirit of the CJA, it was devised to curtail abuses of it.
The "fully retained" inquiry is not (as defense counsel characterizes it) a complete prohibition on mid-case CJA appointments. Indeed, such a midcase appointment occurred in this case. However, the inquiry serves to alert counsel that, before granting any such appointment, the Court will require (as it did in this case)
a full and complete disclosure of all pertinent facts . . ., including the circumstances under which counsel was initially retained; the financial arrangements which were agreed upon; the payments, if any, which the defendant has made to the attorney pursuant to the retainer agreement; and the changed conditions which are alleged to constitute grounds for the appointment. Only then will the . . . court be in a position to make an informed disposition of the application including the determination, in an appropriate case, to [require contribution by the defendant in accordance with] 18 U.S.C. § 3006A(f).See Thompson, 361 F. Supp. at 888. Where, as in this case, the Court finds that counsel has already been paid a reasonable fee that is sufficient to compensate him for his services, counsel will not be appointed under § 3006A(c).
The "fully retained" inquiry is not a "secret rule" of this Court, as Mr. Mahoney has suggested. It is simply a means of alerting counsel that he or she will be held to comply with existing rules and ethical obligations that prohibit an attorney from appearing on an ad hoc basis in a criminal case. The onus is upon defense counsel to make adequate fee arrangements at the outset, recognizing counsel's obligation to represent a defendant for the entire proceeding. If a defendant has only limited resources which counsel does not believe will be sufficient to compensate him for the entire proceeding, counsel can: (1) decline representation; (2) seek CJA appointment at the outset; or (3) accept representation with the understanding that (a) counsel will not be permitted to withdraw simply because the defendant is no longer able or willing to pay, and (b) counsel will not be appointed under § 3006A(c) of the CJA unless the Court finds that the interests of justice merit such appointment.
In the Court's view, this is the preferred method under the CJA where the defendant has some resources, but not enough to fully retain his attorney. See Guide, vol. VII, at § 2.05 (providing for "partial eligibility" under the CJA where the defendant's net financial resources are in excess of the amount needed to provide him and his dependents with the necessities of life, but are insufficient to pay fully for retained counsel). If a CJA application is made at the outset, the Court would be in a better position to determine whether the defendant should be required to contribute some funds toward the costs of his representation. See 18 U.S.C. § 3006A(c) and (f). Doing so would also eliminate some of the potential abuses discussed herein, and would permit the Court to have greater control over the amount of CJA funds expended.
III. CJA Application should be Unsealed
As a final matter, the Court finds it appropriate to unseal the documents relating to Parker's CJA application. The initial concern over prejudice to Parker during trial no longer exists at this juncture. The Court advised counsel that it planned to unseal the proceedings and no objection was raised.
In United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464 U.S. 997 (1983), the Second Circuit held that a CJA application need not be conducted ex parte and under seal. In so holding, the court observed that "our legal system is rooted in the idea that facts are best determined in adversary proceedings; secret, ex parte hearings are manifestly conceptually incompatible with our system of criminal jurisprudence." Id. at 662 (internal quotations omitted).
The Court is also mindful of the public's interest in CJA proceedings as the expenditure of public funds are at issue.See United States v. Ellis, 90 F.3d 447 (11th Cir. 1996),cert. denied, 519 U.S. 1118 (1997) (holding that the public had a right to disclosure of CJA application after trial had ended). During trial, the public's interest in disclosure was outweighed by the potential prejudice to Parker. However, the danger of prejudice no longer exists and the public's interest now outweighs any potential prejudice. Nor is there any danger of disclosing privileged information because attorney fee arrangements are generally not subject to the attorney-client privilege. See In re Grand Jury Proceedings No. 92-4, 42 F.3d 876, 879, n. 1 (4th Cir. 1994); In re Grand Jury Proceedings, 841 F.2d 230, 234, n. 3 (8th Cir. 1988). Accordingly, the Court hereby orders that documents numbered 349 through 353 and 417 through 420 be unsealed.
CONCLUSION
For the reasons stated herein, the application for appointment of counsel under the CJA is denied. Parker was not financially eligible for CJA counsel during the period in question. Even if he had been financially eligible, the interests of justice would not be served by granting the application under 18 U.S.C § 3006A(c), as counsel has already been paid more than a reasonable fee for his services.
The Court also orders that documents numbered 349 through 353, and 417 through 420 be unsealed.
If this Order is appealed, the Court hereby appoints attorney Carol E. Heckman, Esq., as pro bono counsel to represent the interests of this Court. The Court also recommends that the government and the Federal Public Defender be permitted to participate in the appeal.
Whether Mr. Mahoney should receive CJA compensation to prosecute an appeal of this Order is a matter appropriately addressed to the Second Circuit.
IT IS SO ORDERED.