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United States of America v. Peter Kott

June 13, 2011


The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge



(Docket No. 526)

Defendant Peter Kott, moves the court to reconsider its order denying the appointment of Peter Camiel as a second lawyer in his case. Docket 526. The government filed a response at Docket 528. Kott filed a reply at Docket 532.*fn1 For reasons stated below, the Motion to Reconsider is GRANTED and the Motion for Appointment of Second Attorney at Government Expense is DENIED.

The threshold question is whether the Criminal Justice Act (Act) permits appointment of more than one attorney as counsel in a non-capital case. The court concludes that it does. Pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A(b) and the Local Plan for this District for the appointment of counsel, the magistrate judge previously ruled that Mr. Kott is financially unable to obtain counsel within the meaning of the Act and appointed Sheryl Gordon McCloud.

The purpose of the Act is to provide "adequate representation" of a defendant. It is not intended to provide a defendant with the best counsel that money can buy. The Act uses the word "counsel" which under its plain language usage may be singular or plural. In capital cases the Act provides that upon the defendant's request, the court shall assign "two such counsel, of whom at least one shall be learned in the law applicable to capital cases. . . ." Under the Criminal Justice Act of 1964, as amended, "[t]here is no statutory bar to appointment of more than one lawyer" to represent an indigent defendant. See United States v. Aadal, 280 F. Supp. 866, 868 (S.D. N.Y. 1967). The Act does not expressly sanction joint appointments in non capital cases.

In Aadal, cited by Kott, the district judge appointed two lawyers to represent the defendant who was charged in a 12 count indictment with making false statements on bills of lading, within intent to defraud, and negotiating the same in violation of 49 U.S.C. § 121 and 18 U.S.C. § 2 (aiding and abetting). The defendant was convicted in all 12 counts. Both attorneys submitted vouchers for their services. The reported opinion addressed the amount of compensation to be paid to the two court-appointed attorneys. The trial judge reasoned that since an amount in excess of the stated maxima in the Act was necessary to provide fair compensation for "protracted representation" the attorneys were entitled to combined compensation that exceeded the statutory maximum. Id at 867. The district judge noted that it did not appear that the chief judge of the Second Circuit (which includes New York) had been asked in any other case to approve compensation for more than one lawyer where the combined amount exceeded the statutory maximum.

The Aadal case cites United States v. Kingston, 256 F. Supp. 859 (W.D. PA. 1966), wherein the opinion was written by Chief Judge Staley of the Third Circuit. In Kingston, also cited by Kott, Judge Staley points out that immediately following the enactment of the Criminal Justice Act of 1964, the matter of the appointment of more than one lawyer came to the attention of the Committee to implement the Act which had been appointed by the Judicial Conference of the United States. In Judge Staley's opinion, with respect to non-capital cases, it appeared that the Committee was of the view that the matter should be left to coverage by the district court's plan. Judge Staley announced the rule in the Third Circuit as follows: "[U]nless the case involves a charge of a capital offense, or falls within the Act's exception for protracted representation under extraordinary circumstances, . . . attorneys appointed as co-counsel to represent an individual defendant must file a joint claim for compensation for services and the aggregate compensation may not exceed the statutory ceilings . . . for a felony case . . . ." 256 F. Supp. at 860. Judge Staley disapproved the application for payment of attorney's fees under the CJA to the extent that the payment for services exceeded the statutory maximum ($500 at the time) plus expenses approved by the district court.

As these cases conclude, just what scenario presents "extraordinary circumstances" and what constitutes "protracted representation" are not subject to precise definition. Instead, these cases dealt with a determination of what compensation in excess of the statutory limit should be allowed in their particular cases. They do not address the standard for deciding whether a defendant should have a second court appointed attorney in a non capital case. Aadal dealt with compensation of dual attorneys not eligibility under the CJA for more than one appointed attorney.

The Committee to implement the Criminal Justice Act of 1964, created by the Judicial Conference of the United States, in its meeting held October 17, 1964, refers to a discussion about appointing more than one attorney. The Chairman, Judge Hastings, stated that the statute was not entirely clear, and that perhaps this was an item that might be covered by the district court plans. The Committee Report reflects that Judge Carter indicated that he might appoint two attorneys in a difficult case, requesting the junior attorney to serve without compensation. Minutes of the Committee to Implement the Criminal Justice Act of 1964, p. 11 (October 17, 1964).

Cases dealing strictly with the amount of reasonable attorney fees to which counsel is entitled under the Criminal Justice Act, though helpful to the issue at hand, are not completely on point. Under the Act the district court has the statutory authority and discretion to determine what is a reasonable expense or a reasonable use of billable time. This court has addressed that issue in part in its District Court [CJA] Plan.

In order for a fee amount to exceed the statutory maximum, the district court must first certify that the case involves "complex" or "extended" representation.

18 U.S.C. § 3006A(d). The district court must also conclude that the amount is necessary to provide counsel with fair compensation.

What constitutes a complex case or extended representation for purposes of compensation is not necessarily the same standard for determining whether dual representation is warranted under the CJA in a non-capital case. The tension between the policies underlying the CJA may be expressed as recognizing that representing indigent defendants is a form of public service and the CJA was never intended to provide full compensation for an attorney's services or to provide fees equal to those charged in private practice with the observation that the Act was also intended to provide indigent defendants with meaningful representation by competent counsel. The CJA is intended to "partially alleviate the financial burden associated with providing legal ...

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