The opinion of the court was delivered by: Richard Mills, U.S. District Judge
A question of fees for appointed defense counsel.
The Government filed a criminal complaint against Defendant Jarrod Holtz on June 19, 2003. The Government subsequently indicted Holtz on three counts involving drug and firearms offenses. Holtz was indigent; therefore, the Court appointed defense counsel to represent him. See 18 U.S.C. § 3006(a) (hereinafter the "Criminal Justice Act" or "CJA"). On October 29, 2003, the Court continued the final pretrial conference and trial on co-defendant Justin Reardon's motion. Reardon, who was represented by the Federal Public Defender's Office, struck a plea agreement with the Government on February 19, 2004, and the case proceeded against Holtz.
Holtz filed four unsuccessful substantive motions (a motion to sever trial; a motion for a bill of particulars; a motion to dismiss indictment; and a motion to strike surplusage) and three successful motions to continue before reaching a plea agreement on May 11, 2004. In accordance with the plea agreement, Holtz pled guilty to unlawfully possessing a firearm and the Court sentenced him to eighty-six months in prison, three years supervised release, and ordered him to pay a $100.00 special assessment.
Following the sentencing hearing, Holtz's attorney submitted a fee petition seeking $18,000.60 for his work on the case. Counsel's request exceeded the $5,200.00 maximum fee allowed under the CJA. See id. at § 3006A(d)(2)*fn1. Thus, counsel included a billing record to justify his petition. According to counsel's record, he spent 57 hours in interviews and conferences, 51.1 hours obtaining and reviewing records, 55.3 hours engaged in legal research and writing, 12.5 hours for case-related travel, and 16.1 hours performing investigative and other work*fn2. Counsel also spent 2.2 hours in court via the sentencing hearing, etc. Multiplying the aggregate number of hours counsel worked on the case (194.2) by the authorized rate of pay ($90.00 per hour) and adding $522.60 for expenses, counsel tallied $18,000.60 in attorney's fees and costs.
When the Court authorized fees only up to the CJA's maximum, counsel wrote a letter to the Court and asked that his name be removed from the Court's list of attorneys who are willing to serve as CJA counsel. Counsel was frustrated by the Court's decision to disallow fees in excess of the CJA maximum. He candidly explained that he represented CJA clients at a greatly reduced rate and that it was not feasible to continue handling CJA cases given the expense of maintaining his office and the responsibilities he owed his family. The Court, of course, acceded to counsel's wishes and duly removed his name from the CJA list.
We take this opportunity to address the expectation that all CJA fee petitions and vouchers will be allowed even when they exceed statutory maximums-a view perhaps somewhat generally shared among the defense bar.
The Criminal Justice Act, 18 U.S.C. § 3006, et seq., establishes a maximum amount of compensation a court may award appointed counsel in an ordinary case. See § 3006A(d)(2). A court may enlarge the maximum fee only when a case is "extended or complex." See § 3006A(d)(3). Whether a case is "extended or complex" is a matter of interpretation, but precedents exist*fn3.
In United States v. Diaz, 802 F. Supp. 304 (C.D. Cal. 1992), defendant and his co-defendants stole a semi-trailer from interstate shipment and were charged with violating 18 U.S.C. § 371, 18 U.S.C. § 1951, and 18 U.S.C. § 659. While the co-defendants pled guilty, defendant proceeded to trial. Excluding jury selection, the trial lasted two and a half days. The defense presented no evidence or witnesses and the jury deliberated approximately five minutes before finding defendant guilty of conspiring to affect goods in interstate shipment by robbery (18 U.S.C. § 371) and robbery of goods from interstate shipment (18 U.S.C. § 1951). Id. at 306.
Defense counsel sought $10,513.61 in attorney's fees under the CJA, a sum that far exceeded the statute's $3,500.00 then-maximum fee. Observing that the CJA's maximum fee can only be exceeded when counsel's representation was "extended or complex," the court determined what constituted "fair compensation." Id. The district court refused to depart from the maximum fee because the case was not "extended or complex." Quoting the "Guidelines for the Administration of the Criminal Justice Act," the court explained that a case is "extended" if "more time is reasonably required for total processing than the average case, including pre-trial and post-trial hearings.["] "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 an average case." Id. Extended representation involves "a substantial investment of time." Complex representation "refers to the intricacies of the case and their corresponding call on counsel's intellectual resources." Id. at 308.
The Diaz opinion noted that the "Guidelines for the Administration of the Criminal Justice Act" provide that the court must determine a fair and reasonable fee by employing the following criteria: 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 ...