The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is the government's motion for compensation (Doc.
52). The Court held a hearing on this motion on March 21, 2012, and
heard arguments from the government and defendant, and heard testimony
from defendant's witness, Narva Sayles. The Court allowed the
defendant to submit additional caselaw by March 22, 2012.*fn1
The government filed its response on March 23, 2012 (Doc.
On October 14, 2011, defendant signed a CJA 23 financial affidavit (Doc. 9) certifying under penalty of perjury that he: was not employed and had not been employed since 2008; had received $2400 in food stamps in the 12 months preceding his detention; had no cash on hand or money in savings or checking accounts; owned no real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing); was single and had no dependents; and was paying rent in the amount of $350 per month.
On October 14, 2011, Magistrate Judge Proud found that defendant was financially unable to obtain counsel, was in need of counsel, was entitled to the appointment of counsel, and appointed the Federal Public Defender ("FPD") (Doc. 10) to represent the defendant in this matter. Thomas Gabel, Assistant FPD, entered his appearance on defendant's behalf on October 17, 2011 (Doc. 19). On February 16, 2012, Mr. Gabel filed a motion to withdraw as attorney for defendant (Doc. 46) based on complete deterioration of the relationship to the point that effective communication was impossible. On February 17, 2012, the Court granted Mr. Gabel's motion to withdraw, and appointed Brian K. Trentman as a CJA appointment, based on the fact that defendant was financially unable to obtain counsel (Doc. 47). On March 13, 2012, Mr. Rosenblum and Mr. Fein entered appearances on behalf of defendant (Docs. 50, 51). On March 16, 2012, Mr. Trentman filed a motion to withdraw (Doc. 55) based on the appearances filed by private counsel, which this Court granted on March 19, 2012 (Doc. 56).
In its motion for compensation (Doc. 52), the government requests that the Court order defendant to immediately reimburse the FPD's Office for services rendered, and further order that the defendant compensate the Court for all payments that have been, and will be, paid to CJA panel attorney Brian K. Trentman.
Under 18 U.S.C. § 3006A(f):
Whenever the United States magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may request or accept any payment or promise of payment for representing a defendant.
Before requiring a defendant to pay funds pursuant to § 3006A(f), the Court must find that funds are "available" under the statute. United States v. McGiffen, 267 F.3d 581, 589 (7th Cir. 2001). The type of findings which are necessary include, "whether requiring the contribution would impose an extreme hardship on the defendant, whether it would interfere with his obligations to his family, and whether there were third parties with valid claims to the funds." Id.
The Court may consider funds from family members as "available" funds based on the plain wording of the statute, specifically stating that the Court may direct that funds are paid by defendant if the Court finds that funds are available "from or on behalf of a person furnished representation."
18 U.S.C. 3006A(f); see United States v. Standiford, 148 F.3d 864, 870 (7th Cir. 1998). Furthermore, the Seventh Circuit has noted in dicta that courts are encouraged to use their authority under § 3006A(f) to require a defendant to reimburse the appropriate party for costs it has incurred where a defendant has shown he could afford to mount his own defense. United States v. Lindsay, 157 F.3d 532, 534 (7th Cir. 1998).
The Second Circuit, in Crosby, held that money already paid to an attorney "was not 'available' within the meaning of s 3006A(f)," reasoning that "the statute cannot reasonably be read to include funds that have been paid unconditionally to a third party." 602 F.2d 24, 28 (2d Cir. 1979). The Crosby Court noted that the defendant's mother, who paid the retainer to hire an attorney for her son, "was never ...