United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
NANCY J. ROSENSTENGEL, District Judge.
This matter is before the Court on eight pre-trial motions filed by Defendant Ayiko Paulette. The Court has carefully reviewed each motion along with the Government's responses and determined that a hearing is only necessary for two of the motions: the Motion to Suppress Statements (Doc. 225) and the Motion to Suppress Physical Evidence (Doc. 226). The remaining six motions, each of which is discussed in turn below, will be decided based on the parties' submissions and without a hearing.
A. Motion to Request Advanced Authorization for Investigative, Expert, and Other Services and to Authorize Association with Attorney from an Outside Law Firm (Doc. 219)
Mr. Paulette's attorney, John Rogers, has asked the Court for authorization to hire an investigator at the Government's expense and for authorization to associate with an attorney from a separate law firm.
The Court turns first to the request to hire an investigator. In support of his request, Mr. Rogers states: "Based on past experience in similarly complex cases where a drug conspiracy has been alleged, undersigned counsel estimates that a significant number of hours of investigative resources will be needed to provide adequate representation by interviewing relevant fact witnesses and securing their attendance at trial." (Doc. 219). Mr. Rogers is also seeking advance approval to compensate the investigator in excess of the statutory maximum of $2, 400. Specifically, Mr. Rogers estimates that compensation for the investigator may reach up to $5, 000.
18 U.S.C. § 3006A(e)(1) authorizes investigative expenditures on behalf of indigent defendants when necessary for adequate representation. But requests for investigative services are not simply rubber-stamped. The Court must "scrutinize these requests to properly safeguard precious taxpayer funds... [and] to prevent taxpayer money from being wasted on unreasonable or unnecessary activities by court appointed defense counsel." United States v. Mosley, 779 F.Supp.2d 398, 400 (D.N.J. 2011).
In this case, the explanation provided by Mr. Rogers is insufficient for the Court to certify that an investigator is necessary for adequate representation and/or to find that compensation over twice the statutory maximum is justified. The Court needs to know more about what the investigator will do; "interviewing fact witnesses" is not enough. For example, who are these fact witnesses; how many are there; where are they located; will the interviews be by phone or in-person; and why are the interviews necessary-meaning what does counsel hope to achieve by speaking with these witnesses? The Court also wants to know why an investigator is necessary; that is, why can counsel not perform the investigative work himself? The Court needs a more specific estimate as to how many hours the investigation will likely take; "a significant number" is not descriptive enough. Finally, the Court needs to know the payment arrangement with the investigator ( i.e., per diem or per hour) and the payment rate. Consequently, the request for authorization to obtain an investigator is denied. The denial is without prejudice, and Mr. Rogers can refile a request that meets the above requirements. If he does not want to share with the Government the details requested by the Court, Mr. Rogers is reminded that the motion can be filed ex parte.
The Court next turns to the request to associate with an attorney from a separate law firm. In particular, Mr. Rogers wants to associate with a legal writing and research attorney, Michael Meresak of Meresak Law, LLC, in order to obtain assistance with motion drafting and trial preparation. The Court understands this request to mean that Mr. Meresak would be compensated by Mr. Rogers, who would then include such payment in his itemized claim for compensation from the Court. The Government opposes this request.
The Guidelines for Administering the CJA permit appointed counsel to claim compensation for services furnished by counsel who is not a partner or associate, within the maximum compensation allowed by the Criminal Justice Act, so long as they receive prior authorization. Guide to Judiciary Policy, vol. 7, Part A, § 230.53.10(b).
In support of his request, Mr. Rogers explains that his firm regularly uses Mr. Meresak to prepare pretrial motions and conduct research and writing in complex cases. Mr. Rogers goes on to say that he believes that Mr. Meresak's involvement in this case will be beneficial to Defendant Paulette in preparing pre-trial motions and in preparing for trial.
Again, this explanation is not sufficient to allow the Court to make an informed judgment as to whether or not to grant prior authorization. The CJA system is designed for indigent defendants to be represented by a single attorney. United States v. Mosley, 779 F.Supp.2d 398, 400 (D.N.J. 2011). The system allows that attorney to seek the assistance of associates and partners only to a limited extent. See § 230.53.10(b). Mr. Rogers is a highly capable attorney in a firm with approximately fourteen total attorneys, some of whom have already been utilized in this matter. There is no indication as to why yet another attorney outside of Mr. Rogers's firm is also necessary. The Court will not authorize Mr. Rogers to have another attorney act in his stead without explaining why it is necessary, why he cannot perform the work himself, and whether it will result in an overall savings in the cost of defending this case. See United States v. Alves, 317 F.Supp.2d 65, 69 (D. Mass. 2004) ("In my judgment, requests for prior authorization to obtain the services of other counsel... need to be specific as to (a) the need for such services, (b) the extent of the work which other counsel is likely to have to perform, and (c) the estimated cost of the services.")
Consequently, the request for authorization to associate with an outside attorney is denied. The denial is without prejudice, and Mr. Rogers can refile a request that meets the above requirements.
B. Motion to Dismiss Count 14 of Superseding Indictment (Doc. 221)
Mr. Paulette has asked the Court to dismiss Count 14 of the Superseding Indictment because the language of the indictment lacks sufficient factual particulars to put him on notice of the charge against him. The Government opposes Mr. Paulette's motion arguing that the language of the Superseding Indictment is legally sufficient (Doc. 242). The Government further argues that even if the language is not sufficient, dismissal is not the proper remedy; instead, the Court should order the Government to file a bill of particulars (Doc. 242).
In order for an indictment to be constitutionally sufficient and satisfy Rule 7(c)(1) of the Federal Rules of Criminal Procedure, it must fulfill three distinct functions. United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). First, it must state the elements of the crime charged; second, it must inform the defendant of the nature of the charge so he may prepare a defense; and third, it must allow the defendant to plead the judgment as a bar against future prosecutions for the same offense." Smith, 230 F.3d at 305; accord United States v. Harvey, 484 F.3d 453, 456 (7th Cir. 2007) (quoting United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997)).
Mr. Paulette argues that the indictment fails to satisfy the second function-it is devoid of specific allegations as to the conduct engaged in, and thus it fails to give him notice of what specifically he must be prepared to meet at trial. He claims that he is left to guess what conduct, occurring over a period of ...