U.S. v. Parker, Docket No. 04-5175-CR.

• Decision Date: 21 February 2006
• Docket Number: Docket No. 04-5175-CR.
• Citation: 439 F.3d 81
• Parties: UNITED STATES of America, and U.S. District Court Western District of New York, Appellee, v. Darnyl PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

439 F.3d 81

UNITED STATES of America, and U.S. District Court Western District of New York, Appellee, v. Darnyl PARKER, Defendant-Appellant.

Docket No. 04-5175-CR.

United States Court of Appeals, Second Circuit.

Argued: October 12, 2005.

Decided: February 21, 2006.

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Carol E. Heckman (Amy L. Hemenway, on the brief), Harter Secrest & Emery LLP, Buffalo, New York, for Appellee.

Mark J. Mahoney, Harrington & Mahoney, Buffalo, New York, for Appellant.

Before: WALKER, Chief Judge, WESLEY and HALL, Circuit Judges.

WESLEY, Circuit Judge.

The Sixth Amendment of the United States Constitution guarantees that anyone accused of a crime "shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. That guarantee is not limited to those who through hard work, good fortune or other means are able to retain and pay counsel of their choosing. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The assistance of counsel is, and must be, available to anyone accused of a crime, for without counsel the accused stands alone against the power and resources of the State, with no one to speak for him, no one to ensure that the criminal law and its processes are not bent to the will of public approbation.

This case calls us to examine a rarely-visited corner of the post-Gideon legal landscape. Defendant Darnyl Parker raises two complaints — each touches tangentially on his right to counsel. The first concern calls into question the procedural and substantive guidelines for the mid-case appointment of assigned counsel under the Criminal Justice Act ("CJA" or the "Act"), 18 U.S.C. § 3006A(c). Parker requested CJA appointment on the eve of trial after his retained counsel expended substantial efforts on his behalf. The second, and related concern, questions a practice in the United States District Court for the Western District of New York ("Western District" or "W.D.N.Y.") of judicial inquiry of retained counsel at an early stage of the proceeding. The Western District's practice seeks an assurance that counsel has been "fully retained" for the duration of the proceedings as a prerequisite to counsel's approved appearance on behalf of the accused.

The two questions are related in that defendant contends that the Western District's "fully retained" requirement impairs his statutory and constitutional rights to obtain publicly funded assigned counsel when his funds have been exhausted and his retained attorney is left with no source of compensation. Despite the widespread use of publicly funded counsel in courtrooms throughout the country, precious few judicial inquiries address the applicable legal principles. After reviewing the relevant statutes and constitutional precedents, we reject defendant's contentions that the district court improperly denied his initial mid-case request for publicly funded counsel and that the Western District's "fully retained" practice violates his statutory and constitutional rights to appointed counsel. We affirm.

BACKGROUND

As a result of a drug-related sting by the Federal Bureau of Investigation in late 1999 and early 2000, the government filed a criminal complaint against four police officers from the City of Buffalo including Detective Darnyl Parker. At Parker's initial appearance on March 16, 2000, attorney Mark Mahoney indicated to Magistrate Judge Leslie G. Foschio that he was "fully retained" as Parker's counsel for the duration of the proceedings. Judge Foschio asked Mahoney: "you're here to represent that you're fully retained to represent the defendant Darnyl Parker in this matter?" After noting that Parker had not yet been indicted, Mahoney answered: "Yes, I'm retained." Mahoney added that, assuming there is an indictment, "I am confident that I will be his attorney at that time." Judge Foschio confirmed: "So you're saying that you are fully retained... for the duration of these proceedings." Mahoney responded in mid-sentence: "Yes, Judge." On April 4, 2000, the government filed a twelve-count indictment against six defendants, including Parker.¹

Parker initially indicated to Mahoney that he wanted to pursue a plea agreement. Although the magistrate judge's "fully retained" inquiry contained no temporal limits on the scope of Mahoney's commitment to Parker, Mahoney apparently accepted the case in the belief that Mahoney wanted to negotiate a plea. At the time of his arrest, Parker had only $10,000 to secure a criminal defense attorney. In addition to this $10,000 retainer, Parker and his mother agreed to pay Mahoney $1,000 per month toward the costs of representation. According to Mahoney, Parker would never have been able to afford a retainer for trial representation. In Mahoney's view, in light of the significant jurisdictional and substantive issues raised in pre-trial motions, the retainer was only "marginally adequate" if a plea was entered at some point relatively early in the proceedings.

After extensive pre-trial litigation, Parker's circumstances changed significantly. First, instead of seeking a plea, Parker decided to proceed to trial. Second, Parker paid Mahoney an additional $33,000 by prematurely liquidating his retirement fund. Third, in a bail revocation hearing on December 20, 2001, the court found that Parker had violated the conditions of his pretrial release by attempting to tamper with a witness. It ordered Parker detained pending trial, and Parker remained in custody for the duration of the proceedings. Consequently, the Buffalo Police Department suspended Parker without pay as of January 2, 2002.

On January 8, 2002, just prior to the commencement of trial,² Parker moved, ex parte and under seal, to have Mahoney appointed as counsel pursuant to 18 U.S.C. § 3006A(c).³ Parker's motion for mid-case appointment under § 3006A(c) was supported by an affidavit from Mahoney, as well as a CJA Form 23 from Parker. CJA Form 23, a standard financial affidavit, requires "comprehensive financial data, including employment income of the defendant and his or her spouse; all other income, cash, and property; identification of the defendant's dependents; and all obligations, debts, and monthly bills." In re Boston Herald, Inc., 321 F.3d 174, 177 (1st Cir.2003). In his financial affidavit, Parker indicated that, although he had previously received $1,400 per week in gross salary, he had been suspended without pay from the Buffalo Police Department. He also claimed that he had no other income, additional savings, or assets except a house valued at $15,000 and an automobile valued at $2,500. Finally, in addition to $2,000 in credit card debt, Parker indicated that he had two dependent daughters for whom he paid $800 per month in child support that was automatically deducted from his gross salary.

In an Order issued January 25, 2002, Chief Judge Richard Arcara, quoting United States v. Herbawi, 913 F.Supp. 170, 172 (W.D.N.Y.1996), indicated that defendant's motion for mid-case appointment of CJA counsel would fail unless defendant demonstrated "sufficiently unusual and extenuating" circumstances to justify the appointment of counsel who had been fully retained. The court concluded, however, that it did not have enough information to decide defendant's motion. It directed Parker to provide: (1) a copy of the retainer agreement; (2) a statement (in the form of an affidavit) indicating the amount and date of all payments Parker made to Mahoney; (3) the age of each dependant claimed on Parker's financial affidavit; and (4) a copy of Parker's 2000 and 2001 tax returns.

Parker responded only with a memorandum of law and an affirmation from Mahoney. The district court later noted that the absence of an affidavit from Parker was significant because Mahoney had made statements in the CJA application that were either inaccurate or contradicted statements in Parker's financial affidavit. The court also indicated that it was "perplexed" because the information contained in Mahoney's affirmation was seemingly based on Parker's personal knowledge.

On March 4, 2002, the district court articulated three reasons for denying the appointment of CJA counsel. See J.A. Vol. I, A69-73 ("Parker I"). First, the district court noted that Mahoney still had not provided the court with the information necessary to rule on Parker's application. Specifically, Mahoney failed to provide the court with (1) a copy of the retainer agreement (because "apparently none exists"); (2) a sworn statement indicating the amount and date of all payments Parker made to Mahoney; (3) the ages of Parker's named dependants; and (4) the requested tax returns.⁴

Second, the district court held that, in light of the court's discovery that Parker was still receiving his full salary, Parker was not financially eligible for CJA appointment. On January 31, 2002, the Buffalo Police Department reinstated Parker, even though he was incarcerated, in order to fire him for failing to report for duty. As a result of the termination, Parker received a number of pay checks for accrued vacation time, as well as a "longevity" payment based on his years of service to the department. Indeed, after hearing the February 26, 2002 testimony of Captain Mark Morgan of the Buffalo Police Department, the court determined that Parker would continue to receive his regular pay checks until April 12, 2002.

Third, the district court denied CJA appointment because it concluded that, although the trial was still ongoing, Parker had paid Mahoney a significant amount of money for his legal services. The court noted that Parker paid with an understanding that Mahoney would represent him throughout the proceedings. Indeed, the court reminded Mahoney that he had represented to the magistrate judge that he was "fully retained." The district court concluded that, in any event, the amount already given to Mahoney is "sufficient to ensure that c...