United States v. Carnevale
Decision Date | 19 December 1985 |
Docket Number | Cr. No. 85-0038-05-S. |
Citation | 624 F. Supp. 381 |
Parties | UNITED STATES of America v. Generoso CARNEVALE, Jr. |
Court | U.S. District Court — District of Rhode Island |
This case, in its present posture, brings into focus nagging problems concerning the administration and implementation of the Criminal Justice Act, 18 U.S.C. § 3006A (1985) (Act). Because of the increases in attorney compensation which will result from the Congress's recent efforts to update the applicable rates and otherwise to improve the structure of the law, see Criminal Justice Act Revision of 1984, Pub.L. No. 98-473, § 1901(1), 98 Stat. 2185-86 (1984) (codified at 18 U.S.C. § 3006A (1985)) it is more vital than ever before that such concerns be addressed. Thus, although matters such as this are most often handled with a minimum of formality, some detailed treatment of the subject would, in this court's view, prove useful.
A member of the bar of this court was appointed to defend Generoso Carnevale, Jr. on or about May 29, 1985. The designation was made pursuant to the Act, a magistrate having certified that the accused was "financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a). Carnevale was one of six defendants charged with violations of 18 U.S.C. §§ 2, 371, 2312, 2313, and 2314 in a multiplecount indictment. Carnevale's defense was successful; following trial, he was acquitted on all charges. The jury verdicts were returned on October 24, 1985.
Defense counsel then petitioned the court on November 4, 1985 for an award of fees under 18 U.S.C. § 3006A(d).1 She sought total compensation of $6700, well in excess of the standard maximum fee of $2000. See id. at § 3006A(d)(2). ("For representation of a defendant before the United States magistrate or the district court, or both, the compensation to be paid to an attorney ... shall not exceed $2,000 for each attorney in a case in which one or more felonies are charged.") The court, troubled by the casualness of Barrister's proffer, entered an order on November 13, 1985, requiring her to furnish further particularization and to review her application in light of certain questions raised sua sponte by the court. Barrister responded with a more detailed filing on November 22, 1985, but claimed the same fee entitlement. Given the statutory mosaic, her petition can be honored only if this court (i) finds that Carnevale's defense demanded "extended or complex representation," id. at § 3006A(d)(3), and (ii) "certifies that the amount of the excess payment is necessary to provide fair compensation." Id. Additionally, the chief judge of the circuit must acquiesce. Id. The pertinent portion of the text of § 3006A(d)(3) is set out in the margin.2
The court approaches the Barrister application with considerable circumspection. By and large, appointment of an attorney as counsel for an indigent defendant creates a relationship which lacks the full consensuality normally characteristic of the bond between lawyer and client. Thus, in one sense at least, attorneys are pressed into such service, and meet an important systemic need.3 So, it can be argued that it comes with a certain ill grace for the court, on its own initiative, to bite the hand that feeds the system.
Yet, judges have a responsibility in such matters which cannot be shirked. See 18 U.S.C. § 3006A(d)(4) (); Plan, § 4 at 7 (). Cf. Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983) ( ). Judge Bazelon has tellingly articulated the congressional intent:
It was clearly not intended that the trial judge or the chief judge of the circuit sit as clericals, doing nothing more than multiplying hours times the statutory rate to arrive at a fee award; nor that the statutory limitation be waived in every case in which compensation for counsel's services, if computed at maximum hourly rates, would exceed the statutory limits. The act ... calls for an informed judicial determination based upon the facts of the individual case.
United States v. Thompson, 361 F.Supp. 879, 883-84 (D.D.C.1973). See also United States v. Tutino, 419 F.Supp. 246, 249 (S.D. N.Y.1976) (same).
The Criminal Justice Act was originally passed into law in 1964. It has been significantly modified by several amendments enacted since that time, most recently by the Criminal Justice Act Revision of 1984. But, the fundamental purpose of the legislation remains unchanged. The law is designed to implement the guarantees of the sixth amendment to the Constitution by assuring to individuals accused of crime in a federal venue the availability of competent counsel to "furnish representation for any person financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a). The focus of the Act is on "an adequate defense" for those who could not otherwise afford one. Id. Put another way, the "purpose of the Criminal Justice Act is to furnish counsel to indigent defendants who, presumably, need counsel." United States v. O'Clair, 451 F.2d 485, 486 (1st Cir.1971) (per curiam). And, the fact that the government has assumed fiscal responsibility for providing "sums necessary to carry out the provisions of the Act," 18 U.S.C. § 3006A(j), does not transform the statute into an annuity for the bar. See Tutino, 419 F.Supp. at 248. Thus, this court recognizes its responsibility to provide a judicial counterweight to ensure that the calipers of justice remain in a state of libration.
In attempting to balance the scales, the court acknowledges that the instructions of the Congress are indistinct. Insofar as the Act itself is concerned, "the governing criteria are hardly self-explanatory." United States v. Bailey, 581 F.2d 984, 986 (D.C. Cir.1978). Judge Bazelon opined in 1978 that "it can fairly be said that the ... Act leaves the prerequisites for excess compensation ... `essentially standardless'" Id. at 987, quoting Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, The Criminal Justice Act in the Federal District Courts 179, 182 (Comm.Print 1969). The neoteric amendments enacted after 1978 have neither filled this void nor simplified the judicial task. So, evenhanded application of the statute continues to be "a frustrating process," Thompson, 361 F.Supp. at 884, but a process from which there is no principled escape.
United States v. James, 301 F.Supp. 107, 116 (W.D.Tex.1969) (footnote omitted). See also United States v. Johnson, 549 F.Supp. 78, 82 (D.D.C.1982); Tutino, 419 F.Supp. at 249; Thompson, 361 F.Supp. at 884 & nn. 11-12; United States v. Ursini, 296 F.Supp. 1155, 1157-58 & n. 2 (D.Conn. 1968). See generally Judicial Conference of the United States, Guidelines for the Administration of the Criminal Justice Act ¶ 2.22B (as amended Sept. 22, 1978); Plan, § 4 at 7.
These criteria cannot, however, be applied in a vacuum. The expenditure of time and energy alone is not dispositive. "Common sense confines the computation of the value of the services to reasonably competent and productive effort, and excludes bumbling and wasteful activity from the count." Bailey, 581 F.2d at 987. As with the more familiar standards engrafted by the courts in the 42 U.S.C. § 1988 context, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980); King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), only reasonably productive time is deserving of recompense.
There is a further distinction, however, which departs sharply from the § 1988 environment. The maximum rates promulgated in the Criminal Justice Act are just that: maxima. They are not routinely to be used to compensate all counsel — even all proficient counsel — in all cases. As this district's Plan states: "The hourly rates of compensation are designated and intended to be maximum rates and will be treated as such." Plan § 4 at 7. It must be remembered that the Act's purpose was not to benefit the bar, see text ante at Part II, but to assure to indigent defendants the availability of competent counsel. Historically, dedicated lawyers had volunteered their time pro bono to achieve this end. The Act sought to ease the burden on such advocates — not to eliminate it entirely.
A substantial element of appointed counsel's representation under the Act remains public service and congress has made it clear that the fees allowable under the Act are not intended to provide full compensation to counsel.
United States v. Hildebrandt, 420 F.Supp. 476, 478 (S.D.N.Y.1975). See also Bailey 581 F.2d at 988; Tutino, 419 F.Supp. at 248; Thompson, 361 F.Supp. at 887; United States v. Harper, 311 F.Supp. 1072, 1074 (D.D.C.1970). Though ...
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