United States v. James
| Decision Date | 26 March 1969 |
| Docket Number | No. CR-67-421-DR.,CR-67-421-DR. |
| Citation | 301 F. Supp. 107 |
| Parties | UNITED STATES of America v. Jerry Ray JAMES et al. |
| Court | U.S. District Court — Western District of Texas |
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COPYRIGHT MATERIAL OMITTED
Arturo C. Gonzales, pro se, John R. Foster, pro se, Del Rio, Tex., John W. Claybrook, pro se, Jeremiah Ingels Rhodes, pro se, Eagle Pass, Tex., Taylor Nichols, pro se, Uvalde, Tex., George M. Thurmond, pro se, Del Rio, Tex., James R. Gillespie, pro se, San Antonio, Tex., Haygood Gulley, pro se, Del Rio, Tex., Max P. Flusche, pro se, Austin, Tex., V. F. Knickerbocker, pro se, Midland, Tex., for claimants.
Ernest Morgan, U. S. Atty., Ralph H. Harris, III, Asst. U. S. Atty., San Antonio, Tex., for Government.
The hereinafter named attorneys have submitted Vouchers for Compensation and Expenses of Appointed Counsel, CJA Form 4, for allowance of attorneys' fees and expenses under the Criminal Justice Act, 18 U.S.C. ? 3006A.1 Each of the claims is for an amount in excess of the statutory limitation for compensation. As to each, the Court certifies that the amount approved represents fair compensation for protracted representation and that payment is necessary under the extraordinary circumstances of this case, and attaches a CJA Form 5 to that effect to each claim. This memorandum is entered in order to delineate the circumstances necessitating the services rendered and this Court's certification of their character, as well as to record this Court's reasons for allowing or rejecting, as the case may be, various categories of compensation.
The attorneys appointed in this case began submitting Vouchers for partial compensation during the course of the trial.2 Being of the opinion that approval of any claim above the statutory maximum should wait until an attorney's representation was ended and the trial and his services could be viewed as a whole, the Court did not act on the partial claims. Final Vouchers were submitted by early August, after the trial ended June 25, 1968. Upon examination, the Court found several serious questions upon which there was little if any authority, and determined that a hearing should in all fairness be required, so that counsel involved could apprise the Court of the circumstances underlying each questionable claim. Finding further that some claims were not supported by an adequate "written statement,"3 the Court denominated the hearing "evidentiary" so that counsel could submit any records or testimony they might wish in support of the time, services and expenses for which compensation or reimbursement was sought. Feeling further that the representatives of the Government who had handled the trial of the case could also aid the Court, both as to applicable law and as to what happened, and when, during the case, it was ordered that they be present at the hearing.4
Such a hearing was set by the Court by written order entered September 20, 1968, a copy of which is attached. After some delay, because of conflicting obligations of counsel, the contemplated "hearing" was held on November 22, 1968, with all appointed and Government counsel involved present and participating. After some preliminary discussion, a procedure was evolved whereby each attorney would take the stand and explain his position and claim, with whatever further explanation was thought useful by the Court and the U. S. Attorney. Memoranda of authorities were requested from all participants, and the same were submitted by appointed and Government counsel by January 15, 1969.
While the procedure used had some of the formal trappings of advocacy, the matter was not treated by the Court as adversary. The "hearing" was held in order to get all of the relevant circumstances before the Court, with opportunity to explore the different factors involved. While the matter could well have been handled more informally, the Court found the orderly proceedings attendant to the adversary-type hearing useful in organizing and exploring the various positions of all involved, and finds that the resulting record presents an organized and complete view of each attorney's position. All of the participants were cooperative and the entire proceeding was very helpful to the Court in discovering the many factors which the Court now feels should be taken into consideration in determining the matter before him, and which are outlined below.
The Court certifies that the services rendered by these attorneys amount to protracted representation. There can be no doubt of this, or that this case represents the type of "extraordinary circumstances" which justify payment in excess of the limit set out in 18 U.S.C. ? 3006A(d).
The indictment in this case, returned October 24, 1967, charged twenty defendants in one count with having conspired to commit various offenses against the United States.5 The five-page charge alleged six "objects" of the conspiracy,6 followed by seven "parts," describing the method of operation of the conspiracy, and fifteen overt acts in furtherance of said conspiracy. Through bills of particulars the Court and defense counsel learned that the Government intended to rely on the burglaries or attempted burglaries of some eighteen banks and two residences, and the armed robbery of a "Club" in Mississippi, and that the Government deemed eight other persons, not named in the indictment, to be coconspirators in the case.
The defendants began to be arraigned December 28, 1967, and some appointed counsel made their first appearance in the case on that day. The Court began hearing the first group of pre-trial motions on January 24, 1968. Trial was set for February 19, 1968, but was repeatedly postponed as the Court heard further pre-trial motions until the case was transferred for trial to the El Paso division on March 18, 1968. All counsel participated in all of the pretrial proceedings.7 Upon announcement by the Court that the case was to be transferred for trial to another Division, all local Court-appointed attorneys moved to be released.8 Where the motions contained the consent of the defendant involved and of an attorney already in the case to take over the representation of the defendant, they were granted.9 Where this was not the case, and another attorney would have to be appointed in El Paso, they were denied.10 As a result, several counsel who had been employed in the case went to El Paso further representing an indigent defendant under the C.J.A. Two attorneys from Del Rio, Texas, both appointed under the C.J.A., went with the case also. Since two defendants had been dismissed with regard to these charges, and two had been severed, at the time the case was called in El Paso there were 16 defendants, represented by seven attorneys, six of whom had at least one indigent client.11
On April 4, 1968, the case was called and further pretrial matters were heard and disposed of, including denials of motions of the two Del Rio attorneys to be released. On April 8, 1968, after another defendant was severed, and, over announcements of "not ready" by defendants' counsel, the jury was selected and the trial began. The trial continued until verdict was reached on June 25, 1968.12 Of the 15 defendants who went to trial, one was granted a mistrial during the government's case, four were granted judgment of acquittal by the Court at the end of the government's case in chief, four more were acquitted by the jury, and six were found guilty13 and sentenced under 18 U.S.C. ? 4208 (b).14
During the trial, from April 8, 1968, to June 25, 1968, the Court and jury heard more than 140 witnesses. There were over 400 exhibits admitted into evidence. During the entire proceedings, there were over 800 documents filed with the Clerk, including several hundred motions heard and determined by the Court. More than 60 days were actually spent in Court.
Whether an attorney was in the case only at pretrial proceedings or only during the trial or both, his representation must be classified as protracted and the circumstances extraordinary.15 The case was a mental and physical strain on everyone involved, as well as a financial hardship to the attorneys, as will be discussed below. A recitation of the above facts should suffice. Under whatever standard of "protracted" and "extraordinary" we may wish to apply, this is clearly a case where the statutory maximum must give way to the circumstances of the case and each attorney's part in it.
The only real questions presented by the Vouchers center around the words of discretion in the statute concerning time "reasonably" expended in preparation out of Court, expenses "reasonably" incurred, and, in each particular case, how much is "necessary to provide fair compensation for protracted representation." Since a determination of each of these issues involves the discretion of the Court, it may be helpful, before proceeding to a consideration of each Voucher, to set out the general considerations which influenced the Court's thinking with regard to each of the items for which compensation or reimbursement is sought, and, finally, with regard to what constitutes "fair compensation" in this particular case.
A. Time Spent in Open Court: While each attorney's computation of time spent in Court differs from the other attorneys' and the Clerk's records, the Court finds that in the majority of cases this difference can be explained. There were Ex Parte hearings, in chamber hearings, in camera hearings, bond reduction hearings, bond forfeiture hearings, etc., which affected some defendants and not others. Where the claim for compensation for time spent in Court is based upon the attorney's time records, the Court finds that they are in good faith and should be used as a basis for the award of compensation claimed.
The only serious question with regard to this category of claim is whether the maximum hourly rate of $15.00...
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