United States v. Romero-Gallardo

F I L E D
United States Court of Appeals
Tenth Circuit
APR 9 2001
PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4160
EDGAR ROMERO-GALLARDO,
Defendant-Appellant.
ORDER
Before TACHA , Chief Judge, EBEL and LUCERO , Circuit Judges.
This matter is before the court on an application for attorney compensation
under the Criminal Justice Act, 18 U.S.C. § 3006A. The voucher in question was
submitted by defendant-appellant’s initial counsel, who withdrew and was
replaced by the Federal Public Defender pursuant to an order of the court issued
January 19, 2001. A portion of the time included on counsel’s voucher relates
to work done after that date. We publish the present order to settle a basic legal
question concerning the bounds of our authority under the Act: may the court
approve compensation for work done by former CJA counsel following the formal
termination of representation? Based on the structure and purpose of the Act, as
well as relevant guidelines and case law, we hold the Act does not authorize the
court to approve such compensation.
The Act refers throughout to “representation” for indigent defendants and
corresponding “payment for representation” for “appointed” counsel. Nowhere
does it suggest that courts may compensate efforts by counsel outside the bounds
of the professional relationship created by formal appointment. On the contrary,
in the one situation where the Act makes explicit allowance for professional work
done nominally outside that relationship–i.e., when counsel performs services in
anticipation of a formal appointment–it does so by permitting the court to make
the appointment retroactive. See § 3006A(b). This provision for nunc pro tunc
appointment would be superfluous if formal representation were not a prerequisite
to compensation under the Act. When, as here, counsel’s appointment has been
terminated, there is thereafter a similar absence of formal authorization, but,
unlike the retroactive situation, the prospective extension of an appointment
beyond its termination makes no sense, and the Act makes no provision for it.
Further, allowing compensation for services performed after withdrawal
and substitution would effectively enable former CJA counsel to create ad hoc
multiple-representation situations outside the limited circumstances contemplated
by the governing guidelines. These do not allow for multiple counsel except
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“[i]n an extremely difficult case where the court finds it in the interest of justice
to appoint an additional attorney.” VII Guide to Judiciary Policies and
Procedures, Ch. II, § 2.11(A) & (B). Should more than one attorney work on
a case for which multiple representation has not been not approved, only the
attorney appointed under the Act may properly be compensated. 1
See United
States v. Nakamura , 577 F.2d 485, 487-88 (9th Cir. 1978). Indeed, when only one
attorney has been appointed, another cannot be compensated for providing
representational efforts, even if “[f]or all practical purposes he was counsel for
appellants.” United States v. Oddo , 474 F.2d 978, 980 (2d Cir. 1973) (denying
CJA compensation for work of non-appointed attorney who “read the trial record,
researched the case, wrote the brief and argued the appeal”).
As CJA matters rarely generate published decisions, there is no precedent
addressing the specific issue of compensation for work done after termination of
an appointment. But, the sine qua non of representation-pursuant-to-appointment
has been recognized in a number of other CJA contexts. Indeed, the categorical
denial of compensation for the extensive efforts of non-appointed counsel in
Nakamura and Oddo, cited above, clearly reflects the mandatory nature of proper
1
The guidelines do, however, allow appointed counsel to seek compensation
on his or her own voucher for professional assistance provided by a partner or
associate from the same law firm. See VII Guide to Judiciary Policies and
Procedures, Ch. II, § 2.11(A).
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appointment under the Act. The same basic principle is evident in United States
v. Salemo, 81 F.3d 1453 (9th Cir. 1996), which held the Act “does not authorize a
district court to compensate advisory counsel requested by a defendant who has
waived his right to representation,” because it authorizes payment only “for the
services of an attorney appointed to represent an indigent defendant.” Id. at 1460(emphasis added). In Salemo, it was the defendant’s waiver of counsel, rather
than the court’s appointment of a different attorney, that effectively undermined
the formal representational status necessary for CJA compensation, but the basic
deficiency was ultimately the same. Finally, it is instructive to note that, in
United States v. McIntosh, 808 F. Supp. 760 (D. Colo. 1992), the district court
approved compensation for professional services afforded by CJA counsel even
after pending charges had been dismissed against the defendant, because
counsel’s appointment had not yet been terminated by court order at the time.
Id. at 763.
In keeping with the language and aims of the Act, as well as the thrust of
the pertinent guidelines and case law, we conclude that this court lacks authority
to grant compensation to counsel for hours billed after her formal withdrawal
from representation. Her voucher must therefore be modified to categorically
exclude such time.
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Finally, it is important to clarify how counsel’s professional responsibilities
attendant upon withdrawal fit within the compensatory framework of the Act.
It is essential that counsel prepare the case file for transfer to substitute counsel
as thoroughly and efficiently as possible. Our holding here, that the Act does not
authorize compensation for work done after withdrawal, is not intended in any
way to detract from or shift that responsibility. CJA counsel must still take all
reasonable steps, including the preparation of appropriate correspondence and/or
memoranda to the file, necessary to facilitate subsequent representation of the
defendant by substitute counsel. Our holding should merely encourage prompt
completion of these tasks prior to formal withdrawal from the case.
Entered for the Court
PATRICK FISHER, Clerk
By:
Deputy Clerk
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