United States v. Romero-Gallardo

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 16, 2001
• Docket: 00-4160
• Status: Published

Opinion

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

-2- “[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).

-3- 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.

-4- 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

-5-