UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CRIMINAL JUSTICE ACT PLAN
(AS AMENDED)
(Pursuant to 18 U.S.C. § 3006A)
MARCH 2011
TABLE OF CONTENTS
I. AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. STATEM ENT OF POLICY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Objectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. PROVISION OF REPRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Circumstance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. M andatory Appointments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Discretionary Appointments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Ancillary M atters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Civil Forfeiture Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Timely Appointment of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Number and Qualifications of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Number.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Continuity of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. W aiver of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Standby Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
F. Eligibility for Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Factfinding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Standards for Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Partial Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
G. Appointment Alternatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV. FEDERAL PUBLIC DEFENDER ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Establishment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Ratio of Appointments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Capital Habeas Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Supervision of Defender Organization.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Services Included.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. PANEL SELECTION COM M ITTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. M embership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VI. CRIM INAL JUSTICE ACT PANELS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Composition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. Naming Panel M embers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. M aintenance of List and Distribution of Appointments. . . . . . . . . . . . . . . . . . . . 11
E. M ethod of Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
F. No Favoritism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
G. Appointment of Counsel to Represent M ore Than One Individual In a Case. . 12
H. Two Attorneys for One Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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VII. DURATION AND SUBSTITUTION OF APPOINTM ENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Duration of Appointment in District Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Representation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Change in Financial Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. Inability to Pay Retained Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
E. Substitution of Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
F. Transferred Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
VIII. COM PENSATION AND EXPENSES OF APPOINTED COUNSEL. . . . . . . . . . . . . . . . . . . . 14
A. Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Excess Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. Interim Payments to Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
E. Filing Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
F. Audit by CJA Liaison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
G. Approval by District Judge or United States M agistrate Judge. . . . . . . . . . . . . 17
H. Court Approval Required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. New Trials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
J. Time Limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
K. Notification of Proposed Reduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IX. SERVICES OTHER THAN COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Upon Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. W ithout Prior Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. M aximum Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
D. Consulting Services in Capital Federal Habeas Corpus Cases.. . . . . . . . . . . . . 19
E. Services for Persons W ith Retained Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
F. Services for Pro Se Litigants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
G. Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
X. DUTIES OF LAW ENFORCEM ENT AND RELATED AGENCIES.. . . . . . . . . . . . . . . . . . . . 19
A. Presentation of Accused for Appointment of Counsel. . . . . . . . . . . . . . . . . . . . 19
B. Pretrial Services Interview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Notice of Indictment or Criminal Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. Duties of Appointed Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
XI. M ISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Guidelines for Administering the Criminal Justice Act. . . . . . . . . . . . . . . . . . . . 21
XII. EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
CRIMINAL JUSTICE ACT PLAN
(AS AMENDED)
I. AUTHORITY
Pursuant to the provisions of the Criminal Justice Act of 1964, as amended (CJA), 18
U.S.C. § 3006A, and the Guidelines for Administering the CJA and Related Statutes
(CJA Guidelines), Volume 7, Guide to Judiciary Policy , the Judges of the United States
District Court for the Western District of Arkansas adopt this Plan, subject to the
approval of the Judicial Council of the Eighth Circuit, for furnishing representation in
federal court for any person financially unable to obtain adequate representation in
accordance with the CJA.
II. STATEMENT OF POLICY
A. Objectives
1. The objective of this Plan is to attain the ideal of equality before the law
for all persons. Therefore, this Plan will be administered so that those
accused of a crime, or otherwise eligible for services pursuant to the
CJA, will not be deprived, because they are financially unable to pay for
adequate representation, of any element of representation necessary to
an adequate defense.
2. The further objective of this Plan is to particularize the requirements of
the CJA, the USA Patriot Improvement and Reauthorization Act of 2005
(recodified at 18 U.S.C. § 3599), and the CJA Guidelines in a way that
meets the needs of this district.
B. Compliance
1. The court, its clerk, the Federal Public Defender Organization, post
conviction relief organizations, if any, and private attorneys appointed
under the CJA must comply with the CJA Guidelines approved by the
Judicial Conference of the United States and/or its Committee on
Defender Services and with this Plan.
2. The clerk of court will provide the Federal Public Defender and each
private attorney with a current copy of this Plan upon the attorney’s first
appointment under the CJA or designation as a member of the Panel of
Private Attorneys under the Criminal Justice Act (CJA Panel). The clerk
will maintain a current copy of the CJA Guidelines for the use of
members of the CJA Panel and will make known to such attorneys its
availability.
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AMENDED CRIMINAL JUSTICE ACT PLAN
III. PROVISION OF REPRESENTATION
A. Circumstance
1. Mandatory Appointments
Representation under this Plan must be provided for any financially
eligible person who is:
a. Charged with a felony or with a Class A misdemeanor;
b. A juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. Charged with a violation of probation;
d. Under arrest, when such representation is required by law;
e. Entitled to appointment of counsel in parole proceedings;
f. Charged with a violation of supervised release, or faces
modification, reduction, or enlargement of a condition, or
extension or revocation of a term of supervised release;
g. Subject to a mental condition hearing under 18 U.S.C. chapter
313;
h. In custody as a material witness;
I. Entitled to appointment of counsel under the Sixth Amendment
to the Constitution, or faces loss of liberty in a case and federal
law requires the appointment of counsel;
j. Seeking to set aside or vacate a death sentence under 28
U.S.C. §§ 2254 or 2255;
k. Entitled to appointment of counsel in connection with prisoner
transfer proceedings under 18 U.S.C. § 4109.
2. Discretionary Appointments
Whenever the court or a United States magistrate judge determines that
the interests of justice so require, representation may be provided for
any financially eligible person who is:
a. Charged with a petty offense (Class B or C misdemeanor, or an
infraction) for which a sentence to confinement is authorized;
b. Seeking relief, other than to set aside or vacate a death
sentence, under 28 U.S.C. §§ 2241, 2254, or 2255;
c. Charged with civil or criminal contempt who faces loss of liberty;
d. Has been called as a witness before a grand jury, a court, the
Congress, or a federal agency or commission which has the
power to compel testimony, and there is reason to believe, either
prior to or during testimony, that the witness could be subject to
a criminal prosecution, a civil or criminal contempt proceeding,
or face loss of liberty;
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AMENDED CRIMINAL JUSTICE ACT PLAN
e. Proposed by the United States Attorney for processing under a
“pretrial diversion” program;
f. Held for international extradition under 18 U.S.C. chapter 209.
3. Ancillary Matters
Representation may also by furnished for financially eligible persons in
“ancillary matters appropriate to the proceedings” under subsection ( c)
of the CJA.
4. Civil Forfeiture Proceedings
Under 18 U.S.C. § 983(b)(1), if a person with standing to contest the
forfeiture of property in a judicial civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain representation by
counsel, and the person is represented by counsel appointed under 18
U.S.C. § 3006A in connection with a related criminal case, the court may
authorize counsel to represent that person with respect to the claim.
B. Timely Appointment of Counsel
A person financially eligible for representation should be provided with counsel
as soon as feasible after being taken into custody, when first appearing before
the court or United States magistrate judge, when formally charged, or when
otherwise entitled to counsel under the CJA, whichever occurs earliest.
C. Number and Qualifications of Counsel
1. Number
More than one attorney may be appointed in any case determined by the
court to be extremely difficult. In a capital case, the following applies:
a. Federal Capital Prosecutions
Under 18 U.S.C. § 3005, a person charged with a federal capital
offense is entitled to the appointment of two attorneys, at least
one whom must be learned in the law applicable to capital cases.
Under 18 U.S.C. § 3599(a)(1)(B), if necessary for adequate
representation, more than two attorneys may be appointed to
represent a defendant in such a case.
b. Habeas Corpus Proceedings
Under 18 U.S.C. § 3599(a)(2), a financially eligible person
seeking to vacate or set aside a death sentence in proceedings
under 28 U.S.C. §§ 2254 or 2255 is entitled to appointment of
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
AMENDED CRIMINAL JUSTICE ACT PLAN
one or more qualified attorneys. Due to the complex,
demanding, and protracted nature of death penalty proceedings,
judicial officers should consider appointing at least two attorneys.
If qualified under paragraph 2 of this section, an attorney
furnished by a state or local public defender organization or by
a legal aid agency or other private, nonprofit organization may
be appointed to represent a person charged with a capital crime
or seeking federal death penalty habeas corpus relief. Such
appointments may be in place of, or in addition to, the
appointment of a federal defender organization or a CJA panel
attorney or an attorney appointed pro hac vice in accordance
with the CJA Guidelines. Such appointments should be made
when the court determines that they will provide the most
effective representation. In making this determination, the court
should take into consideration whether the attorney represented
the person during prior state court proceedings.
2. Qualifications
Qualifications for appointed counsel will be determined by the court. In
capital cases the following also applies:
a. Appointment of Counsel Before Judgment
Under 18 U.S.C. § 3599(b), at least one of the attorneys
appointed must have been admitted to practice in the court in
which the case will be prosecuted for not less than five years,
and must have had not less than three years experience in the
actual trial of felony prosecutions in that court. Under 18 U.S.C.
§ 3005, at least one of the attorneys appointed must be
knowledgeable in the law applicable to capital cases.
Under 18 U.S.C. § 3005, in appointing counsel in federal death
penalty cases, the court should consider the recommendation of
the Federal Public Defender. In fulfilling this responsibility, the
Federal Public Defender Organization should consult with
counsel (if counsel has already been appointed or retained) and
the court regarding the facts and circumstances of the case to
determine the qualifications which may be required to provide
effective representation. In evaluating the qualifications of
counsel considered for appointment, the Federal Public
Defender Organization should consider:
(1) the minimum experience standards set forth 18 U.S.C. §
3599(b)-(d), 18 U.S.C. § 3005, and other applicable laws
or rules;
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AMENDED CRIMINAL JUSTICE ACT PLAN
(2) the qualification standards endorsed by bar associations
and other legal organizations regarding the quality of
legal representation in capital cases;
(3) the recommendations of other federal public and
community defender organizations, and local and
national criminal defense organizations;
(4) the proposed counsel’s commitment to the defense of
capital cases; and
(5) the availability and willingness of proposed counsel to
accept the appointment and to represent effectively the
interests of the client.
b. Appointment of Counsel After Judgment
Under 18 U.S.C. § 3599(c), at least one of the attorneys
appointed must have been appointed to practice in the court of
appeals for not less than five years, and must have had not less
than three years experience in the handling of appeals in felony
cases in the court.
c. Attorney Qualification Waiver
Under 18 U.S.C. § 3599(d), the presiding judicial officer, for
good cause, may appoint an attorney who may not qualify under
18 U.S.C. § 3599(b) or (c), but who has the background,
knowledge, and experience necessary to represent the
defendant properly in a capital case, giving due consideration to
the seriousness of the possible penalty and the unique and
complex nature of the litigation.
3. Continuity of Representation
a. In the interest of justice and judicial and fiscal economy, unless
precluded by a conflict of interest, presiding judicial officers are
urged to continue the appointment of state post-conviction
counsel, if qualified under paragraph 2, when the case enters the
federal system.
b. Title 18 U.S.C. § 3599(e), provides that “Unless replaced by
similarly qualified counsel upon the attorney’s own motion or
upon motion of the defendant, each attorney so appointed shall
represent the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals, applications for
writ of certiorari to the Supreme Court of the United States, and
all available post-conviction process, together with applications
for stays of execution and other appropriate motions and
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AMENDED CRIMINAL JUSTICE ACT PLAN
procedures, and shall also represent the defendant in such
competency proceedings and proceedings for executive or other
clemency as may be available to the defendant.”
D. Waiver of Counsel
1. In every case in which a person entitled to representation under this
Plan appears without counsel, the court or United States magistrate
judge will advise the person of the right to be represented by counsel
and that counsel will be appointed to represent the defendant if the
defendant is financially unable to obtain counsel.
2. Unless the person waives representation by counsel in open court, the
judicial officer, if satisfied after appropriate inquiry that the person is
financially unable to obtain counsel, will appoint counsel to represent the
defendant.
E. Standby Counsel
1. For a Financially Eligible Defendant
The court recognizes that criminal defendants have both a constitutional
and statutory right to self-representation in federal court. However, the
court or United States magistrate judge may find it necessary to appoint
“standby” counsel to be available to assist a pro se defendant in that
defendant’s defense and also to protect the integrity and ensure the
continuity of the judicial proceedings. While the court has inherent
authority to appoint standby counsel, such appointments may not be
made and counsel may not be compensated under the CJA unless the
defendant qualifies for appointed counsel and representation is actually
rendered by counsel.
2. For a Financially Ineligible Defendant
In circumstances in which standby counsel is appointed under the
court’s inherent authority, and counsel serves exclusively on behalf of
the court to protect the integrity and continuity of the proceedings, and
does not represent the defendant, any compensation paid to counsel will
be in the capacity of an “expert or consultant” under 5 U.S.C. § 3109.
An appointment under this section may be made regardless of whether
the defendant is financially able to obtain adequate representation, and
compensation will be determined by the judicial officer according to CJA
hourly rates and case compensation maximums. If, during the course
of the proceedings, a pro se defendant who is financially able to retain
counsel elects to do so, the court’s appointment of an attorney under 5
U.S.C. § 3109 will be terminated.
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AMENDED CRIMINAL JUSTICE ACT PLAN
F. Eligibility for Representation
1. Factfinding
a. The determination of eligibility for representation under the CJA
is a judicial function to be performed by the court or a United
States magistrate judge after making appropriate inquiries
concerning the person’s financial condition.
b. Unless it will result in undue delay, factfinding concerning the
person’s eligibility for appointment of counsel should be
completed prior to the person’s first appearance in court. If the
need for the assistance of counsel is immediate and apparent,
and the person states under oath that he or she is financially
unable to obtain counsel, the inquiry as to eligibility may be
made subsequent to appointment of counsel and as soon
thereafter as practicable.
c. Other officers or employees of the court may be designated by
the court to obtain or verify the facts upon which such
determination is to be made.
d. All statements made by a person requesting appointed counsel
or during the inquiry into eligibility should be either:
(1) reflected on Form CJA 23 (Financial Affidavit) and the
form should be completed and executed before a judicial
officer or employee; or
(2) under oath in open court.
e. The person seeking appointment of counsel has the
responsibility of providing the court with sufficient and accurate
information upon which the court can make an eligibility
determination.
2. Standards for Eligibility
a. A person is “financially unable to obtain counsel” within the
meaning of this Plan if the person’s net financial resources and
income are insufficient to enable him or her to obtain qualified
counsel.
b. Any doubts as to a person’s eligibility should be resolved in the
person’s favor.
c. At the time of determining eligibility, the court or United States
magistrate judge should inform the person of the penalties for
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AMENDED CRIMINAL JUSTICE ACT PLAN
making a false statement, and of the obligation to inform the
court and the appointed attorney of any change in financial
status.
3. Partial Eligibility
a. If a person’s net financial resources and income anticipated prior
to trial are in excess of the amount needed to provide that
person’s dependents with the necessities of life and to provide
the defendant’s release on bond, but are insufficient to pay fully
for retained counsel, the judicial officer should find the person
eligible for the appointment of counsel under this Plan and
should direct the person to pay the available excess funds to the
clerk of court at the time of such appointment or from time to
time thereafter.
b. The judicial officer may increase or decrease the amount of such
payments and impose such other conditions from time to time as
may be appropriate.
c. Funds collected pursuant to this subsection are held and
disposed pursuant to 18 U.S.C. § 3006A(f).
G. Appointment Alternatives
1. Counsel furnishing representation under this Plan will be selected from:
a. the Federal Public Defender’s Office (see section IV below); or
b. the CJA panel of attorneys designated or approved by the court.
2. If the judicial officer presiding over the case determines that the
appointment of an attorney, who is not a member of the CJA panel, is
in the interest of justice, judicial economy, or continuity of
representation, or there is some other compelling circumstance
warranting the attorney’s appointment, the attorney may be admitted to
the CJA panel pro hac vice and appointed to represent the CJA
defendant.
IV. FEDERAL PUBLIC DEFENDER ORGANIZATION
A. Establishment
1. The Federal Public Defender Organization of the Western District of
Arkansas, previously established in the district under the provisions of
the CJA, is hereby recognized as the federal public defender
organization for this district.
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2. The Federal Public Defender Organization will be capable of providing
legal services throughout the district and will maintain a headquarters
office in Fayetteville, a staffed branch office in Texarkana, and an
unstaffed branch office in Fort Smith, Arkansas.
B. Ratio of Appointments
Where practical and cost effective, the Federal Public Defender Organization
should be appointed in approximately 75% of the cases in which the accused
is determined to be financially eligible for representation under the CJA. Private
attorneys from the CJA Panel should be appointed in approximately 25% of the
appointments under the CJA annually throughout the district.
C. Capital Habeas Representations
Capital habeas appointments will be assigned to the Federal Public Defender
Organization for the Eastern District of Arkansas, or other attorney who qualifies
for appointment under 18 U.S.C. § 3599.
D. Supervision of Defender Organization
The Federal Public Defender will be responsible for the supervision and
management of the Federal Public Defender Organization. Accordingly, the
Federal Public Defender will be appointed in all cases assigned to that
organization for subsequent assignment to staff attorneys at the discretion of
the Federal Public Defender.
E. Services Included
Representation under this Plan will include counsel, investigative, expert, and
other services necessary for adequate representation.
V. PANEL SELECTION COMMITTEE
A. Membership
A Panel Selection Committee will be established by the court. The Committee
will consist of one district judge, the United States magistrate judges, the CJA
Panel Representative, the clerk of court, and the Federal Public Defender. The
Committee will be chaired by the district judge. The CJA Panel Representative
will be appointed by the Chief District Judge and will serve in that position at the
Chief Judge’s pleasure.
B. Duties
1. The Panel Selection Committee will meet at least once a year to
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consider applications for the vacancies on the current panel. The
Committee will review the qualifications of applicants and recommend,
for approval by the court, those applicants best qualified to fill the
vacancies.
At its annual meeting, the Committee will also review the operations and
administration of the panel over the preceding year, and recommend to
the court any changes deemed necessary or appropriate by the
Committee regarding the appointment process and panel management.
The Committee will also inquire annually as to the continued availability
and willingness of each panel member to accept appointments.
2. If, at any time during the course of a year, the number of vacancies due
to resignation, removal, or death significantly decreases the size of the
panel, the Committee will solicit applications for the vacancies, convene
a special meeting to review the qualifications of the applicants, and
select prospective members for recommendation to the court for
approval.
3. When the Committee submits the names of applicants for panel
membership to the court for approval, the Committee will furnish
information to the court regarding recruitment efforts undertaken by the
Committee in furtherance of the Equal Opportunity statement in
Paragraph VI.B of this Plan. At least once each year the Committee will
provide the court with information on the panel of attorneys in each of
the categories listed in paragraph VI.B.
VI. CRIMINAL JUSTICE ACT PANELS
A. Composition
1. The court will establish separate panels of private attorneys (hereinafter
referred to as the CJA panels) for each of the six divisions of the
Western District of Arkansas. Members of the CJA panels will serve at
the pleasure of the court.
2. Each panel will consist of attorneys in each division who are eligible,
willing, and competent to provide adequate representation under the
CJA.
3. The panels will be adequate in number to supply the needs of the district
at any given time.
B. Qualifications
Any member in good standing of the Bar of this Court, who has demonstrated
experience in, and knowledge of, the Federal Rules of Criminal Procedure, the
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Federal Rules of Evidence, and the Sentencing Guidelines, will be deemed
qualified to serve on the CJA panel for his or her division. However, the Panel
Selection Committee, with the approval of the court, may establish additional
qualifications, including relevant training and experience. All qualified attorneys
will be encouraged to participate in the furnishing of representation in CJA
cases, without regard to race, color, religion, sex, age, national origin, or
disabling condition.
C. Naming Panel Members
Attorneys presently serving as members of a CJA panel will continue to serve
at the pleasure of the court. Qualified attorneys may, by order of the court, be
added to, or deleted from, the roster at any time. Periodically, the Panel
Selection Committee, after consultation with other knowledgeable persons, will
make recommendations about additions to or deletions from the panels.
Upon recommendation of the Panel Selection Committee or on the court’s own
motion, a judge may at any time add or delete panel members. Approval of the
panel in a division may be given by the Chief Judge or the judge having
primarily responsibility for the caseload in that division.
D. Maintenance of List and Distribution of Appointments
The clerk of court will maintain in each division a current list, in alphabetical
order, of all attorneys included on the CJA panel for that division, with current
office addresses, telephone numbers, social security numbers, and/or tax
identification numbers. A copy of this list will be furnished to each district judge,
United States magistrate judge, and the Federal Public Defender, as well as
additions or deletions which may be made from time to time as the court may
deem necessary and appropriate.
E. Method of Selection
Appointments from the list should be made on a rotational basis, subject to the
court’s discretion to make exceptions due to the nature and complexity of the
case, an attorney’s experience, and time and geographical considerations.
F. No Favoritism
Appointing officers are to avoid favoritism and monopoly, or the appearance
thereof, in making appointments. Such officers are to be mindful that attorneys
who accept appointments under this Plan do so in fulfillment of their
professional obligations as officers of the court and should not be called upon
to discharge disproportionately as individuals the responsibility which rests upon
the bar as a whole.
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G. Appointment of Counsel to Represent More Than One Individual in a Case
1. The court or United States magistrate judge will appoint separate
counsel for persons having interests that cannot properly be represented
by the same counsel, or when other good cause is shown.
2. Subject to this prohibition, the same attorney or the same team of
attorneys may be appointed to represent more than one defendant in the
same case or in two or more related cases.
3. In such instances, claims for compensation will be made on separate
vouchers. Time spent in common on more than one indictment or case
must be prorated among the indictments or cases on which the time was
spent, and each indictment or case must be cross-referenced on the
vouchers. Time spent exclusively on any one indictment or case may
properly be charged on the voucher for that indictment or case.
H. Two Attorneys for One Client
1. In a proper case, more than one attorney may be appointed to represent
the same client. In a capital case, or in an extremely difficult case,
where the court finds it is in the interest of justice to appoint an
additional attorney, and the order states such finding, two attorneys may
be appointed for one defendant and each attorney is eligible to receive
the maximum compensation allowable under the CJA.
2. Where for other reasons, including substitution, the same client is
represented in the overall proceedings involving him or her by more than
one attorney, the aggregate compensation to be paid by the United
States under this Plan to both, or all, of the attorneys will not exceed the
sum that would have been paid for the services of a single attorney,
unless the case involves extended or complex representation.
3. Unless appointed by the court, co-counsel or associate attorneys may
not be compensated under the CJA. However, appointed counsel may
claim compensation for services furnished by a partner or associate or,
with prior authorization by the court, counsel who is not a partner or
associate, within the maximum compensation allowed by the CJA,
separately identifying the provider of each service.
VII. DURATION AND SUBSTITUTION OF APPOINTMENT
A. Duration of Appointment in District Court
1. A person for whom counsel is appointed will be represented at every
stage of the proceedings from his or her initial appearance before the
United States magistrate judge or the court through appeal, including
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ancillary matters appropriate to the proceedings.
2. In any criminal case in which the defendant has a right to appeal,
counsel appointed under the Plan will advise the defendant of the right
to appeal and the right to counsel on appeal. If requested to do so by
the defendant in a criminal case, counsel will file a timely Notice of
Appeal.
B. Representation on Appeal
Counsel appointed under the CJA will continue the representation until the
matter, including appeals or review by certiorari, is closed; until substitute
counsel has filed a notice of appearance; until an order has been entered
allowing or requiring the person represented to proceed pro se; or until the
appointment is terminated by Court Order. If the Court of Appeals determines
that assistance of counsel is required to perfect the appeal, the Court of
Appeals will issue a CJA voucher for claiming compensation and expenses on
appeal.
C. Change in Financial Status
1. If, at any time after the appointment of counsel, the court or United
States magistrate judge finds that the person is financially able to obtain
counsel or to make partial payment for the representation, it may
terminate the appointment of counsel or authorize payment, as the
interests of justice may dictate.
2. If, at any time after appointment, counsel obtains information that a
client is financially able to make payment, in whole or in part, for legal or
other services in connection with the representation, and the source of
the attorney’s information is not protected as a privileged
communication, counsel will advise the court.
3. Upon the finding that funds are available for payment from or on behalf
of a person furnished representation, the judicial officer may authorize
or direct that such funds be paid:
a. to the appointed attorney;
b. to the bar association or legal aid agency which provided the
appointed attorney;
c. to any person or organization authorized under this Plan to
render investigative, expert, or other services; or
d. to the court for deposit in the Treasury as a reimbursement to
the appropriation current at the time of payment.
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Except as so authorized or directed, appointed counsel may not require,
request, or accept any payment or promise of payment or any other valuable
consideration for representing a defendant under the appointment from any
person, institution, or organization.
D. Inability to Pay Retained Counsel
If at any stage of the proceedings, including appeal, the court or United States
magistrate judge finds that the person is financially unable to pay retained
counsel, the court may appoint counsel and authorize payment as provided in
this Plan, as the interests of justice may dictate. An appointment may be made
retroactive to include any representation furnished pursuant to this Plan prior to
appointment.
E. Substitution of Counsel
The court or United States magistrate judge may, in the interests of justice,
substitute one appointed counsel for another at any stage of the proceedings.
F. Transferred Cases
Absent special circumstances, whenever a case is transferred to another
district, such as under Rules 5, 20, and 21, FRCrP, representation by counsel
appointed in this district will cease, and new counsel will be appointed in the
transferee district.
VIII. COMPENSATION AND EXPENSES OF APPOINTED COUNSEL
A. Limitations
1. Counsel providing representation under this Plan will be compensated
and reimbursed as provided in 18 U.S.C. § 3006A(d), and compensation
and reimbursement will be subject to all of the limitations appearing in
that subsection or to such limitations as may be fixed from time to time
by the Judicial Conference.
2. Compensation will not exceed the hourly rates set forth in the CJA or
subsequently adjusted by the Judicial Conference for time reasonably
expended in court or out of court. The hourly rates of compensation as
designated are intended to be maximum rates and are to be treated as
such.
B. Expenses
1. Attorneys will be reimbursed for expenses reasonably incurred, including
the costs of transcripts authorized by the court or United States
magistrate judge.
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2. Out-of-pocket expenses reasonably incurred may be claimed on the
voucher, and must be itemized and reasonably documented.
3. Compensation may be approved for time spent in necessary and
reasonable travel.
4. Travel by privately owned automobile should be claimed at the rate
currently prescribed for federal judiciary employees who use a private
automobile to conduct official business, plus parking fees, etc.
5. Counsel must obtain prior approval from the presiding judicial officer for
unusually large amounts of travel, out-of-state travel, and travel which
will involve an overnight stay.
C. Excess Payment
1. Payment in excess of any maximum amount provided in the CJA may
be made for extended or complex representation whenever the court in
which the representation was rendered, or the United States magistrate
judge, if the representation was furnished exclusively before the United
States magistrate judge, certifies that the amount of the excess payment
is necessary to provide fair compensation, and the payment is approved
by the district judge or United States magistrate judge and by the Chief
Judge of the Eighth Circuit Court of Appeals, or that judge’s designee.
2. In any case in which compensation claimed is in excess of the statutory
case compensation maximum, counsel must submit, with the voucher,
a detailed memorandum supporting and justifying counsel’s claim that
the representation given was in an extended or complex case, and the
excess payment is necessary to provide fair compensation.
3. For purposes of determining whether or not an excess payment is
warranted under this subsection, the case is considered “complex” if the
legal or factual issues are unusual, thus requiring the expenditure of
more time, skill, and effort by the attorney than would normally be
required in an average case. The case is considered “extended” if more
time is reasonably required for total processing than the average case,
including pre-trial and post-trial hearings.
4. After establishing that a case is extended or complex, the approving
judicial officer should determine if excess payment is necessary to
provide fair compensation. The following criteria, among others, may be
used in this regard: responsibilities involved measured by the magnitude
and importance of the case; manner in which duties were performed;
knowledge, skill, efficiency, professionalism, and judgment required of
and used by counsel; nature of counsel’s practice and injury thereto; any
extraordinary pressure of time or other factors under which services
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were rendered; and any other circumstances relevant and material to a
determination of a fair and reasonable fee.
5. Upon preliminary approval of such claim, the presiding judicial officer
should furnish to the Chief Judge of the Eighth Circuit Court of Appeals,
or that judge’s designee, a memorandum containing the
recommendation and a detailed statement of reasons.
D. Interim Payments to Counsel
1. Where it is considered necessary and appropriate in a specific case, the
presiding trial judge may arrange for periodic and interim payments for
both services and expenses.
2. If excess compensation is anticipated, application should be made to the
presiding judge for a Memorandum Order outlining payment procedures.
3. Written approval of the procedure must be obtained from the Chief
Judge of the Eighth Circuit Court of Appeals, or that judge’s designee,
before issuance of the Memorandum Order.
E. Filing Claims
1. Appointed counsel must maintain contemporaneous time and
attendance records for all work performed, including work performed by
associates, partners, and support staff, as well as expense records.
Such records, which may be subject to audit, must be retained for three
years after approval of the final voucher for an appointment.
2. A separate claim for compensation and reimbursement must be made
to the district court for representation in the district court, and to each
appellate court before which the attorney provided representation for the
person involved.
3. Each claim must be submitted on a form CJA Form 20 and supported
by a sworn written statement specifying the time expended, services
rendered, and expenses incurred while the case was pending before the
court or United States magistrate judge, and the compensation and
reimbursement applied for or received in the same case from any other
source.
4. Each claim will be further supported by such documentation as the
Administrative Office of the United States Courts may require and
itemized on such forms as the Administrative Office may prescribe.
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F. Audit by CJA Liaison
Each claim must be reviewed and audited by the CJA liaison in the clerk’s office
for mathematical and technical accuracy and for conformity with the Guidelines
for Administering the Criminal Justice Act, Volume 7, Guide to Judiciary Policy,
and if correct, will be forwarded to the appropriate district judge or United States
magistrate judge for consideration.
G. Approval by District Judge or United States Magistrate Judge
The district judge will fix the compensation and reimbursement to be paid to the
claimant, except that in cases where representation is furnished exclusively
before a United States magistrate judge, the claim will be submitted to the
United States magistrate judge to fix the compensation and reimbursement to
be paid.
H. Court Approval Required
In cases where representation is furnished other than before the United States
magistrate judge, district judge, or an appellate court, claims will be submitted
to the district court to fix the compensation and reimbursement to be paid.
I. New Trials
For purposes of compensation and other payments authorized under this Plan,
an order by the court granting a new trial will be deemed to initiate a new case.
J. Time Limits
Vouchers should be submitted no later than 45 days after the final disposition
of the case, unless good cause is shown.
K. Notification of Proposed Reduction
1. If the court determines that a claim should be reduced, appointed
counsel should be provided prior notice of the proposed reduction with
a brief statement of the reason(s) for it, and an opportunity to address
the matter.
2. Notice need not be given to appointed counsel where the reduction is
based on mathematical or technical errors.
3. Nothing contained in this guideline should be construed as requiring a
hearing or as discouraging the court from communicating informally with
counsel about questions or concerns in person, telephonically, or
electronically, as deemed appropriate or necessary.
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IX. SERVICES OTHER THAN COUNSEL
A. Upon Request
1. Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may
request them in an ex parte application.
2. With prior authorization, compensation for services under this
subsection is limited to the statutory authorized amounts set out in the
CJA Guidelines.
3. Upon finding, after appropriate inquiry in an ex parte proceeding, that
the services are necessary and that the person is financially unable to
obtain them, the court or United States magistrate judge, if the services
are required in connection with a matter over which the United States
magistrate judge has jurisdiction, may authorize counsel to obtain the
services.
4. Ex parte applications for services other than counsel must be heard in
camera, and must not be revealed without the consent of the person
represented. The application must be placed under seal until the final
disposition of the case in the trial court, subject to further order of the
court.
B. Without Prior Approval
1. Counsel appointed under this section may obtain, subject to later review,
investigative, expert, and other services without prior authorization, if
necessary for adequate representation. Except as provided in
subparagraph 2 of this subsection, the total cost of services obtained
without prior authorization may not exceed the statutory authorized
amounts set out in the CJA Guidelines
2. The limitation for services obtained without prior authorization, may be
waived, if the presiding judicial officer, in the interest of justice, finds that
timely procurement of necessary services could not await prior
authorization.
C. Maximum Amounts
1. Compensation to be paid to a person for services rendered under this
subsection, or to be paid to an organization for services rendered by an
employee thereof, must not exceed the statutory authorized amounts set
out in the CJA Guidelines, exclusive of reimbursement for expenses
reasonably incurred. Payment in excess of that limit must be certified
by the presiding judicial officer as necessary to provide fair
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compensation for services of an unusual character or duration, and the
amount of the excess payment must be approved by the Chief Judge of
the Eighth Circuit Court of Appeals, or that judge’s designee.
2. If it can be anticipated that the compensation will exceed the statutory
maximum, advance approval should be obtained from the court and the
Chief Judge of the Eighth Circuit Court of Appeals, or that judge’s
designee.
D. Consulting Services in Capital Federal Habeas Corpus Cases
Where necessary for adequate representation, public and private organizations
which provide consulting services to appointed and pro bono attorneys in capital
federal habeas corpus cases in such areas as records completion, exhaustion
of state remedies, identification of issues, review of draft pleadings and briefs,
etc. may be reasonably employed and compensated.
E. Services for Persons With Retained Counsel
Investigative, expert, or other services necessary to adequate representation,
as authorized by 18 U.S.C. § 3006A(e), will be available to persons who have
retained counsel but who are found by the court to be financially unable to
obtain the necessary services.
F. Services for Pro Se Litigants
Persons who are eligible for representation under this Plan, but who have
elected to proceed pro se, may upon request, be authorized to obtain
investigative, expert, and other services in accordance with 18 U.S.C. §
3006A(e).
G. Claims
All claims for services, other than counsel, under this subsection should include
the following: a statement as to the type of, dates of, and time expended for the
services provided; an explanation of the fee arrangement (e.g., hourly rate, per
diem rate, etc.); an itemized statement of all expenses for which reimbursement
is claimed; and supporting documentation, where practicable, for all expenses
of lodging and subsistence, and for any expense in excess of $50.
X. DUTIES OF LAW ENFORCEMENT AND RELATED AGENCIES
A. Presentation of Accused for Appointment of Counsel
Federal law enforcement and prosecutorial agencies, probation officers, and
pretrial services officers in this district, and those acting on their behalf, must
promptly ask any person who is in custody, or who otherwise may be entitled to
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counsel under the CJA, whether he or she is financially able to secure
representation. If the person indicates that he or she is not financially able to
secure such representation, steps will be taken immediately to assist in the
completion of a financial affidavit (CJA Form 23) and to arrange to have the
person presented before a United States magistrate judge or district judge of
this court for determination of financial eligibility and appointment of counsel.
B. Pretrial Services Interview
The court recognizes the importance of the advice of counsel for persons
subject to proceedings under 18 U.S.C. § 3142, et seq., prior to their being
interviewed by a pretrial services or probation officer. Accordingly, all law
enforcement and related agencies must:
1. Advise any such person of his or her right to counsel as provided in this
Plan; and
2. Having due regard for the importance of affording the pretrial service or
probation officer adequate time to interview the defendant and verify
information prior to the bail hearing, make every reasonable effort to
insure that such person has consulted with counsel or has had the
opportunity to consult with counsel prior to such interview.
C. Notice of Indictment or Criminal Information
Upon the return or unsealing of an indictment, the filing of a criminal information,
or the filing of a petition to modify or revoke probation or supervised release, the
United States Attorney or the probation officer, as appropriate, must
immediately mail or otherwise deliver a copy of the document to appointed
counsel, or to the defendant if he or she is without counsel, at the address
shown on the defendant’s bond papers or to the jail in which the defendant is
incarcerated.
D. Duties of Appointed Counsel
It is the duty of all panel members appointed under this Plan to conform to the
highest standards of professional conduct. They are to represent their clients
diligently and with the utmost professional skill of which they may be possessed,
consistent with their obligations as officers of the court and with the Canon of
Ethics to which they subscribe. The services rendered to a person represented
by appointed counsel will be commensurate with those rendered if counsel were
privately employed by the person.
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