GENERAL ORDER NO. 2
CRIMINAL JUSTICE ACT PLAN
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
I. AUTHORITY
The judges of the United States District Court for the Northern District of California
adopt this Plan, as approved by the Ninth Circuit, for furnishing representation in
federal court for any person financially unable to obtain adequate representation as
required by the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A,
and the Guidelines for Administering the CJA and Related Statutes, Volume 7A,
Guide to Judiciary Policy (CJA Guidelines).
II. STATEMENT OF POLICY
A. Objectives
The objectives of this Plan are to attain the goal of equal justice under the law by
providing all eligible persons with timely appointed counsel services that are
consistent with the best practices of the legal profession, to ensure that services
are cost-effective without compromising the quality of representation, to
promote the independence of the defense function so that the rights of individual
defendants are safeguarded and enforced, and to particularize the requirements
of the CJA, the USA Patriot Improvement and Reauthorization Act of 2005
(recodified at 18 U.S.C. § 3599), CJA Guidelines, Ninth Circuit CJA Policies and
Procedures, and Local Rules of the Northern District of California in a way that
meets the needs of this district.
This Plan must be administered so that those accused of a crime, or otherwise
eligible for services under the CJA, will not be deprived of the right to counsel, or
any element of representation necessary to an effective defense, due to lack of
financial resources.
B. Representational Services
This Plan provides for representational services by the Federal Public Defender
for the Northern District of California and for the appointment and
compensation of private attorneys from an approved panel list (“CJA Panel”)
and other private attorneys in limited circumstances, in cases authorized under
the CJA and related statutes.
C. Panel Administration
Administration of the CJA Panel, as set forth in this Plan, is hereby delegated and
assigned to the Court.
D. Compliance
The Court, its clerk, the Federal Public Defender, private attorneys appointed
under the CJA, federal law enforcement officers, the United States Attorney’s
Office, and the Pretrial Services Office must comply with the CJA Guidelines,
approved by the Judicial Conference or its Committee on Defender Services, the
Ninth Circuit’s CJA Policies and Procedures, and with this Plan. The Court will
ensure that a current copy of the CJA Plan is made available on the Court’s
website and provided to counsel upon the attorney’s designation as a member of
the CJA Panel.
III. DEFINITIONS
A. “Appointed Attorney” is an attorney designated to represent a financially
eligible person under the CJA and this Plan. Such attorneys include private
attorneys, the Federal Public Defender and its staff attorneys.
B. “CJA Panel Administrator” is a person employed by the Federal Public
Defender to perform tasks related to the administration of the CJA Panel
including case assignments.
C. “CJA Supervising Attorney” is an attorney employed by the Court who
oversees the CJA Department, budgeting and funding of cases, including
coordinating CJA attorneys in multi-defendant cases, and voucher review.
D. “Panel Attorney District Representative” (PADR) is a member of the district’s
CJA Panel who is selected by the Federal Public Defender, with approval from
the Chief District Judge, to serve as a representative of the district’s CJA Panel for
the Defender Services CJA PADR program and local CJA committees.
E. “Representation” includes counsel, service providers (such as paralegals,
investigators, or experts), litigation support vendors, and expenses.
IV. ELIGIBILITY FOR CJA REPRESENTATION
A. Subject-Matter Eligibility
1. Mandatory. Representation must be provided for any financially eligible
person who:
a. is charged with a felony or with a Class A misdemeanor;
b. is a juvenile alleged to have committed an act of juvenile
delinquency as defined in 18 U.S.C. § 5031;
c. is charged with a violation of probation, or faces a change of a
term or condition of probation (unless the modification sought is
favorable to the probationer and the government has not objected
to the proposed change);
d. is under arrest, when appointed representation is required by law;
e. is entitled to appointed counsel in parole proceedings;
f. is 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. is subject to a mental condition hearing under 18 U.S.C. chapter
313;
h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence or when an
evidentiary hearing is warranted in a non-capital proceeding
under 28 U.S.C. § 2254 or § 2255;
j. is entitled to appointment of counsel in verification of consent
proceedings in connection with a transfer of an offender to or
from the United States for the execution of a penal sentence under
18 U.S.C. § 4109;
k. is entitled to appointment of counsel under the Sixth Amendment
to the Constitution; or
l. faces loss of liberty in a case, and federal law requires the
appointment of counsel.
2. Discretionary. Whenever a district judge or magistrate judge determines
that the interests of justice so require, representation may be provided for
any financially eligible person who:
a. is charged with a petty offense (Class B or C misdemeanor, or an
infraction) for which a sentence to confinement is authorized;
b. is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255 other than
to set aside or vacate a death sentence, unless an evidentiary
hearing is warranted (see above IV(A)(1)(i));
c. is charged with civil or criminal contempt and 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;
e. has been advised by the United States attorney or a law
enforcement officer that they are the target of a grand jury
investigation;
f. is proposed by the United States attorney for processing under a
pretrial diversion program; or
g. is held for international extradition under 18 U.S.C. chapter 209.
3. Ancillary Matters. The Court has the discretion to appoint counsel for
financially eligible persons in ancillary matters appropriate to the
criminal proceedings under 18 U.S.C. § 3006A(c). In determining whether
representation in an ancillary matter is appropriate to the criminal
proceedings, the Court should consider whether such representation is
reasonably necessary to:
a. protect a constitutional right;
b. contribute in some significant way to the defense of the principal
criminal charge;
c. aid in preparation for the trial or disposition of the principal
criminal charge;
d. enforce the terms of a plea agreement in the principal criminal
charge;
e. preserve the claim of the CJA client to an interest in real or
personal property subject to civil forfeiture proceeding under 18
U.S.C. § 983, 19 U.S.C. § 1602, 21 U.S.C. § 881, or similar statutes,
which property, if recovered by the client, may be considered for
reimbursement under 18. U.S.C. § 3006A(f); or
f. effectuate the return of real or personal property belonging to the
CJA client, which may be subject to a motion for return of
property under Fed. R. Crim. P. 41(g), which property, if
recovered by the client, may be considered for reimbursement
under 18 U.S.C. § 3006A(f).
B. Financial Eligibility
1. Presentation of Accused for Financial Eligibility Determination
a. Duties of Federal Law Enforcement Officers
For the purpose of ensuring that eligible persons have
access to counsel as soon as practicable, federal law
enforcement officials must promptly notify, telephonically
or electronically, the appropriate court personnel and the
Federal Public Defender of an arrest, unless the person has
retained counsel.
Employees of law enforcement agencies may not
participate in the completion of the financial affidavit or
seek to obtain information concerning financial eligibility
from a person requesting the appointment of counsel.
b. Duties of United States Attorney’s Office
Upon the return or unsealing of an indictment, the filing of
a criminal complaint or information, and where the
defendant has not retained counsel, the United States
Attorney’s Office will promptly notify, telephonically or
electronically, appropriate court personnel and the Federal
Public Defender.
Upon issuance of a target letter, and where the individual
has not retained counsel, the United States Attorney’s
Office must promptly notify, telephonically or
electronically, the appropriate court personnel and the
Federal Public Defender , unless the United States
Attorney’s Office is aware of an actual or potential conflict
with the target and the Federal Public Defender, in which
case they must promptly notify the CJA Panel
Administrator.
Employees of the United States Attorney’s Office may not
participate in the completion of the financial affidavit or
seek to obtain information concerning financial eligibility
from a person requesting the appointment of counsel.
c. Duties of the Federal Public Defender
In cases in which the Federal Public Defender may be
appointed, the office will immediately investigate and
determine whether an actual or potential conflict exists
and, if so, must promptly notify the CJA Panel
Administrator to facilitate the timely appointment of other
counsel.
Whenever practicable, the Federal Public Defender will
discuss with the person the right to appointed counsel and
arrange to have the matter promptly presented before a
judicial officer of this Court to determine financial
eligibility and counsel appointment.
d. Duties of Pretrial Services Office
When counsel has been appointed, the pretrial services
officer will provide counsel opportunity to attend any
interview of the defendant by the pretrial services officer
prior to the initial pretrial release or detention hearing.
The pretrial services officer will not conduct the pretrial
services interview of a financially eligible defendant until
counsel has been appointed and given an opportunity to
attend the interview.
2. Eligibility Determination
a. In every case where 18 U.S.C. § 3006A(a) and related statutes
authorize appointment of counsel, the Court must advise the
person that he or she has a right to be represented by counsel
throughout the case and that, if so desired, the Court will appoint
counsel to represent the person if he or she is financially unable to
obtain counsel.
b. The completed financial eligibility affidavit (Form CJA 23) should
reflect relevant information bearing on the person’s financial
eligibility for appointed counsel.
c. Determining eligibility for representation under the CJA is a
judicial function performed by the Court after making appropriate
inquiries concerning the person’s financial eligibility. Other
employees of the Court or the Federal Public Defender may be
designated to obtain or verify the facts relevant to the financial
eligibility determination if the Defender Organization is not
available.
3. Standards
a. In determining whether a person is “financially unable to obtain
counsel,” the Court should consider the cost of providing the
person and the person’s dependents with life’s necessities, the cost
of securing pretrial release, asset encumbrance, and the likely cost
to retain counsel.
b. The initial eligibility determination must be made without regard
to the financial ability of the person’s family to retain counsel
unless the person’s family indicates a willingness and ability to do
so promptly.
c. Any doubts about a person’s eligibility should be resolved in the
person’s favor; erroneous determinations of eligibility may be
corrected later.
d. If at any time after appointment appointed counsel has reason to
believe that a person is financially able to retain private counsel or
make partial payment for the appointed representation, and
disclosure would not conflict with counsel’s ethical duties,
counsel will advise the Court.
e. If at any time after the appointment of counsel a judge finds that a
person provided representation is financially able to retain private
counsel or make partial payment for the appointed representation,
the judge may terminate the counsel appointment or direct the
defendant to pay available funds as provided in 18 U.S.C. §
3006A(f).
f. If at any stage of the proceedings a judge finds that a person is no
longer financially able to pay retained counsel, counsel will be
appointed in accordance with the general provisions set forth in
this Plan.
g. If at any stage of the proceedings a judge finds that a pro se or
privately represented person is not financially able to pay other
representation costs, including investigative, expert, or other
services, funding may be authorized for those costs in accordance
with the general provisions set forth in this Plan.
V. TIMELY APPOINTMENT OF COUNSEL
A. Eligible persons must receive appointed counsel as soon as feasible. This means
as soon as possible after receiving a target letter, after being taken into custody,
upon appearing before a judicial officer, when formally charged, when notified
of charges if formal charges are sealed, or when a judicial officer otherwise
determines appointed counsel is appropriate under the CJA or this Plan,
whichever occurs earliest.
B. Financially eligible persons will be provided appointed counsel prior to being
interviewed by a pretrial services officer. The Federal Public Defender will
maintain a schedule of “on call” or “duty day” attorneys, who are employees of
the Federal Public Defender, to advise persons who are in custody, or who
otherwise may be entitled to counsel under the CJA, during the pretrial services
interview process.
C. Appointment of counsel may be made retroactive to include representation
provided prior to appointment.
VI. FEDERAL PUBLIC DEFENDER OF THE NORTHERN DISTRICT OF
CALIFORNIA
A. Establishment
The Federal Public Defender of the Northern District of California is established
in this district under the CJA and is responsible for rendering defense services on
appointment throughout this district.
B. Staff Supervision and Case Workload
The Federal Public Defender is responsible for supervising and managing the
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 Federal Public Defender’s discretion. The Federal Public
Defender will continually monitor staff workloads to ensure high-quality
representation for all clients.
C. Standards and Professional Conduct
The Federal Public Defender must provide high-quality representation consistent
with the best practices of the legal profession. The Federal Public Defender must
conform to the highest standards of professional conduct, including but not
limited to the American Bar Association’s Model Rules of Professional Conduct,
Code of Conduct for Federal Public Defender Employees and other standards for
professional conduct adopted by the Court.
D. Private Practice of Law
Neither the Federal Public Defender nor any defender employee may engage in
the private practice of law except as authorized by the Federal Public Defender
Code of Conduct.
E. Panel Attorney Training
In coordination with the PADR, CJA Supervising Attorney, and the CJA
Administration Committee, the Federal Public Defender will assess the training
needs of the CJA Panel and provide regularly scheduled training opportunities
and other educational resources that includes updates regarding substantive law,
sharing best practices in federal criminal defense, and presentations on
courtroom and office technology.
VII. CJA ADMINISTRATION COMMITTEE
A. Establishment
The CJA Administration Committee has been established by the Court in
consultation with the Federal Public Defender to assist the Court in
administering the Act and will promulgate regulations necessary to implement
this Plan including the selection, oversight, and management of CJA Panel
members. The CJA Administration Committee Chair may establish
subcommittees both standing and ad hoc, that include non-members that have
the necessary expertise and qualifications to address specific CJA related issues
such as recruiting panel members, training, mentoring, reviewing complaints,
and reviewing voucher reductions.
B. Composition
At a minimum, the CJA Administration Committee must consist of:
1. the Chair, appointed by the Chief Judge;
2. three District Judges with one from each of the San Francisco, Oakland,
and San Jose divisions;
3. two Magistrate Judges;
4. the Federal Public Defender or delegate, who will be a permanent
member of the CJA Administration Committee;
5. the district’s current PADR or delegate, who will be a permanent member
of the CJA Administration Committee;
6. the district’s CJA Supervising Attorney, who will be a permanent
member of the CJA Administration Committee;
7. three experienced criminal defense attorneys with prior panel experience;
and
8. the Clerk or designee thereof who will act as administrator coordinator.
C. Terms
Court members of the CJA Administration Committee who are judicial officers
serve at the pleasure of the Chief Judge. Except for the Federal Public Defender,
PADR, CJA Supervisory Attorney, and ex officio administrator, members will
serve for three years and may be extended for one additional three-year term.
Terms will be staggered to ensure continuity on the CJA Administration
Committee and rotation of members. Vacancies will be filled upon
recommendation of the Chair, with input from the Federal Public Defender,
PADR, and the CJA Supervising Attorney, and upon approval by the Chief
District Judge.
D. The CJA Administration Committee will ensure the creation of a diverse panel.
E. The CJA Administration Committee will meet at least once a year and at any
time the Court or a committee member asks the committee to consider an issue.
F. Training
The CJA Administration Committee will assist the Federal Public Defender in
devising and presenting training programs for the CJA Panel.
G. Six members shall constitute a quorum.
H. Annual Report
Annually, the CJA Administration Committee shall review panel operation and
administration for the preceding year and provide a report to the Chief District
Judge describing efforts to recruit qualified and diverse panel members, any
proposed changes to panel size, any recurring issues or difficulties panel
attorneys or their clients encounter, and any other operating difficulties, along
with recommendations for appropriate changes.
VIII. CJA Panel Membership
There shall be four panel selection subcommittees to select members for the San
Francisco/Oakland, San Jose, Appellate, and Eureka Panels. The Chairs of each
committee shall be selected by the Chair of the CJA Administration Committee in
consultation with the Chief Judge.
A. Recruitment
The CJA Panel Selection Committees will strive to create and maintain a diverse
CJA Panel of the highest caliber federal criminal defense practitioners. In
conjunction with a mentoring program, the Committee will devise a recruitment
strategy that identifies and trains a diverse set of viable panel applicants.
B. Panel Selection Committees
1. San Francisco/Oakland and San Jose Panel Selection Subcommittees
The Chair of the CJA Administration Committee shall select a District
Judge member of each panel selection subcommittee, who shall select the
Magistrate Judge and attorney members of his or her panel selection
subcommittee, subject to approval by the Chair of the CJA
Administration Committee. The trial panel selection subcommittees shall
consist of at least one District Judge, one Magistrate Judge, two
experienced criminal attorneys with prior panel experience, the Federal
Public Defender and/or a designee, the CJA Supervising Attorney and
the current CJA Panel Attorney District Representative. With the
exception of the Federal Public Defender, members of each panel
selection subcommittee shall have their chambers or principal place of
business in the geographic area served by that subcommittee.
2. Appellate Panel Selection Subcommittee
The Chair of the CJA Administration Committee shall select a District
Judge member of the Appeals Selection Subcommittee, who shall select
the Magistrate Judge and attorney members of his or her panel selection
subcommittee, subject to approval by the Chair of the CJA
Administration Committee. The Appellate Selection Subcommittee shall
consist of at least one District Judge, one Magistrate Judge, two
experienced criminal attorneys with prior panel and appellate experience
and the Federal Public Defender and/or a designee.
3. Eureka Panel Selection Subcommittee
This subcommittee shall consist of the resident Magistrate Judge in
conjunction with the Chair of the CJA Administration Committee and the
Federal Defender or a designee.
4. Meetings
The panel selection subcommittees shall annually review attorney
applications and recommend attorneys for appointment to the panel.
5. Terms
Each non-judicial members of the Panel Selection Subcommittees, except
ex officio members, shall serve a three-year term and may be reappointed
by the Chair of the CJA Administration Committee for one successive
term.
6. Process of Selecting Panel Attorneys
The four panel selection subcommittees shall select panel attorneys based
on their proven experience and competence in the field of criminal
defense, proof that they meet the minimum requirement as set forth in
this Plan, and their willingness to serve indigent defendants. The panel
selection subcommittees will present their appointment
recommendations to the Chair of the CJA Administration Committee,
who will present them to a quorum of the CJA Administration
Committee for approval, after which the Chair of the CJA Administration
Committee will present the list of the recommended panel attorneys to
the Chief Judge for final approval.
7. Additional Panel Selection Subcommittee Responsibilities
At least annually, the panel selection subcommittees shall (a) review
the operation and administration of their panels over the preceding
year and make recommendations to the CJA Administration
Committee regarding the selection, recommendation and
appointment process and panel management, and (b) determine the
continued availability and willingness of each panel member to accept
appointments.
IX. CJA PANEL MEMBERSHIP
A. Establishment
The existing, previously established panels of attorneys who are eligible and
willing to be appointed to provide representation under the CJA are hereby
recognized. The Court will approve additional attorneys for membership on the
CJA Panel after receiving recommendations from the CJA Administration
Committee. Nothing in this Plan creates a property interest in being or remaining
on the CJA Panel.
B. Size
The CJA Panel size will be determined by the CJA Administration Committee,
subject to the Court’s review, based on panel member caseloads and activity. The
CJA Panel must be large enough to provide a sufficient number of experienced
attorneys to handle the CJA caseload, yet small enough so panel members will
each receive an adequate number of appointments to maintain their federal
criminal defense work proficiency, enabling them to provide high quality
representation consistent with the best practices of the legal profession.
C. Qualifications and Membership
1. Equal Opportunity. All qualified attorneys are encouraged to apply for
CJA Panel membership. The CJA Panel Committee shall not
discriminate against, or grant preferential treatment to, any individual
or group on the basis of race, sex, color, ethnicity, national origin,
gender identity, sexual orientation, age, religion, or disability.
2. Application. Application forms for CJA Panel membership are available
from the Federal Public Defender during the annual application time
period.
3. Eligibility
a. General Qualifications: CJA Panel applicants must have the
following general qualifications:
be members in good standing of the State Bar of California,
federal bar of this district, and the Ninth Circuit Court of
Appeals;
except for capital habeas panel members, maintain a
primary, satellite, or shared office in the specific court
Division of the District for the applicable panel at the time
the attorney submits an application for the panel
membership and during the entire term of membership;
possess strong litigation and writing skills;
demonstrate proficiency with the Bail Reform Act,
Recommendations for Electronically Stored Information
Discovery Production in Federal Criminal Cases (ESI
Protocol), Federal Rules of Evidence, Federal Rules of
Criminal Procedure, Federal Rules of Appellate Procedure,
United States Sentencing Guidelines, federal sentencing
procedures, and this District’s Local Rules;
have the training and ability to manage and effectively
utilize electronic case presentation equipment and
software in the courtroom and manage electronic
discovery;
have significant experience representing persons charged
with serious criminal offenses and demonstrate a
commitment to the defense of people who lack the
financial means to hire an attorney.
Attorneys who do not possess the experience set forth above
but believe they have equivalent other experience, or who
have completed a mentoring program, are encouraged to
apply and set forth in writing the details of that experience for
the committee’s consideration.
b. CJA Trial Panels. Trial Panel memberships are divided into two
specialized panels.
“Tier One” made up of the most experienced panel
members eligible for appointment in all cases, including
the most complex and difficult cases;
“Tier Two” members eligible for appointment in the
following types of cases:
18 U.S.C. § 922(g) cases;
21 U.S.C. § 841 cases that do not involve
mandatory minimum sentences alleged in the
initial indictment, conspiracy allegations,
wiretaps or weapons; and
Other less serious cases identified as
appropriate by the Federal Public Defender or
the defender’s legal staff.
c. Minimum Relevant Professional Experience
All panel members must be of good standing in the State Bar of
California and have as a primary place of business in the Northern
District of California.
Trial Panel Membership Tier One: At a minimum, counsel
must have five years of continuous private federal criminal
practice, or seven years of criminal practice in state or
federal court, or three years of experience as an Assistant
United States Attorney or Assistant Federal Public
Defender; and five federal or state felony jury trials. Two
of the required trials may be replaced with equivalent
experience such as unusually complex matters which are
settled short of trial, criminal appeals which require
unusual knowledge or effort or substantial civil jury trials.
Any applicant who has not tried two federal criminal jury
trials must audit two cases from start to finish pursuant to
the mentor program established under the Plan. Successful
completion of the mentor program will satisfy the
requirements necessary to serve on a trial panel, but it
does not guarantee admission. This audit shall include
watching at least one full federal criminal trial.
Trial Panel Membership Tier Two: At a minimum, counsel
must have five years of continuous criminal practice and
three felony criminal trials (in either state or federal court).
Tier Two panel members have the ability to apply for the
Tier One panel after two years.
Appellate Panel Membership: Ten federal or state felony
appeals or combination thereof. Five of the required
appeals may be replaced with equivalent experience such
as criminal trials, habeas corpus proceedings, or complex
criminal matters settled short of trial.
Members of the San Francisco/Oakland Trial Panels must
be willing to take cases in either venue.
Such additional qualifications as may be established by the
CJA Administration Committee.
D. Term Limits for Panel Attorneys
Each panel member will serve for a three-year term. A panel member's term will
continue until the conclusion of any active representation under this Plan, but no
new appointments will be offered. Subject to the provisions of this Plan,
members of the panels shall serve at the pleasure of the Court.
E. Re-Appointment and Re-application
1. In considering the re-appointment of CJA Panel members, the CJA Panel
Committee may:
a. solicit input from the legal community and the Court concerning
the quality of representation provided by attorneys seeking
reappointment;
b. request a personal interview with the CJA Panel member; and
c. consider the number of cases the CJA Panel member accepted and
declined during the review period, the member’s participation in
training opportunities, whether the member continues to meet
this Plan’s technology and facilities requirements, whether the
member has been the subject of any complaints, and whether the
member continues to meet the prerequisites and obligations of
CJA panel members or applicants as set forth in this Plan.
2. The CJA Panel Administrator will notify CJA Panel members, within 3
months prior to the expiration of their current term, of the need to apply
for reappointment to the CJA Panel and will set forth the procedures and
deadlines for reapplying.
F. Leaves of Absence
A panel member may take a leave of absence not to exceed three months without
being required to resign from the panel, which can be initiated by the panel
member sending a letter to the CJA Supervising Attorney. The leave of absence
will not extend the panel attorney’s term. The CJA Administration Committee
may permit longer leave periods if justified.
X. CJA PANEL MEMBER DUTIES
A. Standards and Professional Conduct
1. CJA panel members must provide high quality representation consistent
with the legal profession’s best practices. CJA Panel attorneys will be
guided in their practice by the Federal Adaptation of the National Legal
Aid and Defender Association Performance Guidelines for Criminal
Defense Representations and the ABA’s Criminal Justice Standards for
the Defense Function.
2. Attorneys appointed under the CJA must conform to the highest
standard of professional conduct, including but not limited to the
American Bar Association’s Model Rules of Professional Conduct and all
other standards for professional conduct adopted by the Court.
3. CJA Panel members must immediately notify the Federal Public
Defender, in writing, if they are disbarred, suspended, sanctioned, or
reprimanded by any licensing authority, grievance committee, or
administrative body. CJA Panel members must also notify the Federal
Public Defender in writing, within 30 days, if they are sanctioned or
found in contempt by any state or federal court judge.
B. Training and Continuing Legal Education
1. CJA Panel attorneys are expected to remain current with developments in
federal criminal defense law, practice, and procedure, including
electronic discovery techniques.
2. CJA panel members are encouraged to annually attend CLA or federal
criminal practice training, hosted by the Office of the Federal Public
Defender, the Defender Services Office, or by the Court. Participation in
federal criminal practice trainings will be considered during the panel
application process.
3. The effective defense of indigent federal criminal defendants requires
counsel to remain current with developments in case law, forensics,
ethics, and other related fields.
C. Facilities and Technology Requirements
1. CJA panel attorneys must have the facilities, resources, and technological
capability to effectively and efficiently manage assigned cases, including
the availability of office space to meet with clients and the technological
resources to receive, review, organize, and otherwise manage electronic
discovery and records.
2. CJA panel attorneys must know and comply with the requirements of
electronic filing and eVoucher, including how to submit requests for
investigative, expert, and other services.
3. CJA panel attorneys shall maintain competence with technology
including using email, word processing, spreadsheets, keyword
searching tools, application to open ZIP files and create searchable PDF
documents.
XI. MENTOR PROGRAM
The Federal Public Defender shall administer this program. If requested by the
Federal Public Defender, the trial panel member is encouraged to serve as a mentor
to a non-panel attorney (“mentee”) who has not tried two federal criminal jury trials.
The mentor shall provide an opportunity for the mentee to audit all aspects of a
federal criminal case, including client conferences, strategy determination, motion
and trial preparation and court appearances, and the mentee shall be part of the
defense team for the purposes of creating duties of loyalty and confidentiality owed
to the client. To complete the requirements of the program, mentees need to audit
two federal criminal cases from start to finish including at least one jury trial and
two of each of the following: arraignment, detention hearing, motion hearing, and
sentencing.
XII. COUNSEL APPOINTMENT IN NON-CAPITAL CASES
A. Apportionment of Cases
CJA Panel attorneys will be appointed in a sufficient number of cases per year so
that attorneys remain proficient in criminal defense work.
B. Number of Counsel
More than one attorney may be appointed in any case determined by the Court
to be unusual or complex or to otherwise involve exceptional circumstances.
Separate from the formal appointment of counsel, particularly in cases involving
trials or evidentiary hearings, the Court welcomes and will consider seriously
requests by appointed counsel to associate junior counsel. Panel members should
propose associate counsel who they are willing to mentor and train specifically
as future panel members and are encouraged to identify associate lawyers,
especially those from diverse backgrounds and those with fewer years of
experience as federal lawyers.
C. Appointment List
The CJA Panel Administrator will maintain a current list of all CJA Panel
attorneys, with current office addresses, email addresses, and telephone
numbers, as well as a statement of qualifications and experience.
D. Appointment Procedure
The Defender Organization is responsible for overseeing the appointment of
cases to panel attorneys. The Federal Public Defender will maintain a record of
panel attorney appointments and data reflecting the proportion of appointments
among the CJA Panel and Defender Organization. If the Federal Public Defender
cannot accept an appointment the CJA Panel Administrator shall refer a panel
attorney for the Court’s appointment.
1. Appointment of cases to CJA panel members will ordinarily be made on a
strict rotational basis. Exceptions are allowed only when the
representation calls for a specialization or demand.
2. Under special circumstances, the Court may appoint an attorney who is
not a member of the District’s CJA Panel. Such special circumstances may
include cases in which the Court determines that the appointment of an
attorney is in the interests of justice, judicial economy, or continuity of
representation, or for any other compelling reason. Other circumstances
may include large multi-defendant cases for which there is an insufficient
number of CJA Panel attorneys in the District. It is not anticipated that
special circumstances will arise often, and the procedures set forth in the
Plan are presumed to be sufficient in the vast majority of cases in which
counsel are to be appointed. Appointments made under this section will
be reported to the CJA Administration Panel Committee.
E. Continuing Representation
1. Once counsel is appointed under the CJA, counsel will continue the
representation until:
a. the matter is closed, including conclusion of any appellate or
certiorari proceedings;
b. substitute counsel has filed a notice of appearance;
c. an order is entered allowing the client to proceed pro se; or
d. the appointment is otherwise terminated by Court order.
2. If trial counsel prefers to withdraw in favor of new counsel on appeal,
trial counsel will first file the notice of appeal in the district court to
preserve the client’s right to appeal and then move to withdraw in the
Court of Appeals, asking for appointment of substitute counsel.
XIII. REMOVAL FROM THE PANEL
A. Mandatory Removal
Any attorney whose right to practice in this District or the State of California has
been suspended or revoked shall be automatically removed from the panel.
B. Discretionary Removal
For good cause shown, the CJA Administration Committee may remove an
attorney from the panel for engaging in unethical behavior, improper billing, or
misconduct or for failing to represent his or her client in a vigorous, competent,
professional, or ethical way.
C. Removal Procedure
1. Filing a Complaint
Any person who believes that a panel member’s conduct should be
investigated may file a complaint addressed to the Chair of the CJA
Administration Committee and delivered to the CJA Unit in a sealed
envelope marked “confidential.” A complaint should be made as soon
as possible after the event arises so that fair consideration of the facts
is possible; a complaint is subject to dismissal when the passage of
time has rendered adequate investigation impracticable. A complaint
must meet the following requirements:
a. The complaint may be in letter format, not to exceed five
typewritten or legible handwritten pages, and it must contain a
thorough statement of what occurred, the time and place of the
occurrence(s), and any other information that would assist
investigation, such as the presence of witnesses and their names
and contact information.
b. Supporting documentation should be attached.
c. The complaint must be signed, and the complainant’s address and
daytime phone provided. Anonymous complaints are disfavored;
it is within the discretion of the CJA Administrative Committee to
decide whether an anonymous complaint merits further
investigation.
2. Investigating a Complaint
Within 21 days of receipt of the complaint, the Chair of the CJA
Administration Committee shall determine whether the complaint
should be investigated and forward this recommendation to the other
committee members. If the other members agree with the Chair’s
determination, the Chair shall provide a copy of the complaint to the
panel member who is the subject of the complaint and request that the
panel member, within 14 days, submit a written response by letter
addressed to the Chair. The CJA Administration Committee may
undertake any investigation necessary to resolve the matter or may
appoint a subcommittee to do so. The investigation may include
interviewing the complainant, the panel attorney and witnesses. The
CJA Administration Committee will provide the results of this
investigation to the panel attorney and provide that attorney with an
opportunity to respond.
3. Investigating a Complaint Involving Allegations of Criminal Activity
If the complaint alleges criminal activity, the CJA Administration
Committee is not required to notify the panel attorney of the
complaint if disclosure could jeopardize the investigation.
4. Bases for Automatic Dismissal of the Complaint
Within 21 days of receipt of the complaint, the Chair of the CJA
Administration Committee shall automatically dismiss the complaint
without further action if:
a. It alleges activities that can no longer be adequately investigated
because of the passage of time;
b. It lacks sufficient detail; or
c. The allegations are clearly frivolous or untrue.
When a complaint is dismissed for any of these reasons, the subject
panel member shall receive a copy of the complaint with a written
statement of dismissal from the Chair of the CJA Administration
Committee.
5. Final Determination by CJA Administration Committee
Within 90 days of receipt of a complaint, the CJA Administration
Committee will dismiss a complaint if the allegations are found to be
untrue or, if true, insufficiently serious to warrant removal from the
panel. The CJA Administration Committee may impose other
sanctions short of removal, such as censure, a term of probation, or
any other sanction it deems appropriate under the circumstances. If
the CJA Administration Committee finds the allegations to be true
and warranting removal, the Chair will notify the panel member of
his/her removal from the panel. A notice of removal should occur no
more than 90 days from the date the complainant filed the complaint,
although the Chair of the CJA Administration Committee may extend
this deadline for good cause.
6. Reapplication to the Panel Following Removal
Any member who is removed from the panel, whether for mandatory
or discretionary reasons, may reapply for panel membership after
waiting one year from the date of removal.
7. Miscellany
a. The original complaint and all papers, records and reports will be
kept in confidential files by the Clerk of the Court.
b. The Chair of the CJA Administration Committee may extend a
deadline for good cause shown.
c. The entire complaint process shall remain confidential until the
Chair of the Administration Committee
formally dismisses the complaint, or
formally removes the attorney from the panel.
d. These procedures are not meant to preclude remedies available
through malpractice or negligence suits arising from the provision
of representational services.
e. If the CJA Administration Committee finds the allegations to be
true and warranting removal from the panel, the Chair may, after
consultation with the Chief Judge, refer the matter to the Court’s
Standing Committee on Professional Conduct.
XIV. SPECIAL PROVISIONS FOR CAPITAL CASES
A. Capital Cases
For purposes of this plan, “capital cases” are those involving the death penalty
and include: (1) prosecutions under any provision of federal law carrying a
potential penalty of death; (2) direct appeals from cases wherein the death
penalty was imposed by a federal court; (3) post-conviction proceedings in which
an individual sentenced to death by a federal court is seeking to set aside or
vacate the conviction or sentence under 28 U.S.C. § 2255; and (4) habeas corpus
proceedings in which an individual sentenced to death by a state court is seeking
to set aside or vacate the conviction or sentence under 28 U.S.C. § 2254.
B. Applicable Legal Authority
The appointment and compensation of counsel in capital cases and the
authorization and payment of persons providing investigative, expert, and other
services are governed by 18 U.S.C. §§ 3005, 3006A, and 3599; CJA Guidelines, Ch.
6; and General Order 50.
C. Counsel Qualifications
1. In addition to the requirements for Panel membership set out in Section
VIII of this Plan, counsel appointed in capital cases to represent
financially-eligible persons will meet the statutory requirements set out in
18 U.S.C. §§ 3005 and 3599(b)-(d) as expanded upon below, as well as any
applicable circuit rules.
2. All attorneys appointed in capital cases must (1) be well qualified as
demonstrated by their training, commitment to the defense of capital
cases, and distinguished prior criminal defense experience at the relevant
stage of the proceeding; (2) have sufficient time and resources to devote
to the representation, considering their current caseload and the
extraordinary demands of a capital case; (3) meet all applicable guidelines
adopted by the American Bar Association concerning representation of
persons in death penalty cases; and (4) consult regularly with the
appropriate Death Penalty Resource Counsel project available through
the Defender Services division of the Administrative Office of the United
States Courts.
3. In trial-level capital cases requiring the appointment of “learned counsel,”
such counsel must meet the minimum standards in 18 U.S.C. §§ 3005 and
3599(b) or (d). Learned counsel should have distinguished prior
experience in the trial, appeal, or post-conviction review of federal or
state death-penalty cases that, in combination with co-counsel, will assure
high-quality representation. “Distinguished prior experience”
contemplates excellence, not simply prior experience.
4. In direct appeals and post-conviction proceedings under 18 U.S.C. §§
2254 or 2255, appointed counsel must meet the minimum standards
required by 18 U.S.C. § 3599(c) or (d) and should have distinguished prior
experience in federal criminal appeals, capital appeals, federal post-
conviction proceedings, or capital post-conviction proceedings.
5. Out-of-district counsel, including Defender Organization staff, who
possess the requisite expertise may be considered for appointment in
capital cases to achieve high-quality representation.
6. An attorney furnished by a state or local public defender organization or
legal aid agency or other private, non-profit organization to represent a
person charged with a capital crime or seeking federal capital habeas
corpus relief may be appointed if the attorney is fully qualified. This
appointment 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. (See 18 U.S.C. § 3006A(a)(3).)
D. Appointment of Counsel
1. Pre-Trial. No later than when a defendant receives a target letter alleging
the commission of a capital offense or is charged with a federal criminal
offense where the statute authorizes the death penalty, the Court must
appoint two attorneys, at least one of whom meets the qualifications for
“learned counsel.” If necessary, for adequate representation, more than
two attorneys may be appointed. Consistent with Section XB2 of this
Plan, the Court may appoint capitally qualified counsel for an individual
that, although uncharged, is the subject of an investigation in a federal
death- eligible case. When appointing counsel, the judge must consider
the recommendation of the Federal Public Defender who will consult
with Death Penalty Resource Counsel to recommend qualified counsel.
2. Direct Appeals. Counsel representing a death-sentenced federal appellant
should include at least one attorney who did not represent the appellant
at trial. Each trial counsel who withdraws should be replaced with
similarly qualified counsel to represent the defendant on appeal. When
appointing counsel, the Court must consider the recommendation of the
Federal Public Defender who will consult with Federal Capital Appellate
Resource Counsel to recommend qualified counsel.
3. Post-Conviction Proceedings. In any post-conviction proceeding under 18
U.S.C. §§ 2255 or 2254, the Court must appoint at least one qualified
attorney and may consider appointing at least two given the complex,
demanding, and protracted nature of death penalty proceedings. When
appointing counsel, the Court should consider the recommendation of
the Federal Public Defender, who will consult with the appropriate
Resource Counsel project to recommend qualified counsel. For § 2255
proceedings, appointment should take place, if possible, prior to denial of
certiorari on direct appeal by the United States Supreme Court. For § 2254
proceedings, appointment should take place at the earliest time
permissible by law to permit federal counsel to avail themselves of the
full statute-of-limitations period to prepare a petition.
E. Case Budgeting and Resources
All capital cases, unless staffed only by the Defender Organization’s office, must
be budgeted. As early as practicable after appointment, counsel or the Court
should refer the case to the CJA Supervisory Attorney. Questions about the
appointment and compensation of counsel and the authorization and payment of
investigative, expert, and other service providers in capital cases also may be
directed to the appropriate Death Penalty Resource Counsel project or the AO
Defender Services Office, Legal and Policy Division Duty Attorney at 202-502-
3030.
XV. EFFECTIVE DATE
This plan shall take effect when approved by the Judges of the Northern District of
California and the Judicial Council of the Ninth Circuit.
DATED: January 3, 1973
AMENDED: February 24, 2000
December 20, 2011
June 16, 2015
January 22, 2020
September 23, 2022
September 28, 2023 ______________________________________________
CHIEF JUDGE,
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
FOR THE COURT FOR THE JUDICIAL COUNCIL
OF THE NINTH CIRCUIT ON OCTOBER 11, 2023
Dated:
______________________________________________
CHIEF JUDGE,
NINTH CIRCUIT COURT OF APPEALS
