UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CRIMINAL JUSTICE ACT PLAN
I. AUTHORITY
Under the Criminal Justice Act of 1964, as amended (CJA), section
3006A of title 18, United States Code, and the Guidelines for
Administering the CJA and Related Statutes (CJA Guidelines), Volume
7A of the Guide to Judiciary Policy, the judges of the United States
District Court for the District of Hawaii adopt this Plan for furnishing
representation in federal court to 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
crimes, or otherwise eligible for services under 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
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(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, 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. When an attorney is first appointed under the CJA or
designated as a member of the Panel of Private
Attorneys under the Criminal Justice Act (CJA Panel),
such attorney will be notified by the Clerk of Court
that a current copy of this CJA Plan is maintained and
available on the Court’s website
(www.hid.uscourts.gov). At such time the attorney will
also be notified that a current copy of the CJA
Guidelines is maintained and available on the federal
judiciary’s main public website (www.uscourts.gov). All
CJA Panel attorneys are required to read and be
thoroughly familiar with the CJA Guidelines.
III. DEFINITIONS
A. Representation
“Representation” includes counsel and investigative, expert,
and other services.
B. Appointed Attorney
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“Appointed attorney” includes private attorneys, the Federal
Public Defender and staff attorneys of the Federal Public
Defender Organization.
C. Judicial Officer
“Judicial Officer” means a United States District Judge or a
United States Magistrate Judge.
IV. PROVISION OF REPRESENTATION
A. Circumstance.
1. Mandatory. Representation shall 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 section 5031 of
title 18, United States Code;
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 such representation is
required by law;
e. is entitled to appointment of counsel in parole
proceedings (Guide, Vol. 7A, § 210.20.10(a)(5));
f. is charged with a violation of supervised release
or faces modification, reduction, or enlargement
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of a condition, or extension or revocation of a
term of supervised release;
g. is subject to a mental condition hearing under
chapter 313 of title 18, United States Code;
h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence
under section 2254 or 2255 of title 28, United
States Code;
j. is entitled to appointment of counsel in
verification of consent proceedings pursuant to a
transfer of an offender to or from the United
States for the execution of a penal sentence under
section 4109 of title 18, United States Code;
k. is entitled to appointment of counsel under the
Sixth Amendment to the Constitution (see:
Guide, Vol. 7A, § 210.20.10(a)(9)); or
l. faces loss of liberty in a case and federal law
requires the appointment of counsel (see: Guide
§ 210.20.10(a)(9)).
2. Discretionary. Whenever a judicial officer determines
that the interests of justice so require, representation
may be provided for any financially eligible person
who:
a. is charged with a petty offence (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 or in non
capital matters under 28 U.S.C. §§ 2254 or 2255;
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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 that 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, or to a
civil or criminal contempt proceeding, or could
face loss of liberty;
e. is proposed by the United States Attorney for
processing under a pretrial diversion program;
f. is held for international extradition under
chapter 209 of title 18, United States Code.
Representation may also be furnished for financially eligible
persons in ancillary matters appropriate to the proceedings
under subsection (c) of the CJA.
B. Timely Appointment of Counsel.
Counsel shall be provided to eligible persons as soon as
feasible after they are taken into custody, when they appear
before a judicial officer, when they are formally charged or
notified of charges if formal charges are sealed, or when a
judicial officer otherwise considers appointment of counsel
appropriate under the CJA, whichever occurs earliest.
C. Number and Qualifications of Counsel.
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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 of 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. Absent exceptional circumstances, one of
the two counsel appointed in a federal capital
prosecution shall be a member of the Hawaii bar.
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 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 counsel.
2. Qualifications. Qualifications for appointed counsel
shall be determined by the Court. In capital cases the
following also applies:
a. Appointment of Counsel Prior to 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
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attorneys appointed must be knowledgeable in
the law applicable to capital cases.
Under 18 U.S.C. § 3005, in appointing counsel in
federal capital prosecutions, the Court shall
consider the recommendation of the Federal
Public Defender.
b. Appointment of Counsel After Judgment. Under
18 U.S.C. § 3599(c), at least one of the attorneys
appointed must have been admitted 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.
D. Eligibility for Representation.
1. Factfinding. The determination of eligibility for
representation under the CJA is a judicial function to
be performed by a judicial officer after making
appropriate inquiries concerning the person’s financial
condition.
2. Disclosure of Change in Eligibility. 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 his
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or her representation, and the source of the attorney’s
information is not protected as a privileged
communication, counsel shall advise the Court.
V. FEDERAL PUBLIC DEFENDER ORGANIZATION
A. Establishment.
1. The Federal Public Defender Organization of the
District of Hawaii, previously established in this
District pursuant to the provisions of the CJA, is
hereby recognized as the Federal Public Defender
Organization for this District.
2. The Federal Public Defender Organization will be
capable of providing legal services throughout the
District and will maintain an office in Honolulu,
Hawaii.
B. 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.
VI. PRIVATE ATTORNEYS
A. Establishment of CJA Panel. The existing, previously
established panel of attorneys (CJA panel) who are eligible
and willing to be appointed to provide representation under
the CJA is hereby recognized.
B. Organization. The Plan for the Composition, Administration,
and Management of the Panel of Private Attorneys under
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the Criminal Justice Act is found at Appendix I of this CJA
Plan.
C. Ratio of Appointments. Where practical and cost effective,
private attorneys from the CJA Panel will be appointed in a
substantial proportion of the cases in which the accused is
determined to be financially eligible for representation under
the CJA. “Substantial” will usually be defined as
approximately 25% of the appointments under the CJA
annually throughout the District.
VII. DUTIES OF APPOINTED COUNSEL
A. Standards. The services to be rendered a person represented
by appointed counsel will be commensurate with those
rendered if counsel were privately employed by the person.
B. Professional Conduct. Attorneys appointed pursuant to the
CJA shall conform to the highest standards of professional
conduct, including but not limited to the standards for
professional conduct adopted by the Court.
C. No Receipt of Other Payment. Appointed counsel may not
require, request, or accept any payment or promise of
payment or any other valuable consideration for
representation under the appointment, unless such payment
is approved by order of the Court.
D. Continuing Representation. Once counsel is appointed under
the CJA, counsel will continue the representation until the
matter, including appeals or review by certiorari (as
governed by the circuit CJA Plan provisions concerning
representation on appeal), 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.
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VIII. 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
counsel under the CJA, whether he or she is financially able
to secure representation, and must, in such cases in which
the person indicates that he or she is not able, notify the
Federal Public Defender who will discuss with the person
the right to representation and right to appointed counsel,
and if appointment of counsel seems likely, assist in the
completion of a financial affidavit (CJA Form 23) and
arrange to have the person promptly presented before a
judicial officer of this Court for determination of financial
eligibility and appointment of counsel.
B. 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, 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 is without counsel, at the address shown on
defendant’s bond papers or to the jail in which the defendant
is incarcerated.
IX. MISCELLANEOUS
A. Forms. Standard forms, pertaining to the CJA and approved
by the Judicial Conference of the United States or its
Committee on Defender Services and prescribed and
distributed by the Director of the Administrative Office of
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the United States Courts, must be used, when applicable, in
all proceedings under this Plan.
B. Claims. Claims for compensation of private attorneys
providing representation under the CJA must be submitted
on the appropriate CJA form, along with itemized receipts,
invoices, and/or supporting documentation, to the office of
the Clerk of the Court. That office will review the claim form
for mathematical and technical accuracy and for conformity
with the CJA Guidelines, and, if correct, will forward the
claim form for review by the “Voucher Review Committee,”
consisting of a magistrate judge and the Federal Public
Defender (or the First Assistant Federal Public Defender as
an alternate). The Voucher Review Committee will review
the voucher, determine whether it is appropriate for
payment (or recommend any reduction or adjustment) and
forward the voucher for further consideration by the
appropriate judicial officer(s). The Court will exert its best
effort to avoid delays in reviewing payment vouchers and in
submitting them for further processing. Failure to submit
appropriate supporting documentation with CJA forms may
cause significant processing and payment delays.
C. Supersession. This Plan supersedes all prior Criminal
Justice Act Plans of this court.
X. EFFECTIVE DATE
This plan will become effective when approved by the Judicial Council
of the Ninth Circuit.
Appendix or Appendices:
I. Plan for the Composition, Administration, and Management of the
Panel of Private Attorneys under the Criminal Justice Act
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APPENDIX 1: PLAN FOR THE COMPOSITION, ADMINISTRATION AND
MANAGEMENT OF THE CJA PANEL
I. Composition of Panel of Private Attorneys
A. CJA Panel
1. Approval. The Court has established a panel of private
attorneys (hereinafter referred to as the “CJA Panel”)
who are eligible and willing to be appointed to provide
representation under the Criminal Justice Act. The
Court approves attorneys for membership on the panel
after receiving recommendations from the “Panel
Selection Committee,” established under paragraph B
of this Plan. Members of the CJA Panel will serve at
the pleasure of the Court.
2. Size. The Court will fix, annually, the size of the CJA
Panel. The panel shall be large enough to provide a
sufficient number of experienced attorneys to handle
the CJA caseload, yet small enough so that panel
members will receive an adequate number of
appointments to maintain their proficiency in federal
criminal defense work, and thereby provide a high
quality of representation.
3. Eligibility. Attorneys who serve on the CJA Panel must
be members in good standing of the federal bar of this
District, and have demonstrated experience in, and
knowledge of, the Federal Rules of Criminal Procedure,
the Federal Rules of Evidence, and the United States
Sentencing Guidelines.
Subsection (b) of the Act provides, in part, that:
Counsel furnishing representation under the plan
shall be selected from a panel of attorneys
designated or approved by the court, or from a
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bar association, legal aid agency, or defender
organization furnishing representation pursuant
to the plan.
However, when 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 his or her appointment, the
attorney may be admitted to the CJA Panel pro hac
vice and appointed to represent the CJA defendant.
Consideration for preserving the integrity of the panel
selection process suggests that such appointments
should be made only in exceptional circumstances.
Further, the attorney, who may or may not maintain
an office in the District, should possess such qualities
as would qualify the attorney for admission to the
District’s CJA Panel in the ordinary course of panel
selection.
4. Equal Opportunity. All qualified attorneys are
encouraged to participate in the furnishing of
representation in CJA cases. Appointments to the CJA
Panel are made without regard to race, color, religion,
gender, sexual orientation, age, national origin, and/or
disability.
5. Application. Application for membership on the CJA
Panel shall be made by submission of a letter
containing a statement of interest and qualifications to
the Panel Selection Committee, in care of the Clerk of
the Court.
B. Panel Selection Committee
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1. Membership. A Panel Selection Committee will be
established by the Court. The Committee will consist of
one United States magistrate judge, the CJA
representative for the District of Hawaii, and the
Federal Public Defender. The Committee will be
chaired by the magistrate judge. The Committee will
recommend to the Court an attorney to serve as the
CJA representative. The CJA representative will serve
for a term of three years.
2. Duties.
a. The Panel Selection Committee will meet from
time to time, but at least once a year, to consider
applications to join the CJA Panel. The
Committee will review the qualifications of
applicants and recommend, for approval by the
Court, those applicants best qualified to be
members of the CJA Panel. The appointment or
reappointment of attorneys to or removal of
attorneys from the CJA Panel is within the sole
discretion of the Court.
At its annual meeting, the Committee will also
review the operation and administration of the
panel over the preceding year, and recommend to
the Court any changes deemed necessary or
appropriate by the Committee to the appointment
process and panel management. The Committee
will also inquire annually as to the continued
availability and willingness of each panel
member to be reappointed to the Panel.
b. If, at any time during the course of a year, due to
resignation, removal, or death, the size of the
panel significantly decreases, the Committee will
solicit applications for prospective members,
convene a special meeting to review the
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qualifications of the applicants, and select
prospective members for recommendation to the
Court for approval.
c. When the Committee submits the names of
applicants for panel membership to the Court for
approval, the Committee will furnish information
to the Court on recruitment efforts undertaken by
the Committee in furtherance of the Equal
Opportunity statement in Paragraph I.A.4. 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 I.A.4 of this Plan.
C. CJA Panel Training
The Federal Public Defender shall sponsor regular training
programs for Panel members and assist Panel members in
staying current on changes in the law and on administrative
issues. New members on the Panel are required to
participate in training programs run by the Federal Public
Defender. Attorneys continuing on the Panel and new Panel
members with experience in federal criminal representations
are encouraged to participate in training programs run by
the Federal Public Defender and to assist the Federal Public
Defender in providing mentoring to new and inexperienced
Panel members.
II. Selection for Appointment
A. Maintenance of List and Distribution of Appointments
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The Clerk of the Court will maintain a current list of all
attorneys included on the CJA Panel, with current office
addresses, email addresses, and telephone numbers, as well
as a statement of qualifications and experience. The Clerk
will furnish a copy of this list to each judicial officer in the
District. The Clerk will also maintain a public record of
assignments to private counsel, and, when appropriate,
statistical data reflecting the proration of appointments
between attorneys from the Federal Public Defender office
and private attorneys, according to the formula described in
the CJA Plan for the District.
B. Method of Selection
Appointments from the list of private attorneys 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 geographical
considerations. This procedure should result in a balanced
distribution of appointments and compensation among the
members of the CJA Panel, and quality representation of
each CJA defendant.
The Clerk will advise the judicial officer as to the status of
distribution of cases, when appropriate, as between the
Federal Public Defender and the panel of private attorneys.
If the judicial officer decides to appoint an attorney from the
Panel, the judicial officer will determine the name of the
next panel member on the list who has handled, or assisted
in, a case of equal or greater complexity than the case for
which appointment of counsel is required, and who is
available for appointment.
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