UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
KENTUCKY
CRIMINAL JUSTICE ACT PL AN
I. AUTHORITY
Pursuant to the Criminal Justice Act of 1964 as amended (CJA), section 3006A of title
18, United States Code, and the Guidelines for the Administration of the Criminal
Justice Act and Related Statutes (CJA Guidelines), Volume 7A of t h e Guide to
Judiciary Policy, the judges of the United States District Court for the Western District of
Kentucky adopt this Plan 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 shall be administered so that those
accused of 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 Community Defender Organization, and private
attorneys appointed under the CJA shall 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. Each private attorney shall be provided by the Clerk of Court with a
then- 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 shall maintain a
current copy of the CJA Guidelines for the use of members of the CJA
Panel and shall make known to such attorneys its availability.
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III. DEFINITIONS
A. "Representation" includes counsel and investigative, expert, and other services.
B. "Appointed attorney'' includes private attorneys, the Executive Director and
staff attorneys of the Community Defender Organization.
C. "Judicial officer" includes a United States District Judge or a United States
Magistrate Judge or a Judge of the United States Court of Appeals for the Sixth
Judicial Circuit or a Justice ofthe United States Supreme Court.
IV. PROVISION OF REPRESENTATION
A. Circumstance.
I. Mandatory Representation. 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;
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 chapter 313 of title
18, United States Code (18 U.S.C. §4241, et seq.);
h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence under sections
2254 or 2255 of title 28, United States Code (18 U.S.C . §3559);
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 section 4109 of title 18, United States Code;
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k. is entitled to appointment of counsel under the Sixth Amendment
to the Constitution; or
I. faces loss of liberty in a case and federal law requires the
appointment of counsel.
2. Discretionary Representation. Whenever a 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, other than to set aside or vacate a death sentence,
under sections 2241 , 2254, or 2255 of Title 28, United States
Code.
c. is charged with civil or criminal contempt and faces a 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. is proposed by the United States attorney for processing under
a pretrial diversion program; or
f. is held for international extradition under chapter 209 of title
18, United States Code.
3. Ancillary Matters. Representation may also be furnished for financially
eligible persons in "ancillary matters appropriate to the proceedings"
under subsection (c) ofthe CJA.
a. In determining whether a matter is "ancillary" to the proceedings,
the court should consider whether the matter, or the issues of law
or fact in the matter, arose from, or are the same as or closely
related to, the facts and circumstances surrounding the principal
charge.
b. In determining whether representation in an ancillary matter is
"appropriate to the proceedings," the court should consider
whether such representation is reasonably necessary to
accomplish, among other things, one of the following objectives:
i. to protect a Constitutional right;
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ii. to contribute in some significant way to the defense of the
principal crim inal charge;
m. to aid in preparation for the trial or disposition of the
principal criminal charge;
iv. to enforce the terms of a plea agreement in the principal
criminal charge;
v. to preserve the claim of the CJA client to an interest in
real or personal property subject to a civil forfeiture
proceeding under 2 1 U.S.C. § 881, 19 U.S.C. §1602 or
similar statutes, which property, if recovered by the client,
may be considered for reimbursement under subsection (f)
ofthe CJA and§ 210.40.30 ofthe CJA Guidelines; or
vt. to effectuate the return of real or personal property
belonging to the CJA cl ient which may be subject to a
motion for return of property under Fed. R. Crim. P.
4l(g), which property, if recovered by the CJA cl ient, may
be considered for reimbursement under subsection (f) of
the CJA and§ 210.40.30 of the CJA Guidelines.
4. Civil Forfeiture Proceedings.
Under 18 U.S.C. 983(b)(l), 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 the CJA in
connection with a related criminal case, the Court may authorize counsel
to represent that person with respect to the claim.
In determining whether to authorize counsel to represent a person in a
judicial civil forfeiture proceeding under a civi l forfeiture statute, the court
shall take into account such factors as:
a. the person's standing to contest the forfeiture; and
b. whether the claim appears to be made in good faith.
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 United States magistrate judge or district
judge, when they are formally charged or notified of charges if forma l charges are
sealed, or when a United States magistrate judge or judge otherwise considers
appointment of counsel appropriate under the CJA, whichever occurs earliest.
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C. Number and Qualifications of Counsel.
I. 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 ll
U.S.C. § 3599(a)(l ){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 el igible 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 at least two qualified attorneys.
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 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
Community Defender. In fulfilling this responsibility, the
Community Defender shall 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 qual ifications of counsel considered for
appointment, the Community Defender shall consider:
1. the minimum experience standards set forth in 18 C.S.C. §
3599(b)-(d), 18 U.S.C. § 3005, and other applicable laws
or rules;
11. the qualification standards endorsed by bar associations
and other legal organizations regarding the quality of legal
representation in capital cases;
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iii. the recommendations of other federa l public and
community defender organizations and local and national
criminal defense organ izations;
1v. the proposed counsel's commitment to the defense of
capital cases; and
v. the avai labi lity 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
appointment must have been admitted to practice in the court of
appeals fo r not less than five years, and must have had not less
than three years of 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. Fort Campbell Military Reservation.
The Federal Public Defender for the Middle District of Tennessee may be
appointed to represent eligible persons within the jurisdiction of the Fort
Campbell Kentucky Military Reservation.
D. Eligibility for Representation
l. Fact-finding. 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.
All statements made by a person requesting appointed counsel or during
the inquiry into eligibility should be either:
a. Reflected on Form CJA 23 (Financial Affidavit) and the form
should be completed and executed before a judicial officer or
employee; or
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b. Under oath in open court.
2. Standards (or Eligibility. A person is " fi nancially unable to obtain
counsel" within the meaning of this Plan if the person's_ner fi nancial
resources and income are insufficient to enab le him or her to obtain
qualified counsel. Any doubts as to a person 's eligibility should be
resolved in the person's favor. At the time of determining eligibility,
j udicial officer should inform the person of the penalties for making a
false statement and of obligation to inform the court and appointed
counsel of any change in financial status.
3. Partial Eligibility. 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 insuffic ient to pay fu lly for retained
counsel, the judicial officer shou ld find the person eligible for the
appoi ntment 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. The judicial officer may
increase or decrease the amount of such payments and may impose such
other conditions from time to time as may be appropriate. Funds collected
pursuant to this subsection are held and disposed pursuant to 18 U.S.C. §
3006A(f).
4. Disclosure of Change in Eligibility. If, at any time after appointment,
counsel obtains information that a client is financ ially able to make
payment, in whole or in part, for legal or other services in connection
with his or her representation, and the source of the attorney's
information is not protected as a privileged communication, counsel
shall advise the court.
5. Use o(Financia/In(ormation. The USAO may not use, as part of its case-
in-chief, other than in prosecution for perjury or making a fa lse statement,
any information provided by an individual in connection with his/her
request for the appointment of counsel pursuant to this Plan.
V. COMMUNITY DEFENDER ORGANIZATION
A. Recognition of Community Defender Organization.
I. The Western Kentucky Federal Community Defender, Inc., previously
established in this District pursuant to the provisions of the CJA, is
hereby recognized as a community defender organization for this district.
2. The Community Defender is capable of providing legal services throughout
the district and shall provide general legal representation to persons
entitled to services under Paragraph IV hereof throughout the district.
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3. The Community Defender will maintain an office in Louisville,
Kentucky, establishing branch offices as necessary. Such branch offices
shall be under the supervision of the Community Defender, and to the
extent the caseload in each division permits, and pursuant to the
discretion of the Community Defender, the staff of one office shall be
available to assist the staff of any other office.
4. Neither the Community Defender nor any appointed staff attorney may
engage in the private practice oflaw.
B. Supervision of Community Defender Organization.
The Board of Directors shall be responsible for the supervision and management
of the Community Defender organization. Accordingly, the Canmunity ~ S1all be
~in all cases assigned to that organization. Subsequent assignment to staff
or panel attorneys shall be made at the discretion of the Community Defender.
C. Management ofCJA Panel.
The Community Defender is not responsible for management of the CJA panel
but shall take the lead in providing educational programs for the CJA Panel and
other members of the bar and is responsible for providing training sessions for
members of the CJA panel at least annually. Similarly, the Community Defender's
office shall serve as a central repository for materials which may be valuable to
members of the CJA Panel, such as legal memoranda on recurring issues and jury
instructions.
VI. PRIVATE ATTORNEYS
A. Establishment ofCJA 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 the CJA 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" shall be defined as no less than 25% of the appointments under the
CJA annually throughout the district.
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VII. REPRESENTATION IN DEATH PENALTY HABEAS CORPUS
PROCEEDINGS UNDER 28 U.S.C. §§ 2254 and 2255.
The court may appoint the Director of the Kentucky Capital Litigation Resource Center,
the recognized resource center for £he district, to represent financiall y eligible persons
seeking habeas corpus relief in death penalty proceedings under 28 U.S.C. §§ 2254 and
2255.
VIII . DUTIES OF APPOINTED COUNSEL
A. Standards. The services to be rendered a person represented by appointed
counsel shall be commensurate with those rendered if counsel were privately
employed by the person .
B. Profess ional Conduct. Attorneys appointed pursuant to the CJA shall conform to
the highest standards of professional conduct, including but not limited to the
provisions of the American Bar Association's Model Rules of Professional Conduct, the
Rules of Professional Conduct adopted by the Supreme Court of Kentucky, and other
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
shall continue the representation until the matter, including appeals or review by
certiorari (as governed by the Sixth Circuit's 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.
E. Acceptance of Appointments. Attorneys on the CJA Panel List are expected to
make themselves available to accept appointments and to serve as a mentor for
less experienced counsel when called upon to do so. It may be grounds for
removal from the Panel for an attorney to repeatedly decline appointments. The
Clerk's Office shall maintain a record of the date of each refusal, the case name
and docket number, and the reason given (i f any) for the refusal.
The Clerk's Office shall notify the Court if an attorney declines appointments on
three successive occasions as such may constitute grounds for removal.
IX. SERVICES OTHER THAN COUNSEL
A. With Prior Authorization.
Counsel for a person who is financially unable to obtain investigative, expert or
other services necessary for an adequate defense in his or her case may request
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authority to obtain and pay for such services in an ex parte application before a
judicial officer as prov ided in l 8 U.S.C. § 3006A(e)( I). 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 district judge, or the
magistratt: judge if the :services are required in connecrion with a matter over
which the magistrate judge has jurisdiction, shall authorize counsel to obtain the
services requested.
Compensation for services under this subsection is limited to the statutori ly
authorized amounts set out in the CJA Guidelines. Payment in excess of the
compensation Iim it for services authorized prior to the performance thereof may
be made when certified by a judge or U.S. magistrate judge and approved by the
chief judge of the circuit, or the chief judge' s delegate, as being necessary to
provide fair compensation for services of an unusual character or duration. 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
circuit, or the Chief Judge's delegate.
B. Without Prior Authorization.
Counsel appointed under the CJA and this Plan may obtain, subject to later
rev iew, investigative, expert or other serv ices without prior authorization if
necessary for an adequate defense. The total cost of services obtained without
prior authorization may not exceed financial limitations set forth in I 8 U.S.C. §
3006A(e)(2), including expenses reasonably incurred. However, these limitations
may be waived if the presiding judge or magistrate judge, if the services were
rendered in a case disposed of entirely before the magistrate judge, in the interest
of justice, finds that timely procurement of necessary services could not await
prior authorization.
C. Consulting Services in Capital Federa l Habeas Corpus Cases.
Where necessary for adequate representation, 18 U.S.C. § 3006A(e) and 18 U.S.C.
§ 3599(f) authorize the reasonable employment and compensation of expert
attorney consultants to provide consultation services to appointed and pro bono
attorneys in tederal capital habeas corpus cases and in federal death penalty cases
in such areas as records completion, determination of need to exhaust state
remedies, identification of issues, review of draft pleadings and briefs, etc.
An expert attorney consultant may not be paid an hourly rate exceeding that which
an appointed counsel could be authorized to be paid.
D. Services tor ProSe Litigants.
Persons who are eligible for representation under the CJA, 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).
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X. DUTI ES O F LAW ENFORCEMENT AN D RELATED AGENCI ES
A. Presentation of Accused for Appointment of Counsel.
Ft:deral 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 financ ially able to secure
representation, and must, in such cases in which the person indicates that he or
she is not able, notify the community 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 fina ncial affidavit (Form CJA
23) and arrange to have the person promptly presented be fore a United States
magistrate judge or j udge of th is court for determination of fi nancial eligibility
and appointment of counsel.
B. Notice oflndictment or Criminal In formation.
Upon the return or unsealing of an indictment, the fil ing 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 counseJ, at the address shown on defendant's bond
papers or to the jail in which the defendant is incarcerated.
XI. M ISCELL ANEOUS
A. Forms.
Standard forms, pertaining to the CJA and approved by the Judicial Conference of
the United States or its Committee on Defender Serv ices and prescribed and
distributed by the Di rector of the Administrative Oflice of the United States
Cout1s, must be used, where applicable, in all proceedings under this Plan.
B. Claims.
1. Submission. Claims for compensation of private attorneys providing
representation under the CJA must be submitted on the appropriate CJA
form to the offi ce of the clerk of the court, no later than 45 days after the
final disposition of the case, unless good cause is shown. That oftice 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 consideration by the appropriate j udge or magistrate judge. The
coun will exert its best effort to avoid delays in reviewing payment
vouchers and in submitting them for further processing.
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2. Reduction in Claims. If the judicial officer determines that a claim for
compensation should be reduced, counsel shall be provided with prior
notice of the proposed reduction, a brief statement of the reason(s) for the
reduction, and an opportunity to respond. The notice and opportunity to
respond should be provided regardless of whether the amount is over or
under the statutory maximum following the reduction. Such notice and
opportunity to respond need not be provided when the reduction is based
on mathematical or technical errors. Nothing contained in this Plan should
be construed as requiring a hearing or as discouraging the judicial officer
or designee from communicating informally with counsel about questions
or concerns.
C. Supersession.
This Plan supersedes all prior Criminal Justice Act Plans of this Court.
XII. EFFECTIVE DATE
This Plan will become effective when approved by the Judicial Council of the Sixth
Circuit.
ON BEHALF OF THE DISTRICT COURT
D~
APPROVED BY THE JUDICIAL COUNCIL OF THE SIXTH CIRCUIT
ALICE M. BATCHELDER DATE
CHIEF JUDGE, CIRCUIT
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CERTIFICATE OF APPROVAL
This is to certify that, in accordance with the Criminal Justice Act of 1964 as
amended, 18 U.S.C. § 3006A, et seq, the foregoing Amended Criminal Justice Act Plan for
the United States District Court for the Western District of Kentucky as amended December
13, 2013, has been duly received and approved as complying with the law by the Judicial
Council of the Sixth Circuit of the United States. The said Amended Plan shall become
effective upon the date of this approval.
This 12'h day of May, 2014.
Alice M. Batchelder, Chief Judge
United States Court of Appeals
for the Sixth Circuit
APPENDIX I
TO THE CRIMINAL JUSTICE ACT PLAN
PLAN FOR THE COMPOSITION, ADMINISTRATION AND MANAGEMENT OF THE
PANEL OF PRIVATE ATTORNEYS
UNDER THE CRIMINAL JUSTICE ACT
I. COMPOSITIONOFPANEL OFPRIVATE ATTORNEYS
A. CJA Panel.
!. Approval. The Court shall establish a panel of private attorneys
(hereinafter referred to as the "CJA Panel") who are eli gible and
willing to be appointed to provide representation under the Criminal
Justice Act. The court shall approve attorneys for membership on the
panel. Members ofthe CJA Panel shall serve at the pleasure of the Court.
2. Size. The Court shall fix periodically, 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 wi ll 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 Sentencing Guidelines.
However, when the district judge presiding over the case, or the chief
judge if a district judge has not yet been assigned to 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 him
or her for admission to the district's CJA Panel in the ordinary course of
Panel selection.
Efforts should be made to assure that members of the CJA Panel, the
Community Defender, and the staff of the Community Defender
Organization are highly qualified and sensitive to the diversity of the
population they represent. In the pursuit of that goal, all qualified
individuals shou ld be encouraged to seek appointment to the CJA Panel
or employment within the Community Defender Organization without
regard to race, creed, color, national origin, religion, sex, age or handicap.
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4. Equal Opportunity. All qualified attorneys are 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.
II. SELECTIONFOR APPOINTMENT
A. Maintenance of List and Distribution Of Appointments.
The Clerk shall maintain a current list of all attorneys included on the
CJA Panel with current office addresses and telephone number. The Clerk
shall furnish a copy of this list to each judge and magistrate judge. The Clerk
shall 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 Community Defender Office and private attorneys
according to the formula described in the CJA Plan for the Western District of
Kentucky.
B. Method of Selection.
The objective of this plan is to ensure competent and effective representation of
each person to whom legal services are provided. While appointments from the
list of private attorneys shall be primarily made on a rotational basis, the
appointing judicial officer must evaluate the nature and complexity of the matter
or case, an attorney's experience, language skills, geographical locations,
availability, and any special circumstances in making the appointment.
The clerk of the court shall advise the judge or magistrate judge as to thestatusof
distribution of cases, where appropriate, as between the Community Defender and
the panel of private attorneys. If the United States magistrate judge or judge
decides to appoint an attorney from the panel, the clerk 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, and will provide the name to the appointing
judge or United States magistrate judge.
III. COMPENSATION- FILING OF VOUCHERS
A. Limitations.
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.
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.
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B. Expenses.
Attorneys will be reimbursed for expenses reasonably incurred, including the costs
of transcripts authorized by the court or United States magistrate judge. Out-of-
pocket expenses reasonably incurred may be claimed on the voucher, and must be
itemized and reasonably documented.
Compensation may be approved for time spent in necessary and reasonable travel.
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.
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. However, compensation will not
be approved for travel by privately owned automobile to the courthouse when such
travel is less than 10 miles. Parking expenses will be reimbursed regardless of the
duration oftravel.
C. Excess Payment.
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 Sixth Circuit Court of Appeals, or
that judge's designee.
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.
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.
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
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factors under which services were rendered; and any other circumstances relevant
and material to a determination of a fair and reasonable fee.
Upon preliminary approval of such claim, the presiding judicial officer should
furnish to the Chief Judge of the Sixth 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.
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.
E. Filing Claims.
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.
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.
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.
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.
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 Acr, 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.
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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
ofthe case, unless good cause is shown.
K. Notification of Proposed Reduction
lf 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. Notice need not be given
to appointed counsel where the reduction is based on mathematical or technical
errors.
Nothing contained in this subsection 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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