United States District Court
For the Middle District of North Carolina
Criminal Justice Act Plan
I. Authority
Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, and
Guide to Judiciary Policy (Guide), Volume 7A, the judges of the United States District
Court for the Middle District of North Carolina adopt this Plan, as approved by the
Fourth Circuit Judicial Conference, 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
The objectives of this Plan are:
1. to attain the goal of equal justice under the law for all persons;
2. to provide all persons for whom counsel is appointed with timely
appointed counsel services that are consistent with the best
practices of the legal profession, are cost-effective, and protect the
independence of the defense function so that the rights of individual
defendants are safeguarded and enforced; and
3. to particularize the requirements of the CJA, the USA Patriot
Improvement and Reauthorization Act of 2005 (recodified at
18 U.S.C. § 3599), and Guide, Vol. 7A, in a way that meets the
needs of this district.
This Plan must therefore 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. Compliance
1. The Court, its Clerk, the Federal Public Defender, and private
attorneys appointed under the CJA must comply with Guide, Vol.
7A, approved by the Judicial Conference of the United States or its
Committee on Defender Services, and with this Plan.
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2. The Clerk will ensure that a current copy of the CJA Plan is made
available on the Court’s website, and provided to CJA counsel upon
the attorney’s designation as a member of the CJA panel of private
attorneys (CJA Panel).
III. Definitions
A. Representation
“Representation” includes counsel and investigative, expert, and other
services.
B. Appointed Attorney
“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 staff attorneys of the
Federal Public Defender Organization.
IV. Determination of 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;
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 18 U.S.C.
chapter 313;
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h. is in custody as a material witness;
i. is seeking to set aside or vacate a death sentence 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;
The MDNC CJA Panel Committee notes that discretionary appointment of counsel
as described in subsections a and b, above, is specifically authorized in the
Criminal Justice Act, 18 U.S.C. § 3006A(a)(2). Discretionary appointment of
counsel as described in subsections c, d, e, f, and g, below, is included in the 2019
Model Plan. However, discretionary appointment in such case is not specifically
mentioned in the Criminal Justice Act.
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
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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
Representation may also be provided 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:
a. to protect a constitutional right;
b. to contribute in some significant way to the defense of the
principal criminal charge;
c. to aid in preparation for the trial or disposition of the principal
criminal charge;
d. to enforce the terms of a plea agreement in the principal
criminal charge;
e. to 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).
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B. Financial Eligibility
1. Presentation of Accused for Financial Eligibility Determination
a. Duties of Law Enforcement
(i) Upon arrest, and where the defendant has not
retained or waived counsel, United States Marshals
Service or other appropriate federal law enforcement
officials must promptly notify, telephonically or
electronically, the appropriate court personnel, who in
turn will notify the Federal Public Defender of the
arrest of an individual in connection with a federal
criminal charge.
(ii) Employees of law enforcement agencies should 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
(i) Upon the return or unsealing of an indictment or the
filing of a criminal information, and where the
defendant has not retained or waived counsel, the
United States Attorney or his or her delegate will
promptly notify appropriate court personnel, who in
turn will notify the Federal Public Defender.
(ii) Upon issuance of a target letter, and where the
individual has not retained or waived counsel, the
United States Attorney or his or her delegate must
promptly notify, telephonically or electronically, the
appropriate court personnel, who in turn will notify 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
Court.
(iii) Employees of the United States Attorney’s Office
should 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.
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c. Duties of Federal Public Defender Office
(i) In cases in which the Federal Public Defender may be
appointed, the office will:
x immediately investigate and determine whether an
actual or potential conflict exists; and
x in the event of an actual or potential conflict,
promptly notify the Court to facilitate the timely
appointment of other counsel.
(ii) If requested by the defendant and otherwise
practicable, the Federal Public Defender will discuss
with the person who indicates that he or she is not
financially able to secure representation the right to
appointed counsel and, if appointment of counsel
seems likely, assist in the completion of a financial
affidavit (Form CJA 23) and arrange to have the
person promptly presented before a magistrate judge
or district judge of this Court for determination of
financial eligibility and appointment of counsel.
d. Duties of United States Probation Office
(i) When practicable, the United States Probation Officer
will not conduct the pretrial service interview of a
financially eligible defendant until counsel has been
appointed, unless the right to counsel is waived or the
defendant otherwise consents to a pretrial service
interview without counsel.
(ii) When counsel has been appointed, the United States
Probation Officer will provide counsel notice and a
reasonable opportunity to attend any interview of the
defendant prior to the initial pretrial release or
detention hearing.
2. Factual Determination of Financial Eligibility
a. In every case where appointment of counsel is required
under 18 U.S.C. § 3006A(a) and related statutes, 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, counsel will be appointed to represent the person if
he or she is financially unable to obtain counsel.
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b. The determination of eligibility for representation under the
CJA is a judicial function to be performed by the Court after
making appropriate inquiries concerning the person’s
financial eligibility. Other employees of the Court may be
designated to obtain or verify the facts relevant to the
financial eligibility determination.
c. In determining whether a person is “financially unable to
obtain counsel,” consideration should be given to the cost of
providing the person and his or her dependents with the
necessities of life, the cost of securing pretrial release, asset
encumbrance, and the likely cost of retained counsel.
d. The initial determination of eligibility must be made without
regard to the financial ability of the person’s family to retain
counsel unless the person’s family indicates willingness and
ability to do so promptly.
e. Any doubts about a person’s eligibility should be resolved in
the person’s favor; erroneous determinations of eligibility
may be corrected at a later time.
f. Relevant information bearing on the person’s financial
eligibility should be reflected on a financial eligibility affidavit
(Form CJA 23).
g. If at any time after the appointment of counsel a judge finds
that a person provided representation is financially able to
obtain counsel or make partial payment for the
representation, the judge may terminate the appointment of
counsel or direct that any funds available to the defendant
be paid as provided in 18 U.S.C. § 3006A(f).
h. If at any stage of the proceedings a judge finds that a person
is no longer financially able to pay retained counsel, counsel
may be appointed in accordance with the general provisions
set forth in this Plan.
V. Timely Appointment of Counsel
A. Timing of Appointment
Counsel must be provided to persons entitled to mandatory appointment
of counsel as soon as feasible in the following circumstances, whichever
occurs earliest:
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1. after they are taken into custody;
2. when they appear before a magistrate or district court judge;
3. when they are formally charged or notified of charges if formal
charges are sealed; or
4. when a magistrate or district judge otherwise considers
appointment of counsel appropriate under the CJA and related
statutes.
B. Court’s Responsibility
The Court, in cooperation with the Federal Public Defender and the United
States Attorney, will make such arrangements with the United States
Marshals Service as will ensure timely appointment of counsel.
C. Pretrial Service Interview
When practicable, unless the right to counsel is waived or the defendant
otherwise consents to a pretrial service interview without counsel,
financially eligible defendants will be provided appointed counsel prior to
being interviewed by a Pretrial Services Officer.
D. Retroactive Appointment of Counsel
Appointment of counsel may be made retroactive to include representation
provided prior to appointment.
VI. Provision of Representational Services
A. Federal Public Defender and Private Counsel
This Plan provides for representational services by the Federal Public
Defender and for the appointment and compensation of private counsel
from a CJA Panel list maintained by the Federal Public Defender in cases
authorized under the CJA, related statutes and this Plan.
B. Apportionment of Cases
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
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the CJA. “Substantial” will usually be defined as a minimum of thirty
percent (30%) of the annual CJA appointments.
C. Number of Counsel
More than one attorney may be appointed in any case determined by the
Court to be extremely difficult.
D. Capital Cases
Procedures for appointment of counsel in cases where the defendant is
charged with a crime that may be punishable by death, or is seeking to
vacate or set aside a death sentence in proceedings under 28 U.S.C.
§§ 2254 or 2255, are set forth in Section XIV of this Plan.
VII. Federal Public Defender Organization
A. Establishment
The Office of the Federal Public Defender for the Middle District of North
Carolina, as previously established in this district under the CJA, is hereby
recognized as the Federal Public Defender Organization responsible for
rendering defense services on appointment throughout this district.
B. Standards
The Office of the Federal Public Defender must provide high quality
representation consistent with the best practices of the legal profession
and commensurate with those services rendered when counsel is privately
retained. See Polk County v. Dodson, 454 U.S. 312, 318 (1981) (“‘Once a
lawyer has undertaken the representation of an accused, the duties and
obligations are the same whether the lawyer is privately retained,
appointed, or serving in a legal aid or defender program.’” (quoting ABA
Standards for Criminal Justice section 4-3.9 (2d ed. 1980))).
C. Workload
The Office of the Federal Public Defender will continually monitor the
workloads of its staff to ensure high quality representation for all clients.
D. Professional Conduct
The Office of the Federal Public Defender must conform to the highest
standards of professional conduct, including but not limited to the North
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Carolina Rules of Professional Conduct, and the Code of Conduct for
Federal Public Defender Employees. See LR 83.10e(b) (MDNC).
E. Private Practice of Law
Neither the Federal Public Defender nor any employee may engage in the
private practice of law except as authorized by the Code of Conduct for
Federal Public Defender Employees.
F. 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.
G. Training
The Federal Public Defender will assess the training needs of his or her
staff and, in coordination with the CJA Panel Attorney District
Representative, 1 the training needs of the local panel attorneys, and
provide training opportunities and other educational resources.
VIII. CJA Panel of Private Attorneys
A. Establishment of the CJA Panel Committee
1. A CJA Panel Committee (“CJA Committee”) will be established by
the Court in consultation with the Federal Public Defender. The
CJA Committee will consist of one district judge, one magistrate
judge, the Federal Public Defender or his or her designated
representative, the CJA Panel Attorney District Representative
(PADR), a criminal defense attorney who practices regularly in the
district who may be a CJA panel member, and the Clerk of Court or
his or her designated representative who will act as administrative
coordinator.
2. The Federal Public Defender or his or her designated
representative, the district’s PADR and the Clerk of Court or his or
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The CJA Panel Attorney District Representative (PADR) is a member of the district’s CJA
Panel who is recommended by the Federal Public Defender, and approved by the Chief Judge,
to serve as the representative of the district’s CJA Panel for the national Defender Services CJA
PADR program and local CJA committees.
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her designated representative are permanent members of the CJA
Committee.
Membership on the CJA Committee will otherwise be for a term of
three years and may be extended for an additional three years.
Members’ terms will be staggered to ensure continuity on the CJA
Committee.
3. The CJA Committee will meet at least annually, at any time the
Court asks the Committee to consider an issue, and otherwise as
needed.
B. Duties of the CJA Committee
1. Membership
Examine the qualifications of applicants for membership on the CJA
Panel and recommend to the Court the approval of those attorneys
who are deemed qualified and the rejection of the applications of
those attorneys deemed unqualified.
2. Recruitment
Engage in recruitment efforts to establish a diverse panel and
ensure that all qualified attorneys are encouraged to participate in
the furnishing of representation in CJA cases.
3. Annual Report
Review the operation and administration of the CJA Panel over the
preceding year, and recommend any necessary or appropriate
changes to the Court concerning:
a. the size of the CJA Panel;
b. the recruitment of qualified and diverse attorneys as required
and set forth in this plan; and
c. recurring issues or difficulties encountered by panel
members or their CJA clients.
4. Removal
Recommend to the Court the removal of any CJA Panel member
who:
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a. fails to satisfactorily fulfill the requirements of CJA Panel
membership during their term of service, including the failure
to provide high quality representation to CJA clients, or
b. has engaged in other conduct such that his or her continued
service on the CJA Panel is inappropriate.
See also Section IX.C.7
5. Training
Assist the Federal Public Defender in providing training for the CJA
Panel on substantive and procedural legal matters affecting
representation of CJA clients.
6. Voucher Review
In cases where the Court, for reasons other than mathematical
errors, is considering authorizing payment for less than the amount
of compensation claimed by CJA counsel, it may but is not required
to request a recommendation from the CJA Committee. The Court
will, at the time the voucher is submitted to the CJA Committee,
provide a statement describing questions or concerns it has with
the voucher. Counsel will be notified of the potential voucher
reduction and given the opportunity to provide information or
documentation relevant to the voucher and concerns raised by the
Court. The CJA Committee will issue a written recommendation to
the Court.
See also Section XII.B.6
7. Mentoring and Training
The CJA Committee may recommend to the Court an attorney’s
assignment to the “CJA Training Panel,” consisting of attorneys
who do not have the experience required for membership on the
CJA Panel. Training Panel members may be assigned by the
Federal Public Defender to assist Federal Public Defender
attorneys and members of the CJA Panel in a “second chair”
capacity. Training Panel members are not eligible to receive
appointments independently and shall not be eligible to receive
compensation for their services in assisting CJA Panel members.
Prior service on the CJA Training Panel is not a requirement for
membership on the CJA Panel, nor will service on the Training
Panel guarantee admission of an attorney to the CJA Panel.
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IX. Establishment of a CJA Panel
A. Approval of CJA Panel
1. The existing, previously established panel of attorneys who are
eligible and willing to be appointed to provide representation under
the CJA is hereby recognized.
2. The Court will approve attorneys for membership on the CJA Panel
after receiving recommendations from the CJA Committee.
B. Size of CJA Panel
1. The CJA Committee will recommend, and the Court will determine,
the size of the CJA Panel based on the caseload and activity of the
panel members.
2. The CJA Panel must be large enough to provide a sufficient
number of experienced attorneys to handle the CJA caseload, yet
small enough so that CJA Panel members will receive an adequate
number of appointments to maintain their proficiency in federal
criminal defense work enabling them to provide high quality
representation consistent with the best practices of the legal
profession and commensurate with those services rendered when
counsel is privately retained.
C. Qualifications and Membership on the CJA Panel
1. Application
Application forms for membership on the CJA Panel are available
from the Court.
2. Equal Opportunity
All qualified attorneys are encouraged to participate in the
furnishing of representation in CJA cases.
3. Eligibility
a. Applicants for the CJA Panel must be licensed to practice
law in North Carolina, admitted to practice in the United
States District Court for the Middle District of North Carolina
and the United States Court of Appeals for the Fourth
Circuit, and a member in good standing of each bar to which
they are admitted.
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b. Applicants must maintain a primary, satellite, or shared office
in this district.
c. Applicants must possess strong litigation skills and
demonstrated knowledge of federal criminal law and
procedure, including relevant provisions of the United States
Constitution, the United States Code, the Federal Rules of
Criminal Procedure, the Federal Rules of Evidence, the
United States Sentencing Guidelines, and the Federal Rules
of Appellate Procedure.
d. Applicants must 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.
e. Attorneys who do not possess the experience set forth
above but believe they have equivalent other experience are
encouraged to apply and set forth in writing the details of
that experience for the CJA Committee’s consideration.
4. Appointment to CJA Panel
After considering the recommendations of the CJA Committee, the
Court will appoint or reappoint attorneys to the CJA Panel. Due to
the highly complex and demanding nature of capital and habeas
corpus cases, special procedures will be followed for the eligibility
and appointment of counsel in such cases. See Section XIV of this
Plan.
5. Terms of CJA Panel Members
The existing, previously established system of staggered, three-
year terms for CJA Panel Members is hereby recognized.
6. Reappointment of CJA Panel Members
a. The Clerk will notify CJA Panel members, prior to the
expiration of their current term, of the need to apply for
reappointment to the CJA Panel.
b. A member of the CJA Panel who wishes to be considered for
reappointment must apply for appointment to an additional
term during the application period established by the CJA
Committee.
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c. The CJA Committee will solicit input concerning the quality
of representation provided by lawyers seeking
reappointment.
d. The CJA Committee also will consider how many cases the
CJA Panel member has accepted and declined during the
review period, whether the member has participated in
training opportunities, 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 as set forth in this Plan.
7. Removal from the CJA Panel
a. Mandatory removal
Any member of the CJA Panel who is suspended or
disbarred from the practice of law by the state court before
whom such member is admitted, or who is suspended or
disbarred from this Court or any federal court, will be
removed from the CJA Panel immediately.
b. Automatic disciplinary review
The CJA Committee will conduct an automatic disciplinary
review of any CJA Panel member against whom any
licensing authority, grievance committee, or administrative
body has taken action, or when a finding of probable cause,
contempt, sanction, or reprimand has been issued against
the panel member by any state or federal court. The CJA
Committee will forward its findings and recommendation to
the Court for action.
c. Complaints
(i) Initiation
A complaint against a panel member may be initiated
by the CJA Committee, a judge, another panel
member, a defendant, or a member of the Office of
the Federal Public Defender. A complaint need not
follow any particular form, but it must be in writing and
state the alleged deficiency with specificity. Any
complaint should be directed to the CJA Committee,
which will determine whether further investigation is
necessary.
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(ii) Notice
When conducting an investigation, the CJA
Committee will notify the panel member of the specific
allegations.
(iii) Response
A panel member subject to investigation may respond
in writing and shall appear, if so directed, before the
CJA Committee or its subcommittee.
(iv) Protective action
Prior to disposition of any complaint, the CJA
Committee may recommend temporary suspension or
removal of the panel member from any pending case,
or from the panel, and may take any other protective
action that is in the best interest of the client or the
administration of this Plan.
(v) Review and recommendation
After investigation, the CJA Committee may
recommend dismissing the complaint, or recommend
appropriate remedial action, including removing the
attorney from the panel, limiting the attorney’s
participation to particular types or categories of cases,
directing the attorney to complete specific CLE
requirements before receiving further panel
appointments, limiting the attorney’s participation to
handling cases that are directly supervised or
overseen by another panel member or other
experienced practitioner, or any other appropriate
remedial action.
(vi) Final disposition by the Court
The CJA Committee will forward its recommendation
to the Court for consideration and final disposition.
(vii) Confidentiality
Unless otherwise directed by the Court, any
information acquired concerning any possible
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disciplinary action, including any complaint and any
related proceeding, will be confidential.
(viii) None of these procedures creates a property interest
in being on or remaining on the CJA Panel.
d. Notification
The Federal Public Defender will be immediately notified
when any member of the CJA Panel is removed or
suspended.
X. CJA Panel Attorney Appointment in Non-Capital Cases
A. Appointment List
The Federal Public Defender will maintain a current list of all attorneys
included on the CJA Panel, with current office addresses, email
addresses, and telephone numbers.
B. Appointment Procedures
1. The Federal Public Defender is responsible for overseeing the
assignment of cases to CJA Panel attorneys for appointment of
counsel by the Court. The Federal Public Defender will maintain a
record of panel attorney appointments and, when appropriate, data
reflecting the apportionment of appointments between attorneys
from the Office of the Federal Public Defender and the CJA Panel.
2. Assignment of cases to CJA Panel members will ordinarily be made
on a rotational basis. In a complex or otherwise difficult case, the
Federal Public Defender may recommend and the Court may
appoint counsel outside of the normal rotation to ensure the
defendant has sufficiently experienced counsel.
3. Under special circumstances the Court may appoint a member of
the bar of the Court who is not a member of the CJA Panel. Such
special circumstances may include cases in which the Court
determines that the appointment of a particular attorney is in the
interests of justice, judicial economy, or continuity of representation,
or for any other compelling reason. 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 Committee.
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4. Unless otherwise impracticable, CJA Panel attorneys must be
available to represent defendants at the same stage of the
proceedings as is the Federal Public Defender.
XI. Duties of CJA Panel Members
A. Standards and Professional Conduct
1. CJA Panel members must provide high quality representation
consistent with the best practices of the legal profession and
commensurate with those services rendered when counsel is
privately retained. See Polk County v. Dodson, 454 U.S. 312, 318
(1981) (“‘Once a lawyer has undertaken the representation of an
accused, the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or
defender program.’” (quoting ABA Standards for Criminal Justice
section 4-3.9 (2d ed. 1980))).
2. Attorneys appointed under the CJA must conform to the highest
standards of professional conduct, including but not limited to the
North Carolina Rules of Professional Conduct. See LR 83.10e(b)
(MDNC).
3. CJA Panel members must promptly notify the Clerk of Court, who
will in turn notify the CJA Committee, when any licensing authority,
grievance committee, or administrative body has taken action
against them, or when a finding of contempt, sanction, or reprimand
has been issued against the panel member by any state of federal
court. See LR 83.10a, 83.10d (MDNC).
B. Training and Continuing Legal Education
1. Attorneys on the CJA Panel are expected to remain current with
developments in federal criminal defense law, practice, and
procedure, including the Recommendation for Electronically Stored
Information (ESI) Discovery Production in Federal Criminal Cases.
2. Attorneys on the CJA Panel must attend at least 12 hours of
continuing legal education relevant to federal criminal practice,
such as that provided by the Federal Public Defender, every two
years.
3. Failure to comply with these training and legal education
requirements may be grounds for removal from the CJA Panel.
C. Facilities and Technology Requirements
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1. CJA Panel attorneys must have facilities, resources, and
technological capability to effectively and efficiently manage
assigned cases.
2. CJA Panel attorneys must comply with the requirements of
electronic filing and eVoucher.
3. CJA Panel attorneys must know and abide by procedures related to
requests for investigative, expert, and other services.
D. Continuing Representation
Once counsel is appointed under the CJA, counsel will continue the
representation until the matter, including appeals (unless provided
otherwise by the Fourth Circuit’s CJA plan) or review by certiorari, is
closed; or until substitute counsel has filed a notice of appearance; or until
an order is entered allowing or requiring the person represented to
proceed pro se; or until the appointment is terminated by court order. See
LR 46(d) (4th Cir.); LR 83.1(e) (MDNC).
E. Miscellaneous
1. Case budgeting
In non-capital representations of unusual complexity that are likely
to become extraordinary in terms of cost, the Court may require
development of a case budget consistent with Guide, Vol. 7A, Ch.
2, §§ 230.26.10–20.
2. 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 CJA, unless such payment is approved
by order of the Court.
3. Redetermination of need
If at any time after appointment, counsel has reason to believe that
a party is financially able to obtain counsel, or make partial
payment for counsel, and the source of counsel’s information is not
protected as a privileged communication, counsel will advise the
Court.
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XII. Compensation of CJA Panel Attorneys
A. Policy of the Court Regarding Compensation
1. Providing fair compensation to appointed counsel is a critical
component of the administration of justice. CJA Panel attorneys
must be compensated for time expended in court and time
reasonably expended out of court, and reimbursed for expenses
reasonably incurred.
2. Voucher cuts should be limited to:
a. Mathematical errors;
b. Instances in which work billed was not compensable;
c. Instances in which work was not undertaken or completed;
and
d. Instances in which the hours billed are clearly in excess of
what was reasonably required to complete the task.
See: JCUS-SEP 2018, p.42.
B. Payment Procedures
1. Claims for compensation must be submitted on the appropriate
CJA form through the Court’s eVoucher system.
2. Claims for compensation should be submitted no later than 45 days
after final disposition of the case, unless good cause is shown.
3. The Clerk of Court or his or her designee will review the claim for
mathematical and technical accuracy and for conformity with Guide,
Vol. 7A and, if correct, will forward the claim for consideration and
action by the presiding judge.
4. Absent extraordinary circumstances, the Court should act on CJA
compensation claims within 30 days of submission, and vouchers
should not be delayed or reduced for the purpose of diminishing
Defender Services program costs in response to adverse financial
circumstances.
5. Except in cases involving mathematical corrections, no claim for
compensation submitted for services provided under the CJA will
be reduced without affording counsel notice and the opportunity to
be heard.
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6. The Court, when contemplating reduction of a CJA voucher for
other than mathematical reasons, may but is not required to refer
the voucher to the CJA Committee for review and recommendation
before final action on the claim is taken. The CJA Committee is not
authorized to review appeals of claims on which the Court has
taken final action.
See also Section VIII.B.6
7. Notwithstanding the procedure described above, the Court may, in
the first instance, contact appointed counsel to inquire regarding
questions or concerns with a claim for compensation.
C. Independent Review Process
Any attorney not satisfied with the presiding judge's action on their CJA
voucher may appeal to the Chief Judge of this District or another district
judge designated by him or her within a reasonable period of time not to
exceed 21 days. If the Chief Judge is the presiding judge, he or she must
designate the next most senior active district judge to hear the appeal.
XIII. Investigative, Expert, and Other Services
A. Financial Eligibility
Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for an adequate defense may request
such services in an ex parte application to the Court as provided in
18 U.S.C. § 3006A(e)(1), regardless of whether counsel is appointed
under the CJA. Upon finding that the services are necessary, and that the
person is financially unable to obtain them, the Court must authorize
counsel to obtain the services.
B. Applications
Requests for authorization of funds for investigative, expert, and other
services must be submitted in an ex parte application to the Court (using
the eVoucher system) and must not be disclosed except with the consent
of the person represented or as required by law or Judicial Conference
policy.
C. Compliance
Counsel must comply with Judicial Conference policies set forth in Guide,
Vol. 7A, Ch. 3.
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XIV. Appointment of Counsel and Case Management in CJA Capital
Cases
A. 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, and
Guide, Vol. 7A, Ch. 6.
B. General Applicability and Appointment of Counsel Requirements
1. Unless otherwise specified, the provisions set forth in this section
apply to all capital proceedings in the federal courts, whether those
matters originated in a district court (federal capital trials) or in a
state court (habeas proceedings under 28 U.S.C. § 2254). Such
matters include those in which the death penalty may be or is being
sought by the prosecution, motions for a new trial, direct appeal,
applications for a writ of certiorari to the Supreme Court of the
United States, all post-conviction proceedings under 28 U.S.C.
§§ 2254 or 2255 seeking to vacate or set aside a death sentence,
applications for stays of execution, competency proceedings,
proceedings for executive or other clemency, and other appropriate
motions and proceedings.
2. Any person charged with a crime that may be punishable by death
who is or becomes financially unable to obtain representation is
entitled to the assistance of appointed counsel throughout every
stage of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction processes, together with
applications for stays of execution and other appropriate motions
and procedures, competency proceedings, and proceedings for
executive or other clemency as may be available to the defendant.
See 18 U.S.C. § 3599(e).
3. Qualified counsel must be appointed in capital cases at the earliest
possible opportunity.
4. Given the complex and demanding nature of capital cases, where
appropriate, the Court will utilize the expert services available
through the Administrative Office of the United States Courts (AO),
Defender Services Death Penalty Resource Counsel projects
(“Resource Counsel projects”) which include: (1) Federal Death
Penalty Resource Counsel and Capital Resource Counsel Projects
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(for federal capital trials), (2) Federal Capital Appellate Resource
Counsel Project, (3) Federal Capital Habeas § 2255 Project, and
(4) National and Regional Habeas Assistance and Training Counsel
Projects (§ 2254). These counsel are death penalty experts who
may be relied upon by the Court for assistance with selection and
appointment of counsel, case budgeting, and legal, practical, and
other matters arising in federal capital cases.
5. The Federal Public Defender should promptly notify and consult
with the appropriate Resource Counsel projects about potential and
actual federal capital trial, appellate, and habeas corpus cases, and
consider their recommendations for appointment of counsel.
6. In appointing counsel in capital cases, judges should consider and
give due weight to the recommendations made by the Federal
Public Defender and Resource Counsel and articulate reasons for
not doing so.
7. The presiding judge may appoint 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 death penalty habeas corpus
relief provided that the attorney is fully qualified. Such appointments
may be in place of, or in addition to, the appointment of a federal
defender organization or a CJA panel attorney or an attorney
appointed pro hac vice. See 18 U.S.C. § 3006A(a)(3).
8. All attorneys appointed in federal capital cases must be well
qualified, by virtue of their training, commitment, and distinguished
prior capital defense experience at the relevant stage of the
proceeding, to serve as counsel in this highly specialized and
demanding litigation.
9. All attorneys appointed in federal capital cases must have sufficient
time and resources to devote to the representation, taking into
account their current caseloads and the extraordinary demands of
federal capital cases.
10. All attorneys appointed in federal capital cases should be familiar
with and consult the American Bar Association’s 2003 Guidelines
for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (Guidelines 1.1 and 10.2 et seq.), and the 2008
Supplementary Guidelines for the Mitigation Function of Defense
Teams in Death Penalty Cases.
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11. All attorneys appointed in federal capital cases should consult
regularly with the appropriate Resource Counsel projects.
12. There should be no formal or informal non-statutory budgetary caps
on capital cases, whether in a capital trial, direct appeal or habeas
matter.
13. All capital cases should be budgeted with the assistance of case-
budgeting attorneys and/or resource counsel where appropriate.
14. Questions about the appointment and compensation of counsel and
the authorization and payment of investigative, expert, and other
service providers in federal capital cases should be directed to the
AO Defender Services Office, Legal and Policy Division Duty
Attorney at 202-502-3030 or via email at
[email protected].
C. Appointment of Trial Counsel in Federal Death-Eligible Cases 2
1. General Requirements
a. Appointment of qualified capital trial counsel must occur no
later than when a defendant is charged with a federal
criminal offense where the penalty of death is possible. See
18 U.S.C. § 3005.
b. At the outset of every capital case, the Court must appoint
two attorneys, at least one of whom meets the qualifications
for “learned counsel” as described below. If necessary for
adequate representation, more than two attorneys may be
appointed to represent a defendant in a capital case. See
18 U.S.C. § 3005.
c. When appointing counsel, the judge must consider the
recommendation of the Federal Public Defender, who will
consult with Federal Death Penalty Resource Counsel to
recommend qualified counsel. See 18 U.S.C. § 3005.
2
The Judicial Conference adopted detailed recommendations on the appointment and
compensation of counsel in federal death penalty cases in 1998 (JCUS-SEP 98, p. 22). In
September 2010, the Defender Services Committee endorsed revised commentary to the
Judicial Conference’s 1998 recommendations. CJA Guidelines, Vol. 7A, Appx. 6A
(Recommendations and Commentary Concerning the Cost and Quality of Defense
Representation (Updated Spencer Report, September 2010)) (“Appx. 6A”) is available on the
judiciary’s website.
24
e. In appointing counsel, judges should give due weight to the
recommendations made by the Federal Public Defender and
Resource Counsel and articulate reasons for not doing so.
f. To effectuate the intent of 18 U.S.C. § 3005 that the Federal
Public Defender’s recommendation be provided to the Court,
the judge should ensure the Federal Public Defender has
been notified of the need to appoint capitally-qualified
counsel.
g. Reliance on a list for appointment of capital counsel is not
recommended because selection of trial counsel should
account for the particular needs of the case and the
defendant, and be based on individualized recommendations
from the Federal Public Defender in conjunction with the
Federal Death Penalty Resource Counsel and Capital
Resource Counsel projects.
h. Out-of-district counsel, including federal defender
organization staff, who possess the requisite expertise, may
be considered for appointment in capital trials to achieve
high quality representation together with cost and other
efficiencies.
i. In evaluating the qualifications of proposed trial counsel,
consideration should be given to their commitment to the
defense of capital cases, their current caseload including
other capital cases, and their willingness to effectively
represent the interests of the client.
2. Qualifications of Learned Counsel
a. Learned counsel must either be a member of this district’s
bar or be eligible for admission pro hac vice based on his or
her qualifications. Appointment of counsel from outside the
jurisdiction is common in federal capital cases to achieve
cost and other efficiencies together with high quality
representation.
b. Learned counsel must meet the minimum experience
standards set forth in 18 U.S.C. §§ 3005 and 3599.
c. Learned counsel should have distinguished prior experience
in the trial, appeal, or post-conviction review of federal death
penalty cases, or distinguished prior experience in state
death penalty trials, appeals, or post-conviction review that,
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in combination with co-counsel, will assure high quality
representation.
d. “Distinguished prior experience” contemplates excellence,
not simply prior experience. Counsel with distinguished prior
experience should be appointed even if meeting this
standard requires appointing counsel from outside the
district where the matter arises.
e. The suitability of learned counsel should be assessed with
respect to the particular demands of the case, the stage of
the litigation, and the defendant.
f. Learned counsel must be willing and able to adjust other
caseload demands to accommodate the extraordinary time
required by the capital representation.
g. Learned counsel should satisfy the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of representation in capital cases.
3. Qualifications of Second and Additional Counsel
a. Second and additional counsel may, but are not required to,
satisfy the qualifications for learned counsel, as set forth
above.
b. Second and additional counsel must be well qualified, by
virtue of their distinguished prior criminal defense
experience, training and commitment, to serve as counsel in
this highly specialized and demanding litigation.
c. Second and additional counsel must be willing and able to
adjust other caseload demands to accommodate the
extraordinary time required by the capital representation.
d. The suitability of second and additional counsel should be
assessed with respect to the demands of the individual case,
the stage of the litigation, and the defendant.
D. Appointment and Qualifications of Direct Appeal Counsel in Federal Death
Penalty Cases
1. When appointing appellate counsel, the judge must consider the
recommendation of the Federal Public Defender, who will consult
26
with Federal Capital Appellate Resource Counsel to recommend
qualified counsel.
2. In appointing appellate counsel, judges should give due weight to
the recommendations made by the Federal Public Defender and
Resource Counsel and articulate reasons for not doing so.
3. Counsel appointed to represent a death-sentenced federal
appellant should include at least one attorney who did not represent
the appellant at trial.
4. Each trial counsel who withdraws should be replaced with similarly
qualified counsel to represent the defendant on appeal.
5. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital appeals to achieve high quality
representation together with cost and other efficiencies.
6. Appellate counsel, between them, should have distinguished prior
experience in federal criminal appeals and capital appeals.
7. At least one of the attorneys appointed as appellate counsel must
have the requisite background, knowledge, and experience
required by 18 U.S.C. §§ 3599(c) or (d).
8. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
9. In evaluating the qualifications of proposed appellate counsel,
consideration should be given to their commitment to the defense
of capital cases, their current caseload including other capital
cases, and their willingness to effectively represent the interests of
the client.
E. Appointment and Qualifications of Post-Conviction Counsel in Federal
Death Penalty Cases (28 U.S.C. § 2255)
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2255 is entitled to
appointment of fully qualified counsel. See 18 U.S.C. § 3599(a)(2).
27
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the Court should consider appointing at least
two attorneys.
3. When appointing counsel in a capital § 2255 matter, the Court
should consider the recommendation of the Federal Public
Defender, who will consult with the Federal Capital Habeas § 2255
Project.
4. In appointing post-conviction counsel, judges should give due
weight to the recommendations made by the Federal Public
Defender and Resource Counsel and articulate reasons for not
doing so.
5. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital § 2255 cases to achieve high quality
representation together with cost and other efficiencies.
6. Local or circuit restrictions prohibiting capital habeas units (CHUs)
from engaging in cross-district or cross-circuit representation
should not be imposed without good cause. Every district should
have access to a CHU.
7. Counsel in § 2255 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
8. When possible, post-conviction counsel should have distinguished
prior experience in capital § 2255 representations.
9. In evaluating the qualifications of proposed post-conviction counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
11. In evaluating the qualifications of proposed post-conviction § 2255
counsel, consideration should be given to their commitment to the
defense of capital cases, their current caseload including other
capital cases, and their willingness to effectively represent the
interests of the client.
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F. Appointment and Qualifications of Counsel in Federal Capital Habeas
Corpus Proceedings (28 U.S.C. § 2254)
1. A financially eligible person seeking to vacate or set aside a death
sentence in proceedings under 28 U.S.C. § 2254 is entitled to the
appointment of qualified counsel. See 18 U.S.C. § 3599(a)(2).
2. Due to the complex, demanding, and protracted nature of death
penalty proceedings, the Court should consider appointing at least
two attorneys.
3. When appointing counsel in a capital § 2254 matter, the Court
should consider the recommendation of the Federal Public
Defender who will consult with the National or Regional Habeas
Assistance and Training Counsel projects.
4. In appointing counsel in a capital § 2254 matter, judges should give
due weight to the recommendations may by the Federal Public
Defender and Resource Counsel and articulate reasons for not
doing so.
5. Local or circuit restrictions prohibiting capital habeas units (CHUs)
from engaging in cross-district or cross-circuit representation
should not be imposed without good cause. Every district should
have access to a CHU.
6. Out-of-district counsel, including federal defender organization staff,
who possess the requisite expertise may be considered for
appointment in capital § 2254 cases to achieve cost and other
efficiencies together with high quality representation.
7. For federal counsel to avail themselves of the full statute of
limitations period to prepare a petition, the Court should appoint
counsel and provide appropriate litigation resources at the earliest
possible time permissible by law.
8. Unless precluded by a conflict of interest, or replaced by similarly
qualified counsel upon motion by the attorney or motion by the
defendant, capital § 2254 counsel must represent the defendant
throughout every subsequent stage of available judicial
proceedings and all available post-conviction processes, together
with applications for stays of execution and other appropriate
motions and procedures, and must also represent the defendant in
such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant. See
18 U.S.C. § 3599(e).
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9. Counsel in capital § 2254 cases should have distinguished prior
experience in the area of federal post-conviction proceedings and
in capital post-conviction proceedings.
10. When possible, capital § 2254 counsel should have distinguished
prior experience in capital § 2254 representations.
11. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to the qualification standards
endorsed by bar associations and other legal organizations
regarding the quality of legal representation in capital cases.
12. In evaluating the qualifications of proposed capital § 2254 counsel,
consideration should be given to proposed counsel’s commitment
to the defense of capital cases, their current caseload including
other capital cases, and their willingness to represent effectively the
interests of the client.
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