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United States v. Eley

United States District Court, D. Maine

October 8, 2017

UNITED STATES OF AMERICA,
v.
NAQUAN ELEY, Defendant

          MEMORANDUM DECISION AND ORDER ON MOTION TO PERMIT PRIVATELY RETAINED CO-COUNSEL

          John H. Rich III United States Magistrate Judge.

         The defendant, who has been indicted on a charge of conspiracy to distribute cocaine base and heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), see Indictment (ECF No. 3), moved for leave to permit Lawrence Schoenbach, Esq., an attorney provisionally retained by his girlfriend and grandmother, to serve in a limited capacity as co-counsel with his court-appointed attorney, William Maselli, Esq. See Letter dated August 23, 2017, from William Maselli to Christa Berry, Clerk of Court[] (“Motion”) (ECF No. 86). The government opposed the Motion, arguing that the defendant must either choose to continue at trial with his court-appointed attorney or utilize the services of Attorney Schoenbach alone. See Government's Response to Defendant's Motion for Leave To Appear (“Response”) (ECF No. 88) at 1-2. After conducting a hearing, and with the benefit of post-hearing briefs, I found that the retention of private counsel for less than full representation by third parties, who have been shown to have used their own funds, does not require the defendant to forfeit his right to court-appointed counsel, and I granted the Motion. See ECF No. 102. I now supplement my earlier docket endorsement with this memorandum decision.

         I. Factual Background

         At the defendant's initial appearance, I was provided with his signed and sworn Financial Declaration (ECF No. 15). He stated, inter alia, that he was not married, had one dependent, had no assets other than $200 in a checking account, had no current employment, and had last been employed four months earlier, earning $2, 500 a month. See Id. I approved the Financial Declaration and appointed an attorney from the District's Criminal Justice Act (“CJA”) panel to represent the defendant on June 13, 2016.[1] See ECF Nos. 16, 17. The defendant pleaded not guilty, and the case was set for trial. See ECF No. 18.

         The instant motion was filed two months before trial was set to commence. See ECF Nos. 84, 86. The government filed a response, to which the defendant replied. See ECF Nos. 88, 89. On September 13, 2017, I held a hearing on the motion and ordered further briefing on the issues raised therein. See ECF No. 91. Both parties filed simultaneous post-hearing briefs, see Supplemental Memorandum of Law in Support of Naquan Eley's Motion To Permit Privately Retained Counsel To Join CJA Counsel in the Representation of the Case (“Defendant's Suppl. Memorandum”) (ECF No. 93); Government's Supplemental Memorandum (“Government's Suppl. Memorandum”) (ECF No. 94), and responses, see Government's Response to Defendant's Supplemental Memorandum (“Government's Response”) (ECF No. 95); [Defendant's] Reply re: Motion for Leave To Appear (ECF No. 97). In order to provide as much notice as possible to the parties, I granted the Motion by “text-only” docket endorsement on September 28, 2017, ECF No. 102, to allow Attorney Schoenbach to participate with Attorney Maselli at a pre-jury selection conference on September 29, ECF No. 104, and jury selection on October 2, ECF No. 106.

         II. Applicable Legal Standard

         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.” Plan for the Adequate Representation of Defendants Pursuant to the Criminal Justice Act of 1964 (D. Me., amended July 2017) (“Local CJA”) § 4.2.1.2. In determining financial eligibility, the court should consider “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.” Id. § 4.2.1.4. The initial determination of eligibility for assigned counsel “must be made without regard to the financial ability of the person's family to retain counsel unless the family indicates willingness and ability to do so promptly.” Id. § 4.2.1.5. “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.” See Id. § 4.2.1.6.

         When considering the family resources of a defendant, “[a]t or following the appointment of counsel, the judicial officer may inquire into the financial situation of the person's spouse (or parents, if the person is a juvenile) and if such spouse or parents indicate their willingness to pay all or part of the costs of counsel, the judicial officer may direct deposit or reimbursement.” Guide to Judiciary Policy, vol. 7, pt. A, ch. 2 (“Judiciary Policy”) § 210.40.50.

         III. Discussion

         At the September 13, 2017, hearing, Attorney Schoenbach stated that he had been hired by the defendant's grandmother and girlfriend to meet with and advise the defendant when he was originally arrested in New York. More recently, he was provisionally retained by them for the limited purpose of providing joint representation with Attorney Maselli to the defendant. He confirmed that the grandmother and girlfriend's limited funds prevented him from being retained to serve as sole counsel. He explained that the grandmother and girlfriend had agreed to provide one-third of his usual fee for retained clients for a trial of a similar nature, together with his travel and lodging expenses.[2] He asserted that he could not undertake the task of representing the defendant alone, for the fee agreed to by the defendant's grandmother and girlfriend. At hearing, the defendant expressed a desire for the proposed joint representation.

         The government raised two principal arguments in support of its bid for denial of the defendant's motion. First, it contended that the defendant's grandmother and girlfriend, even if considered third parties, have indicated a willingness to promptly pay for his counsel, and, therefore, the defendant should not be entitled to two attorneys, one paid for at taxpayer expense. Second, it argued that the defendant has not made the necessary showing to assure the court that he is not the source of the funds being paid to Attorney Schoenbach.

         A. Impact of Family Funds

         At hearing, the government conceded that, although the defendant's grandmother and girlfriend may be “family” in the common usage of the term, they are third parties pursuant to the Judiciary Policy because they are not the defendant's spouse (or parents, were he a juvenile). See Judiciary Policy § 210.40.50. This is a commonsense scope of restriction, as a defendant presumably has access to, and control of, only his/her funds and those he/she may share with a spouse. That other family members may have financial resources is of no moment, as they have no legal obligation to provide counsel to the defendant, and the defendant has no ability to direct how they dispense their funds. Further, the Local CJA commands that a judge specifically not consider the financial ability of a defendant's family to retain counsel when considering an application for court-appointed counsel, “unless the family indicates willingness and ability to do so promptly.” Local CJA § 4.2.1.5.

         Nevertheless, the government argued that the family members here, even if third parties, have indicated a willingness and ability to provide the cost of counsel through their retention of Attorney Schoenbach. See Response at 1. It ...


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