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United States of America v. Terrence Mosley

April 27, 2011

UNITED STATES OF AMERICA,
v.
TERRENCE MOSLEY,
DEFENDANT.



The opinion of the court was delivered by: Hon. William J. Martini

WILLIAM J. MARTINI, U.S.D.J.:

OPINION

This matter comes before the Court on attorney Michael Baldassare's CJA Form 20 voucher requesting payment in the amount of $99,183.24*fn1 in connection with his representation of Terrence Mosley ("Defendant") in the above-referenced case. The Court issued Mr. Baldassare an order to show cause why the requested payment is justified. The Court then held a hearing on the issue on April 15, 2011. For the reasons stated below, the Court has reduced the requested compensation from $99,183.24 to $16,150.67.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2007, a Federal Complaint was first filed against Defendant in an earlier case, United States v. Mosley, Criminal No. 08-771 (JAG). On December 19, 2007, attorney Michael Baldassare was appointed to represent Defendant pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. Defendant was then indicted in this matter on October 15, 2008. On December 12, 2008, Defendant filed a motion to dismiss the Indictment with prejudice pursuant to the Speedy Trial Act, 18 U.S.C. § 3162, and oral argument was heard on February 9, 2009. On October 9, 2009, Judge Greenaway dismissed the Indictment without prejudice.

On November 6, 2009, the Government re-indicted Defendant, leading to the instant case. A grand jury returned a two-count indictment charging Defendant with (1) conspiring to distribute and possess with intent to distribute a controlled substance, and (2) distributing and possessing with intent to distribute a controlled substance. Defendant was arraigned on December 15, 2009. Defendant then moved to be released on bail on January 7, 2010, and his motion was denied by Magistrate Judge Salas after a hearing. On February 24, 2010, Defendant entered into a plea agreement with the Government, and pleaded guilty to a one-count superseding information charging Defendant with conspiracy to possess with intent to distribute a quantity of a substance containing cocaine base (i.e., "crack cocaine"). (Docket No. 19.) On August 5, 2010, the Court sentenced Defendant to 48 months imprisonment and three years of supervised release.

On November 4, 2010, attorney Michael Baldassare submitted a CJA 20 voucher form requesting $99,183.24*fn2 for legal services rendered and expenses incurred during the three years (December 17, 2007 through September 30, 2010) he represented Defendant. The Court issued an order to show cause as to why a request for $99,183.24 is justified on December 6, 2010. On April 15, 2011, the Court held a hearing on the order to show cause, and during the hearing provided Mr. Baldassare the option to go forward with an additional full evidentiary hearing to address the details of the CJA voucher. Mr. Baldassare declined this option, and the Court indicated its intent to issue an opinion relying on the voucher on its face without requiring substantiation of each entry.

II. DISCUSSION

The CJA authorizes the appointment of, and compensation for, counsel to represent indigent defendants charged with federal offenses. 18 U.S.C. § 3006A. Attorneys are paid in accordance with the Act both for hours spent before the court and those "reasonably expended out of court." 18 U.S.C. § 3006A(d)(1). However, it is the duty of the Court to determine what is a reasonable expense or a reasonable use of billable time, and to determine exactly what compensation and reimbursement will be paid. 18 U.S.C. § 3006A(d)(5); United States v. Smith, 76 F. Supp.2d 767, 768 (S.D. Tex. 1999). Courts cannot simply rubber-stamp every CJA voucher that crosses their paths. Every time an attorney submits such a voucher, that attorney is asking the U.S. Treasury to dole out a portion of its limited resources. Smith, 76 F. Supp. 2d at 768. It is the role of the Court to scrutinize these requests to properly safeguard precious taxpayer funds, or else there is little to prevent taxpayer money from being wasted on unreasonable or unnecessary activities by court appointed defense counsel. Id.

To guide attorneys in submitting CJA forms and to guide Courts in evaluating those forms, the Judicial Conference of the United States has approved official guidelines addressing the CJA program, set forth in the Guide to Judiciary Policy, Volume 7, Part A ("Guidelines"). First, the Guidelines institute case compensation maximums, which set the maximum compensation attorneys should request for particular types of cases. Guidelines, § 230.23.20. Under the Guidelines, the case compensation maximum for a case such as this one (involving a defendant accused of a felony at the trial court level) is $9,700 as of January 1, 2010.*fn3 Id. The Guidelines also provide a procedure for waiving the case compensation maximums, stating that "[p]ayments in excess of CJA compensation maximums may be made to provide fair compensation in cases involving extended or complex representation when so certified by the court." Guidelines, §230.23.40(a) (emphasis in original). Approval for a voucher for excess compensation is a two-step process: first, the Court must determine that the attorney's representation was either extended or complex, and second, the Court must determine what amount of excess payment is necessary to provide fair compensation. Guidelines, §230.23.40.

The Court is supposed to be limited by this two-step process to grant excess compensation only in cases that are out of the ordinary, and such excess compensation was meant to be the exception, not the rule. See United States v. Holtz, 379 F. Supp. 2d 988, 992 (C.D. Ill. 2005) (noting that many attorneys "wrongfully expect the Court to approve their fee petitions regardless of the CJA maximum"). However, the analysis is often not so rigid, and fees over the case compensation maximum are routinely reviewed and approved by this Court and its colleagues without formal inquiry. Such formality is often not necessary, as most attorneys who have accepted CJA appointments have recognized this limit and request excess compensation sparingly and only when necessary. As the Court has observed over the years, most CJA attorneys perform admirably, and submit vouchers that are reasonable and appropriate. Indeed, only once before did this Court raise question over a voucher, and the issue was easily resolved with a small adjustment in the amount of compensation. The Court's choice to conduct a more formal analysis in this case is in response to what this Court believes to be an exorbitant fee.

A. Whether the Case is "Extended" or "Complex"

A case is considered "complex" if the legal or factual issues in the case are unusual, requiring the expenditure of more time, skill, and effort than would normally be required. Guidelines, §230.23.40(b). A case is considered "extended" if the case reasonably requires more time than usual, including pre-trial and post-trial hearings. Id. Here, Mr. Baldassare argues that this case was both extended and complex. First, he points out that his representation of Defendant, Mr. Mosley, began in December 2007 and continued through September 2010. However, the mere passage of time is not the criteria for determining whether a case is "extended." Here, almost a year of Mr. Baldassare's representation of Defendant consisted of waiting for a ruling on the motion to dismiss the Indictment. Therefore, while three years may have passed, the case itself did not require more of Mr. Baladassare's time than a usual criminal case.

The Court also disagrees with Mr. Baldassare's description of this case as "complex." While Mr. Baldassare points to aspects of the case such as the motion to dismiss pursuant to the Speedy Trial Act, which required briefing as well as a hearing, this is certainly not a unique issue for a criminal defendant. The Court has reviewed the brief and the motion to dismiss opinion, and did not find any unusual or out of the ordinary arguments. Additionally, Mr. Baldassare's claim that preparing the Sentencing Memorandum required more work than usual, as it provided an analysis of the career offender guidelines and the crack cocaine sentencing guidelines, also fails to justify dubbing this case as particularly "complex." See, e.g., United States v. Sepulveda, 502 F. Supp. 2d 1104, 1109 (D. Mont. 2007) ("Disputes over whether a prior conviction should count toward a defendant's criminal history are routine, and do not support a finding of complexity.") Issues with the guidelines for career offenders and crack cocaine crimes are common pre-sentencing topics that the Court has seen presented in other cases numerous times. In essentially every case dealing with either crack cocaine crimes or defendants with higher criminal history levels, counsel is likely to raise objections in their sentencing memorandums to the crack cocaine guidelines*fn4 or the career offender guidelines. Finally, the Court notes that while Mr. Baldassare pointed to the several large volumes that were submitted as exhibits in support of the Sentencing Memorandum, most of these exhibits were unnecessary ...


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