Argued: April 2, 2013
On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 2-11-cr-00015-001 (Honorable Michael M. Baylson)
Brett G. Sweitzer, Esq. [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant.
Mary Kay Costello, Esq. [ARGUED] Office of United States Attorney Counsel for Appellee.
Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.
SCIRICA, Circuit Judge.
The Criminal Justice Act requires courts to furnish legal counsel to criminal defendants "financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a). Joseph Konrad was appointed a federal defender under the Criminal Justice Act (CJA), based on information he provided in a financial disclosure affidavit. At sentencing, the District Court found several discrepancies between Konrad's pre-sentencing report and his financial disclosure. The court ordered Konrad to show cause that he was financially eligible for appointed counsel. After a hearing, the court found Konrad had significant funds in two individual retirement accounts so he was not financially unable to pay the cost of legal representation. After appointing a Master to determine the cost of private legal representation, the court ordered Konrad to repay $6, 000 because he was not financially eligible to be represented by the federal defender.
We hold individual retirement funds and jointly-held bank accounts can be available funds within the meaning of the Criminal Justice Act. We also hold the District Court did not abuse its discretion in ordering Konrad to repay the market value of his legal representation rather than the hourly rate paid to an attorney appointed under the Criminal Justice Act.
The Federal Community Defender Office for the Eastern District of Pennsylvania was appointed by a Magistrate Judge to defend Joseph Konrad against charges of making fraudulent statements to the Federal Aviation Administration. Konrad pleaded guilty. As noted, upon sentencing the District Court noted disparities between the assets Konrad reported in the CJA Form 23 Financial Affidavit of November 15, 2010 and those in the presentencing report. The court ordered Konrad to show cause he was financially eligible for court-appointed counsel. The court found Konrad failed to disclose the $258, 000 value of his home, and only reported $50, 000 in retirement accounts worth $70, 463. Konrad underreported his household monthly income by $4, 300, stating his monthly household income was $2, 500 in the Financial Disclosure Affidavit when it was actually $8, 600.
The District Court found the $70, 463 in the individual retirement accounts was available to pay for Konrad's legal representation. The court did not reach the question whether a bank account worth $34, 893 Konrad held jointly with his wife was also available because the retirement savings accounts had several times the amount needed to pay for legal counsel.
The District Court found Konrad had financial resources to pay for his own defense while meeting the cost of the necessities of life. The District Court ordered Konrad to pay for his legal representation and appointed a Master to determine the cost of private criminal defense counsel in this case. The Master surveyed hourly rates in the relevant geographic area, and selected the lowest estimate, $400 an hour. The Master determined the cost of Konrad's defense was $6, 000, based on the hourly rate and number of hours. Konrad appeals from that order.
The Criminal Justice Act requires district courts to provide legal counsel for criminal defendants charged with a felony when they are unable to pay for an attorney. 18 U.S.C. § 3006A(a)(1)(A). A defendant bears the burden to prove he is unable to pay for the cost of representation. United States v. Evans, 155 F.3d 245, 252 n.8 (3d Cir. 1998) (citing United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir. 1997)). "Whenever the United States magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney . . . ." 18 U.S.C. § 3006A(f). The Guide to Judiciary Policy Guidelines for Administering the CJA and Related Statutes explicitly recommends an evaluation of financial eligibility after the presentencing report becomes available "in order to make a final determination concerning whether the person then has funds available to pay for some or all of the costs of representation." 7A Guide to Judiciary Policy § 210.40.30 ("[E]rroneous determinations of eligibility may be corrected at a later time.").
"A person is 'financially unable to obtain counsel' . . . if the person's net financial resources and income are insufficient to obtain qualified counsel" considering "the cost of . . . the necessities of life." Id. at § 210.40.30(a) (quoting 18 U.S.C. § 3006A(6)). The Guide instructs courts to "consider pertinent information contained in the presentence report, the court's intention with respect to fines and restitution, and all other available data bearing on the person's financial condition, in order to make a final determination concerning whether the person then has funds available to pay for some or all of the costs of representation." Id. at § 210.40.30(d) ("At the time of sentencing, in appropriate circumstances, [the court] should order the person to reimburse the CJA appropriation for such costs."). "In the absence of a serious abuse of discretion, a district judge's findings as to 'availability' of funds, if supported by an 'adequate inquiry', will not be disturbed on appeal." United States v. Bracewell, 56 ...