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July 31, 1973

Lawrence THOMPSON, Defendant. UNITED STATES of America v. Marvin VINCENT, Defendant. UNITED STATES of America v. Harold BOGGINS, Defendant

Bazelon, Chief Judge, District of Columbia Circuit.

The opinion of the court was delivered by: BAZELON

In each of these cases, the District Judge has found that the services rendered by appointed counsel constituted "extended or complex representation" and that a fee in excess of the $1,000 statutory ceiling is necessary in order to provide these attorneys with "fair compensation." My approval is required in accordance with the Criminal Justice Act, 18 U.S.C. § 3006A(d)(3). Because these applications raise common, important and recurring issues involving the administration of the statute in the District of Columbia Circuit, I have treated them collectively for purposes of disposition.


 In Thompson, counsel was appointed to represent the indigent defendant on charges of first and second degree murder, armed robbery, assault with intent to kill, and related offenses. Counsel's commendably thorough and fully documented *fn1" application claims compensation for 212 hours spent in the preparation and presentation of the defense of which 25 hours were "in court." The District Judge certified that this case involved "extended or complex representation" and approved a fee of $4,493 computed at the maximum statutory rates of $30 per hour for "in court" time and $20 per hour for "out of court" time. *fn2"

 My consideration of this application requires a review of recent statutory revisions to and judicial interpretations of the applicable law. In 1970 Congress amended the Criminal Justice Act expanding its coverage, *fn3" providing for public defender organizations, *fn4" broadening the availability of public funds for defense services, *fn5" increasing the hourly rates of compensation for appointed counsel, *fn6" raising the statutory limit of counsel's compensation from $500 to $1,000, *fn7" and permitting compensation in excess of this limit under certain circumstances. At issue here is the latter provision which now reads:

Payment in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered, or the United States magistrate if the representation was furnished exclusively before him, certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit. 18 U.S.C. § 3006A(d)(3). (emphasis added)

 Prior to these amendments, compensation in excess of the statutory limits was available only in "extraordinary circumstances" upon a finding of "protracted representation." E.g., United States v. Harper, 311 F. Supp. 1072 (D.D.C. 1970), United States v. Lowery, 261 F. Supp. 396 (D.D.C. 1966). The amended statute substitutes "extended or complex representation" as the relevant criteria for excess compensation. The legislative purpose was explained as follows:

Section 1(d)(3) provides for waiver of maximum amount and payment in excess of those amounts for extended or complex representation when necessary to provide fair compensation and upon approval of the chief judge of the circuit. This change from the 1964 act is based on the finding of the Oaks' report *fn8" that the original language has been given too restricted an interpretation. S. Rep. No. 91-790, 91st Cong., 2d Sess. at 7 (1970); H.R. Rep. No. 91-1546, 91st Cong., 2d Sess. at 10-11 (1970), U.S. Code Cong. & Admin. News 1970, p. 3990.

 The deletion of the "extraordinary circumstances" requirement and the reference to the Oaks' report, *fn9" plainly indicate that the 1970 amendments were intended to ease the eligibility requirements for excess compensation. But to say that the requirements for excess compensation have been eased is not to say that they have been abolished altogether. It was clearly not intended that the trial judge or I sit as clericals, doing nothing more than multiplying hours times the statutory rate to arrive at a fee award; nor that the statutory limitation be waived in every case in which compensation for counsel's services, if computed at maximum hourly rates, would exceed the statutory limits. The act still calls for an informed judicial determination based upon the facts of the individual case.

 Applying the statutory criteria is a frustrating process. It is perhaps unfortunate that Congress did not accede to Professor Oaks' strong recommendation that "more definite [standards]" and "guidelines" be established. Report at 182. Without such assistance, I am increasingly perplexed in my efforts to administer the excess compensation provisions, and I am fully aware that my frustrations are shared by trial judges and conscientious appointed counsel. However, pending the promulgation of such standards and guidelines, *fn10" the statute must be administered as best it can, and it seems to me that several factors can be identified.

 First, the initial burden is on the attorney seeking excess compensation to provide the trial judge with an application sufficiently detailed to allow an exercise of informed judicial discretion. United States v. Naples, 266 F. Supp. 608 (D.D.C. 1967), sets forth the nature of the information which should ordinarily accompany such an application. *fn11" In some cases, counsel have been permitted to supplement their applications for excess compensation with a Naples memorandum after the trial judge has passed upon the bare application. Hereafter, I will ordinarily follow the course established in Naples and return insufficiently detailed applications to the trial court without prejudice to resubmission upon appropriate supplementation. This seems more in accordance with the statutory scheme which requires the initial determination to be made by the trial judge, subject only to review by the chief circuit judge.

 Second, when presented with a sufficient application, the trial judge must find that the case involves "extended or complex" representation, a decision calling for careful consideration of the nature of the case, its legal and factual difficulties, the amount and nature of the professional services rendered, and many other such factors. This statutory finding cannot be made by mere reference to the number of hours of service, since the statute requires a determination that such time was "reasonably expended" in the course of the representation. 18 U.S.C. § 3006A(d)(1). Broad categories such as "legal research" or "interviews" or "other services" cannot be found to have been "reasonably expended" unless counsel's supporting memorandum furnishes sufficiently detailed descriptions of the services to warrant that finding. Cf. Hardt v. Heller Bros. Co., 171 F.2d 644, 648 (3d Cir. 1948); Kuhn v. Princess Lida of Thurn & Taxis, 119 F.2d 704, 708 (3d Cir. 1941). *fn12"

 The trial judge correctly found that counsel's representation here was "complex." The files and records, including counsel's detailed supporting memorandum, convincingly demonstrate that this case involved difficult factual and legal issues which were skillfully and throughly investigated, researched and presented. Counsel determined not to raise the defense of insanity only after "a very thorough and detailed investigation, and after consultation with the defendant, his family, and the presiding judge." Counsel did vigorously pursue an effort to establish that a third person, and not the defendant, was the culpable party. Counsel devoted substantial time to preparing requests for instructions; to conducting interviews with potential witnesses and prosecuting attorneys; and to careful study of grand jury testimony, police reports, hospital records and to other matters. Following his client's conviction, counsel prepared and submitted a comprehensive pre-sentencing report for the trial court's consideration. *fn13" While the trial itself was not unusually long, the pretrial preparation clearly places this case in the "complex" category and warrants compensation in excess of the statutory limitation.

 The trial judge computed the counsel's fee of $4,493 at maximum hourly rates. Consistent with the view taken by other chief judges, *fn14" I have held that this is not ordinarily the proper method of computing excess compensation, United States v. Harper, 311 F. Supp. 1072 (D.D.C. 1970); United States v. Hanrahan, 260 F. Supp. 728 (D.D.C. 1966), and the 1970 amendments do not alter my construction of the applicable statutory provisions. First, although Congress was fully aware of the aforementioned construction, *fn15" it did not amend the "fair compensation" standard of the original act. Second, the act expressly requires not only a finding of "extended or complex representation," but also a determination that the "amount of excess payment is necessary to provide fair compensation." Had Congress intended the computation of excess compensation to be a mere clerical function once the finding of "extended or complex representation" had been made, the latter provision would have been unnecessary. Finally, the statutory rates of compensation are described as maximum rates, not as the automatic entitlement of counsel for each hour expended in the course of representation.

 In United States v. Harper, supra, 311 F. Supp. at 1073, n. 9, I indicated I would consider applications for excess compensation computed at the maximum statutory rates "in an extraordinary case" provided the trial judge set forth reasons justifying such an award in an accompanying memorandum. I have received numerous applications for excess compensation computed at maximum hourly rates, but I have never received an application accompanied by such a memorandum. This case is no exception. Nor is there anything in the record demonstrating the requisite "extraordinary" circumstances.

 In the past, I have independently reduced excess compensation awards which were computed at maximum statutory rates. I will no longer do so. The trial judge is in a far better position than I to assess the presence of extraordinary circumstances justifying compensation at maximum rates *fn16" or to fix a fee sufficient to constitute "fair compensation" at less than maximum rates. My only function under the act is to approve or disapprove, in whole or in part, the determination made by the trial judge. Accordingly, this application will be returned to the trial court for reconsideration. If the trial court concludes that extraordinary circumstances justify excess compensation at maximum hourly rates, the basis for that conclusion must be set forth. If such circumstances are not found, an appropriate fee will be fixed by the court on a basis other than maximum hourly rates.

 In passing, I would also note that the 1970 amendments were clearly intended to ease the financial burden of the attorney called upon to represent an indigent defendant in a federal criminal case. S. Rep. No. 91-790, 91st Cong., 2d Sess. at 14-15 (1970); H.R. Rep. No. 91-1546, 91st Cong., 2d Sess. at 4, 10 (1970). There remains, however, a substantial element of public service on the part of appointed counsel, for Congress made it plain that the fees allowable under the amended act "still [do] not provide full compensation." S. Rep. No. 91-790, supra, at 15. These matters must be kept in mind by the court when it fixes ...

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