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August 24, 1982

Carlton R. JOHNSON

Spottswood W. Robinson, III, Chief Judge.

The opinion of the court was delivered by: ROBINSON, III

Court-appointed trial counsel for the defendant has submitted a voucher pursuant to the Criminal Justice Act of 1964 *fn1" seeking $9,249.35 as compensation. By the terms of the Act, that much is not allowable without prior judicial certification and approval. *fn2" The voucher lists 83.8 hours spent in court, a statistic unchallenged, but 329.6 hours out of court, of which 247.5 hours were devoted to legal research and brief-writing. *fn3" The District Judge deemed this latter figure, though concededly accurate, excessive by 165 hours, *fn4" and certified $7,500 as fair compensation. *fn5" The matter is now before me for approval. *fn6"


 The Criminal Justice Act is the congressional effort to give meaning to the Sixth Amendment *fn7" right to counsel. *fn8" The Act pledges adequate and effective representation to indigent defendants, *fn9" and modest remuneration to counsel who serve them. *fn10" Compensation for district court representation may go as high as $1,000 for each attorney in a case in which one or more felonies are charged, and $400 for each attorney in a case in which only misdemeanors are charged. *fn11" There is, however, provision for waiver of these ceilings in cases involving extended or complex representation when necessary to provide fair compensation. *fn12"

whenever the court in which the representation was rendered, . . . 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. *fn14"

 This statutory scheme supplies the answer to the question posed. An award of excess compensation is a two-tiered process. First, the initiating court -- after determining that the representation was either extended or complex, and that fair remuneration requires an over-the-ceiling allowance -- must certify to the chief judge the particular sum deemed necessary to achieve that end. *fn15" This certification, by the express terms of the Act, is wholly the business of "the court in which the representation was rendered." *fn16" Once the certification is made, the process moves into its second stage: the chief judge must determine whether approval for payment is warranted. *fn17" This, as the Act makes equally plain, is entirely the responsibility of the chief judge. *fn18"

 Thus certification and approval, though both essential, are distinct functions, to be performed independently by different judicial officers. More importantly, as the cases have recognized, these functions are as self-contained as they are mutually exclusive. *fn19" The certifying judge *fn20" has no role in approval, nor the chief judge in certification, *fn21" and it follows inescapably that the amount of excess compensation certified as necessary to provide fair compensation operates as the upper limit of any approval. As already it has aptly been observed, the chief judge's "only function under the act is to approve or disapprove, in whole or in part, the determination made by the trial judge," *fn22" and "unless the Court certified a greater amount, the chief judge has no power to approve a larger payment." *fn23" I conclude, then, that my approval authority here is confined to the amount of excess compensation certified by the District Judge. *fn24"


 Mindful of this limitation, I turn to examine both the claim and the certification of excess compensation here. The defendant was charged in a seven-count indictment with kidnapping, *fn25" kidnapping while armed, *fn26" armed robbery, *fn27" interference with commerce by robbery, *fn28" and various lesser included offenses. *fn29" Counsel filed extensive pre-trial motions to suppress statements, identifications, and other evidence, *fn30" and the District Judge held three days of hearings on these and other motions. *fn31" All motions were denied, but none, in the presiding judge's view, was frivolous. *fn32" The ensuing trial, which culminated in convictions, lasted five days. *fn33" Counsel also submitted post-trial motions, *fn34" but the convictions stood, and were affirmed on appeal without opinion. *fn35"

 As noted earlier, the Act allows for excess compensation "for extended or complex representation" when necessary to provide "fair compensation". *fn36" This critical terminology has been interpreted authoritatively. "Complex representation" is that involving unusual legal or factual issues requiring "the expenditure of more time, skill and effort by the lawyer than would normally be required in an average case." *fn37" "Extended representation" is similarly defined as that demanding "more time . . . for total processing than the average case." *fn38"

 While the representation need not be both extended and complex, *fn39" the District Judge found both elements present, *fn40" a determination in which I concur. The motions hearings and the trial alone consumed almost two full weeks of counsel's time. *fn41" Even as reduced by the judge to time profitably expended, counsel put in 248.4 hours on the case. *fn42" The legal issues presented at the motions stage were far from routine; *fn43" indeed, on certification the judge expressly characterized many of them as "complex." *fn44" I am therefore satisfied that the representation was both extended and complex.

 The Act also requires that excess payment be necessary to provide "fair compensation." *fn45" Important illumination of the meaning of this elusive phrase is derived from the admonition to examine, among other factors, the manner in which counsel's duties were executed, and the "knowledge, skill, efficiency, professionalism, and judgment required of and used by counsel." *fn46" Because first-hand observation of counsel's performance is obviously crucial to proper assessment of these elements, *fn47" the evaluation given them by the presiding judge is entitled to considerable deference. *fn48" Here the judge described counsel as "well prepared," and declared that he had "diligently pursued his client's case" and "afforded [the defendant] excellent representation." *fn49" I agree with the judge that excess compensation is essential to fair remuneration.

 I conclude, then, that the claim as certified is "for extended or complex representation," and that excess compensation is "necessary to provide fair compensation." *fn50" ...

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