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United States v. Anthony

United States District Court, W.D. Oklahoma

March 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS ALLEN ANTHONY, Defendant

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         This matter arises on Plaintiff's “Motion for Defendant to Reimburse Court for CJA Representation.” (ECF No. 352). United States District Judge Robin J. Cauthron referred this matter to the undersigned magistrate judge for a report and recommendation on Plaintiff's Motion consistent with 28 U.S.C. § 636(b)(3). A review of the relevant evidence has been conducted and based on that review, it is recommended that the Court DENY Plaintiff's Motion.

         I. PROCEDURAL BACKGROUND

         On June 16, 2015, Defendant Curtis Anthony was charged with several criminal offenses. (ECF No. 1). At his arraignment that same day, Mr. Anthony submitted a financial affidavit to the Court and requested appointment of counsel. (ECF No. 15). The undersigned granted Defendant's request and appointed Criminal Justice Act (CJA) panel attorney Rick Stout to represent Mr. Anthony. (ECF No. 17). Following a Superseding Indictment, [1] a trial was held, [2] and on June 19, 2017, a jury found Mr. Anthony guilty on two charges: (1) Count One-Conspiracy to Commit Child Sex Trafficking under 18 U.S.C. §1594(c) and (2) Count Four-Child Sex Trafficking under 18 U.S.C. §1591(a)(1), (b)(2). (ECF No. 314). The Court entered Judgment accordingly. (ECF No. 392).

         On October 24, 2017, the Court sentenced Mr. Anthony to a term of 120 months on each count, to be served concurrently; 5 years supervised release on both counts, to be served concurrently; and a $100 special assessment fee on each count. (ECF No. 392). The Court assessed no fines, but in an Amended Judgment, the Court ordered a restitution payment to each victim (R.W. and M.M.) in the total amount of $635, 247.00. (ECF Nos. 432 & 434).

         Prior to sentencing, on September 11, 2017, Plaintiff filed the motion that is now at issue, seeking: (1) termination of Mr. Stout's services and (2) reimbursement to the Court for the cost of Mr. Stout's representation. (ECF No. 352). With the motion, Plaintiff attached various exhibits as proof of Defendant's financial ability to: (1) afford his own attorney and (2) reimburse the Court for Mr. Stout's services. (ECF No. 352-1-352-5). On October 31, 2017, the Court held a hearing on the motion and Plaintiff presented additional evidence in support of its claim. (ECF No. 400). Mr. Stout appeared on behalf of Defendant, who submitted evidence via an ex parte conference and oral argument on the record by his attorney.

         II. ISSUES PRESENTED

         Plaintiff's Motion presents two issues: (1) whether Mr. Stout could continue to represent Mr. Anthony and (2) whether Mr. Anthony should be ordered to reimburse the Court the cost of Mr. Stout's representation, which Mr. Stout estimated would total approximately $75, 000.00. (October 31, 2017 Hearing) (Hearing).

         III. AUTHORITY GOVERNING COURT-APPOINTED ATTORNEYS FOR CRIMINAL DEFENDANTS

         The Criminal Justice Act (CJA) and a General Order from this Court provide the legal framework which govern three issues relevant to a criminal defendant's right to appointed counsel.

         First, 18 U.S.C. § 3006A(a) & (b) provide that counsel should be appointed in any criminal case in which the defendant proves to be financially unable to obtain counsel pursuant to a plan implemented by each district court. 18 U.S.C. § 3006A(a) & (b); see United States v. Gonzales, 150 F.3d 1246, 1265 (10th Cir. 1998). In this Court, the initial determination regarding court-appointed counsel is governed by General Order 16-2, In Re: Plan of the United States District Court for the Western District of Oklahoma for the Implementation of the Criminal Justice Act, 18 U.S.C. § 3006(a). (G.O. 16-2). A defendant's need for counsel is determined, in part, by the applicant's completion of a financial affidavit, often referred to as a “CJA 23 form.” (G.O. 16-2 at 12). “The burden is on the defendant to demonstrate financial inability in order to obtain counsel.” United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980).

         Second, “if at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel . . . ., it may terminate the appointment of counsel or authorize payment as provided in [18 U.S.C. §3006A(f)], as the interests of justice may dictate.” 18 U.S.C. § 3006A(c).

         Third, under 18 U.S.C. § 3006A(f), the Court may also order the criminal defendant to reimburse the expense of his court-appointed attorney:

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).

         IV. DENIAL OF PLAINTIFF'S MOTION

         As stated, three “stages” exist involving appointed counsel for criminal Defendants-initial appointment, continued appointment, and reimbursement. The present case involves stages two and three-whether Mr. Stout should continue to represent Mr. Anthony and whether Defendant is required to reimburse the Court for the cost of Mr. Stout's representation. The Court should find: (1) that Mr. Stout should continue to represent Mr. Anthony and (2) that Mr. Anthony is not required to reimburse the Court for the cost of his attorney.

         A. Criteria for Continued Representation and Reimbursement

         As noted by Plaintiff, statutory authority for Mr. Stout's continued representation and Mr. Anthony's possible reimbursement is found in 18 U.S.C. § 3006A(c) & (f). (ECF No. 352:5); 18 U.S.C. § 3006A(c) (continued representation) & (f) (potential reimbursement). Although not statutorily defined and no Tenth Circuit case has held as such, Plaintiff maintains that Mr. Anthony bears the burden to prove, by a preponderance of the evidence, that he is financially unable to pay for Mr. Stout's continued services or is financially able to reimburse the Court the cost of Mr. Stout's representation. (ECF No. 352). The Tenth Circuit has not precisely decided the issue regarding the burden of proof necessary at the reimbursement stage, but, as stated, it has held that the criminal defendant bears the initial burden of persuading the court that he is financially unable to obtain counsel under 18 U.S.C. § 3006A(b). See supra, Peister.

         Despite the lack of Tenth Circuit authority on the issue, however, and for purposes of this hearing only, the undersigned will assume that Mr. Anthony bears the burden of proof under subsections (c) and (f) to prove, by a preponderance of the evidence, that he is financially unable to afford counsel and reimburse the Court any fees related thereto. In addition, an equally important and necessary requisite under subsections (c) and (f) involves Mr. Anthony's present access to available funds which he could use to pay for his own attorney and/or reimburse the Court for the cost of Mr. Stout's services. See 18 U.S.C. § 3006A(c) (“If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel[.]”); 18 U.S.C. § 3006A(f) (“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[.]”).

         Indeed, several Circuit Courts have interpreted subsections (c) and (f) to require a finding that the criminal defendant has a present ability to pay for his attorney, not that he may have, at some point in the past, had that ability. See United States v. Moore, 666 F.3d 313, 322 (4th Cir. 2012) (noting that the “plain language” of subsection (f) requires “the district court [to] base the reimbursement order on a finding that there are specific funds, assets, or asset streams . . . that are (1) identified by the court and (2) available to the defendant for the repayment of the court-appointed attorneys' fees”); United States v. Wilson,597 F.3d 353, 359 (6th Cir. 2010) (affirming the district court's order for reimbursement under (f), but stating that “A court . . . could not premise a § 3006A reimbursement order on a year's worth of income, even the most recent year of income, if it no longer had any realistic bearing on [the defendant's] capacity to pay the award.”);United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir. 2003), as amended (May 19, 2003) (noting that a finding on reimbursement under subsection (f) “must be based on the defendant's current assets[.]”) (emphasis added); United States v. Lorenzini, 71 F.3d 1489, 1494 (9th Cir. 1995) (noting that a reimbursement order is improper “if the court fails to find that the defendant has the current ability to repay the government for his attorney fees.”) (internal citation omitted; emphasis in original); United States v. Seminole, 882 F.2d 441, 444 (9th Cir. 1989) (“The court may order reimbursement for fees paid to [the defendant's] attorney only if it finds that [the defendant] has ...


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