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January 19, 1983


The opinion of the court was delivered by: MOTLEY

MOTLEY, Chief Judge.

 This case is now before the court on the application of Jose Martinez-Torres (Torres) and his common law wife Nancy Medina (Medina) for appointment of counsel, at this post trial stage, under the Criminal Justice Act (CJA). 18 U.S.C. § 3006A (1970).

 Both Torres and Medina were convicted by a jury of numerous violations of the federal narcotics and firearms statutes. They have not yet been sentenced. During the pretrial stages and the trial both Torres and Medina were represented by retained counsel to whom they have paid a combined fee of $42,000. Each defendant was represented by a lawyer but both lawyers were partners in the same law firm. In view of this unusual arrangement, several pretrial hearings were held in order to determine whether Medina should be represented by other counsel because of possible conflict of interest. Medina claimed that she had no money of her own to retain counsel and that her husband Torres had paid the fee of her counsel. Initially, on arraignment, Medina had been represented by court appointed counsel upon signing an affidavit of indigency. The court advised Medina at the pretrial hearings on possible conflict of interest that the court would appoint counsel again to represent her to avoid any possible conflict if she was without funds. Medina repeatedly declined such appointment and insisted on being represented by counsel from the same firm representing her husband and whom she said had been paid by her husband.

 Torres now claims that the $42,000 paid to both lawyers was supplied by his family in Puerto Rico. Torres and Medina also claim that they are presently without funds to continue paying their attorneys who refuse to provide any further representation without additional payment. Defendants' retained counsel represented to the court that additional payment of $35,000 for the three week trial is owed them by the defendants. Both defendants dispute counsel's representation, claiming that their understanding was that the $42,000 already paid was for both trial and pretrial work. The agreement as to fees between defendants and their lawyers was not in writing. It is this fee dispute which brought on the instant application.

 At a hearing held on December 2, 1982, this court denied the request for appointment of counsel. It then directed present counsel to continue to represent defendants until relieved by the Court of Appeals pursuant to Rule 4(b) of the Second Circuit Rules Supplementing the Federal Rules of Appellate Procedure, notwithstanding the fee dispute. This court finds, as a result of the hearing, that Torres and Medina have failed to carry their burden of establishing that they are financially unable to retain counsel within the meaning of the Criminal Justice Act. This opinion sets forth the court's findings of fact and conclusions of law underlying its decision.

 In determining whether a defendant is entitled to court appointed counsel, the relevant threshold inquiry is whether the defendant is "financially unable to obtain adequate representation." 18 U.S.C. § 3006A (1970). The courts have construed the meaning of "financially unable." In United States v. Kelly, 467 F.2d 262 (7th Cir.), cert. denied, 412 U.S. 923, 37 L. Ed. 2d 151, 93 S. Ct. 2738 (1978), the court ruled that a defendant's "indigency" is not the test of his qualification for appointed counsel. The test is whether, as a practical matter, the defendant is "financially unable" to obtain counsel. Id. at 266. In United States v. Cohen, 419 F.2d 1124 (8th Cir. 1969), the court ruled that "indigency [within the meaning of the Criminal Justice Act] is not necessarily equatable with destitution. Rather, the status comprehended is a more realistic one." Id. at 1127. The judge need only be satisfied that the representation essential to an adequate defense is beyond the means of the defendant. Accord: United States v. Jackson, 578 F.2d 1162, 1163 (5th Cir. 1978) (defendant was financially able to provide own experts); United States v. Chavis, 155 U.S. App. D.C. 190, 476 F.2d 1137, 1141 (D.C. Cir. 1973) (defendant was financially unable to obtain psychiatric tests); United States v. Tate, 419 F.2d 131 (6th Cir. 1969) (relevant inquiry is whether defendant is unable to pay for services).

 Defendant, however, has the burden of establishing such indigency within the meaning of the statute. United States v. Schmitz, 525 F.2d 793, 794 (9th Cir. 1975). In United States v. Schultz, 431 F.2d 907 (8th Cir. 1970), the court held that

these [CJA] provisions enunciate a two-prong test: (1) The accused must satisfy the court that financial inability prevents him from obtaining the services he requests; and (2) The accused must show need for such services to present an adequate defense.

 Id. at 908. The Second Circuit has also ruled that defendant has the burden of showing entitlement under the Act. United States v. Durant, 545 F.2d 823, 826 (2d Cir. 1976).

 At the hearing, the following facts were established:

 Torres' ledger books relating to his illegal drug mill seized pursuant to a search warrant were introduced at the trial and at the hearing on the instant application. These ledgers indicate that during the first six months of 1982, Torres' drug operations grossed $1,290,000 in sales of illegal drugs. Torres has failed to provide a satisfactory account of the income from his illegal drug operations as shown by the ledgers. Torres testified in general and without elucidation that the operational expenses of the narcotics mill consumed all of the funds derived from the sale of drugs as disclosed by the ledgers. The ledgers indicate that on June 29, 1982, a mere three days before the arrest occurred, an entry of $10,000 was recorded next to the word, "Banco," the Spanish word for bank (Tr. 26-27). On June 15th, the ledger books indicate an entry of $6,000 (Tr. 28). On June 25th an entry of $10,000 was recorded (Tr. 28). Torres claimed that although the word "banco" means bank, he used that term to refer to the wall safe of his apartment located at 744 East 236th Street (Tr. 27). The evidence at trial disclosed that Medina was the ledgers scrivener. At the hearing on the instant application, she too gave no satisfactory account of the whereabouts of the income which the ledgers disclose.

 Torres testified that at the time of his arrest on the morning of July 2, 1982, he had $375,000 in cash stored in a safe at an apartment located at 744 East 236th Street, Bronx, New York (Tr. 56), and approximately $50,000 in a safe at Apartment 5B located at 2526 Bronx Park East, Bronx, New York (Tr. 50). After the arrest of Torres and Medina, a search by federal agents of the apartments referred to above produced $23,000 in cash. Although Torres testified at a hearing prior to trial on his motion to suppress the $23,000 (together with drugs and ammunition seized from the apartments), it was not until the hearing of the instant application that Torres claimed for the first time that the federal agents illegally pocketed the difference between the $23,000 turned over by them after the search and the amounts claimed by Torres to have been in the apartment safes. Since there is no proof other than Torres' bald assertion raised for the first time on this application that the agents engaged in misconduct or misrepresentations with respect to the recovered funds, the court concludes that Torres invented this claim at the instant hearing to divert attention from his obligation to account for the funds shown by the ledgers.

 Medina admitted (notwithstanding her affidavit of indigency) that at the time of her arraignment, she and her husband were the owners of a $100,000 certificate of deposit secured from a New York City bank (Tr. 86). Thereafter, on Medina's pretrial application for release on bail, which had been set at $100,000, the court found, after a hearing requested by the Government, that the $100,000 cash which had been used to purchase the certificate was not the winnings from a Puerto Rican lottery, as claimed by Medina, but was the fruit of illegal drug activity, as claimed by the Government, which had been laundered through the Puerto Rican lottery. The court thereupon refused to allow the certificate of deposit to be posted as bail on the ground that since the $100,000 were proceeds from the illegal drug operation, the same would be subject to forfeiture under the continuing criminal enterprise statute of which Torres has now been convicted. 21 U.S.C. § 848 (1970).

 Despite Torres' insistence that he never deposited any of the illicit funds in a safety deposit box in a bank, the court notes that the Government has introduced on the trial and on the instant application hearing evidence of secret bank accounts. The Government introduced a transcript of a telephone conversation between Luigi Vizzini, the Government informant whom Torres employed as a bodyguard, and Jamie Villa, a prisoner in the Lewisberg Penitentiary and Torres' confidant, who was named as a co-conspirator in the indictment in this case. During this ...

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