activities involving the WIC program"; (3) procured and distributed "large quantities of narcotics"; (4) trafficked in "large quantities of firearms, including semiautomatic rifles and handguns"; (5) sold, exchanged and transferred counterfeit money, and (6) protected the activities of the enterprise by "engaging in acts of violence". Aside from racketeering, Mansour Herbawi was additionally charged in the superseding indictment with money laundering conspiracy, money laundering, food stamp trafficking, narcotics conspiracy and narcotics distribution. Mansour Herbawi was also alleged in the superseding indictment to be the owner of property subject to forfeiture pursuant to 18 U.S.C. § 982.
In sum, the charges alleged in the original indictment pale in comparison to the charges now alleged in the superseding indictment. In July, 1995, Mr. Salzer was retained by Mansour Herbawi to represent the defendant on a single count charging a narcotics offense. Four months later, Mr. Salzer represented Mr. Herbawi on a 51 count indictment charging participation in a criminal enterprise involved in what the government refers to as a "myriad" of conspiratorial and substantive criminal activities. While the indictment number may remain the same, there is little other similarity between the original charges against Mansour Herbawi and the charges alleged in the superseding indictment. Simply put, the case for which Mr. Salzer was retained is no longer the case in which he finds himself representing Mansour Herbawi. In light of these unusual circumstances, I find that the inability of Mr. Herbawi to meet the terms of the original retainer agreement, coupled with the enormous complexity of the superseding indictment, justifies granting Mr. Salzer's request to be relieved as retained counsel for the defendant.
APPOINTMENT OF COUNSEL FOR MANSOUR HERBAWI
Having determined that Mr. Salzer may withdraw as retained counsel for Mansour Herbawi, there remains to be decided the defendant's request for appointed counsel. Mr. Salzer has indicated a willingness to continue to represent Mr. Herbawi as appointed counsel under the CJA. Mr. Salzer is a highly respected and experienced criminal defense attorney who has assisted the judges of this court for many years by accepting CJA assignments. The defendant has not requested different counsel and, given the complex nature of this case and the volume of discovery produced by the government, continuity of counsel would be the most efficient and least disruptive course of action. Accordingly, should Mansour Herbawi qualify for assigned counsel, this Court is inclined to appoint Mr. Salzer as his attorney.
The government has requested a "hearing" to determine whether the defendant qualifies for assigned counsel. The burden to demonstrate eligibility for assigned counsel is on the defendant. United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980), cert. denied, 449 U.S. 1126, 67 L. Ed. 2d 113, 101 S. Ct. 945 (1981). However, experience indicates a full blown "hearing" on the issue is rarely required and completion of CJA form 23 affidavit ordinarily suffices.
However, the government is entitled to be heard on this issue, see United States v Harris, 707 F.2d 653 (2d Cir.), cert. denied, 464 U.S. 997, 78 L. Ed. 2d 688, 104 S. Ct. 495 (1983), and the nature of the proceeding to determine the defendant's eligibility for CJA counsel need not be determined here.
The defendant's application for assigned counsel will be heard on Friday, February 2, 1996 at 2:00 p.m.. Effective January 23, 1996, Karl Salzer, Esq. Is provisionally appointed pursuant to 18 U.S.C. § 3006A to represent Mansour Herbawi pending determination of the defendant's application for assigned counsel. Should this Court determine that Mansour Herbawi does not qualify for assigned counsel, the defendant shall be ordered to reimburse the government for the costs of this provisional appointment pursuant to 18 U.S.C.§ 3006A(f).
Jonathan W. Feldman
United States Magistrate Judge
DATED: January 24, 1996