The opinion of the court was delivered by: RICHARD ARCARA, District Judge
In April 2000, a twelve-count indictment was filed against the
defendant, Darnyl Parker, and five others. Parker and three of
the defendants were City of Buffalo Police Officers.*fn1
Parker was charged with conspiracy to violate civil rights in
violation of 18 U.S.C. § 241, conspiracy to steal
government-owned property in violation of 18 U.S.C. § 641, theft
of government-owned property and money in violation of
18 U.S.C. § 641, conspiracy to interfere with interstate commerce under
color of official right (Hobbs Act) in violation of
18 U.S.C. § 1951, interference with interstate commerce under color of
official right (Hobbs Act) in violation of 18 U.S.C. § 1951,
possession of firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c), money laundering in violation of 18 U.S.C. § 1956(a)(3)(A), and conspiracy to possess
with the intent to distribute cocaine in violation of
21 U.S.C. § 846.
Parker retained attorney Mark Mahoney, Esq., to represent him.
During Mr. Mahoney's first appearance on behalf of Parker,
Magistrate Judge Leslie G. Foschio asked Mr. Mahoney whether he
was "fully retained" for the duration of the criminal
proceedings.*fn2 Mr. Mahoney assured Magistrate Judge
Foschio that he was.
The parties appeared for jury selection on September 11, 2001.
However, due to the tragic events of that day, the trial was
adjourned until January 8, 2002. On December 12, 2001, the United
States Probation Office filed a pretrial violation report
alleging that Parker had violated the conditions of his pretrial
release by attempting to tamper with a witness. On December 20,
2001, the Court issued a Decision and Order finding that Parker
had committed the alleged pretrial violation and ordered Parker
detained pending trial.
Trial commenced on January 8, 2002. On that same date, Mr.
Mahoney filed a motion to be appointed as counsel under the
Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A(c). The motion
was filed ex parte and under seal, and consisted of an
affidavit from Mr. Mahoney and a financial affidavit from Parker.
In his affidavit, Mr. Mahoney stated: 7. Darnyl Parker has no funds, and he has no access
to funds or assets of any kind, except his house
valued at $15,000 and automobile valued at $2,500. He
has exhausted his entire retirement savings
("deferred compensation") in order to partially pay
for services rendered to date.
8. Although [Parker] was initially suspended with pay
from the Buffalo Police Department, he is now
suspended without pay as a result of this Court's
finding of tampering. All monies previously received,
including any savings and his deferred compensation
plan, have gone to the costs of representation, child
support, and additional financial support to his two
young grandchildren to whom he is their primary
9. Therefore, while Mr. Parker may have been eligible
for CJA relief prior to this point in time, I
nonetheless subsidized the costs of representation.
With all monies exhausted, and no potential to
receive any more compensation from Mr. Parker, my
effective rate of compensation for tasks already
performed is approximately between $70-75 per hour,
an amount comparable to the rate paid to appointed
CJA counsel. This of course does not include any of
the work that will be needed to be performed in
trying the actual case scheduled for this week, which
will likely cut the effective rate of compensation in
10. Darnyl Parker is now incarcerated and receives no
income from the Buffalo Police Department.
11. Previous to his present incarceration, Mr. Parker
was receiving a pay check from the Buffalo Police
Department, which were [sic] used to support himself,
his family, and pay his legal fees.
See Dkt. No. 417, Aff. of Mark Mahoney dated January 7, 2002,
at ¶¶ 7-11 (emphasis in original).
Parker provided a financial affidavit (CJA Form 23) in which he
claimed that he was "suspended without pay from the Buffalo
Police Dept. [on] 12/01," and that prior to being suspended without pay, his gross
salary was $1,400 per week. See Dkt. No. 417, Financial
Affidavit of Darnyl Parker dated January 7, 2002. He claimed that
he paid $800 per month in child support payments and had $2,000
in credit card debts. Id. In terms of assets, he stated that he
owned a house at 635 Northumberland Avenue, Buffalo, New York,
valued at $15,000, and a car valued at $2,500. Id.
On January 25, 2002, this Court issued an Order stating that it
had insufficient information to rule on the CJA application and
ordered counsel to provide further information. See Dkt. No.
208, Order dated January 25, 2002. Specifically, the Court
requested: (1) a copy of the retainer agreement between Parker
and counsel; (2) an affidavit stating the amount of all payments
made to counsel to date, and the dates when those payments were
made; (3) a copy of the defendant's 2000 and 2001 tax returns;
and (3) the age of each dependant that Parker claimed on his
financial affidavit. In its order, the Court recognized that
appointment of a retained attorney under the CJA is appropriate
in the "unusual case" where "a defendant is no longer able to
afford retained counsel," id. at 3, but noted that such
circumstances should be the exception, not the rule. As the Court
The CJA is not intended to be a "form of federal fee
insurance" guaranteeing payment to counsel when a
client fails to honor a fee arrangement. See
United States v. Herbawi, 913 F.Supp. 170, 172
(W.D.N.Y. 1996) (Feldman, M.J.) (quoting United
States v. Thompson, 361 F.Supp. 879, 887 (D.D.C.
1973), vacated in part, aff'd in part without opinion,
489 F.2d 1273 (D.C. Cir. 1974)). Nor is its purpose to
bail out an attorney who fails to make adequate fee
arrangements before accepting representation.
Id. at 4. The Court also ordered Parker to show cause as to why
the application should remain under seal and ex parte.
On February 4, 2002, Mr. Mahoney filed an ex parte response
addressing the issue of whether the documents should remain under
seal. See Dkt. No. 418. Mr. Mahoney claimed that unsealing the
CJA application would potentially result in "disclosure of
information about the defense of the case or information about
the attorney-client relationship itself, or facts about the
attorney's practice which otherwise would be entitled to be kept
secret." Id. at 2.
On February 15, 2002, Mr. Mahoney responded to the Court's
request for more information regarding the merits of the CJA
application. He provided an affirmation which, for the most part,
was not based upon his personal knowledge. See Dkt. No. 419,
Affirmation of Mark Mahoney dated February 15, 2002. Rather, the
information was based upon Parker's personal knowledge, though
Parker himself did not provide an affidavit. The absence of an
affidavit from Parker was significant because there were
statements made in the CJA application (by Mr. Mahoney) that were
either inaccurate or contradicted statements made in Parker's
financial affidavit. For example, Mr. Mahoney continued to
represent that Parker was financially eligible for CJA
appointment "now that he has been suspended without pay." Id. at 27.
However, contrary to that representation, Parker was no longer
suspended without pay. His suspension had been lifted as of
January 31, 2002, and Parker was using his accrued vacation time
to receive his full salary.*fn3 See Trial Tr. at 5614-17.
Mr. Mahoney also claimed that Parker paid his mother a $950 rent
payment to live in her house. No such rental payment was listed
by Parker in his financial affidavit (CJA Form 23). Nor did
Parker list his grandchildren as dependents in his financial
affidavit, even though Mr. Mahoney claimed that Parker was their
"primary financial source." See Dkt. No. 417, at ¶ 8.
In any event, Mr. Mahoney stated that Parker earned $70,613 in
income in 1998. See Dkt. No. 419, at ¶ 5. No information was
provided as to Parker's salary for 1999 or 2000. In 2001, Parker
was suspended with pay and earned his annual base salary of
$54,000. Id. ¶ 6. Mr. Mahoney stated that Parker had a net
earnings of $1,400 per month, $950 of which he paid to his mother
as rent. Id. at ¶ 8. Mr. Mahoney also stated that Parker owned
two properties a 4-unit rental property at 844 Prospect Avenue
in Buffalo (which was vacant)*fn4 and a house at 635
Northumberland Avenue in Buffalo, where his mother resided. Mr. Mahoney stated that the Northumberland Avenue
property was assessed at $33,100, but claimed that it was only
worth $15,000. Id. at ¶ 10.
Despite the Court's explicit request, Mr. Mahoney failed to
provide a sworn affidavit addressing his fee arrangement with
Parker. Instead, he provided a memorandum addressing the issue.
See Dkt. No. 420. Mr. Mahoney stated that there was no written
retainer agreement with Parker.*fn5 He acknowledged
receiving a $10,000 retainer fee from Parker, eight*fn6
additional payments for $1,000 each, and a payment of $33,225
from Parker when Parker liquidated his retirement account. Mr.
Mahoney did not indicate when any of the payments were made even
though the Court had specifically requested that information. Nor
did he identify the ages of Parker's dependents, as requested.
In an Order dated March 4, 2002, this Court denied Parker's
request for appointment of counsel under the CJA because: (1) the
Court had not been provided with all of the information that was
requested; (2) the information that was provided was inaccurate
(as Parker was in fact getting paid); (3) the information that
was provided showed that Parker was not financially eligible for
appointment of counsel; and (4) Mr. Mahoney had already been paid
"a significant amount of money to represent [Parker]." See Dkt.
No. 279, Decision and Order dated March 4, 2002, at 4. With respect to the amount
of money that Mr. Mahoney was paid, the Court stated
[t]he Court is satisfied that the fee given to
counsel to date is sufficient to ensure that counsel
will be able to adequately represent the defendant
throughout the duration of this trial.
Id. at 4-5. In other words, the Court found that Mr. Mahoney
had already been paid a reasonable fee for his services
($52,225.00 in total) and that further compensation under the CJA
was not warranted. However, because Parker was scheduled to
receive his last pay check on April 11, 2002, the Court advised
Mr. Mahoney that he could renew his application for CJA
appointment at that time. Id. at 5, n. 4.
Although not addressed in the March 4th Decision and Order,
the Court also determined that it was appropriate for the CJA
application to remain under seal until the trial was over so as
to ensure that the defendant suffered no prejudice.*fn7 The
trial ended on March 15, 2002, with the jury ...