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U.S. v. PARKER

UNITED STATES OF AMERICA,
v.
DARNYL PARKER, Defendant.



The opinion of the court was delivered by: RICHARD ARCARA, District Judge

DECISION AND ORDER

BACKGROUND

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 financial source.
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 half.
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 stated:
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 ...


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