The opinion of the court was delivered by: Hurley, District Judge
The purpose of this Order is to appoint counsel for Rodney Arnoldo Morrison ("defendant" or "Morrison") pursuant to 18 U.S.C. § 3005.
On July 11, 2006, a grand jury returned a second superseding indictment against defendant. Included within that accusatory instrument are two death penalty eligible counts.
In an Order and Memorandum issued on July 21, 2006, I directed, inter alia, that the parties appear before Magistrate Judge A. Kathleen Tomlinson for a status conference on July 26th to address certain issues, including whether defendant was requesting the appointment of counsel pursuant to § 3005. That section provides in pertinent part:
Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours.
Judge Tomlinson filed a twenty-six page Report and Recommendation on August 4, 2006, detailing what transpired during the status conference of July 26th. Among the subjects discussed in that Report, three are particularly germane for purposes of the present Order: (1) defendant has requested appointment of two attorneys pursuant to § 3005; (2) whether defendant is able to pay the legal fees that will be incurred as a result of such appointments; and (3) whether the presently scheduled trial date of September 18, 2006 is realistic. Items (2) and (3) will be discussed seriatim.*fn1
DEFENDANT'S ABILITY TO PAY FEES AND RELATED COSTS OF § 3005 COUNSEL
1. Defendant's Financial Condition Absent Restraining Order Defendant is a wealthy man. During a bail hearing before Judge Tomlinson in May of this year, he reported worldwide assets under his control in excess of $56,000,000.
2. Effect of Restraining Order on Defendant's Ability to Compensate § 3005 Counsel
(a) Nature of Dispute Before Judge Tomlinson and Her Recommendation On July 11, 2006, i.e., the same date the second superseding indictment was filed, I signed an Ex Parte Post-Indictment Restraining Order. The government argued before Judge Tomlinson that the Restraining Order only covered approximately $30,000,000 of defendant's admitted $56,000,000 of available funds, while the defense took the position that essentially all of defendant's assets were frozen and thus unavailable to compensate § 3005 counsel. Magistrate Judge Tomlinson, in her carefully crafted Report and Recommendation, noted that defendant's business continues to operate, having generated for the period "from January 2006 to June 2006, . . . gross deposits of $35,661,309.81." (Judge Tomlinson's Report and Recommendation of August 4, 2006 ("Report and Recommendation") at 23.) In addition to the anticipated revenue stream from that source, counsel will be discussed in the text infra.
Judge Tomlinson found that other assets were available to defendant for purposes of paying both retained and appointed counsel, including "Peace Pipe Smoke Shop's inventory, furniture and fixtures [having a] total value of approximately $1.2 million." (Id.) Based on the foregoing, Judge Tomlinson concluded that the unrestrained funds available to defendant were more than adequate to pay the costs associated with the appointment of counsel under § 3005 and, accordingly, she recommends that he be required to do so.
(b) August 8, 2006 Letter From Defense Counsel By letter dated August 8, 2006, Peter S. Smith, Esq., one of defendant's retained counsel, "respon[ded to Judge Tomlinson's] ...