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91st Congress, s. 1461

October 14, 1970

An Act

84 STAT, 916 To amend section 3000A of title 18, United States Code, relating to representation

of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

U. S. Courts. SECTION 1. That (a) subsections (a)-(f) of section 3006A of title 18, Defendant repre

sentation. United States Code, are amended to read as follows:

“(a) CHOICE OF Plan.-Each United States district court, with the 78 Stat, 552. approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation (1) who is charged with a felony or misdemeanor (other than a petty offense as defined in section 1 of this title) or with juvenile delinquency by the 62 Stat, 684. commission of an act which, if committed by an adult, would be such a felony or misdemeanor or with a violation of probation, (2) who is under arrest, when such representation is required by law, (3) who is subject to revocation of parole, in custody as a material witness, or seeking collateral relief, as provided in subsection (g), or, (4) for whom the Sixth Amendment to the Constitution requires the appointment of counsel or for whom, in a case in which he faces loss of liberty, any Federal law requires the appointment of counsel. Representation under each plan shall include counsel and investigative, expert, and other services necessary for an adequate defense. Each plan shall include a provision for private attorneys. The plan may include, in addition to a provision for private attorneys in a substantial proportion of cases, either of the following or both:

(1) attorneys furnished by & bar association or a legal aid agency; or

(2) attorneys furnished by a defender organization established in accordance with the provisions of subsection (h). Prior to approving the plan for a district, the judicial council of the Representation circuit shall supplement the plan with provisions for representation on on appeal, appeal. The district court may modify the plan at any time with the approval of the judicial council of the circuit. It shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Administrative Office of the United States Courts of any modification of its plan.

*(b) APPOINTMENT OF COUNSEL.—Counsel furnishing representation under the plan shall be selected from a panel of attorneys desig; nated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan. In every criminal case in which the defendant is charged with a felony or a misdemeanor (other than a petty offense as defined in section 1 of this title) or with juvenile delinquency by the commission of an act which, if committed by an adult, would be such a felony or misdemeanor or with a violation of probation and appears without counsel, the United States magistrate or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives representation by counsel, the United States magistrate or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. Such appointment may be made retroactive to include any representation furnished pursuant to the plan prior to appointment. The United States magistrate or the court

84 STAT. 917

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shall appoint separate counsel for defendants having interests that cannot properly be represented by the same counsel, or when other good cause is shown.

"(c) DURATION AND SUBSTITUTION OF APPOINTMENTS.-A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters appropriate to the proceedings. If at any time after the appointment of counsel the United States magistrate or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate. If at any stage of the proceedings, including an appeal, the United States magistrate or the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel as provided in subsection (b) and authorize payment as provided in subsection (d), as the interests of justice may dictate. The United States magistrate or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings.

'(d) PAYMENT FOR REPRESENTATION.

"1) HOURLY RATE.-Any attorney appointed pursuant to this section or a bar association or legal aid agency or community defender organization which has provided the appointed attorney shall, at the conclusion of the representation or any segment thereof, be compensated at a rate not exceeding $30 per hour for time expended in court or before a United States magistrate and $20 per hour for time reasonably expended out of court, or such other hourly rate, fixed by the Judicial Council of the Circuit, not to exceed the minimum hourly scale established by a bar association for similar services rendered in the district. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the United States magistrate or the court.

“(2) MAXDAM AMOUNTS.–For representation of a defendant before the United States magistrate or the district court, or both, the compensation to be paid to an attorney or to a bar association or legal aid agency or community defender organization shall not exceed $1,000 for each attorney in a case in which one or more felonies are charged, and $400 for each attorney in a case in which only misdemeanors are charged. For representation of a defendant in an appellate court, the compensation to be paid to an attorney or to a bar association or legal aid agency or community defender organization shall not exceed $1,000 for each attorney in each court. For representation in connection with a post-trial motion made after the entry of judgment or in a probation revocation proceeding or for representation provided under subsection (g) the compensation shall not exceed $250 for each attorney in each proceeding in each court.

“(3) WAIVING MAXIMUM AMOUNTS. Payment in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered, or the United States magistrate if the representation was furnished exclusively before him, certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.

"(4) FILING CLAIMS.-A separate claim for compensation and reimbursement shall be made to the district court for reprezentation before

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84 STAT. 918

before which the attorney represented the defendant. Each claim shall Statement,
be supported by a sworn written statement specifying the time ex-
pended, services rendered, and expenses incurred while the case was
pending before the United States magistrate and the court, and the
compensation and reimbursement applied for or received in the same
case from any other source. The court shall fix the compensation and
reimbursement to be paid to the attorney or to the bar association or
legal aid agency or community defender organization which provided
the appointed attorney. In cases where representation is furnished
exclusively before a United States magistrate, the claim shall be sub-
mitted to him and he shall fix the compensation and reimbursement to
be paid. In cases where representation is furnished other than before
the United States magistrate, the district court, or an appellate court,
claims shall be submitted to the district court which shall fix the
compensation and reimbursement to be paid.

“(5) NEW TRIALS.-For purposes of compensation and other payments authorized by this section, an order by a court granting a new trial shall be deemed to initiate a new case.

“(6) PROCEEDINGS BEFORE APPELLATE COURTS.-If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.

62 Stat. 9543 “(0) SERVICES OTHER THAN COUNSEL

73 Stat. 590. “(1) UPON REQUEST.—Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

"(2) WITHOUT PRIOR REQUEST.-Counsel appointed under this section may obtain, subject to later review, investigative, expert, or other services without prior authorization if necessary for an adequate defense. The total cost of services obtained without prior authorization Cost limitation, may not exceed $150 and expenses reasonably incurred.

(3) MAXIMUM AMOUNTS.—Compensation to be paid to a person for services rendered by him to a person under this subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $300, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court, or by the United States magistrate if the services were rendered in connection with a case disposed of entirely before him, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit.

?(f) RECEIPT OF OTHER PAYMENTS.—Whenever the United States magistrate or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may request or accept

84. STAT. 919

78 Stat. 554. 18 USC 3006A,

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62 Stat. 9643
63 Stat, 1053
80 Stat, 811,
1105.
63 Stat. 686.

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80 Stat. 378. 5 USC 101 et seg.

(b) Subsections (g), (h), and (i) of such section are redesignated as subsections (i), (i), and (k), respectively, and the following new subsections (g) and (h) are inserted before subsection (i) as redesignated

323 by this subsection:

"(g) DISCRETIONARY APPOINTMENTS.-Any person subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18 may be furnished representation pursuant to the plan whenever the United States magistrate or the court determines that the interests of justice so require and such person is financially unable to obtain representation. Payment for such representation may be as provided in subsections (d) and (e).

“(b) DEFENDER ORGANIZATION.-

“(1) QUALIFICATIONS.-A district or a part of a district in which at least two hundred persons annually require the appointment of counsel may establish a defender organization as provided for either under subparagraphs (A) or (B) of paragraph (2) of this subsection or both. Two adjacent districts or parts of districts may aggregate the number of persons required to be represented to establish eligibility for a defender organization to serve both areas. In the event that adjacent districts or parts of districts are located in different circuits, the plan for furnishing representation shall be approved by the judicial council of each circuit.

“(2), TYPES OF DEFENDER ORGANIZATION8.—

“A) FEDERAL PUBLIC DEFENDER ORGANIZATION.-A Federal Public Defender Organization shall consist of one or more full-time salaried attorneys. An organization for a district or part of a district or two adjacent districts or parts of districts shall be supervised by a Federal Public Defender appointed by the judicial council of the circuit, without regard to the provisions of title 5 governing appointments in the competitive service, after considering recommendations from the district court or courts to be served. Nothing contained herein shall be deemed to authorize more than one Federal Public Defender within a single judicial district. The Federal Public Defender shall be appointed for a term of four years, unless sooner removed by the judicial council of the circuit for incompetency, misconduct in office, or neglect of duty. The compensation of the Federal Public Defender shall be fixed by the judicial council of the circuit at a rate not to exceed the compensation received by the United States attorney for the district where representation is furnished or, if two districts or parts of districts are involved, the compensation of the higher paid United States attorney of the districts. The Federal Public Defender may appoint, without regard to the provisions of title 5 governing appointments in the competitive service, full-time attorneys in such number as may be approved by the Judicial Council of the Circuit and other personnel in such numbor as may be approved by the Director of the Administrative Office of the United States Courts. Compensation paid to such attorneys and other personnel of the organization shall be fixed by the Federal Public Defender at a rate not to exceed that paid to attorneys and other personnel of similar qualifications and experience in the Office of the United States attorney in the district where representation is furnished or, if two districts or parts of districts are involved, the higher compensation paid to persons of similar qualifications and experience in the districts. Neither the Federal Public Defender nor any attorney so appointed by him may engage in the private practice of law. Each organization shall submit to the Director of the Administrative Office of the United States Courts, at the time and in the form prescribed by him, reports of its activities and financial position and its proposed budget. The 84 STAT. 920 title 28, United States Code, section 605, and subject to the conditions 62 Stat. 915; of that section, a budget for each organization for each fiscal year and 70 Stat. 1026; shall out of the appropriations therefor make payments to and on 75 Stat. 521. behalf of each organization. Payments under this subparagraph to an organization shall be in lieu of payments under subsection (d) or (e).

(B) COMMUNITY DEFENDER ORGANIZATION.-A Community Defender Organization shall be a nonprofit defense counsel service established and administered by any group authorized by the plan to provide representation. The organization shall be eligible to furnish attorneys and receive payments under this section if its bylaws are set forth in the plan of the district or districts in which it will serve. Each organization shall submit to the Judicial Conference of the United States an annual report setting forth its activities and financial position and the anticipated caseload and expenses for the coming year. Upon application an organization may, to the extent approved by the Judicial Conference of the United States :

“(i) receive an initial grant for expenses necessary to establish the organization; and

"(ü) in lieu of payments under subsection (d) or (e), receive periodic sustaining grants to provide representation and other

expenses pursuant to this section.” (c) A new subsection (1) is added as follows: of this

Act, other than subsection (h) of section 1, shall be applicable in the District of Columbia. The plan of the District

of Columbia shall be approved jointly by the Judicial Council of the District of Columbia Circuit and the District of Columbia Court of Appeals."

Sec. 2. A United States commissioner for a district may exercise any power, function, or duty authorized to be performed by a United States magistrate under the amendments made by section 1 of this Act if such commissioner had authority to perform such power, function, or duty prior to the enactment of such amendments.

Seo. 3. The amendments made by section 1 of this Act shall become Effeotive date. effective one hundred and twenty days after the date of enactment.

Approved October 14, 1970.

2) .—The provisions

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LEGISLATIVE HISTORY :

HOUSE REPORT No. 91-1546 (Comm. on the Judioiary).
SENATE REPORT No. 91-790 (Comm, on the Judiciary).
CONGRESS IONAL RECORD, Vol. 116 (1970):

Apr. 30, May 1, considered and passed Senate.
Oot. 5, oonsidered and passed House, amended.

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