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United States District CourtFor the Western District of North CarolinaCriminal Justice Act PlanI.Authority . 4II.Statement of Policy. 4III.IV.A.Objectives . 4B.Compliance . 4Definitions . 5A.Representation . 5B.Appointed Attorney . 5C.CJA Administrator . 5Determination of Eligibility for CJA Representation . 5A.B.V.VI.VII.Subject Matter Eligibility . 51.Mandatory . 52.Discretionary . 63.Ancillary Matters. 7Financial Eligibility . 81.Presentation of Accused for Financial Eligibility Determination . 82.Factual Determination of Financial Eligibility . 9Timely Appointment of Counsel . 10A.Timing of Appointment . 10B.Court’s Responsibility . 11C.Pretrial Service Interview . 11D.Retroactive Appointment of Counsel . 11Provision of Representational Services . 11A.Federal Public Defender and Private Counsel . 11B.Administration . 11C.Apportionment of Cases . 11D.Number of Counsel . 12E.Capital Cases . 12Federal Public Defender Organization. 12A.Establishment . 12B.Standards . 12
Page 2VIII.IX.X.XI.XII.C.Workload. 12D.Professional Conduct . 12E.Private Practice of Law . 13F.Supervision of Defender Organization . 13G.Training . 13CJA Panel of Private Attorneys . 13A.Establishment of the CJA Panel Committee . 13B.Duties of the CJA Committee. 14Establishment of a CJA Panel . 15A.Approval of CJA Panel . 15B.Size of CJA Panel . 15C.Qualifications and Membership on the CJA Panel . 162.Equal Opportunity . 163.Eligibility . 164.Appointment to CJA Panel . 175.Terms of CJA Panel Members . 176.Reappointment of CJA Panel Members . 177.Removal from the CJA Panel . 18Establishment of a CJA Training Panel . 20A.Purpose of Training Panel . 20B.Approval of Existing Training Panel . 20C.Qualifications for Membership on the Training Panel . 20D.Term of Membership on Training Panel . 21E.Open Application to CJA Panel. 21F.Operation of Training Panel and Duties and Obligations of Membership. 22G.Compensation of Training Panel Members . 23H.Removal from Training Panel . 24CJA Panel Attorney Appointment in Non-Capital Cases . 24A.Appointment List . 24B.Appointment Procedures . 24Duties of CJA Panel Members. 25A.Standards and Professional Conduct . 25B.Training and Continuing Legal Education . 26
Page 3XIII.XIV.XV.XVI.C.Facilities and Technology Requirements . 26D.Continuing Representation . 26E.Miscellaneous . 26Compensation of CJA Panel Attorneys . 27A.Policy of the Court Regarding Compensation . 27B.Payment Procedures . 27Investigative, Expert, and Other Services . 28A.Financial Eligibility . 28B.Applications . 29C.Compliance . 29Appointment of Counsel and Case Management in CJA Capital Cases . 29A.Applicable Legal Authority . 29B.General Applicability and Appointment of Counsel Requirements . 29C.Appointment of Trial Counsel in Federal Death-Eligible Cases . 311.General Requirements . 312.Qualifications of Learned Counsel . 323.Qualifications of Second and Additional Counsel . 33D.Appointment and Qualifications of Direct Appeal Counsel in Federal DeathPenalty Cases. 33E.Appointment and Qualifications of Post-Conviction Counsel in FederalDeath Penalty Cases (28 U.S.C. § 2255) . 34F.Appointment and Qualifications of Counsel in Federal Capital HabeasCorpus Proceedings (28 U.S.C. § 2254). 35Effective Date . 37
Page 4United States District CourtFor the Western District of North CarolinaCriminal Justice Act PlanI.AuthorityUnder the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, andGuide to Judiciary Policy (Guide), Volume 7A, the judges of the United States DistrictCourt for the Western District of North Carolina adopt this Plan, as approved by thecircuit, for furnishing representation in federal court for any person financially unable toobtain adequate representation in accordance with the CJA.II.Statement of PolicyA.ObjectivesThe objectives of this Plan are:1.to attain the goal of equal justice under the law for all persons;2.to provide all eligible persons with timely appointed counselservices that are consistent with the best practices of the legalprofession, are cost-effective, and protect the independence of thedefense function so that the rights of individual defendants aresafeguarded and enforced; and3.to particularize the requirements of the CJA, the USA PatriotImprovement and Reauthorization Act of 2005 (recodified at18 U.S.C. § 3599), and Guide, Vol. 7A, in a way that meets theneeds of this district.This Plan must therefore be administered so that those accused of acrime, or otherwise eligible for services under the CJA, will not bedeprived of the right to counsel, or any element of representationnecessary to an effective defense, due to lack of financial resources.B.Compliance1.The court, its clerk, the federal public defender organization, andprivate attorneys appointed under the CJA must comply with Guide,Vol. 7A, approved by the Judicial Conference of the United Statesor its Committee on Defender Services, and with this Plan.2.The court will ensure that a current copy of the CJA Plan is madeavailable on the court’s website, and provided to CJA counsel upon
Page 5the attorney’s designation as a member of the CJA panel of privateattorneys (CJA Panel) ” includes counsel and investigative, expert, and otherservices.B.Appointed Attorney“Appointed attorney” is an attorney designated to represent a financiallyeligible person under the CJA and this Plan. Such attorneys includeprivate attorneys, the federal public defender and staff attorneys of thefederal public defender organization.C.CJA Administrator“CJA Administrator” is a person designated by the federal public defenderto administer the CJA Panel.IV.Determination of Eligibility for CJA RepresentationA.Subject Matter Eligibility1.MandatoryRepresentation must be provided for any financially eligible personwho:1a.is charged with a felony or with a Class A misdemeanor;b.is a juvenile alleged to have committed an act of juveniledelinquency as defined in 18 U.S.C. § 5031;c.is charged with a violation of probation, or faces a change ofa term or condition of probation (unless the modificationsought is favorable to the probationer and the governmenthas not objected to the proposed change);With the exception of Section IX, all references to the CJA Panel shall include the CJATraining Panel, unless specifically addressed in Section X.
Page 62.d.is under arrest, when such representation is required by law;e.is entitled to appointment of counsel in parole proceedings;f.is charged with a violation of supervised release or facesmodification, reduction, or enlargement of a condition, orextension or revocation of a term of supervised release;g.is subject to a mental condition hearing under 18 U.S.C.chapter 313;h.is in custody as a material witness;i.is seeking to set aside or vacate a death sentence under28 U.S.C. § 2241, § 2254 or § 2255;j.is entitled to appointment of counsel in verification of consentproceedings in connection with a transfer of an offender to orfrom the United States for the execution of a penal sentenceunder 18 U.S.C. § 4109;k.is entitled to appointment of counsel under the SixthAmendment to the Constitution; orl.faces loss of liberty in a case and federal law requires theappointment of counsel.DiscretionaryWhenever a district judge or magistrate judge determines that theinterests of justice so require, representation may be provided forany financially eligible person who:a.is charged with a petty offense (Class B or C misdemeanor,or an infraction) for which a sentence to confinement isauthorized;b.is seeking relief under 28 U.S.C. §§ 2241, 2254, or 2255other than to set aside or vacate a death sentence;c.is charged with civil or criminal contempt and faces loss ofliberty;d.has been called as a witness before a grand jury, a court,the Congress, or a federal agency or commission which hasthe power to compel testimony, and there is reason tobelieve, either prior to or during testimony, that the witness
Page 7could be subject to a criminal prosecution, a civil or criminalcontempt proceeding, or face loss of liberty;3.e.has been advised by the United States attorney or a lawenforcement officer that they are the target of a grand juryinvestigation;f.is proposed by the United States attorney for processingunder a pretrial diversion program; org.is held for international extradition under 18 U.S.C. chapter209.Ancillary MattersRepresentation may also be provided for financially eligible personsin ancillary matters appropriate to the criminal proceedings under18 U.S.C. § 3006A(c). In determining whether representation in anancillary matter is appropriate to the criminal proceedings, the courtshould consider whether such representation is reasonablynecessary:a.to protect a constitutional right;b.to contribute in some significant way to the defense of theprincipal criminal charge;c.to aid in preparation for the trial or disposition of the principalcriminal charge;d.to enforce the terms of a plea agreement in the principalcriminal charge;e.to preserve the claim of the CJA client to an interest in realor personal property subject to civil forfeiture proceedingunder 18 U.S.C. § 983,19 U.S.C. § 1602, 21 U.S.C. § 881,or similar statutes, which property, if recovered by the client,may be considered for reimbursement under 18. U.S.C.§ 3006A(f); orf.effectuate the return of real or personal property belonging tothe CJA client, which may be subject to a motion for return ofproperty under Fed. R. Crim. P. 41(g), which property, ifrecovered by the client, may be considered forreimbursement under 18 U.S.C. § 3006A(f).
Page 8B.Financial Eligibility1.Presentation of Accused for Financial Eligibility Determinationa.b.Duties of Law Enforcement(i)Upon arrest, and where the defendant has notretained or waived counsel, federal law enforcementofficials must promptly notify, telephonically orelectronically, the appropriate court personnel, who inturn will notify the federal public defender of the arrestof an individual in connection with a federal criminalcharge.(ii)Employees of law enforcement agencies should notparticipate in the completion of the financial affidavitor seek to obtain information concerning financialeligibility from a person requesting the appointment ofcounsel.Duties of United States Attorney’s Office(i)Upon the return or unsealing of an indictment or thefiling of a criminal information, or the filing orunsealing of a petition to modify or revoke probationor supervised release, and where the defendant hasnot retained or waived counsel, the United Statesattorney or their delegate will promptly notify,telephonically or electronically, appropriate courtpersonnel, who in turn will notify the federal publicdefender.(ii)Upon issuance of a target letter, and where theindividual has not retained or waived counsel, theUnited States attorney or their delegate must promptlynotify, telephonically or electronically, the CJA PlanAdministrator, and will also notify the CJA PlanAdministrator of any known actual or potential conflictwith the target and the federal public defender.(iii)Employees of the United States Attorney’s Officeshould not participate in the completion of thefinancial affidavit or seek to obtain informationconcerning financial eligibility from a personrequesting the appointment of counsel.
Page 9c.d.2.Duties of Federal Public Defender Office(i)In all cases requiring appointed counsel, the CJA PlanAdministrator will immediately investigate anddetermine whether an actual or potential conflictexists, and facilitate the timely appointment ofcounsel.(ii)When practicable, the federal public defender willdiscuss with the person who indicates that he or sheis not financially able to secure representation theright to appointed counsel and, if appointment ofcounsel seems likely, assist in the completion of afinancial affidavit (Form CJA 23) and arrange to havethe person promptly presented before a magistratejudge or district judge of this court for determination offinancial eligibility and appointment of counsel.Duties of Pretrial Services Office(i)When practicable, the pretrial services officer will notconduct the pretrial service interview of a financiallyeligible defendant until counsel has been appointed,unless the right to counsel is waived or the defendantotherwise consents to a pretrial service interviewwithout counsel.(ii)When counsel has been appointed, the pretrialservices officer will provide counsel notice and areasonable opportunity to attend any interview of thedefendant by the pretrial services officer prior to theinitial pretrial release or detention hearing.Factual Determination of Financial Eligibilitya.In every case where appointment of counsel is authorizedunder 18 U.S.C. § 3006A(a) and related statutes, the courtmust advise the person that he or she has a right to berepresented by counsel throughout the case and that, if sodesired, counsel will be appointed to represent the person ifhe or she is financially unable to obtain counsel.b.The determination of eligibility for representation under theCJA is a judicial function to be performed by the court aftermaking appropriate inquiries concerning the person’sfinancial eligibility. Other employees of the court may be
Page 10designated to obtain or verify the facts relevant to thefinancial eligibility determination.V.c.In determining whether a person is “financially unable toobtain counsel,” consideration should be given to the cost ofproviding the person and his or her dependents with thenecessities of life, the cost of securing pretrial release, assetencumbrance, and the likely cost of retained counsel.d.The initial determination of eligibility must be made withoutregard to the financial ability of the person’s family to retaincounsel unless their family indicates willingness and ability todo so promptly.e.Any doubts about a person’s eligibility should be resolved inthe person’s favor; erroneous determinations of eligibilitymay be corrected at a later time.f.Relevant information bearing on the person’s financialeligibility should be reflected on a financial eligibility affidavit(Form CJA 23).g.If at any time after the appointment of counsel a judge findsthat a person provided representation is financially able toobtain counsel or make partial payment for therepresentation, the judge may terminate the appointment ofcounsel or direct that any funds available to the defendantbe paid as provided in 18 U.S.C. § 3006A(f).h.If at any stage of the proceedings a judge finds that a personis no longer financially able to pay retained counsel, counselmay be appointed in accordance with the general provisionsset forth in this Plan.Timely Appointment of CounselA.Timing of AppointmentCounsel must be provided to eligible persons as soon as feasible in thefollowing circumstances, whichever occurs earliest:1.after they are taken into custody;2.when they appear before a magistrate or district court judge;
Page 11B.3.when they are formally charged or notified of charges if formalcharges are sealed; or4.when a magistrate or district court judge otherwise considersappointment of counsel appropriate under the CJA and relatedstatutes.Court’s ResponsibilityThe court, in cooperation with the federal public defender and the UnitedStates attorney, will make such arrangements with federal, state, and localinvestigative and police agencies as will ensure timely appointment ofcounsel.C.Pretrial Service InterviewWhen practicable, unless the right to counsel is waived or the defendantotherwise consents to a pretrial service interview without counsel,financially eligible defendants will be provided appointed counsel prior tobeing interviewed by a pretrial services officer.D.Retroactive Appointment of CounselAppointment of counsel may be made retroactive to include representationprovided prior to appointment.VI.Provision of Representational ServicesA.Federal Public Defender and Private CounselThis Plan provides for representational services by the federal publicdefender and for the appointment and compensation of private counselfrom a CJA Panel list maintained by the federal public defender in casesauthorized under the CJA and related statutes.B.AdministrationAdministration of the CJA Panel, as set forth in this Plan, is herebydelegated and assigned to the federal public defender.C.Apportionment of CasesWhere practical and cost effective, private attorneys from the CJA Panelwill be appointed in a substantial proportion of the cases in which theaccused is determined to be financially eligible for representation under
Page 12the CJA. “Substantial” will usually be defined as a minimum of twenty-fivepercent (25%) of the annual CJA appointments.D.Number of CounselMore than one attorney may be appointed in any case determined by thecourt to be extremely difficult.E.Capital CasesProcedures for appointment of counsel in cases where the defendant ischarged with a crime that may be punishable by death, or is seeking tovacate or set aside a death sentence in proceedings under 28 U.S.C.§§ 2241, 2254 or 2255, are set forth in section XIV of this Plan.VII.Federal Public Defender OrganizationA.EstablishmentThe federal public defender organization, the Federal Public Defender forthe Western District of North Carolina, is established in this district underthe CJA and is responsible for rendering defense services on appointmentthroughout this district.B.StandardsThe federal public defender organization must provide high qualityrepresentation consistent with the best practices of the legal professionand commensurate with those services rendered when counsel is privatelyretained. See Polk County v. Dodson, 454 U.S. 312, 318 (1981) (“‘Once alawyer has undertaken the representation of an accused, the duties andobligations are the same whether the lawyer is privately retained,appointed, or serving in a legal aid or defender program.’” (quoting ABAStandards for Criminal Justice section 4-3.9 (2d ed. 1980))).C.WorkloadThe federal public defender organization will continually monitor theworkloads of its staff to ensure high quality representation for all clients.D.Professional ConductThe federal public defender organization must conform to the higheststandards of professional conduct, including but not limited to the Code of
Page 13Conduct for Federal Public Defender Employees and the North CarolinaRules of Professional Conduct.E.Private Practice of LawNeither the federal public defender nor any defender employee mayengage in the private practice of law except as authorized by the FederalPublic Defender Code of Conduct.F.Supervision of Defender OrganizationThe federal public defender will be responsible for the supervision andmanagement of the federal public defender organization. Accordingly, thefederal public defender will be appointed in all cases assigned to thatorganization for subsequent assignment to staff attorneys at the discretionof the federal public defender.G.TrainingThe federal public defender will assess the training needs of federal publicdefender staff and, in coordination with the CJA Panel Attorney DistrictRepresentative, 2 the training needs of the local panel attorneys, andprovide training opportunities and other educational resources.VIII. CJA Panel of Private AttorneysA.Establishment of the CJA Panel Committee1.2A CJA Panel Committee (“CJA Committee”) will be established bythe federal public defender in consultation with the court. The CJACommittee will consist of one district court judge, one magistratejudge, the federal public defender, the Clerk of Court or theirrepresentative, the CJA Panel Attorney District Representative(PADR), a criminal defense attorney who practices regularly ineach of the two divisions in the district who may be CJA panelmembers, and an ex officio staff member employed by the federalpublic defender who will act as administrative coordinator.The CJA Panel Attorney District Representative (PADR) is a member of the district’s CJAPanel who is selected by the local federal public defender, with acquiescence from the chiefjudge, to serve as the representative of the district’s CJA Panel for the national DefenderServices CJA PADR program and local CJA committees.
Page 142.The federal public defender or their representative, the clerk ofcourt or their representative, and the district’s PADR are permanentmembers of the CJA Committee.Membership on the CJA Committee will otherwise be for a term ofthree years and may be extended for an additional three years.Members’ terms will be staggered to ensure continuity on the CJACommittee.3.B.The CJA Committee will meet at least twice a year and at any timethe court asks the Committee to consider an issue.Duties of the CJA Committee1.MembershipExamine the qualifications of applicants for membership on the CJAPanel and recommend to the Board of Judges the approval ofthose attorneys who are deemed qualified and the rejection of theapplications of those attorneys deemed unqualified.2.RecruitmentEngage in recruitment efforts to establish a diverse panel andensure that all qualified attorneys are encouraged to participate inthe furnishing of representation in CJA cases.3.Annual ReportReview the operation and administration of the CJA Panel over thepreceding year, and recommend any necessary or appropriatechanges to the Board of Judges concerning:4.a.the size of the CJA Panel;b.the recruitment of qualified and diverse attorneys as requiredand set forth in this plan; andc.recurring issues or difficulties encountered by panelmembers or their CJA clients.RemovalRecommend to the chief judge the removal of any CJA panelmember who:a.fails to satisfactorily fulfill the requirements of CJA panelmembership during their term of service, including the failureto provide high quality representation to CJA clients, or
Page 15b.has engaged in other conduct such that his or her continuedservice on the CJA Panel is inappropriate.See also Section IX.C.75.TrainingAssist the federal public defender office in providing training for theCJA Panel on substantive and procedural legal matters affectingrepresentation of CJA clients.6.Voucher ReviewAs requested, review and make recommendations on theprocessing and payment of CJA vouchers in those cases where thecourt, for reasons other than mathematical errors, is consideringauthorizing payment for less than the amount of compensationclaimed by CJA counsel. The judge will, at the time the voucher issubmitted to the CJA Committee, provide a statement describingquestions or concerns they have with the voucher. Counsel will benotified of the potential voucher reduction and given the opportunityto provide information or documentation relevant to the voucherand concerns raised by the judge. The CJA Committee will issue awritten recommendation to the judge.See also Section XII.B.67.MentoringA mentoring program will be administered in compliance withSection X.IX.Establishment of a CJA PanelA.Approval of CJA Panel1.B.The existing, previously established panel of attorneys who areeligible and willing to be appointed to provide representation underthe CJA is hereby recognized.Size of CJA Panel1.The size of the CJA Panel will be determined by the CJACommittee based on the caseload and activity of the panelmembers, subject to review by the court.
Page 162.C.The CJA Panel must be large enough to provide a sufficientnumber of experienced attorneys to handle the CJA caseload, yetsmall enough so that CJA panel members will receive an adequatenumber of appointments to maintain their proficiency in federalcriminal defense work enabling them to provide high qualityrepresentation consistent with the best practices of the legalprofession and commensurate with those services rendered whencounsel is privately retained.Qualifications and Membership on the CJA Panel1.ApplicationApplication forms for membership on the CJA Panel are availablefrom the federal public defender website annually, from thebeginning of April to the end of June.2.Equal OpportunityAll qualified attorneys are encouraged to participate in thefurnishing of representation in CJA cases.3.Eligibilitya.Applicants for the CJA Panel must be members in goodstanding of the federal bar of this district, the North Carolinastate bar and the Fourth Circuit Court of Appeals.b.Applicants must maintain (i) a primary, satellite, or sharedoffice in this district; (ii) access to online or other
Page 4 United States District Court For the Western District of North Carolina Criminal Justice Act Plan I. Authority Under the Criminal Justice Act (CJA) of 1964, as amended, 18 U.S.C. § 3006A, and Guide to Judiciary Policy (Guide), Volume 7A, the judges of the United States District Court for the Western District of North Carolina adopt this Plan, as approved by the
