Puerto Rico Association of Criminal Defense Lawyers

Judge Pérez-Giménez Rules on Attorney's Fees Inquiry

I strongly suggest reading Judge Pérez-Giménez's Opinion and Order in U.S. v.  Angel González-Méndez, 352 F.Supp.2d 173, 66 Fed. R. Evid. Serv. 301 (D.Puerto Rico January 14, 2005) concerning the Government's interest in inquiring as to the source of attorneys fees --pretrial-- in a case involving the robbery of a financial institution and in which none of the stolen funds have been recovered. Defendants apparently have no legitimate income either.  Judge Pérez-Giménez tells the Government that they cannot use the procedure set forth for so-called "Nebbia hearings" (after US v. Nebbia, 357 F.2d 303 (2d Cir. 1966)) for this sort of pretrial investigation. However, and this is important, take a careful look at n. 3 of the opinion.

Civil Forfeiture & Appointment of Counsel under CAFRA

      I know many of you are well versed in matters of civil forfeiture. However, for those that are not, and wish an easy reading recent case from the First Circuit that will give you some idea of how it operates post-CAFRA (Civil Asset Forfeiture Reform Act of 2000), I refer you to today's opinion in United States v. One Parcel of Real Property with Buildings, Appurtenances and Improvements known as 45 Claremont St., located in the City of Central Falls, Rhode Island, (Maria Benavides, Claimant, Appellant), No. 03-2630 (1st Cir. September 21, 2004) (per curiam) (unpublished).

I would also remind all that Title 18, U.S. Code, Section 983(b) allows the court to authorize counsel representing a defendant pursuant to the provisions of the Criminal Justice Act, Title 18, U.S. Code, Section 3006A, to also represent said defendant in a related judicial civil forfeiture action once defendant has fulfilled certain prerequisites. We set forth the relevant statutory language.

§ 983.    General rules for civil forfeiture proceedings 

(b) REPRESENTATION. --

(1)(A) If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.

(B) In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as--

(i.)    the person’s standing to contest the forfeiture; and

(ii.)   whether the claim appears to be made in good faith.   

    *   *   *   

(3) The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.

18 U.S.C. § 983(b).