United States v. Joseph Konrad

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 12-1393
___________

UNITED STATES OF AMERICA

v.

JOSEPH KONRAD,
Appellant

_______________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 2-11-cr-00015-001
(Honorable Michael M. Baylson)
______________

Argued: April 2, 2013

Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

(Filed : September 5, 2013)
Brett G. Sweitzer, Esq. [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

Counsel for Appellant

Mary Kay Costello, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Counsel for Appellee

_________________

OPINION OF THE COURT
_________________

SCIRICA, Circuit Judge.

The Criminal Justice Act requires courts to furnish
legal counsel to criminal defendants “financially unable to
obtain adequate representation.” 18 U.S.C. § 3006A(a).
Joseph Konrad was appointed a federal defender under the
Criminal Justice Act (CJA), based on information he provided
in a financial disclosure affidavit. At sentencing, the District
Court found several discrepancies between Konrad’s pre-
sentencing report and his financial disclosure. The court
ordered Konrad to show cause that he was financially eligible

2
for appointed counsel. After a hearing, the court found
Konrad had significant funds in two individual retirement
accounts so he was not financially unable to pay the cost of
legal representation. After appointing a Master to determine
the cost of private legal representation, the court ordered
Konrad to repay $6,000 because he was not financially
eligible to be represented by the federal defender.

We hold individual retirement funds and jointly-held
bank accounts can be available funds within the meaning of
the Criminal Justice Act. We also hold the District Court did
not abuse its discretion in ordering Konrad to repay the
market value of his legal representation rather than the hourly
rate paid to an attorney appointed under the Criminal Justice
Act.

I.

The Federal Community Defender Office for the
Eastern District of Pennsylvania was appointed by a
Magistrate Judge to defend Joseph Konrad against charges of
making fraudulent statements to the Federal Aviation
Administration. Konrad pleaded guilty. As noted, upon
sentencing the District Court noted disparities between the
assets Konrad reported in the CJA Form 23 Financial
Affidavit of November 15, 2010 and those in the
presentencing report. The court ordered Konrad to show
cause he was financially eligible for court-appointed counsel.
The court found Konrad failed to disclose the $258,000 value
of his home, and only reported $50,000 in retirement accounts

3
worth $70,463.1 Konrad underreported his household
monthly income by $4,300, stating his monthly household
income was $2,500 in the Financial Disclosure Affidavit
when it was actually $8,600.

The District Court found the $70,463 in the individual
retirement accounts was available to pay for Konrad’s legal
representation. The court did not reach the question whether
a bank account worth $34,893 Konrad held jointly with his
wife was also available because the retirement savings
accounts had several times the amount needed to pay for legal
counsel.

The District Court found Konrad had financial
resources to pay for his own defense while meeting the cost
of the necessities of life. The District Court ordered Konrad
to pay for his legal representation and appointed a Master to
determine the cost of private criminal defense counsel in this
case. The Master surveyed hourly rates in the relevant
geographic area, and selected the lowest estimate, $400 an
hour. The Master determined the cost of Konrad’s defense
was $6,000, based on the hourly rate and number of hours.
Konrad appeals from that order.

1
Konrad included the cost of the mortgage and other joint
household expenses in his affidavit, but not the value of the
home. The District Court found Konrad’s home was
encumbered by a $230,000 mortgage. Accordingly, the home
was not an available asset.

4
 II.2

A.

The Criminal Justice Act requires district courts to
provide legal counsel for criminal defendants charged with a
felony when they are unable to pay for an attorney. 18 U.S.C.
§ 3006A(a)(1)(A). A defendant bears the burden to prove he
is unable to pay for the cost of representation. United States
v. Evans, 155 F.3d 245, 252 n.8 (3d Cir. 1998) (citing United
States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir. 1997)).
“Whenever the United States magistrate judge 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 . . . .” 18
U.S.C. § 3006A(f). The Guide to Judiciary Policy Guidelines
for Administering the CJA and Related Statutes explicitly
recommends an evaluation of financial eligibility after the
presentencing report becomes available “in order to make a
final determination concerning whether the person then has
funds available to pay for some or all of the costs of
representation.” 7A Guide to Judiciary Policy § 210.40.30

2
The District Court had jurisdiction under 18 U.S.C.A. §
3231. This court has jurisdiction under 28 U.S.C. § 1291.
Reimbursement ordered under 18 U.S.C. § 3006A(f) is
reviewed for abuse of discretion. United States v. Parker,
439 F.3d 81, 99 (2d Cir. 2006). We exercise plenary review
over a district court’s interpretation of the statute. United
States v. Williams, 675 F.3d 274, 277 (3d Cir. 2012).

5
(“[E]rroneous determinations of eligibility may be corrected
at a later time.”).

“A person is ‘financially unable to obtain counsel’ . . .
if the person’s net financial resources and income are
insufficient to obtain qualified counsel” considering “the cost
of . . . the necessities of life.” Id. at § 210.40.30(a) (quoting
18 U.S.C. § 3006A(6)). The Guide instructs courts to
“consider pertinent information contained in the presentence
report, the court’s intention with respect to fines and
restitution, and all other available data bearing on the
person’s financial condition, in order to make a final
determination concerning whether the person then has funds
available to pay for some or all of the costs of
representation.” Id. at § 210.40.30(d) (“At the time of
sentencing, in appropriate circumstances, [the court] should
order the person to reimburse the CJA appropriation for such
costs.”).3 “In the absence of a serious abuse of discretion, a
district judge’s findings as to ‘availability’ of funds, if
supported by an ‘adequate inquiry’, will not be disturbed on
appeal.” United States v. Bracewell, 569 F.2d 1194, 1200 (2d
Cir. 1978). The District Court properly ordered Konrad to
pay the cost of court-appointed counsel, because Konrad’s net

3
Contrary to Konrad’s assertion, no court has interpreted the
CJA to require a finding that a defendant provided false
information, or that a defendant’s financial condition
materially improved or that new information became
available to order reimbursement, nor do we. Even so, here
the defendant failed to disclose significant assets in his initial
affidavit, and new information regarding the value of his
home and retirement savings accounts did become available
in the presentencing report.

6
financial resources exceed the amount needed for the
necessities of life.

B.

We consider “the defendant’s personal and family
needs and the liquidity of his finances.” Evans, 155 F.3d at
252 n.8 (citing Museitef v. United States, 131 F.3d 714, 716
(8th Cir. 1997); Bracewell, 569 F.2d at 1199). Assets are
available when a defendant has control over or discretionary
use of them. Fullan v. Comm’r of Corr., 891 F.2d 1007, 1011
(2d Cir. 1989). The test for determining a defendant’s ability
to pay “is whether repayment would cause such financial
hardship as to make it impractical or unjust.” Museitef, 131
F.3d at 716 (citing Bracewell, 569 F.2d at 1199).

1.

The District Court found Konrad was able to pay
because he had $70,463 in individual retirement savings
accounts—more than ten times the amount he was ordered to
pay. Konrad contends the IRAs are not liquid because of the
early-withdrawal penalty,4 and cites to United States v. Lexin
for the proposition IRAs are future income. 434 F. Supp. 2d
836, 844 (S.D. Cal. 2006). We do not agree that IRAs are
future income because they are an accumulation of past
earnings paid into the account and accrued investment
income. Only taxation on those earnings is deferred. 26

4
Early withdrawal of funds from an IRA encumbers a 10%
penalty, in addition to normal income taxes. 26 U.S.C.
§ 72(q).

7
U.S.C. § 72(b).5 Accordingly, we agree with the District
Court’s finding that IRAs are not future income. United
States v. Konrad, No. 11-15, 2011 WL 6739464, at *5 (E.D.
Pa. Dec. 21, 2011) (noting that other courts rejected the Lexin
view that IRAs are future income for CJA purposes (citing
United States v. Pani, No. 08-40034, 2011 WL 4344336, at
*2 (D. Mass. Aug. 3, 2011); In re Extradition of Patel, No.
08-430, 2008 WL 896069, at *2 (D. Or. Mar. 28, 2008))).

We consider the liquidity of assets in determining a
defendant’s ability to pay. Evans, 155 F.3d at 252 n.8. Assets
may not be available “[i]f by their nature [those] assets cannot
be timely reduced to cash and cash is required . . . .” Barry v.
Brower, 864 F.2d 294, 300 (3d Cir. 1988) (finding the
defendant was unable to leverage his home equity to obtain
legal counsel). “Before a finding of ‘availability’ can
properly be made, the district judge should be satisfied that,
in ordering reimbursement in any specified amount, the
defendant will not suffer extreme hardship as a consequence
of being deprived of his funds.” Bracewell, 569 F.2d at 1199.

“In some cases, liquidation of assets may be required.”
Barry, 864 F.2d at 299 (citation omitted). In Barry, we found
the defendant’s home valued at $80,000 did not disqualify
him from public counsel because evidence showed six private
attorneys recommended by the public defender’s office
declined to take a security interest in his house in lieu of legal
fees. Id. at 300. Moreover, the defendant could not sell his

5
Moreover, the Second Circuit considered future investment
income the defendant anticipated in United States v. O’Neil,
118 F.3d 65, 74 (2d Cir. 1997), finding the defendant
ineligible for court-appointed counsel.

8
home because it was held jointly with his wife who refused to
sell or encumber the home. Id. at 297. Finally, the
defendant’s debts exceeded his assets, as he owed an $85,000
fine to the state. Id. Accordingly, the defendant did not have
funds available to meet his legal costs. Id. at 300.

In contrast, the defendant in United States v. Fincher
was required to sell his property, despite his wife’s dower
interest, because the value of the property encumbered by the
dower interest was still sufficient to cover the defendant’s
legal costs. 593 F.3d 702, 707 (8th Cir. 2010). Other courts
have found defendants able to afford legal counsel because
they held substantial equity in their property. See, e.g.,
United States v. Simmers, 911 F. Supp. 483, 486-87 (D. Kan.
1995) (“While the defendant’s primary asset is not liquid, the
equity in his home is substantial . . . . The defendant has not
established extreme hardship in the event of the liquidation or
mortgage of the asset.”); United States v. Bedoya, No. 89 CR.
803, 1990 WL 194934, at *3 (S.D.N.Y. Nov. 28, 1990)
(finding the “defendant has equity value in the six unit
apartment building”).

Konrad has not demonstrated he is unable to liquidate
or leverage the value of his IRAs, or that doing so would
work an extreme hardship. Furthermore, an IRA is more
liquid than real property, and is easily converted to cash, like
any other investment portfolio. IRA funds may be withdrawn
at will, subject to an early withdrawal penalty.

We recognize that early withdrawal of funds from an
IRA incurs a 10% penalty, in addition to normal income

9
taxes,6 which is a significant transaction cost. 26 U.S.C.
§ 72(q). But even with the 10% penalty, Konrad would retain
$63,863 in his retirement savings account. Konrad has not
demonstrated that a $6,0007 reduction in his retirement
savings account would work an extreme hardship. Since
Konrad may easily reduce his IRA assets to cash and has not
shown liquidation would work an extreme hardship, the
District Court did not abuse its discretion in finding these
funds were available to Konrad for his legal defense.

2.

Konrad has $6,007 in an individually held checking
account and a CD, and $34,893 in a money market account
jointly held with his wife. Funds may be available for CJA
purposes when a defendant is in control of the funds. See,
e.g., Fullan, 891 F.2d at 1011 (finding if the defendant “had
discretionary use of the funds raised by his family and friends
or had control of them,” under the CJA he would be “‘in no
different a position than the defendant who has $10,000 of his
own money to spend on appeal’”); Bracewell, 569 F.2d at
1200 (“If monies paid on a defendant’s behalf actually belong
to a third party, then they are not ‘available for payment.’”);
Lexin, 434 F. Supp. 2d at 843 (“[T]he Court concludes that to
the extent any asset is jointly held and individually disposable

6
As noted, at the time of retirement, IRA withdrawals are
taxed as income. Early withdrawals are also subject to the
same income taxes as the withdrawals intended under the
program. 26 U.S.C. § 72(q).
7
We recognize that, with the early withdrawal penalty,
Konrad might have a $6,600 reduction in his retirement
savings account.

10
by either spouse without advance consent, then that spouse
has sufficient supervision or control over that asset so that it
is appropriately considered during the [CJA] evaluation
process.”).

The Guide directs that “eligibility should be made
without regard to the financial ability of the person’s family
unless the family indicates willingness and financial ability to
retain counsel promptly.” 7A Guide to Judiciary Policy
§ 210.40.50. The CJA prescribes an “appropriate inquiry”
which often necessitates a holistic review of a person’s
financial position. Id. at § 210.40.30(d) (counseling courts to
consider “all . . . available data bearing on the person’s
financial condition”); cf. United States v. Parker, 439 F.3d
81, 96 (2d Cir. 2006) (“Courts have utilized a broad range of
considerations in conducting an ‘appropriate inquiry’ into
financial eligibility under 18 U.S.C. § 3006A.”); United
States v. O’Neil, 118 F.3d 65, 74 (2d Cir. 1997) (considering
anticipated income from a business venture). The CJA Form
23 Financial Affidavit requires information about the
defendant’s spouse’s earnings and their dependents, in
addition to information about their assets, debts and expenses.
Although the Guide says spouses are not required to
contribute to counsel fees unless they offer to do so,8 7A

8
Several courts have considered a spouse’s income in
determining defendant’s ability to pay. See, e.g., United States
v. Barcelon, 833 F.2d 894, 897 n.5 (10th Cir. 1987) (“Other
factors which courts have considered include. . . the
availability of income to the defendant from other sources such
as a spouse.”); United States v. Caudle, 758 F.2d 994, 996 (4th
Cir. 1985) (“Talbert’s affidavit revealed that he earned $1000
per month as a truck driver and that his wife earned $450 per

11
Guide to Judiciary Policy § 210.40.50, jointly held property
has been considered when determining a defendant’s ability
to pay. See, e.g., Fincher, 593 F.3d at 707 (considering the
property of the defendant and his wife), United States v.
Brockman, 183 F.3d 891, 898 (8th Cir. 1999) (considering
funds under a joint venture agreement as available assets);
United States v. Liebler, No. 10CR313S, 2012 WL 6087791,
at *1 (W.D.N.Y. Dec. 6, 2012) (finding the defendant could
pay for legal costs from a bank account jointly held with his
father); Lexin, 434 F. Supp. 2d at 843 (finding the defendant’s
bank account jointly held with his wife available to pay for
his legal counsel).

Funds are available when the defendant has control
over their disposal. Fullan, 891 F.2d at 1011. The court in
Fullan distinguished between “assets belonging to [the
defendant’s] family and friends” and “assets owned or
controlled by the defendant.” Id. Fullan’s application for
leave to appeal in forma pauperis was initially denied because
Fullan’s family and friends raised $10,000 to pay for an
appellate attorney. Id. at 1008. The Second Circuit reversed
because Fullan did not have “discretionary use of the funds
raised by his family and friends or [] control of them.” Id. at
1011. “Indeed, if Fullan . . . had discretionary use . . . or . . .
control . . . , we would agree with the district court that he
was ‘in no different a position than the defendant who has
$10,000 of his own money to spend on appeal.’” Id.; see also

month.”); United States v. Salemme, 985 F. Supp. 197, 201-02
(D. Mass. 1997) (“In determining whether a defendant is
financially unable to retain counsel, the court may consider
whether he has income or assets available to him from other
sources, including his spouse.”).

12
United States v. Zelenka, 112 F. Supp. 2d 708, 715 (M.D.
Tenn. 1999) (“This is not a case where Defendant has
received assets or income from the third party payers in the
form of a gift so that Defendant is free to control how and
whether the assets will be spent on his defense. Rather, the
assets are solely in the control of a third party who may
withdraw the funds or alter the way in which they are spent at
any time.”).

The District Court here found Konrad “does own and
control, at least partly, the assets in the joint bank accounts.”
Konrad, 2011 WL 6739464, at *4. This reasoning is sound
since a purpose of a joint account is to permit the co-signer to
freely withdraw funds without additional consent. At oral
argument, Konrad’s counsel conceded that Konrad has the
“right to . . . write a check from the account . . . and take
money out for himself.” Oral Argument at 15:17, Apr. 2,
2013. Access to jointly held assets for CJA purposes should
be distinguished from the debtor/creditor context where third
parties seek to seize the debtor’s funds. The CJA analysis is
designed to determine ability to pay future legal costs, rather
than payment of an accrued debt.

Konrad has authority to dispense funds from the joint
checking account at his discretion. These funds are not held
in a spouse’s individual bank account, and Konrad can freely
withdraw from the joint account. As the Second Circuit
explained, this discretionary use and control places Konrad in
the same position as a defendant who has his own money to
spend on counsel. Fullan, 891 F.2d at 1011. Accordingly,
the funds in the joint account can be available to pay the cost
of Konrad’s legal counsel.

13
 Konrad has access to a sizable joint checking account,
as well as a more modest individual account. The checking
accounts have several times the amount of money Konrad is
ordered to pay. Konrad also owns IRAs worth more than ten
times the amount Konrad was ordered to pay, and these
accounts may be liquidated for cash at any time. Konrad has
no minor children in his household, and the presentencing
report shows Konrad’s household income exceeds his
household expenses. Accordingly, Konrad has sufficient
funds available to pay for legal counsel and still meet the cost
of the necessities of life. The District Court did not abuse its
discretion in ordering reimbursement.

C.

The District Court ordered Konrad to pay the cost of a
private defense attorney, and appointed a Master to determine
that cost. The CJA provides for reimbursement

[w]henever . . . the court finds that funds are
available for payment from or on behalf of a
person furnished representation, [in which case]
it may authorize or direct that such funds be
paid . . . 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.

18 U.S.C. § 3006A(f). “Reimburse” means to pay back. It is
ambiguous whether the statute means to pay back the value
received in legal services or to pay back the cost expended on
the legal defense. “Appropriation” has many meanings. One
meaning is the fund or sub-fund appropriated by Congress for

14
court-appointed attorneys representing those who cannot
afford legal counsel.9 We read “reimbursement to the
appropriation” to mean repayment to the institution that
expended funds for representation in the amount of the
benefit to the ineligible defendant.

Konrad contends he should only have to pay the $125
hourly rate paid to court-appointed counsel, not the hourly
rate of a private attorney.10 But Konrad does not contend that
the $125 hourly rate for court-appointed private attorneys has
any relation to the cost to the government for representation
by the Federal Public Defenders. Although the CJA rate is the
amount private court-appointed attorneys are compensated,
the CJA figure is universally recognized as a below-market
rate for criminal defense lawyers. The CJA rate does not
reflect the costs to private criminal defense attorneys, nor the

9
The Guide provides:
When the court determines that a person who
received representation under the CJA was
financially ineligible for those services at the
time they were rendered, and directs that person
reimburse the government, the payment should
be made by check or money order to the clerk
of court for deposit in the Treasury. Such funds
will be credited to the Defender Services
Appropriation.
7A Guide to Judiciary Policy § 230.40.
10
Private court-appointed attorneys are compensated at $125
per hour, with some exceptions. Id. § 3006A(d); 7A Guide to
Judiciary Policy § 230.16. In contrast, Federal Public
Defenders are paid a salary independent of the CJA rate paid
to court-appointed counsel. 18 U.S.C. § 3006A(g)(2)(A).

15
cost to the government for providing a legal defense through
the Federal Public Defenders. Even if we read “reimburse” to
mean pay back the costs expended for Konrad’s legal defense,
there is no indication that the CJA rate has any relationship to
the cost to the Federal Public Defenders.11 Reimbursement
more properly refers to the money that Konrad would have
paid to a private attorney had he accurately completed the
financial disclosure affidavit, rather than falsifying his
financial information. Konrad was not entitled to a Federal
Public Defender, so he should not be limited to the CJA
reimbursement rate.

When a defendant is able to pay for the costs of a
private attorney, he is not entitled to gratuitous or subsidized
legal counsel under the CJA. Wilson, 597 F.3d at 357 (“What
the Act gives with one hand to a criminal defendant
‘financially unable’ to pay for legal services it takes away with
the other if the defendant turns out to be ‘financially able’ to
obtain counsel.”); United States v. Coniam, 574 F. Supp. 615,
618 (D. Conn. 1983) (finding defendant would benefit from
“gratuitous or subsidized counsel … if his reimbursement
were limited to a level below the cost of his representation”).
Ordering reimbursement at a lower rate than the cost of
private representation would be contrary to the statute by
subsidizing the cost of counsel to a defendant who is able to
pay. Coniam, 574 F. Supp. at 618 (“Nothing in the act
provides nor manifests a congressional intention to subsidize a
defendant who is clearly able to pay out of earned income.”).

11
Even if one could measure the proper cost to a public
defender, it would appear that this would vary from office to
office depending on the number of public defenders, fixed
costs of the facility, etc.

16
Moreover, Konrad should not benefit from his incomplete,
undervalued or untruthful financial disclosures by receiving
legal services at a fraction of the cost.

Other courts have not limited reimbursement to the
court-appointed counsel CJA rates. See, e.g., United States v.
Anderson, 400 F. Supp. 2d 32, 37 (D.D.C. 2005) (ordering
reimbursement for “the time expended in this case at a
reasonable hourly rate (not limited to $90 per hour)”); United
States v. Nunez-Garcia, 879 F. Supp. 63, 67 (W.D. Tex. 1995)
(finding the court “is not limited by the hourly rates stated in §
3006A(d)(1)”); Coniam, 574 F. Supp. at 618 (“There is no
explicit limit on the amount of such funds to the panel
attorney rates . . . .”); cf. Lefkowitz, 125 F.3d at 621 (ordering
defendant to reimburse $316,693.70, greatly exceeding the
maximum under 18 U.S.C. § 3006A(d)(2)).

When civil defendants pay attorney’s fees under fee-
shifting statutes, they do not pay the hourly rate earned by a
plaintiff’s public interest attorney, but instead pay a
reasonable market rate for a private attorney in the area.
Blum v. Stenson, 465 U.S. 886, 895 (1984). This is how the
Master here calculated the cost of Konrad’s legal defense.
The Master selected the lowest estimate submitted by private
attorneys.12 Accordingly, the District Court did not err in
ordering Konrad to pay the $6,000 cost of private legal
representation.

12
Defendant’s contention the Master had a conflict of interest
because she was compensated from the recommended
reimbursement is unfounded. The Master was paid the
standard hourly rate, and not a percentage of the sum she
calculated.

17
 III.

We will affirm the District Court’s order that Konrad
pay $6,000 for the cost of his legal representation.

18