at 3. 10 The Eighth Circuit has held that, where the government can show a defendant spent thousands of dollars contrary to his claims of indigence, the court can order the defendant to reimburse the CJA funds under 18 U.S.C. 3006A(f), even if the defendant claims to have no current assets. United States v. Lefkowitz, 125 F.3d 608, 621 (8th Cir. 1997).

The Government Ignores The Underlying Logic And Holding Of United States v. Crosby. Magistrate Judge Nelson‟s April 12 Order expressly provides that the controlling provision in determining any reimbursement issue is 18 U.S.C. 3006A(f). (April 12 Order at 5).

Id. LEGAL ARGUMENT This Court faces an apparent, but false, conflict between Hecker‟s Sixth Amendment right to counsel of his choosing and the Criminal Justice Act (hereinafter “CJA”) at 18 U.S.C. § 3006A(f). While some language in Section 3006A(f) might, creatively, be read to support disgorgement of Mauzy‟s retainer, such a reading is inconsistent with the plain language of Section 3006(A)(f), as well as the only published Circuit Court decision analyzing whether or not a third party payment to a substituted defense counsel is available for purposes of Section 3006(A)(f).

Moreover, both Kaiser and McMahon concern federal prosecutions, in which a defendant is automatically entitled to the assignment of counsel on appeal without a specific application for poor person’s relief, so long as he was represented by assigned counsel at trial. 18 U.S.C. 3006A(c). By contrast, this Court does have the power to recognize constitutional defects that15 require changes in Appellate Division procedures, contrary to the People’s claim that this Court has “no authority” to “rewrite” the Appellate Division’s system for assigning counsel in New York.

Because Hecker promptly corrected his prior CASE 0:10-cr-00032-JNE -XXX Document 250 Filed 01/03/11 Page 7 of 9 8 misunderstanding, his testimony does not amount to perjury, and thus is not a violation of his conditional release. 18 U.S.C. § 3006A(f) Has No Bearing On These Proceedings The Government argues that Hecker’s alleged violation of Judge Nelson’s April 12, 2010 order notifying Hecker of the 18 U.S.C. § 3006A(f) provision for repayment of the CJA fund somehow amounts to a violation of his conditions of release. Judge Nelson, however, did not amend Hecker’s conditions of release.

No. 78, at 4). The Court appointed CJA panel attorney Brian Toder and his firm to represent the defendant, and further ordered, “If Defendant should hereafter retain private counsel, or if it is otherwise determined that funds are available for payment from or on behalf of Defendant, he shall be required to reimburse the government pursuant to 18 U.S.C. § 3006A(f) for any attorney’s fees or costs already expended by his court-appointed attorney. The 4 Case 0:10-cr-00032-JNE-SRN Document 159 Filed 09/02/10 Page 4 of 11 Federal Defender’s Office will pursue collection of those fees and costs.”

“Under 18 U.S.C. §3006A, an indigent defendant is entitled to have counseled representation when, inter alia, the Sixth Amendment requires or when the defendant ‘faces loss of liberty in a case, and Federal law requires the appointment of counsel.’ 18 U.S.C. §3006A(a)(1)(H)-(I).” United States v. Berger, 375 F.3d 1223, 1226 (11 Cir.th 2004).

See Hercules Inc. v. United States, 516 U.S. 417, 428 (1996) (rejecting argument that Anti-Deficiency Act did not apply to a “judicially fashioned” implied -9- United States courts, out of any money in the Treasury not otherwise appropriated,” subject to certain statutory caps for such expenditures. 18 U.S.C. §§ 3006A(e)(1), (e)(3), (i).2 In contrast to this Court’s authority to provide limited funds to habeas petitioners under the Criminal Justice Act, Congress has made no similar authorization for respondents to expend funds for that purpose. Thus, any order requiring respondents to provide petitioner’s counsel with safe passage to, and housing in, Iraq would contravene Congress’ clearly-expressed intent to have the courts advance such funds, where necessary, and would be inappropriate as a matter of law.

(“the hoary principal that civil tort actions are not appropriate vehicles for challenging the validity of 3 It should also be noted that 18 U.S.C. § 3006A(g)(3) provides that “[t]he Director of the Administrative Office of the United States Court shall … provide representation for and hold harmless, or provide liability insurance for, any person who is an officer or employee of a Federal Public Defender Organization established under this subsection …” If federal public defenders were government employees for purposes of the FTCA there would be no need for the Administrative Office of the United States Court to provide them liability insurance. Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 5 of 7 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 outstanding criminal judgments applies to §1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement …”)

ILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE CENTRAL AND EASTERN DISTRICTS OF CALIFORNIA Hilary Potashner (No. 167060) Heather Williams (No. 122664) Federal Public Defender, Federal Public Defender, Central District of California Eastern District of California 321 E. 2ndSt. 801 I St., 3rd Floor Los Angeles, CA 90012 Sacramento, CA 95814 Telephone: (213) 894-2854 Telephone: (916) 498-5700 Fax: (213) 894-0081 Fax: (916) 498-5710 Hilary_Potashner@fd.org Heather_Williams@fd.org Attorneysfor Amicus Curiae Offices ofthe Federal Public Defenders APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRI EF The Federal Public Defender for the Central District of Californi a and the Federal Public Defender for the Eastern District of Califor nia (“the Federal Public Defenders”) hereby apply for leaveto file the accom panying Brief of Amicus Curiae in support of Petitioners in this man damus proceeding.’ The Federal Public Defenders are authorized under 18 U.S.C. § 3006A, the Criminal Justice Act, to provide legal representat ion to persons financially unable to retain counsel in federal criminal and related proceedings. The Central District covers seven counties: Los Ange les, Orange, Ventura, Riverside, San Bernardino, Santa Barbara and San Luis Obispo.