United States v. Vilar

10-521-cr
United States v. Vilar
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2013 4
Submitted: Sept. 12, 2013 Decided: October 1, 2013 5
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Docket Nos. 10-521(L), 10-580(con) (only) 7
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UNITED STATES OF AMERICA, 10
Appellee, 11
12
v. 13
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ALBERTO VILAR and GARY ALAN TANAKA, 15
Defendants-Appellants. 16
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Before: NEWMAN, CABRANES, and STRAUB, Circuit Judges. 19
Motion by counsel for Defendant-Appellant Vilar seeking 20
to have counsel appointed for Defendant-Appellant Tanaka under 21
the Criminal Justice Act and permission for retained counsel 22
for Tanaka to withdraw. 23
Motion denied, without prejudice to renewal by retained 24
counsel for Tanaka. 25
Vivian Shevitz, South Salem, NY, 26
purporting to act for Defendant- 27
Appellant Tanaka. 28
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33
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Per Curiam: 1
Pending before us is a motion filed by Atty. Vivian
Shevitz attempting to obtain relief on behalf of Appellant
Gary Alan Tanaka. The motion seeks appointment of counsel
from this Court’s Criminal Justice Act (“CJA”) Panel for
Tanaka, suggests the name of a particular lawyer who is a
member of that Panel, and also requests that Tanaka’s retained
counsel of record be permitted to withdraw. Tanaka and
Alberto Vilar are the Appellants in a criminal appeal, No. 10-
521. We have affirmed their convictions, see United States v.
Vilar, No. 10-521, 2013 WL 4608948 (2d Cir. Aug. 30, 2013),
and on Sept. 11, 2013, we granted a motion to extend the time
to file a petition for rehearing until Oct. 13, 2013. Also
before us is a letter from one of Tanaka’s retained counsel,
seeking to “be relieved as counsel.”
At the outset, we have a concern as to the authority of
Atty. Shevitz to seek the requested relief on behalf of
Tanaka. Throughout the pending appeal, Shevitz has repre-
sented Vilar, and Attys. Alan Dershowitz, Nathan Dershowitz,
and Victoria Eiger have represented Tanaka. 1
1 On May 10, 2010, a stipulation substituting Nathan
Dershowitz, Esq. for Glenn Colton, Esq. (who represented
Tanaka at trial) was “so ordered.” On May 11, 2010, Nathan
Dershowitz filed a Notice of Appearance for Tanaka,
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Shevitz’s participation on behalf of Tanaka began on
Sept. 17, 2012, when she attempted to file a Notice of
Appearance as additional counsel for Tanaka. That Appearance
was rejected by the Clerk’s Office because the form was blank.
Also on Sept. 17, 2012, Atty. Shevitz filed a motion for bail
pending appeal for both Vilar and Tanaka. In a declaration
supporting that motion, she stated that she is “CJA counsel to
Alberto Vilar and Gary Tanaka.” Neither the docket of the
District Court nor this Court reflects any appointment of
Shevitz as CJA counsel for Tanaka. 2 Later on Sept. 17, 2012,
Shevitz filed another Notice of Appearance as additional
counsel for Tanaka; this form was properly filled out.
On Sept. 25, 2012, Shevitz filed another Notice of
Appearance as additional counsel for Tanaka. That Appearance
identifying his firm as Dershowitz Eiger & Adelson, P.C. Also
on May 11, 2010, Atty. Victoria B. Eiger filed a Notice of
Appearance as additional counsel for Tanaka.
On Sept. 28, 2011, a brief was filed for Tanaka, listing
Atty. Alan Dershowitz as “of counsel.” On July 10, 2012, Alan
Dershowitz filed a Notice of Appearance as additional counsel
for Tanaka and on August, 21, 2012, argued the appeal for
Tanaka.
2 In two other cases, Tanaka and Vilar were granted leave
to proceed in forma pauperis for purposes of filing mandamus
petitions. See Vilar v. United States, No. 13-2527, In re
Vilar and Tanaka, No. 13-2550 (2d Cir. Aug. 21, 2013).
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stated that she appeared as additional counsel for Tanaka “for
purposes of bail application only.”
On Sept. 28, 2012, Shevitz wrote to this Court requesting
a prompt decision of her bail motion. That letter stated that
she represented “Alberto Vilar and (for bail) Gary Tanaka.”
This Court granted the motion for bail pending appeal on Oct.
2, 2012.
On Oct. 5, 2012, Shevitz filed a motion to modify the
conditions of bail for Tanaka pending appeal, which had been
set by the District Court following our bail ruling. She
stated that she is counsel to Vilar “and (for bail) Gary
Tanaka in this Court.” On Oct. 11, 2012, this Court denied
the motion to modify, with certain qualifications not relevant
to the pending matter.
On Sept. 5, 2013, Shevitz filed a motion on behalf of
Vilar and Tanaka to extend the time for filing a petition for
rehearing until October 13, 2013, and for a stay of mandate.
In her motion papers, she represented that she is counsel for
Vilar “on this appeal” and counsel for Tanaka “for some
matters on this appeal.”
On Sept. 9, 2013, Shevitz filed the motion, now pending
before us, on behalf of Tanaka “for appointment of separate
CJA counsel for further proceedings on this appeal.”
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On this motion, she represented that she “served as
counsel to Gary Tanaka for purposes of a motion for an
extension of time to file a rehearing petition and for a Stay
of mandate.” With respect to Tanaka’s retained appellate
counsel, she represented the following:
Appellate counsel for Mr. TANAKA (Dershowitz Eiger
& Adelson, retained) have told Mr. Tanaka that they
are not continuing on the case without fees. They
have told Mr. Tanaka they will share ideas but that
he owes them for prior expenses as well. Mr. Tanaka
consents to the withdrawal of Dershowitz and Eiger
as he cannot pay them.
Motion, No. 10-521, Dkt. #539, ¶ 5.
On Sept. 11, 2013, this Court granted the motion to
extend the time to file a petition for rehearing until Oct.
11, 2013, and to stay the mandate.
Also on Sept. 11, 2013, the Court received a letter from
Atty. Eiger, apparently in response to a telephone call from
a case manager in the Clerk’s Office. The letter stated:
We consent to the application made by Vivian Shevitz
for appointment of CJA counsel for Gary Tanaka, for
whom we have served as counsel of record, and ask
that, if the application is granted, we be relieved
as counsel.
Letter from Victoria Eiger to Clerk of Court (Sept. 11, 2013).
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Discussion
We do not believe that Atty. Shevitz has authority to
seek any relief with respect to representation of Tanaka.
Although her Sept. 25, 2012, Notice of Appearance for Tanaka
stated no limitation, her motion for bail pending appeal,
filed the same day, limited that Appearance by stating that
she appeared for Tanaka “only for purposes of bail application
(bail pending appeal).” Thereafter, on Oct. 5, 2012, she
again stated that she represented Tanaka for bail pending
appeal. On Sept. 5, 2013, she stated that she represents
Tanaka “for some matters on this appeal,” without clarifica-
tion. On Sept. 9, 2013, she stated that she represents Tanaka
for purposes of seeking an extension of time for a petition
for rehearing and a stay of the mandate.
These variously limited formulations of Shevitz’s role on
behalf of Tanaka do not include any authority over his
representation for whatever matters remain in connection with
this appeal. Nor is Atty. Eiger’s letter of Sept. 11, 2013,
asking that “we” (not identified) be “relieved as counsel”
sufficient to permit the abandonment of their client by
Tanaka’s three retained counsel who have filed unrestricted
appearances to represent him.
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In the first place, permission to withdraw as counsel
should be made by a motion, not by a letter. See Fed. R. App.
P. (“FRAP”) 27(a) (“An application for an order or other
relief is made by motion unless these rules prescribe another
form.”); see also 2d Cir. R. 4.1(d) (requiring motion to
withdraw), id. 27.1 (specifying form of motions).
Second, counsel in a criminal case “is responsible for
representing the defendant unless relieved by this court.” 2d
Cir. R. 4.1(a). “Full availability of legal counsel requires
. . . that lawyers who undertake representation complete the
work involved.” Lawyer’s Code of Professional Responsibility,
adopted by New York State Bar Association (“NY Code”), EC 2-
31. Although the Code indicates that a lawyer may withdraw if
his client “[d]eliberately disregards an agreement or obliga-
tion to the lawyer as to expenses or fees,” id., DR 2-
110(c)(1)(f), we have stated that “[n]on-payment of legal
fees, without more, is not usually a sufficient basis to
permit an attorney to withdraw from representation,” United
States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006). See Bennett
v. Mukasey, 525 F.3d 222, 224 (2d Cir. 2008) (Newman J.,
chambers opinion).
Third, a request to withdraw as counsel after briefing
and oral argument have been completed and an opinion has been
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issued is unusual. Preparing a petition for rehearing is
usually not an extensive task and would often be within the
scope of retention for appellate representation. 3
Fourth, under the circumstances, a motion to withdraw at
this late stage of the appeal on the ground of nonpayment of
fees should set forth the terms of the retainer agreement, if
one was executed, or any other understanding with respect to
fees, as well as the amount of fees already paid and the
amount of fees sought for remaining work.
Unless and until a proper motion by all counsel of record
to withdraw from further representation of Tanaka is filed and
adjudicated, any request to appoint CJA counsel for Tanaka is
premature. We note, however, that, in the event a proper
request for CJA counsel is made, two considerations must be
observed. First, an application to proceed in forma pauperis
on appeal must be accompanied by an affidavit of indigency.
See FRAP 24; 2d Cir. R. Appx. A, Part A, § IV(b). Second, “no
CJA applicant or CJA client will be permitted to select his or
her own attorney from the Panel or otherwise . . . .” Id.,
§ VII(A).
3 See also 2d Cir. R. 4.1(c) (motion to be relieved of
obligation to file a petition for a writ of certiorari with
the U.S. Supreme Court).
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Accordingly, the motion filed by Atty. Shevitz seeking to
have a particular lawyer from the CJA Panel appointed to
represent Tanaka and to permit Tanaka’s retained counsel to
withdraw is DENIED, without prejudice to renewal by any of
Tanaka’s retained counsel submitted by a proper motion in
light of this opinion.
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