2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2013

USA v. Joseph Konrad

Precedential or Non-Precedential: Precedential

Docket No. 12-1393

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Recommended Citation

"USA v. Joseph Konrad" (2013). 2013 Decisions. Paper 139.

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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 20, 2013)
2

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 presentencing report and his financial disclosure. The court 

ordered Konrad to show cause that he was financially eligible
3

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 
4

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.
5

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). 
6

(“[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.
7

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,4and 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). 
8

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.
9

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 
10

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 $6,0007reduction 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.
11

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,87A 

 

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 
12

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.”). 
13

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.
14

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 
15

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). 
16

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.
17

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 feeshifting 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.
18

III.

We will affirm the District Court’s order that Konrad

pay $6,000 for the cost of his legal representation.
1

FUENTES, Circuit Judge, concurring in part and dissenting 

in part. 

I agree with the Majority’s holding that “individual 

retirement funds and jointly-held bank accounts can be 

available funds within the meaning of the Criminal Justice 

Act.” Majority typescript at 1. Because the Defendant, 

Joseph Konrad, failed to disclose all of his “available funds” 

before being appointed a Federal Defender, the District Court 

properly ordered him to reimburse the Government. My 

disagreement with the Majority concerns what constitutes 

“reimbursement” under § 3006A(f) of the Criminal Justice 

Act (“CJA”). The “reimbursement provision” of the CJA

provides, in pertinent part:

Whenever . . . 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 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). 

The District Court considered the following three 

methods for determining the amount of reimbursement owed 

by Konrad under § 3006A(f): (1) using the hourly rate for 

court-appointed CJA attorneys in the Eastern District of 

Pennsylvania; (2) structuring an hourly rate for the Federal 

Defenders, who are salaried; and (3) calculating the market 

value of the legal services Konrad received. United States v. 
2

Konrad, Criminal Action No. 11-15, 2011 WL 6739464, at *7

(E.D. Pa. Dec. 21, 2011). Ultimately it employed the third 

method and ordered Konrad to reimburse the Clerk of Court

in an amount equal to what it would have cost him to hire a 

private defense attorney. The District Court reasoned that 

“[c]hoosing the CJA rate or structuring an hourly rate for the 

federal defender’s services would not be an adequate measure 

of the benefit that the Defendant received.” Id.

On appeal we have been asked to determine whether 

the methodology chosen by the District Court to calculate the 

reimbursement amount was proper. This requires us to 

answer an antecedent question of law: what does the term 

“reimbursement to the appropriation” mean in the context of 

§ 3006A of the CJA? The Majority Opinion affirms the 

District Court, concluding that it “did not err in ordering 

Konrad to pay the $6,000 cost of private legal 

representation.”1 Majority typescript at 14. However, I agree 

with Konrad that the reimbursement determination should

have been based on the amount of money it actually cost the 

Federal Defender to represent him.

In cases of statutory interpretation “we begin by 

looking at the terms of the provisions [at issue] and the 

commonsense conception of those terms.” Carachuri-

 

1 While it is true that we review a district court’s fixing of 

compensation and reimbursement under the CJA for abuse of 

discretion, see United States v. Parker, 439 F.3d 81, 99 (2d 

Cir. 2006), we exercise plenary review over a district court’s 

interpretation of the terms of the statute, see United States v. 

Williams, 675 F.3d 274, 277 (3d Cir. 2012). Because this 

question involves a matter of statutory interpretation, our 

standard of review is plenary.
3

Rosendo v. Holder, 130 S. Ct. 2577, 2585 (2010) (internal 

quotation marks omitted). As the Supreme Court has 

emphasized, in “all” cases “[t]he inquiry ceases if the 

statutory language is unambiguous.” Barnhart v. Sigmon 

Coal Co., Inc., 534 U.S. 438, 450 (2002) (internal quotation 

marks omitted). Thus, we turn first to the text of the 

reimbursement provision itself, which again provides that:

Whenever . . . 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 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) (emphasis added). 

We have previously stated that the “plain and ordinary 

meaning” of the term reimburse is “‘[t]o pay back, to make 

restoration, to repay that expended; to indemnify, or make 

whole.’” Liberty Lincoln-Mercury v. Ford Motor Co., 134 

F.3d 557, 566 (3d Cir. 1998) (quoting Black’s Law 

Dictionary 1287 (6th ed.1990)); see also Reimburse 

Definition, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/reimburse (last visited July 24, 2013) 

(defining “reimburse” as “to pay back to someone: repay,” or 

“to make restoration or payment of an equivalent to”). 

Moreover, the word “appropriation” is defined as “money set 

aside by formal action for a specific use.” Appropriation 

Definition, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/appropriation (last visited July 24,
4

2013). Thus, § 3006A(f)’s edict that a court may order 

“payment from or on behalf of a person furnished 

representation . . . as a reimbursement to the appropriation” 

plainly means that a court may order a defendant to repay the 

money that has been expended or set aside by the 

Government to pay for his representation.

The problem with the “benefit” approach taken by the 

District Court is that it has no relation to the amount that it

actually cost the Government to represent Konrad, which is 

the only thing that the reimbursement provision contemplates. 

The District Court ordered that Konrad pay $6,000 to the 

Clerk of Court, to be credited to the Defender Services 

appropriation. See App. 8; 7A Guide to Judiciary Policy

§ 230.40(c). However, the Federal Defender argues that its 

representation of Konrad cost, at most, $1,875. Appellant Br. 

at 23. In effect, the District Court ordered Konrad to 

“reimburse” the Government for costs it never incurred. 

Having the Government profit from a court’s reimbursement 

order is antithetical to the very concept of reimbursement.

I understand the Majority’s policy concern that 

limiting the amount of reimbursement to what was actually 

expended on Konrad’s behalf would allow Konrad to “benefit 

from his incomplete, undervalued or untruthful financial 

disclosures by receiving legal services at a fraction of the 

cost.” Majority typescript at 13. However, individuals who 

knowingly provide false or incomplete information on a 

sworn financial affidavit may be charged with perjury, a 

felony punished by up to five years in prison. See, United 

States v. Page, Nos. 10-CR-30053-04-MJR, 10-30136-MJR, 

2011 WL 2224674 (S.D. Ill. June 8, 2011); 18 U.S.C. § 1621. 

I doubt that the desire for subsidized legal costs will drive
5

those with the means to pay for private counsel to risk a

conviction and prison time for a randomly assigned public 

defender.

Furthermore, a number of district courts faced with 

this issue have ordered reimbursement in an amount meant to 

approximate what it actually cost the Government to 

represent the defendant. See United States v. Stevenson, 

Criminal No. 10-120, 2012 WL 1038832, at *4 (W.D. Pa. 

Mar. 28, 2012) (ordering defendant represented by Federal 

Defenders to reimburse the clerk of court in an amount equal 

to “the costs of his representation by the Federal Public 

Defender’s Office”); Page, 2011 WL 2224674 (ordering 

defendant represented by CJA-appointed attorney to 

reimburse the clerk of court the amount that “was expended 

from the Treasury for CJA representation”); United States v. 

Bedoya, No. 89 CR. 803 (JMC), 1990 WL 194934, at *4 

(S.D.N.Y. Nov. 28, 1990) (ordering defendant represented by 

CJA-appointed attorney to reimburse the clerk of court in an 

amount equal to the “costs of legal fees expended for his 

defense under the [CJA]”). Accordingly, I would remand the 

case to the District Court with instructions to reduce the 

amount of reimbursement to an amount approximate to what 

it cost the Federal Defenders to represent Konrad in this 

case.

2

 

 

2 We would review the District Court’s calculation of this 

amount for an abuse of discretion. I note that, while the 

Majority is correct to point out that the CJA rate is not an 

accurate accounting of the Federal Defenders representation 

costs (as the Federal Defenders receive a salary), district 

courts have used the CJA rate as an approximation for the 

cost of the Federal Defender. See, e.g., United States v. 
6

 

Meyer, No. CR-13-777-PHX-ROS, 2013 WL 3353771, at *4 

(D. Ariz. July 3, 2013) (ordering defendant represented by 

Federal Defender to reimburse clerk of court “at the current 

CJA hourly rate times the number of hours plus the costs of 

defense”).