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Resources_CJA_Panel

VIEWS: 5 PAGES: 132

  • pg 1
									                          Sean Broderick, National Litigation
                           Support Administrator, Office of
                             Defender Services Training
Resources for CJA Panel         Branch, Oakland, CA,
  Attorneys: A Panel
                                  Randall Schnack,
      Discussion             CJA Supervising Attorney,
                             Central District of California
                                           &
                                 Jeffrey Li d Esq.,
                                 J ff    Lindy, E
                             CJA Panel Representative,
                               Eastern District of PA
                  CJA Panel Attorney Resources:
              A Guide to Litigation Support Software &
             How to Obtain Resources in t~e CJA System
                                      David Beneman
                                   Maine Federal Defender

                                     Sean Broderick
                       National Litigation Support Administrator
                                          November 200S 1

        More than any ruling from the u.s. Supreme Court, the advent of the computer has
turned the legal system up-side down. The very organizational structure of legal offices has
changed dramatically due to the introduction of computer systems. Gone are the days of the
typist pool, replaced with information technology (IT) and litigation support departments. Now
solo practitioners and small firms can do legal research and prepare complex pleadings and
exhibits that were the province of big city law firms just a decade ago.

        Though the majority of panel attorneys appointed to Criminal Justice Act (CJA) cases
(who are most often solo practitioners) have been using computers for years, the computer
revolution continues to impact them with the need for newer machines, operating systems and
software programs. More and more cases that CJA practitioners receive require litigation
support software. u.S. Attorney's offices are starting to provide discovery in electronic format,
either in TIFF or PDF format, no matter what the type of case. From reviewing the discovery in
the case to presenting evidence in the courtroom, if you are working on a federal criminal case,
you can't avoid the need for technology.

       Unfortunately, the potential of computer systems is limited by computer literacy, budget
and human resource constraints and the inability to identify the right program(s) for one's
pressing needs. Often, attorneys know that technology can help them in cases, but they don't
know exactly how. As a result, they have numerous questions about software, hardware, vendors
and experts, about what they should buy, and how they can obtain assistance from the court for
their more complex cases.




                 David Beneman originally wrote most of this article in 2005 and 2006; in 2008,
Sean Broderick updated and added to the article. Standard disclaimer: the comments in this
article are solely the opinions of the authors and do not reflect, except where stated, any official
policy of the Office of Defender Services or the Judiciary.

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       There are two parts to this article. The first briefly describes some of the litigation
support2 software programs that are popular among Federal Defender Offices (FDOs) and CJA
panel attorneys. Because each attorney's needs are different we are not advocating for particular
software or hardware. Rather, our aim is to describe some options, and how you can find out
more about the products. We are not describing the higher end database programs or web-based
programs. This article highlights programs that you may utilize on small to medium size cases,
as opposed to high-end software appropriate for extremely large cases. We also note discounts
available to CJA practitioners.

       The second part of the article describes the CJA guidelines governing CJA funding for
software, hardware and expert services. We will walk you through a case example to illustrate
how the funding process works.

I.      Litigation Support Software

       A.      Courtroom Presentation Software Programs

               1.      Trial Director

        Trial Director allows users to present documents, video, animations, charts, and graphics
to locate, retrieve and markup any exhibit on the fly in the courtroom (as opposed to PowerPoint
were you generally have to go in a pre-defined linear order). The program allows one to isolate
visual evidence in a number of ways including using a call-out or zoom of a portion of a
document, or mark-up or highlighting portions of a document. This makes it a useful tool for
cross-examination or other aspects of trial that require a great deal of flexibility.

        Trial Director is a product of inData Corporation. Version 5.1 is available to CJA
practitioners at the discounted price of $297 (half of the retail price). You must also purchase the
annual maintenance package, for a total cost of $416. To purchase Trial Director, contact inData
sales directly (800-828-8292). Inform them that you are a CJA attorney and that you would like
to purchase the Trial Director software at the special CJA rate. A copy of the most recent letter
from inData documenting this offer is attached at the end of this article.




        2       What do we mean by litigation support? It is the use of computer systems to
organize, review, analyze and present case materials. In federal criminal defense cases, there are
three primary ways that litigation support is utilized by FDO and CJA panel attorneys: (1)
conducting electronic courtroom presentations; (2) document management and case analysis of
paper documents and their electronic equivalents; (3) evidence organization and case analysis of
electronically stored information (ESI), specifically working with native files (electronic
documents that are in their original file format, e.g., if the file was created in Microsoft Word, it
is a Word document).

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Contact information:
1325 North Fiesta Blvd, Suite #4,
Gilbert, AZ 85233
Phone: 480-497-8595, 877-463-2829, or 800-828-8292
Fax: 480-497-1833;
Technical Support: 480-497-0066 (Mon - Fri, 9:00 am - 8:00 pm)
www.indatacorp.com

               2.     Sanction

       A direct competitor with Trial Director, Sanction is another option when considering
courtroom presentation software. Published by Verdict Systems, in Tempe, Arizona, the current
version is 2.9. For more information, and a free 30 day download, go to www.sanction.com.
Take notice that the United States Attorneys' Offices makes extensive use of Sanction for
courtroom presentations.

               3.     PowerPoint

        This is the most common "slideware" presentation software. It is available as a stand
alone product, or as part of several Microsoft Office Packages. The most recent version of the
program is PowerPoint 2007. Go to http://office.microsoft.comlen-us/powerpoint/default.aspx
for further information.

        PowerPoint Resources: There are many books on PowerPoint. The PowerPoint 2002 for
Litigators book is published by NITA, and it is available for $75 from their website,
www.nita.org. Also available at the same site is the companion volume, PowerPoint 2003: 50
Great Tips for Faster, Easier Slides, for $30. For those seeking more, consider, Effective Use of
Courtroom Technology: A Lawyer's Guide to Pretrial and Trial, also $75 (available at Amazon).
Though these books reference the earlier versions of PowerPoint, their tips are useful for basic
courtroom presentations.

        With the release of P owerP oint 2007, beginning users should consider PowerPoint 2007
for Starters: The Missing Manual by E. Vander Veer (Paperback - Jan 25, 2007). Formore
advanced users, PowerPoint 2007: The Missing Manual also by E. Vander Veer (Paperback -
Dec 22, 2006) and Advanced PowerPoint 2007 by Wayne Kao and Jeff Huang (Paperback-
2008) are also excellent resources. These books focus more on the technical aspects of
PowerPoint then on methods of effective presentations. For the later, consider PresentationZen
by Garr Reynolds (Paperback - 2008).




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               4.      Corel Presentations

        Another slideware software program and a worthy competitor to PowerPoint is Corel
Presentations. Since many use WordPerfect in the legal world (though those numbers are
shrinking), you may already own it as part of the full WordPerfect Office package. The most
recent version, X4 (14), is only available as part of the Corel WordPerfect Office productivity
suite. Go to www.core1.comlfor further information.

               5.      Open Office.org

       This is a free cross-platform office application suite. It was developed by Sun
Microsystems (http://www.openoffice.org/).This option includes all of the types of programs
found in an office suite, yet at no direct cost to you. Their slideware software program is
"hnpress," and it is a free alternative to PowerPoint. It does not have ready-made presentation
designs as PowerPoint does, but you can obtain third-party templates.

       B.      Case Organization Software Programs

               1.     Adobe Acrobat

        Are you still using only the free Adobe Reader for your PDp3 files? Much can be done
with Adobe Acrobat, available from many software suppliers, and from Adobe directly, at
www.adobe.comlproducts. The three different versions of Acrobat have many additional
features besides the viewing, printing and searching that are available with Adobe Reader.

        There are now three versions of Adobe Acrobat: Adobe 9 Standard, Adobe 9 Pro, and
Adobe 9 Pro Extended. Standard sells for $300, Pro for $450 and Pro Extend for $700. Among
other features, Adobe Acrobat Pro 9 gives you the ability to electronic bates-stamp documents
(such as discovery provided from the government); OCR4 non-searchable PDP documents;


        3       PDP (Portable Document Pormat): An imaging file format technology developed
by Adobe Systems. PDP captures formatting information from a variety of applications in such a
way that the files can be viewed and printed as they were intended in their original application by
practically any computer, on multiple platforms, regardless of the specific application in which
the original was created. PDP files may be text-searchable or image-only.

        4       OCR stands for Optical Character Recognition. OCR is the technological process
that translates and converts printed matter on an image into a format that a computer can
manipulate (ASCII codes, for example) reading that matter text searchable. OCR software
evaluates scanned data for shapes it recognizes as letters or numerals. All OCR systems include
an optical scanner for reading text, and software for analyzing images. Advanced OCR systems
can read text in a large variety of fonts, but still have difficulty with handwritten text. OCR
technology relies upon the quality of the imaged material, the conversion accuracy of the

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convert TIFF5 files into searchable PDF files; redact sensitive information; and compare
differences between two PDF documents. It also enables users of the Reader version to share
their comments on documents with others. Many of these processes can be done as a "batch
process"; in other words, multiple files at a time. Another useful feature is the ability to create an
index of the text in PDFs. Indexing PDFs dramatically enhances the speed of searches for words
and phrases. Adobe 9 Pro is probably the best combination of features and price for CJA panel
attorneys.

        A 30-day free download of Adobe Acrobat is available at the Adobe website. For a
detailed matrix about the various Adobe Acrobat products and their corresponding abilities, see
http://www.adobe.com/uk/products/acrobat/matrix.html.

               2.      PDF Converter

        This is a handy utility that converts PDF documents into both Word and WordPerfect, as
well as allowing almost any program to "print to" PDF (for those who do not have Acrobat). It
can create audio files from PDFs allowing you to "listen" to discovery, case law, etc. (What fun
for a family car trip!) Visit the website, www.nuance.com/pdfconverter. for Version 5 which
currently sells for $100.

               3.      CaseMap and TimeMap

        CaseMap is a relational database that focuses on the management and analysis of the case
facts and legal issues. Built on a Microsoft Access database, it has customized tables or
spreadsheets for facts, objects (documents, witnesses, organizations, etc.) and issues that link
between each other. As you enter information into the database about your facts, you see patterns
develop - leads for further investigation and potential theories for your case. Since it is a
database, multiple people can add information to the case, and it is built to be user friendly. One
can create time line graphic charts or presentations with TimeMap, a stand alone product which
works seamlessly with CaseMap.

      Owned by Lexis-Nexis, CaseMap is currently offering version 8.0 and TimeMap version
4. CJA attorneys are able to obtain the discounted government rate for these software programs.


software, and the quality control process ofthe provider. The process is generally acknowledged
to be between 80 and 99 percent accurate.

               TIFF (Tagged Image File Format): A widely used and supported graphic file
formats for storing bit-mapped images, with many different compression formats and resolutions.
File name has .TIF extension. More popular than the PDF file format, it is the standard in
document imaging and document management systems, where documents are imaged or scanned
and saved into this format. TIFFs are popular because its file structure allows many different
types of software programs to easily open it.

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Go to their website, www.casesoft.com which offers a fully functional 30 day free download to
try the software. You must then call in, pay and receive the activation code. Please note that the
White Paper and Webinar sections of this website (http://www.casesoft.comltraininglarticles.asp.
and http://www.casesoft.comlwebinar/webinars.asp respectively) include many excellent
resources on the effective use of CaseMap related software, as well as general case organization
strategies (including helpful tips on the effective use of Adobe Acrobat). If you wish to purchase
CaseMap, contact Paul Brady of LexisNexis CaseMap directly at 904-373-2174 and inform him
that you are a CJA attorney. As of May 2008, a one year subscription for a CaseMap license is
$539; a year subscription for TimeMap is $224; and a CaseMap I TimeMap combination set is
$708.

        C.     Full-Text Search Programs

        Pull-text search refers to a technique for searching a computer-stored document or
database. In a full-text search, the search engine examines all of the words in every stored
document as it tries to match search words supplied by the user. Two popular programs that can
do full-text searching are ISYS and dtSearch. They can search many different file types (unlike
Adobe which only can search PDP files). Both programs require you to build a word index that
stores the location of words in the documents. 6 As you will see from the following descriptions,
they have similar capabilities.

               1.      ISYS

        ISYS has a desktop search tool (ISYS: desktop 9) designed to enable searches across
individual PCs, shared folders or even large corporate networks. The main benefit of ISYS is
being able to find information fast. You may not be able to remember where you saved a certain
document, or which document contains the information you need. You may not even know that
information exists within your materials. With ISYS, after you index your data, you can search
using terms and phrases in the same way you would search the Web.

        ISYS provides a preview pane that highlights the hits for quick review of a result; and
on-the-fly categorization to navigate, drill down and refine a results list. It can help you find
associations and connections between your search terms and the entities ISYS automatically
extracts and displays. The program also allows highlighted search terms (in-document
hit-highlighting) and navigation from hit-to-hit.




       6         Since full-text software programs create large word indices of all of the electronic
case materials, these indices will take up additional space on the computer hard drive or server.
The size of this index depends on the number of files that are being indexed. This can be an
important issue to remember, especially if you do not have a large hard drive or lots of space on
your server.

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       After you type in the relevant search terms, ISYS will find every instance of those terms
and make them available to you to view -- even if you don't have the original application that
created them. You can search MS Office formats, email, attachments, PDF, HTML, ZIP files,
databases and native format spreadsheets, and more.

       Further information about this program is available at http://www.isys-search.coml.An
evaluation copy of the software is available for 14 days.

               2.      dtSearch

        dtSearch Desktop also allows you to instantly search terabytes (i.e., vast amounts of
electronic data) of text across a desktop, network, Internet or Intranet site. It has over two dozen
indexed, unindexed, fielded and full-text search options and highlights hits in HTML, XML and
PDF, while displaying embedded links, formatting and images. It will convert other file types-
word processor, database, spreadsheet, email and full-text of email attachments, ZIP, Unicode,
etc. - to HTML for display with highlighted hits.

       Once dtSearch has built an index, it can automatically update it using the Windows Task
Scheduler to reflect additions, deletions and modifications to your document collection.
Updating an index is even faster, since dtSearch will check each file, and only re-index files that
have been added or changed.

        The dtSearch indexer automatically recognizes and supports all popular file formats, and
never alters original files. A single index can hold over a terabyte of text, and dtSearch can
create - and search with a single search request - an unlimited number of indices. If the files
have not yet been added to the index, dtSearch can search indexed and non-indexed files doing a
"combination" search.

       Further information about this program is available at http://www.dtsearch.coml.An
evaluation copy of the software is available for 30 days.

       D.      Image Viewer Programs

        An image viewer or image browser is a computer program that can display stored
graphical images. It can handle various graphics file formats, even if you don't have the software
program that originally created the image. Such software usually renders the image according to
properties of the display such as color depth, display resolution, and color profile. Typical
features of image viewers are basic viewing (i.e., zooming and rotating), fullscreen display,
slideshow, thumbnail display, printing and screen capture. Though some of the newer operating
systems have many ofthese capabilities built-in, it can be useful to have an image viewer
program for opening up image files.




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               1.      Irfanview

       This is a free viewer that will let you open, view, edit and convert almost any image file
or graphic. http://www.irfanview.com/

               2.     XnView

       This is another image viewer that is cross-platform (meaning it can be used on different
types of operating systems) and is used for viewing, converting, editing and organizing graphical
and video files. http://www.xnview.com/




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II.     Obtaining Resources as a CJA Panel Attorney - Overview

        A.     Hardware

               1.     Easiest way: purchase what you want.
               2.     Middle ground: borrow what you need from your FDO or friends.
               3.     Most difficult: getting CJA funds for hardware purchases.

        B.     Software

               1.     Easiest way: purchase what you want.
               2.     Middle ground: borrow what you need from your FDO or friends.
               3.     Most difficult: getting CJA funds for software purchases.

        C.     Experts and Vendors

               1.     No easy way.
               2.     No middle ground.
               3.     Need to apply to the Court for funds. Expert and vendor funds should be
                      easier to get than money for hardware or software.


  CJA funds cannot be used to buy your permanent gear.

         If the Court approves money for hardware, or software, once the case is over you
  must return it. Where does it go? It will go either to the Office of Defender Services
  National Litigation Support Administrator (NLSA), or to your local FDO. Check first with
  the NLSA (currently Sean Broderick) before sending the equipment anywhere.


       D.      Getting Approvaf'

        As with all things judicial, there is a "process." The "Holy Grail" search begins with The
Criminal Justice Act, 18 U.S.C. §3006A and the CJA Guidelines promulgated by the United
States Judicial Conference: Guidelines for the Administration of the Criminal Justice Act,
Volume VIL Guide to Judiciary Policies and Procedures (CJA Guidelines). These are available
from your Court Clerk, through your Defender, or on-line at
http://www.fd.org/odstbCJAGuide2.htm. Since we are digging into this issue, we might as well
try to do it correctly. Section (e) of3006A addresses "services other than counsel." The Judicial



        7
               Sean Broderick's contact information is located at the end of this article.

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Conference augments the Act in chapter III of the Guidelines. Below are the guideline sections
relevant to obtaining CJA resources:

       3.01 Availability

       Investigative, expert or other services necessary for adequate representation, as authorized
       by subsection (e) of the Act, shall be available to persons who are eligible under the Act,
       including persons who have retained counsel, but who are found by the court to be
       financially unable to obtain the necessary services [emphasis added] ....

       3.02 Limitations

       A. With Prior Authorization. With prior authorization, compensation for
       investigative, expert and other services is limited to $1,600 per individual plus
       expenses reasonably incurred8... A separate authorization should be obtained for
       each type of service for each person served, and for each defendant served, and for
       each case.... If it can be anticipated that the compensation will exceed the
       statutory maximum ($1,600), advance approval should be obtained from the court
       and the chief judge of the circuit... (See sample form, Appendix C) [emphasis
       added].

       Payment in excess of the $1,600 limit for services authorized prior to the performance
       thereof may be made when certified by the United States judge, or United States
       magistrate judge, and approved by the chief judge of the circuit (or an active or senior
       circuit judge to whom excess compensation approval authority has been delegated) as
       being necessary to provide fair compensation for services of an unusual character or
       duration [emphasis added].

       B. Without Prior Authorization. Subsection (e)(2)(A) of the Act authorizes the
       obtaining of investigative, expert and other services, without prior authorization but
       subject to subsequent review, providing the cost of the services obtained does not exceed
       $500, plus expenses reasonably incurred [emphasis added].

       3.03 Ex Parte Applications

       Ex parte applications for services shall be heard in camera, and shall not be revealed
       without the consent of the defendant. The application shall be placed under seal until the



       8       3.17 Reimbursement of Expenses: In determining the reasonableness of
expenses of persons furnishing investigative, expert or other services, claimants and the court
should be guided by the provisions of these Guidelines regarding reimbursement of expenses of
counsel (see paragraphs 2.27 and 2.28) ....

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       final disposition of the case in the trial court, subject to further order of the court.
       Maintaining the secrecy of the application prevents the possibility that an open hearing
       may cause a defendant to reveal his or her defense. Appointed counsel shall not be
       required to submit evidence of a prior attempt to enter into a stipulation with the United
       States Attorney as a prerequisite to obtaining services under subsection (e). The court
       may encourage counsel to enter into stipulations, in the interest of expedition and
       economy, without, however, disclosing the contents or otherwise compromising the secret
       nature of the ex parte application [emphasis added].

       3.04 Claims for Services

       All claims for services other than counsel, under subsection (e) of the Act, should include
       the following: a statement as to the type of, dates of, and time expended for, the services
       provided; an explanation of the fee arrangement (i.e., hourly rate, per diem rate, etc.); an
       itemized statement of all expenses for which reimbursement is claimed; and supporting
       documentation, where practicable, for all expenses of lodgings and subsistence, and for
       any expenses in excess of $50.

       3.16 Other Services and Computer Hardware and Software

       Services ... may include, but are not necessarily limited to, ... computer systems and
       automation litigation support personnel and experts; paralegals and legal assistants,
       including law students; neurologists; and laboratory experts ...

       Criminal Justice Act attorneys are expected to use their own office resources, including
       secretarial help, for work on CJA cases. (See paragraph 2.28 A.). However, unusual or
       extraordinary expenses of these types may be considered "other services necessary for an
       adequate defense" and may be paid from CJA funds under subsection (e) of the Act. In
       determining whether the expense is unusual or extraordinary, consideration should be
       given to whether the circumstances from which the need arose would normally result in
       an additional charge to a fee paying client over and above that charged for overhead
       expenses.

       Providing an adequate defense case may require CJA panel attorneys to utilize computer
       hardware or software not typically available in a law office. In such cases, following the
       standards in the preceding paragraph, counsel may apply to the court for authorization of
       CJA funds for the acquisition of such property. Before seeking court approval for any
       computer hardware or software with a cost exceeding $500, or for the utilization of
       computer systems, automation litigation support personnel or experts with an
       expected combined cost exceeding $10,000, appointed counsel must consult the
       Office of Defender Services (ODS) for guidance and inform the court in writing of
       the Office of Defender Service's advice and recommendation regarding counsel's
       proposed expenditure (emphasis added). (NOTE: A model order "Authorizing the


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       Acquisition of Computer [Hardware and/or Software] under the Criminal Justice Act" is
       included in Appendix C). The acquisition ofthe computer hardware and/or software,
       with CJA funds, shall be made by a federal defender organization designated by ODS, or
       by ODS itself,9 and shall remain the property of the United States. While computer
       hardware or software is being used by counsel, information contained on the hardware or
       software may be confidential work product and may also be protected by attorney-client
       privilege. Upon the completion of the case, the computer hardware and software
       must be returned in good condition, after all case-related materials have been
       removed, to a federal defender organization designated by ODS. 10 Unless otherwise
       required by the court or law, counsel should retain copies, electronic or otherwise, ofthe
       case-related materials for the client's file [emphasis added].

       For services of paralegals and legal assistants, and other non-secretarial professional
       support personnel employed by appointed counsel, the court shall determine a reasonable
       hourly compensation rate that shall not exceed the lesser of the rate paid to counsel under
       the CJA or the rate typically charged by counsel to a fee-paying client for such services.
       Authorizing compensation at such rates should result in greater efficiency and lower costs
       for the CJA program than would occur if counsel performed and charged for these
       services.

       E.     Summary:

              1.      Funds are available for technology assistance in the form of human
                      resources, software and hardware.

              2.      Caps are: $500, with no advanced approval; $1,600 per item with pre-
                      approval, and more with approval by the circuit court for "services of an
                      unusual character or duration."




        9      Though the Guidelines state that the purchases "shall be made by a federal
defender organization designated by ODS, or by ODS itself," in many instances CJA counsel
have either had the vendor bill the court directly through a CJ A 21 or 31 form (assuming the
vendor is willing to do this), or have purchased the item themselves and have obtained
reimbursement for the expense by filling out a CJA 21 or 31 Form. The advantage of the former
method is that it avoids the need to pay sales tax. Please note: you should get prior approval
from the court before purchasing any item in order to ensure reimbursement. Any
hardware/software that you purchase is still considered to be government property.

        10    The CJA panel attorney should contact the National Litigation Support
Administrator to determine whether to return it to ODS or to a local defender.

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               3.      Requests are ex parte and under seal; the prosecution plays no role in this
                       process. 11

               4.      Guidance from ODS must be obtained for the purchase of any computer
                       hardware or software over $500 and for any computer systems, automated
                       litigation support personnel, experts or vendors over $10,000. Provide
                       your request (your motion) to the NLSA to get his recommendation before
                       submitting your request to the court.

               5.      Any hardware or software is owned by the federal government, and will be
                       returned to ODS or the local FDa at the end of the case.

       F.      Getting the Money

        You will use an ex parte sealed request to your court. In most, if not all courts, sealed
filings are NOT sent using ECF .12 ECF will automatically generate a filing notice to all other
counsel in the case (including the government and often probation/pre-trial), so DO NOT send
via ECF. I (David) hand deliver and put a "stick it" note on top saying "Under Seal, Ex- Parte,
not for ECF." Local practice varies some, but generally the request is either a letter or a motion,
and it usually goes to the Magistrate, although some Judges handle such requests themselves.
Depending on practice in your District, you may be filing one request which includes each of the
experts and services needed as one document, or you might file separate requests for each
service. I (David) suggest asking the Magistrate's clerk which is preferred.

       G.      Case Law - Courts Seem to Love Some Law

        The opinion in United States v. McVeigh, 954 F. Supp. 1441 (D. Colo. 1997) is very
helpful in obtaining needed funds. The District Court approved a broad motion filed by
court-appointed defense counsel requesting the appointment of additional counsel, investigators,
consultants and forensic specialists "together with attendant costs and expenses." The scope of
the ruling and phraseology used in the opinion are worth quoting here:

       "[T]he court has made no effort to evaluate the credibility or determine the
       significance of these submissions, and has consistently relied on the experience
       and integrity of defense counsel, accepting their representations that such
       resources are reasonably necessary in preparing for the trial defense of Mr.


        II      See United States v. Bodkins, 2005 U.S. Dist. LEXIS 8745 (W.D VA, 5/11/05)
ruling that approved case and expert budgets to remain sealed pre-trial.

        12     The First Circuit vacated a sentence and remanded the case when the District
Court violated the ex parte provisions of the Act. United States v. Abreu, 202 F.3d 386 (1st Cir.
2000).

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       McVeigh. There is no requirement that defense counsel show that admissible
       evidence will result from these investigatory efforts." (-page 1445).

        For an exhaustive review of experts and indigent defense, see Giannelli, Paul, Ake v.
Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L.
Rev. 1305, September, 2004, particularly pages 1332-1339 on CJA and footnotes 170-210.
Another good starting point is Construction and application ofprovision in subsection (e) of
Criminal Justice Act of 1964 (18 USC § 3006A(e)) concerning right of indigent defendant to aid
in obtaining services of investigator or expert. 6 ALR Fed 1007.

        The case of United States v. Kennedy, 64 F.3d 1465 (10th Cir. 1995) provides some
useful insight into how an appellate court, looking backwards, addresses expert and funding
issues. Kennedy received appointed counsel one year before his August 1993 trial. During
pretrial discovery, the government provided the defense access to 800 bankers' boxes of
documents it had amassed during its investigation, 539 of which contained records for a
corporation that Kennedy helped create, Western Monetary Consultants, Inc. (WMC). The boxes
were placed in a repository in two rooms of a government building in Denver, Colorado, and they
were available for viewing as of August 14, 1992.

        During this pretrial period, Kennedy's counsel made numerous requests for additional
support services to supplement the services of his one paralegal assistant. The court granted
Kennedy funds for an investigator, and funds to retain Philip Bolles ("Bolles"), who had served
as WMC's chief financial officer from 1989 to 1992, and who was an expert on the inner
workings ofWMC. The court additionally authorized funds for Kennedy to hire Ray Thomas
("Thomas") as an expert witness on the metal industry, and to hire Richard McCormack
("McCormack") as an expert witness on Ponzi schemes. On December 15, 1992, the court also
appointed a co-counsel to work on Kennedy's case. The court denied Kennedy's request for
additional paralegals to help review and index the 800 boxes of documents. Also denied was
Kennedy's request to hire the accounting firm Arthur Anderson to audit WMC's financial
records and to review the conclusions and analysis of one of the government's key expert
witnesses. (The 10th Circuit eventually upheld the district court's rulings denying the defendant's
requests for additional paralegals, airfare to fly to Colorado to prepare for trial, or services of an
accounting firm, stating that the court did not abuse its discretion under the Criminal Justice
Act.) Overall, not bad. Here is precedent from the notoriously "thrifty" 10th Circuit supporting
funds for a second attorney, three experts and a paralegal. The defense was provided with $5,000
to retain Thomas, a qualified expert in the metals industry and $200 per hour up to $7,500 to
retain McCormack, a qualified expert on Ponzi schemes.

Standard used: "In order to obtain services under this provision, the defendant must do more
than allege that the services would be helpful. United States v. Ready, 574 F.2d 1009, 1015 (lOth
Cir. 1978). The defendant bears the burden of showing that the requested services are
"necessary" to present an adequate defense. United States v. Greschner, 802 F.2d 373, 376 (lOth
Cir. 1986), cert. denied, 480 U.S. 908 (1987). The denial of such a request is reviewed only for


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                                                                    CJA Panel Attorney Resources


an abuse of discretion. United States v. Nichols, 21 F.3d 1016, 1017 (lOth Cir.), cert. denied,
115 S. Ct. 523 (l994). Kennedy at 1470.

More recently in United States v. Albert, 195 F. Supp. 2d 267, 283 (D. Ma 2002) the Court
explained its reasoning in allowing an initial $5,000 for a computer expert:

        The defendant seeks $15,000 for the employment of a Computer Forensics Expert
        in order to ''undertake a complete defensive assessment and analysis of the alleged
        contents of any and all computer disks, computer hard drives, and computer files
        seized by the government." Defendant is indigent and asserts that such analysis is
        necessary in order to prepare an adequate defense.

        The defendant bears the burden of demonstrating the necessity of expert services
        for an adequate defense. United States v. Algarin de Jesus, 211 F.3d 153, 155 (1st
        Cir.2000). Here, the defendant has met this burden. He is indigent and unable to
        afford the services of an expert as evidenced by the court's appointment of
        counsel. His defense of the case, depends largely on the analysis of the evidence
        contained on the defendant's computer and computer equipment.

       The defendant has submitted the rates of 14 computer forensics experts whose
       rates range from $35 to $160 per hour. Funds in excess of $1 ,000 are warranted
       in this case, but no sufficient showing has been made to justify the full amount
       requested. This Court will therefore authorize expert funds in the amount of
       $5,000 without prejudice to a supplemental application if and when good cause is
       shown. All fees shall be paid upon completion of the expert's services, and in no
       event will retainer fees be authorized.

       H       You Get The Funding From The Court

        If you get funds for hardware andlor software, you will need to provide a copy of the
following documents to the NLSA. The documents are necessary so that the proper tracking of
all equipment purchased with CJA funds can be done:

               1.      The original request for the equipment. This will be the final version of
                       the motion that you submitted to the court.

               2.      The approval of the request. This will be a copy of the court's order.

               3.      The purchasing documents. This will usually consist of the following:
                       a.    A completed CJA 21 (or 31) form.
                       b.    The purchase order from the vendor.




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                                                                   CJA Panel Attorney Resources


               4.     Any receiving documents, such as a copy of the packing slip or the
                      company's invoice.

        The documents are necessary because without them, it is not possible to track the items of
federal property purchased with CJA funds. If you have any questions about this process, please
contact the NLSA.

       I      After the Case is Done

        Remember that because the equipment was purchased with CJA funds, it is U.S.
government property. It is not your property. Thirty (30) days after the completion of the case,
you will need to return the equipment to the NLSA. You will need to remove your case data
from any computer media, and return all of the hardware, manuals, computer disks, etc. that
came with the item(s) that were purchased in your case. The NLSA may direct you to return it to
a local defender, but contact the NLSA before giving the items to anyone.




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                                                                     CJA Panel Attorney Resources


III.    Working Through A Fictitious Case

       The best way to work through this maze is with an example:

       You are appointed as one of six CJA panel attorneys, each representing defendants in a
multi-count fraud case based on an alleged "pyramid" investment scheme involving an
unlicensed sale of securities. There are sixteen boxes of paper records, numerous recordings and
untold numbers of potential victims. Initially, you are not sure what your defense will be (e.g., "I
had no intent;" vs. "I was not part of this 'scheme.") The attorneys for most of the defendants
have spoken to another and several defendants appear to be similarly situated to your client.
What you would like is to get some of the paper organized, create an outline and/or timeline, then
compare some of the key documents to the outline. Through this process you hope to be able to
understand just how your client fits in the alleged scheme and move toward a viable theory of
defense.

       A.      Needed:

               1.      Someone who understands securities sales and regulations;

               2.      Someone who knows how to organize and index up to sixteen boxes of
                       discovery, as you do not see that as "ordinary office resources;"

               3.      Tool(s} for utilizing the discovery once it is organized.

        Based on some seminars you have attended and articles you have read, you figure this is a
case that cries out for technology. Your first thought is to have all of the boxes of discovery
"scanned," so you can load them in the computer. Looking deeper, you see that basic image
scanning just gives you a computer full of pictures and does not really change the situation. You
do a web search and find there are companies who will scan, OCR and "code" the documents for
you. Wow, this is really something. Then you find there are companies that will design a
system for you that organizes the discovery the way you want it. Double wow. You call a couple
of companies for references and prices. They all say they can take out the confusion and hold
down the tech-babble. Now what?




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       B.     What to Do First


 Before you start looking at "litigation support services" talk to others
 about what you are trying to do.


              1.     Speak with your local FDO. In particular, try talking to the more
                     "techie" assistant federal public defenders (AFPDs), the CSA (computer
                     systems analyst), or paralegal in the office to see if they have already been
                     through this process. If so, they may be able to steer you to a local or
                     proven approach.

              2.     Speak with other lawyers you know, preferably in your District, but also
                     on a national level to learn about approaches they have used.

              3.     Call the National Litigation Support Administrator, Sean Broderick.
                     He provides guidance and recommendations to federal courts, federal
                     defender organization staff and court appointed attorneys on complex
                     cases, including evidence organization, document management, case
                     analysis and trial presentation. 13 See Guideline 3.16 for the circumstances
                     under which you must consult the NLSA.

              4.     Contact the technology people in the clerk's office. They can a very
                     good resource, especially when you are getting ready for courtroom
                     presentation issues. They will inform you whether the courtrooms are
                     wired, and what one needs to do in order to give an electronic
                     presentation.




        13      Please remember that there is only one person currently working on national
litigation support issues for both the CJA panel and FDOs. With more than 13,000 CJA
attorneys in the country and thousands of FDO employees, there may be some delay in response,
though Sean will do his best to get back to you quickly.

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                                                                     CJA Panel Attorney Resources




 Try before you buy.

         If you think there is software that will make a big difference in your case, find some
 way to test the software, before actually purchasing it. There are SO MANY stories of
 software purchases which never left the shrink wrap, or were used for a week then
 abandoned. Many vendors will provide demo versions that are good for a limited time, or
 which have some, but not all of the programs features. For example, CaseMap lets you
 download a fully functional version for 30 days. More expensive products often have a
 representative who will bring a working copy to your office, or allow you to come to an
 office to use their demo version. Remember, your FDO may have a version of the software
 that you can at least see how it works in action. Some software you may have on your home
 computer, and you may not even know it. Your kids may have PowerPoint from school, or
 it may be on the Public Library computer. Try it and see if you feel comfortable using it.




 There is no one "silver bullet" or "right" answer.

        There is no "one size fits most." Your initial approach is to try and figure out what
 you are trying to figure out. Then, you look for the tool(s) which will help you achieve that
 goal. There are lots of software programs, and most likely the solution that will work for
 you will be a combination of programs as opposed to one system.


        C.    What to Do Next:

       Now that you have spoken to your FDO, or some other attorneys, you have a better idea
of what is available, and what you are trying to accomplish.

              1.      Begin establishing the potential case facts.

              2.      Speak with the client about herlhis view of what occurred.

              3.      If possible, try to get the AUSA and lor case agent to explain the case to
                      you from their perspective.
                      a.      NOTE: We realize this is not always done, but there are many
                              prosecutors who will be happy to educate you as to why your client
                              should plea (and cooperate).

              4.      Begin to decide what you are looking for, and a way to find it.


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                                                                   CJA Panel Attorney Resources



       D.      Examples ofDiscovery to Organize, Review and Analyze:

               1.     Checks

        You decide you would benefit from seeing the 5,200 checks involved sorted a number of
different ways. You are looking for patterns. How can you sort by date, payer, recipient,
amount, bank? Go back to Sean, and maybe he can suggest a software that sorts by categories.
Maybe Excel will do it. Maybe the government has already entered the checks into Excel, and
they will give you a printout. Maybe they will give you the actual spreadsheet. Ask.

               2.     Tapes

        You need to listen to the tapes. Your immediate reaction is to first determine if client's
voice is on any tape, or if his name is mentioned. Ask the AUSA and case agent. "Is my client's
voice on any tape?" "Is his name ever mentioned?" The government may have made transcripts
which they will have to give you at some point. Ask for them in a searchable form and use the
search or index feature of the software.

               3.     Documents

        There are all sorts of different documents, and you need to create some semblance of
order to group them. This might benefit from a database. There may be specific software for
what you are trying to do.

       E.      Action Plan

        You have done all of the above. Now it is time for action. What next?

               1.     Do you already have the hardware or software you need based on your
                      discussions?

               2.     If not, what do you need and how much does it cost?

               3.     Is what you need something you will keep using in the future, or more of a
                      one time special use?

               4.     Do you have the time and ability to actually do the work, or will your plan
                      require the work of others?

               5.     Distill it down and you are ready to get the money you need to implement
                      the plan (assuming some funds are needed).



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       F.      Structure ofMotion for Request for Expert and Other Services

                    Request for Funds for Expert and other Services

               1.      Overview: [X one of six co-defendants facing a 43 count indictment
                       alleging mail, wire and securities fraud, conspiracy, and money laundering
                       related to a claimed pyramid scheme alleged to involve 6.3 million dollars.
                       The discovery to date consists of 16 boxes of assorted documents as well
                       as 4 CDs of tape recordings. I am seeking approval of funds to retain:
                       a.      An accountant with expertise in forensic fraud investigations,
                       b.      A licensed securities dealer who has served as an expert witness in
                               numerous securities related cases, both civil and criminal,
                       c.      A litigation support service which will provide document handling
                               services,
                       d.      Funds for a litigation support paralegal, and
                       e.      Funds for the purchase of a portable, external hard drive.]

               2.      Facts: [Factual description of case and why you need CJA funding based
                       on these case facts]

               3.      Authorityl4: [The Criminal Justice Act (CJA), 18 U.S.C. § 3006A
                       authorizes payment as needed to "include counsel and investigative,
                       expert, and other services necessary for adequate representation".
                       Subsection (e) of the act specifically addresses:
                       (e)     Services other than counsel. --
                       (1)     Upon request. -- Counsel for a person who is financially unable to
                       obtain investigative, expert, or other services necessary for adequate
                       representation may request them in an ex parte application. Upon finding,
                       after appropriate inquiry in an ex parte proceeding, that the services are
                       necessary and that the person is financially unable to obtain them, the
                       court, or the United States magistrate if the services are required in
                       connection with a matter over which he has jurisdiction, shall authorize
                       counsel to obtain the services.

                       The United States Judicial Conference has promulgated; Guidelines for the
                       Administration a/the Criminal Justice Act, Volume VI! Guide to



        14      We have placed the complete section of the relevant guidelines in this section,
though little case law. We have included this information so you can include the relevant
portions of the guidelines, but to the extent possible, you may want to avoid quoting the entire
guideline in your motion. In addition, you may want to add more relevant case law, especially
case law from your circuit.

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                                                                   CJA Panel Attorney Resources


                      Judiciary Policies and Procedures (CJA Guidelines) to assist courts in
                      CJA matters. The Guidelines reiterate the availability of experts and
                      other services and the ex-party request process. See subsections 3.01 and
                      3.03. On the specific issue of other services and computer hardware and
                      software, the Guidelines have been updated to provide:

                      3.16 Other Services and Computer Hardware and Software. Services
                      ... may include but not necessarily be limited to, ... computer systems and
                      automation litigation support personnel and experts; paralegals and legal
                      assistants, including law students; neurologists; and laboratory experts ...

                      Criminal Justice Act attorneys are expected to use their own office
                      resources, including secretarial help, for work on CJA cases. (See
                      paragraph 2.28 A.) However, unusual or extraordinary expenses of these
                      types may be considered "other services necessary for an adequate
                      defense" and may be paid from CJA funds under subsection (e) of the Act.
                      In determining whether the expense is unusual or extraordinary,
                      consideration should be given to whether the circumstances from which
                      the need arose would normally result in an additional charge to a fee
                      paying client over and above that charged for overhead expenses.

                      Providing an adequate defense case may require CJA panel attorneys to
                      utilize computer hardware or software not typically available in a law
                      office. In such cases, following the standards in the preceding paragraph,
                      counsel may apply to the court for authorization of CJA funds for the
                      acquisition of such property. 15

                      For services of paralegals and legal assistants, and other non-secretarial
                      professional support personnel employed by appointed counsel, the court
                      shall determine a reasonable hourly compensation rate that shall not
                      exceed the lesser ofthe rate paid to counsel under the CJA or the rate
                      typically charged by counsel to a fee-paying client for such services.
                      Authorizing compensation at such rates should result in greater efficiency




       15      Potential footnote to add: "Before seeking court approval for any computer
hardware or software with a cost exceeding $500, or for the utilization of computer systems or
automation litigation support personnel or experts with an expected combined cost exceeding
$10,000, appointed counsel must consult the Office of Defender Services for guidance and
inform the court in writing of the Office of Defender Service's advice and recommendation
regarding counsel's proposed expenditure. Counsel has done so and will elaborate later in this
memo."

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                                                                    CJA Panel Attorney Resources


                       and lower costs for the CJA program than would occur if counsel
                       performed and charged for these services.

                       Services are "necessary for an adequate defense" when "a reasonable
                       attorney would engage such services for a client having the independent
                       financial means to pay for them." (internal citations omitted). United
                       States v. Bissell, 954 F.Supp. 903, 922 (D.N.J. 1997). Here, the court has
                       found X indigent and appointed counsel.]

               4.      Services Needed: [The defense requires the following services, each of
                       which will be described in detail and particularity.
                       a.     An accountant with expertise in forensic fraud investigations.
                       b.     A licensed securities dealer who has served as an expert witness in
                              numerous securities related cases, both civil and criminal.
                       c.     A litigation support service which will provide document handling
                              services.
                       d.     Funds for a litigation support paralegal. 16
                       e.     Funds for the purchase of a portable, external hard drive.]

               5.      Detail Request per ExpertNendor: Now you need to create a paragraph
                       or two for each expert/vendor explaining:
                       a.     Who is the expert/vendor.
                       b.     Why under your case facts the expert/vendor is needed. Be
                               specific, not conclusory.
                       c.     The qualifications of the expert/vendor and the fees charged.
                               (1)     [NOTE I (David) attach a resume or short form CV. I try
                                       not to include a full CV as later pre-trial checking may
                                       result in an "updated" CV being produced; and,
                       d.     Describe the mechanics of what exactly the expert/vendor will be
                               doing for you.
                       e.     Your compliance with Guideline 3.16 and how you have submitted
                              your proposal to the NLSA prior to filing the request with the
                               court.

               6.      Detail Request per Hardware or Software: When seeking equipment or
                       software explain:
                       a.     Exactly what you propose to purchase including the relevant
                              product literature.



        16      Courts are always interested in counsel retaining people who can competently do
the work at a hourly rate less than counsel's. Because the use of a paralegal can be cost-effective,
courts find their use appealing.

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                                                                     CJA Panel Attorney Resources


                      b.      Why you need to purchase this product. I7
                              (1)    Why it is outside the scope of what your office has.
                              (2)    Why this is "hardware or software not typically available in
                                     a law office."
                      c.      The price. If the price varies or if it is a request for a lot of money,
                              show the court that you price shopped and obtained multiple bids.
                      d.      Your compliance with Guideline 3.16 and how you have submitted
                              your motion to the National Litigation Support Administrator.
                              (1)    If it is helpful in your case, Sean can prepare a memo or
                                     letter of support for your request which you can include in
                                     what you ultimately submit to the court.
                      e.      Your commitment and agreement to tum the product over to either
                              ODS or the local FDO at the end of your case.

IV.    Conclusion

        The statute and Guidelines support putting CJA counsel on more equal footing than ever
before. Technology, when used properly, can make a big difference in raising the quality of
criminal defense litigation. At the same time, technology can be like a pleasure boat, a floating
hole into which endless amounts of money can be tossed. Remember the admonition of your
trial advocacy instructor, KISS: Keep It Simple Stupid.


David Beneman is the Federal Public Defender for Maine. A graduate of Bates College and the
University of Maine School of Law, he was a partner at Levenson, Vickerson & Beneman for 20
years. In 1994, he spent the month of August with Gerry Spence at the first Trial Lawyers
College in Wyoming. He previously served as CJA Resource Counsel for the District of Maine,
as Defender Services Advisory Group (DSAG) representative for the First and Second circuits
and is a Past-President of the Maine Association of Criminal Defense Lawyers. David finished
his term as chair of the Maine Rule of Evidence Committee, and serves on the Maine Federal
District Court Local Rules Committee, and the First Circuit CJA Continuing Education
Committee. An early advocate for technology in the law office, he has evolved from
WordPerfect for DOS on a 286,386,486 to his current dual screen Dell 8300 running Windows
XP pro, WordPerfect X-3, Word, CaseMap, TimeMap, PowerPoint and Trial Director. David is
a regular author and speaker at CLE not just in Maine, but across the county.




         17      NOTE: This is very important. One of the most common failings in requests are
that they talk about how useful the software program is in general, but do not explain why this
software is needed in this particular case. If you can show how the equipment or service, though
initially costly, will save time and money in the long run, that can be especially persuasive.

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                                                                    CJA Panel Attorney Resources


Sean Broderick is the National Litigation Support Administrator for the Office of Defender
Services, Administrative Office of the United States Courts. He provides guidance and
recommendations to federal courts, federal defender organization staff and court appointed
attorneys on complex federal criminal cases, including evidence organization, document
management, case analysis and trial presentation. Prior to this position, Sean worked as an
investigator, paralegal and mitigation specialist on numerous complex cases for more than 15
years. He was appointed to CJA cases throughout the country and worked in the Northern
District of California Federal Public Defender Office. In these different capacities, Sean dealt
with a wide range of criminal and civil cases, including multi-defendant, white collar fraud,
federal trial, and capital trial and habeas corpus cases. He has lectured on various criminal
defense and litigation support issues internationally and throughout the United States.

Sean Broderick Contact Information
National Litigation Support Administrator
Office of Defender Services, Administrative Office of the United States Courts
555 12th Street, Suite 650
Oakland, CA 94607-3627
510-637-1950 Direct
510-637-3500 General
510-637-3507 Fax
sean_ broderick@fd.org




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    CJA Funding
          for
Technical and Other
 Litigation Support



              prepared by Randall W. Schnack
                                       1
                      Discovery

Attempt to coordinate with the AUSA to have discovery provided
in a useable electronic format for the defense (tiff to convert to
Adobe PDF) rather than the electronic format the government
uses.

Develop a Discovery Protocol with the U.S. Attorney’s Office.

Think external hard drives not individual CD/DVDs for discovery
in electronic format for ease of searching across the discovery.

Consider what litigation software will best organize and manage
the electronic discovery (Adobe, IPRO, Filemaker, CaseMap etc.)

Web based case management applications are the new
technology.


                                                                     2
               Discovery (con’t.)
Designate one of the CJA panel attorneys to be the coordinating attorney to
manage the discovery or apply for and use a Discovery Coordinator.

Apply for a joint CJA paralegal to organize and do electronic searches of the
discovery as to each defendant.

Who needs copies of the discovery? The attorney? The defendant? The
investigator? The paralegal? Web based case management systems
provide access to all.

If CJA pays for the software and/or hardware, it’s use is limited to CJA
cases. Software must be erased from the user’s computer and hardware
return at the conclusion of the CJA case.

Contact the National Technology and Litigation Support Administrator for
guidance – CJA Guideline 3.16 requires it if the cost will exceed $500.

The discovery vendor/provider should be encouraged to directly bill the
court on a CJA 21 or 31 to save on sales tax.


                                                                            3
 A request for funds to hire an investigator or
               paralegal should:


Specify how counsel intends to utilize the investigator or
paralegal

Specify why such investigation or paralegal work is
warranted and an estimated time budget for each task.

The declaration should state facts sufficient to assess
the reasonableness of each task.

Finally, the actual hourly rate, the number of hours being
requested and the investigator or paralegal’s credentials
and experience should be included.

                                                             4
Counsel should make reasonable and diligent efforts to
minimize costs, and where appropriate, use paralegals and law
clerks for tasks where an attorney’s expertise is not required.




More rather than less detail expedites a funding request.

Avoid lump sum amount requests and be aware that in some
districts maximum hourly rates for experts have been set.


                                                            5
  A request for funds to utilize computer
hardware or software not typically available
           in a law firm must:

Comply with CJA Guideline 3.16 if the
  cost of the hardware or software
      requested exceeds $500.


                                         6
    A request for funds to utilize
computer systems or automation
  litigation support personnel or
      experts with an expected
combined cost exceeding $10,000
     must also comply with CJA
           Guideline 3.16

                                     7
       CJA Guideline 3.16

Before seeking court approval, appointed
counsel must consult with the National
Litigation Support Administrator (Sean
Broderick) and
Inform the court in writing of the advice
and recommendation regarding counsel’s
proposed expediture.

                                            8
    The acquisition of computer
  hardware and software with CJA
 funds remains the property of the
United States. Upon the completion
of the case, the computer hardware
 and software must be returned as
directed in good condition, after all
 case-related materials have been
              removed.
                                    9
Other CJA Tips




                 10
                 Compensation

Services are reviewed for
reasonableness, which is not
defined as whatever time it
takes.

Do not “fax” documents
instead “prepare documents”
or “draft fax.”

Do not “serve subpoenas” as
this is done by the U.S.
Marshal, instead “serve
subpoena during interview of
witness.”

Do not “handhold client’s
family” instead document the
case related information
obtained from family members.
                                11
        Compensation (con’t.)
Do not make special trips to the court to file
documents, instead use a messenger service.

Do not “make bond” instead “explain the bond
requirements” and obtain AUSA’s approval on
bond documents. The Northern District of
California has interactive bond forms on their
website.

Attached all required receipts and
authorizations.

                                                 12
13
                                          July 21, 1997


BY HAND DELIVERY
Michael E. Kunz
Clerk of Court
United States District Court
Eastern District of Pennsylvania
U.S. Courthouse, Room 2609
601 Market Street
Philadelphia, Pennsylvania 19106
              Re:    United States v. DC
                     Criminal No. 96-597 (E.D.Pa.)
Dear Mr. Kunz:
              Enclosed for filing in the above-referenced case are the following motions and related
documents--
              1.     Ex Parte Motion of Defendant DC for an Order Authorizing Counsel to
                     Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert or
                     Other Services, Memorandum of Law in support thereof, and proposed form
                     of Order; and
              2.     Motion, and proposed form of Order, of Defendant DC to Seal and Impound
                     the Ex Parte Motion of Defendant DC for an Order Authorizing Counsel to
                     Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert or
                     Other Services, Memorandum of Law in support thereof, and proposed form
                     or Order.
Please note that the above-listed documents are being filed under seal with a request for
impoundment.
              Thank you for your assistance in this matter.

                                                     Respectfully yours,



                                                     Jeffrey M. Lindy
JML/pah
Enclosures
                                          July 21, 1997

BY OVERNIGHT MAIL
Honorable
Judge, United States District Court
Eastern District of Pennsylvania
2nd & Ferry Streets
Holmes Building, 4th Floor
Easton, Pennsylvania 18042
               Re:    United States v. DC
                      Criminal No. 96-597 (E.D.Pa.)
Dear Judge :
                Enclosed, please find copies of the following motions and related documents
pertaining to the above-referenced matter--
               1.     Ex Parte Motion of Defendant DC for an Order Authorizing Counsel to
                      Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert or
                      Other Services, Memorandum of Law in support thereof, and proposed form
                      of Order; and
               2.     Motion, and proposed form of Order, of Defendant DC to Seal and Impound
                      the Ex Parte Motion of Defendant DC for an Order Authorizing Counsel to
                      Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert or
                      Other Services, Memorandum of Law in support thereof, and proposed form
                      or Order.
The originals of these documents have been filed this day by hand delivery with the Clerk of Court.

                                                     Respectfully yours,



                                                     Jeffrey M. Lindy
JML/pah
Enclosures
                 IN THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA        :
                                :
          v.                    :    CRIMINAL NO.   96-597
                                :
DC                              :


                              O R D E R



          AND NOW, this                   day of July, 1997, after
consideration of the Motion of Defendant DC to Seal and Impound the

Ex Parte Motion of Defendant DC for an Order Authorizing Counsel to
Exceed Three Hundred Dollars ($300.00) in Fees for Investigative,

Expert or Other Services, Memorandum of Law in support thereof, and

proposed form of Order, it is hereby ORDERED that the above-
referenced documents are hereby SEALED AND IMPOUNDED, and that these

documents shall remain impounded until further order of the Court.



                                BY THE COURT:

                                ___________________________________
                                HONORABLE
                                Judge, United States District Court
                 IN THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA        :
                                :
          v.                    :    CRIMINAL NO.   96-597
                                :
DC                              :


                      MOTION OF DEFENDANT DC
            TO SEAL AND IMPOUND THE EX PARTE MOTION OF
                     DEFENDANT DC FOR AN ORDER
            AUTHORIZING COUNSEL TO EXCEED THREE HUNDRED
           DOLLARS ($300.00) IN FEES FOR INVESTIGATIVE,
            EXPERT OR OTHER SERVICES, MEMORANDUM OF LAW
          IN SUPPORT THEREOF, AND PROPOSED FORM OF ORDER



          Defendant DC, by his attorney, Jeffrey M. Lindy, Esquire,

hereby moves this Court for an Order sealing and impounding the Ex
Parte Motion of Defendant DC for an Order Authorizing Counsel to

Exceed Three Hundred Dollars ($300.00) in Fees for Investigative,

Expert or Other Services, Memorandum of Law in support thereof, and

proposed form of Order, and in support thereof avers as follows:

          1.     The above-referenced Motion has been filed pursuant
to 18 U.S.C. '3006A(e)(1) which allows for ex parte application of

such services.
          2.     Unless the above-referenced Motion is filed under

seal and impounded, there is no way to preserve the ex parte nature
of the pleadings.

          WHEREFORE, for the foregoing reasons, Defendant DC requests

that the Court enter an Order sealing and impounding the Ex Parte

Motion of Defendant DC for an Order Authorizing Counsel to Exceed

Three Hundred Dollars ($300.00) in Fees for Investigative, Expert or
Other Services, Memorandum of Law in support thereof, and proposed

form of Order.



                                   Respectfully submitted,



                                   _____________________________
                                   Jeffrey M. Lindy, Esquire
                                   1760 Market Street, Suite 600
                                   Philadelphia, PA 19103
                                   (215) 575-9290

                                   Attorney for Defendant,
                                   DC
                 IN THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA        :
                                :
          v.                    :    CRIMINAL NO.   96-597
                                :
DC                              :


                              O R D E R



          AND NOW, this         day of July, 1997, upon consideration
of the Ex Parte Motion of Defendant DC for an Order Authorizing
Counsel to Exceed Three Hundred Dollars ($300.00) in Fees for

Investigative, Expert or Other Services, it is hereby ORDERED that

the provision of Title 18, United States Code, Section 3006A(e)(2),

which limits to Three Hundred Dollars ($300.00) the funds available

to counsel appointed under the Criminal Justice Act for obtaining

investigative, expert or other services, is waived, and the defense

may utilize at trial the services of an investigator and the services

of an expert in the field of handcuffing procedures and techniques,

provided that the fees for the investigator and the expert do not

exceed a total of Two Thousand Dollars ($2,000.00).



                                BY THE COURT:



                                ___________________________________
                                HONORABLE
                                Judge, United States District Court




                 IN THE UNITED STATES DISTRICT COURT
                  FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA               :
                                       :
             v.                        :         CRIMINAL NO.     96-597
                                       :
DC                                     :


                  EX PARTE MOTION OF DEFENDANT DC
                  FOR AN ORDER AUTHORIZING COUNSEL
             TO EXCEED THREE HUNDRED DOLLARS ($300.00)
        IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

             Defendant DC, by his attorney, Jeffrey M. Lindy, Esquire,

hereby moves this Court ex parte for an Order authorizing counsel
to exceed $300.00 in fees for investigative, expert or other

services in the above-captioned matter, that is, for the services

at   trial   of    an   investigator       and    an   expert   in   the   field   of

handcuffing procedures and techniques, and in support thereof avers

as follows:

             1.     On December 12, 1996, a federal grand jury sitting

in the Eastern District of Pennsylvania indicted defendant DC for

an   alleged      assault    on   Bureau     of    Prisons      ("BOP")    employee,

Corrections Officer ("CO") Larry K. Barnes, Jr.

             2.     On June 19, 1997, undersigned counsel was appointed

pursuant to the Criminal Justice Act, see Title 18, United States
Code, Section 3006A et seq., as substitute counsel for the Federal

Defender to represent DC in the above-captioned case.

             3.     The government accuses DC of assaulting CO Barnes

while he was engaged in the performance of his official duties, as

follows:

                    (a)     On February 18, 1996, DC was incarcerated at
the     Federal   Correctional        Institution           at   Schuylkill      County,

Pennsylvania ("FCI Schuylkill").

                   (b)    On    that        date,      DC    was     in     disciplinary

segregation and was residing in the prison's Special Housing Unit

("SHU"), due to his alleged violation of prison regulations.

                   (c)    On that date, at approximately 12:25 p.m., DC

was being escorted by CO Barnes and CO R. Schreffler to the outside

pens in the SHU recreational area.

                   (d)    Because the ground inside of the pens was
covered with snow, DC did not want to pace or otherwise spend his

recreational time inside of a pen.

                   (e)    A dispute between DC and CO Barnes arose due to

DC’S desire not to enter any of the recreational pens.

                   (f)    DC was escorted back to his cell by CO Barnes

and CO Schreffler.

                   (g)    DC arrived at his SHU cell and walked into the
cell still in handcuffs, after which his cell door was closed and

locked by the corrections officers.

                   (h)    Pursuant      to       BOP    regulations,        a   prisoner

residing    in    the    SHU   must    be    escorted       on     prison    grounds   in

handcuffs, such that his hands and arms are restrained behind his

back.    Upon arrival at his cell, the prisoner is placed inside the

cell, still in handcuffs.         The escorting corrections officer, then,

closes and locks the cell door.                  The cell doors in the SHU are

made of metal, with a rectangular opening in the lower half of the

door through which food trays are passed to the prisoners.                        These


                                             8
openings are commonly referred to as "food slots."             On the outside

of the cell door, that is, the side of the cell door facing the

corridor,    the    food    slot   is   covered   with   a   metal   flap.   A

corrections officer, while standing outside of a cell and after

lifting up the flap, removes the handcuffs from a prisoner through

the food slot.

                   (i)     After closing and locking DC’S cell door, CO

Barnes lifted the flap covering the food slot.

                   (j)     Inside of the cell, as the flap was opened, DC
positioned himself with his back to the door so that CO Barnes

could reach through the food slot, unlock the handcuffs, and remove

them from his wrists.

                   (k)     CO Barnes, first, unlocked the left cuff, and

pulled that portion of the handcuff out of the cell through the

food slot.

                   (l)     Holding the left cuff in his left hand, CO
Barnes, next, attempted to unlock and remove the right cuff.

                   (m)     At this time, a tug or "yank" was felt by CO

Barnes on the portion of the handcuffs which he was holding.

                   (n)     A tug-of-war with the handcuffs ensued, and CO

Barnes could not unlock the right cuff.            Subsequently, CO Barnes

let go of the      portion of the handcuffs which        he was   holding, and




                                        9
the handcuffs remained inside of the cell, secured on DC’S right

wrist.

                  (o)   Thereafter, Lt. Washington and CO Schreffler

succeeded in obtaining the handcuffs from DC without incident.

                  (p)   CO Barnes' left hand was injured as a result of

this incident.

                  (q)   CO Barnes alleges that his hand was injured by

DC’S intentional, deliberate and volitional conduct.

          4.      DC denies the government's allegations as set forth

in paragraph 3, above, and asserts that he did not intentionally,

deliberately and voluntarily injure CO Barnes' left hand.

          5.     DC’S alleges as follows:

                 (a)    CO Barnes has a history of displaying hostility

towards DC.

                  (b)   CO Barnes was harassing DC at the SHU's outside

recreational area.      That is, before he was allowed to enter any of

the pens in the recreational area, CO Barnes ordered DC to first

shovel the snow out of the particular pen that he was going to use.

                  (c)   DC refused to shovel snow because that was an

orderly's duty.

                  (d)   DC refusal to shovel snow prompted a verbal

altercation between himself and CO Barnes.

                  (e)   CO Barnes' verbal harassment of DC continued as

CO Barnes escorted him back to his cell.

                  (f)   After DC re-entered his cell, CO Barnes closed

and locked the cell door.     CO Barnes then, reached through the food

slot and removed DC’S left handcuff.




                                    10
                    (g)    At this point, CO Barnes, who was outside of

the cell, was holding the released left cuff and the right cuff was

still secure around DC’S wrist.                  While holding the left cuff, CO

Barnes began pulling, or "yanking," the handcuffs.                      By "yanking"

the handcuffs in this fashion, CO Barnes caused DC to experience

extreme pain in his right wrist and hand.

                    (h)    In response to CO Barnes' "yanking" on the

handcuffs, DC instinctively pulled his manacled right hand back and

away from the cell door.

                    (i)    As a result of CO Barnes' "yanking" on the

handcuffs, DC suffered pain and swelling in his right wrist and

hand.

            6.   Due to his prior criminal history and the numerous

disciplinary     incident         reports    which        he   has   received    while

incarcerated, it is unlikely that DC will testify in his own

defense at trial.         Therefore, undersigned counsel must attempt to

establish DC’S theory of the case as set forth in paragraph 5,

above, through other witnesses.

            7.   In       order    to   refute      the    government's      theory   of

prosecution and to establish the defense theory of the case, it is

necessary    that     DC    be    afforded        the     opportunity   to    hire    an

investigator to serve subpoenas upon defense witnesses, and to

conduct interviews if the witnesses consent to be interviewed.

            8.   The defense will seek to subpoena the following

witnesses:

                    (a)    Corrections Officer R. Schreffler (accompanied
                           CO Barnes throughout this incident);

                    (b)    Corrections Officer J. Petrucci (witness to
                           the altercation at the SHU recreational area);


                                            11
                (c)   Lt. Washington (retrieved the handcuffs from
                      DC without incident);

                (d)   Physician's Assistant Maryse Wamback, FCI
                      Schuylkill medical staff (treated CO Barnes 10
                      minutes after the incident);

                (e)   Dr. C. Mickens, Pottsville Hospital (treated
                      CO Barnes approximately one hour after the
                      incident);

                (f)   Dr. Lupold, Tri-Valley Medical (treated CO
                      Barnes approximately one week after the
                      incident);

                (g)   Physician's   Assistant  Dave   Steffan,  FCI
                      Schuylkill medical staff (treated DC two days
                      after the incident);

                (h)   FBI Special Agent Harold Schmidle (obtained a
                      statement from DC approximately five weeks
                      after the incident);

                (i)   Reginald Currie, Reg. No. 18096-050 (cellmate
                      of DC at time of incident and eye-witness to
                      incident).9.    Undersigned     counsel   has
                      contacted private investigator Edward M.
                      O'Shea of O'Shea Investigations, Inc. ("OSI")
                      and has been apprised of the billing rates of
                      Investigator O'Shea. It is evident that even
                      a minimal investigation may exceed the $300
                      authorized by statute for counsel appointed
                      pursuant to the Criminal Justice Act. See fee
                      schedule   of   O'Shea   Investigations, Inc.
                      attached    hereto   as    Exhibit   "A"  and
                      incorporated herein by reference as if set
                      forth in full.


          10.   Furthermore, and as described in paragraph 5, above,

DC experienced extreme pain in his right wrist and hand when CO

Barnes "yanked" the handcuffs.

          11.   In order to establish for the jury that CO Barnes

inflicted pain on DC, thus causing DC to instinctively pull his

manacled right hand back and away from the cell door, it is

necessary for undersigned counsel to utilize the services of an

expert in the field of handcuffing procedures and techniques.   The

expert will establish that a law enforcement official can utilize

                                 12
so-called    "control     techniques"        when   securing    handcuffs      on    a

prisoner such that the prisoner experiences pain and discomfort

merely from the cuffs being secured around his wrists.                     The law

enforcement official can exert additional pain and discomfort on

the prisoner by grabbing or "yanking" the handcuffs.                      Although

"control techniques" may often be employed in a lawful fashion, it

is nonetheless extremely painful for such a technique to be used on

a prisoner.



            12.   Undersigned counsel has contacted R. Walter Rauch of

Rauch & Company, Ltd., an investigative and security consulting

company which Mr. Rauch owns and operates.                     Additionally, Mr.

Rauch owns and operates Advance Tactical Group, Ltd., a research

and   development    company    specializing         in   defense    weapons      and

tactics.     Formerly, Mr. Rauch was a Special Agent with United

States Army Intelligence, a Special Agent with the United States

Secret Service, and an investigator with the Philadelphia Fugitive

Squad.    During the course of his many years of experience, he has

performed over 2,000 felony arrests.                 Mr. Rauch has published

frequently, and holds various professional certifications.                        The

defense    will   offer   Mr.   Rauch    as    an   expert     in   the   field     of

handcuffing procedures and techniques.              See curriculum vitae of R.

Walter Rauch, attached hereto as Exhibit "B" and incorporated

herein by reference as if set forth in full.

            13.   Undersigned counsel anticipates that the maximum

total fee for the investigative services rendered in this matter

and as described above will not exceed $2,000 ($1,000 for O'Shea

Investigations, Inc. and $1,000 for R. Walter Rauch).


                                        13
          WHEREFORE,   for   the   foregoing   reasons,   defendant   DC

requests that the Court authorize counsel to exceed $300 in fees

for investigative, expert and other services in this matter.



                                        Respectfully submitted,



                                        _____________________________
                                        Jeffrey M. Lindy, Esquire
                                        1760 Market Street, Suite 600
                                        Philadelphia, PA 19103
                                        (215) 575-9290

                                        Attorney for Defendant,
                                        DC




                                   14
                   IN THE UNITED STATES DISTRICT COURT
                 FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                 :
                                         :
            v.                           :         CRIMINAL NO.   96-597
                                         :
DC                                       :

                  MEMORANDUM OF LAW IN SUPPORT OF THE
                    EX PARTE MOTION OF DEFENDANT DC
                   FOR AN ORDER AUTHORIZING COUNSEL
               TO EXCEED THREE HUNDRED DOLLARS ($300.00)
          IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES


            On December 12, 1996, a federal grand jury sitting in the

Eastern District of Pennsylvania indicted defendant DC for an alleged

assault on Bureau of Prisons ("BOP") employee, Corrections Officer

("CO") Larry K. Barnes, Jr.         On June 19, 1997, undersigned counsel

was appointed pursuant to the Criminal Justice Act, see Title 18,
United States Code, Section 3006A et seq., as substitute counsel for

the Federal Defender to represent DC in the above-captioned case.

            The government alleges that on February 18, 1996, DC was

incarcerated at the Federal Correctional Institution at Schuylkill

County, Pennsylvania ("FCI Schuylkill").                  On that date, DC was in

disciplinary segregation and was residing in the prison's Special

Housing   Unit    ("SHU"),    due   to       his    alleged    violation   of   prison

regulations.      At approximately 12:25 p.m., DC was being escorted by

CO Barnes and CO R. Schreffler to the outside pens in the SHU

recreational area.      Because the ground inside of the pens was covered

with    snow,    DC   did   not   want       to    pace   or   otherwise   spend   his

recreational time inside of a pen.                   A dispute between DC and CO

Barnes arose due to DC’S desire not to enter any of the recreational

pens.     DC was escorted back to his cell by CO Barnes and CO


                                             15
Schreffler.   DC arrived at his SHU cell and walked into the cell

still in handcuffs, after which his cell door was closed and locked

by the corrections officers.

               Pursuant to BOP regulations, a prisoner residing in

the SHU must be escorted on prison grounds in handcuffs, such that

his hands and arms are restrained behind his back.      Upon arrival at

his cell, the prisoner is placed inside the cell, still in handcuffs.

 The escorting corrections officer, then, closes and locks the cell

door.    The cell doors in the SHU are made of metal, with a

rectangular opening in the lower half of the door through which food

trays are passed to the prisoners.        These openings are commonly

referred to as "food slots."   On the outside of the cell door, that

is, the side of the cell door facing the corridor, the food slot is

covered with a metal flap.     A corrections officer, while standing

outside of a cell and after lifting up the flap, removes the

handcuffs from a prisoner through the food slot.

               After closing and locking DC’S cell door, CO Barnes

lifted the flap covering the food slot.      Inside of the cell, as the

flap was opened, DC positioned himself with his back to the door so

that CO Barnes could reach through the food slot, unlock the

handcuffs, and remove them from his wrists.          CO Barnes, first,

unlocked the left cuff, and pulled that portion of the handcuff out

of the cell through the food slot.     Holding the left cuff in his left

hand, CO Barnes, next, attempted to unlock and remove the right cuff.

 At this time, a tug or "yank" was felt by CO Barnes on the portion

of the handcuffs which he was holding.



          A tug-of-war with the handcuffs ensued, and CO Barnes could

                                  16
not unlock the right cuff.            Subsequently, CO Barnes let go of the

portion of the handcuffs which he was holding, and the handcuffs

remained     inside     of    the    cell,       secured    on   DC’S   right   wrist.

Thereafter, Lt. Washington and CO Schreffler succeeded in obtaining

the handcuffs from DC without incident.                    CO Barnes' left hand was

injured as a result of this incident.                 CO Barnes alleges that his

hand was injured by DC’S intentional, deliberate and volitional

conduct.

             DC denies the government's allegations as set forth above,

and   asserts    that    he    did    not    intentionally,        deliberately   and

voluntarily injure CO Barnes' left hand.               DC’S claims that CO Barnes

has a history of displaying hostility towards DC.                  Indeed, CO Barnes

was harassing DC at the SHU's outside recreational area.                     This is,

before he was allowed to enter any of the pens in the recreational

area, CO Barnes ordered DC to first shovel the snow out of the

particular pen that he was going to use.                   DC refused to shovel snow

because that was an orderly's duty.                   DC refusal to shovel snow

prompted a verbal altercation between himself and CO Barnes.

                  CO Barnes' verbal harassment of DC continued as CO

Barnes escorted him back to his cell.               After DC re-entered his cell,

CO Barnes closed and locked the cell door.                  CO Barnes then, reached

through the food slot and removed DC’S left handcuff.                   At this point,

CO Barnes, who was outside of the cell, was holding the released left

cuff and the right cuff was still secure around DC’S wrist.                     While

holding the left cuff, CO Barnes began pulling, or "yanking," the

handcuffs.      By "yanking" the handcuffs in this fashion, CO Barnes

caused DC to experience extreme pain in his right wrist and hand.

                  In response to CO Barnes' "yanking" on the handcuffs,

                                            17
DC instinctively pulled his manacled right hand back and away from

the cell door.    As a result of CO Barnes' "yanking" on the handcuffs,

DC suffered pain and swelling in his right wrist and hand.

                  Due to his prior criminal history and the numerous

disciplinary     incident   reports    which   he   has     received   while

incarcerated, it is unlikely that DC will testify in his own defense

at trial.   Therefore, undersigned counsel must attempt to establish

DC’S theory of the case through other witnesses.          In order to refute

the government's theory of prosecution and to establish the defense

theory of the case, it is necessary that DC be afforded the

opportunity to hire an investigator to serve subpoenas upon defense

witnesses, and to conduct interviews if the witnesses consent to be

interviewed.

            The defense will seek to subpoena the following witnesses:

                  (a)Corrections Officer R. Schreffler (accompanied CO
                       Barnes throughout this incident);

                  (b)Corrections Officer J. Petrucci (witness to the
                       altercation at the SHU recreational area);

                  (c)Lt. Washington (retrieved the handcuffs from DC
                       without incident);

                  (d)Physician's   Assistant   Maryse  Wamback,   FCI
                       Schuylkill medical staff (treated CO Barnes 10
                       minutes after the incident);

                  (e)Dr. C. Mickens, Pottsville Hospital (treated CO
                       Barnes approximately one hour after the
                       incident);

                  (f)Dr. Lupold, Tri-Valley Medical (treated CO Barnes
                       approximately one week after the incident);

                  (g)Physician's Assistant Dave Steffan, FCI Schuylkill
                       medical staff (treated DC two days after the
                       incident);

                  (h)FBI Special Agent Harold Schmidle (obtained a
                       statement from DC approximately five weeks
                       after the incident);

                                      18
                  (i)Reginald Currie, Reg. No. 18096-050 (cellmate of
                       DC at time of incident and eye-witness to
                       incident).


             Undersigned counsel has contacted private investigator

Edward M. O'Shea of O'Shea Investigations, Inc. ("OSI") and has been

apprised of the billing rates of Investigator O'Shea.       It is evident

that even a minimal investigation may exceed the $300 authorized by

statute for counsel appointed pursuant to the Criminal Justice Act.

See fee schedule of O'Shea Investigations, Inc. attached to the

within Motion as Exhibit "A."

             Furthermore, and as described above, DC experienced extreme

pain in his right wrist and hand when CO Barnes "yanked" the

handcuffs.     In order to establish for the jury that CO Barnes

inflicted pain on DC, thus causing DC to instinctively pull his

manacled right hand back and away from the cell door, it is necessary

for undersigned counsel to utilize the services of an expert in the

field of handcuffing procedures and techniques.          The expert will

establish that a law enforcement official can utilize so-called

"control techniques" when securing handcuffs on a prisoner such that

the prisoner experiences pain and discomfort merely from the cuffs

being secured around his wrists.         The law enforcement official can

exert additional pain and discomfort on the prisoner by grabbing or

"yanking" the handcuffs.    Although "control techniques" may often be

employed in a lawful fashion, it is nonetheless extremely painful for

such a technique to be used on a prisoner.



             Undersigned counsel has contacted R. Walter Rauch of Rauch

& Company, Ltd., an investigative and security consulting company


                                    19
which Mr. Rauch owns and operates.           Additionally, Mr. Rauch owns and

operates Advance Tactical Group, Ltd., a research and development

company specializing in defense weapons and tactics.                Formerly, Mr.

Rauch was a Special Agent with United States Army Intelligence, a

Special    Agent   with   the    United   States     Secret   Service,     and   an

investigator with the Philadelphia Fugitive Squad.            During the course

of his many years of experience, he has performed over 2,000 felony

arrests.    Mr. Rauch has published frequently, and holds various

professional certifications.          The defense will offer Mr. Rauch as an

expert in the field of handcuffing             procedures and techniques.        See

curriculum vitae of R. Walter Rauch, attached to the within Motion as

Exhibit "B" and incorporated herein by reference as if set forth in

full.

            Undersigned counsel anticipates that the maximum total fee

for the investigative services rendered in this matter and as

described    above   will       not   exceed     $2,000   ($1,000    for   O'Shea

Investigations, Inc. and $1,000 for R. Walter Rauch).

            Due process and fundamental fairness mandate that DC be

afforded the opportunity to access the financial resources necessary

to properly evaluate the evidence that will be presented against him

and to gather the evidence necessary to support his theory of

defense.    The Supreme Court has stated that,




                   [t]he right of an accused in a
                   criminal case to due process is, in
                   essence, the right to a fair
                   opportunity to defend against the

                                        20
                   State's accusations.    The right to
                   confront and cross-examine witnesses
                   and to call witnesses in one's behalf
                   has long been recognized as essential
                   to due process.

Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973).


           Title    18,   United    States    Code,    Section     3006A   (e)(2),

mandates that counsel appointed under the Criminal Justice Act may

obtain   without     prior   approval       $300.00    in   order     to    secure

investigative services.      However, counsel "shall not excess $1000,

exclusive of reimbursement to expenses reasonably incurred, unless

payment in excess of that amount is certified by the court...."                 18

U.S.C. 3006A(e)(3).       See, generally, United States v. Fields, 772
F.2d   549 (9th Cir. 1983),        cert. denied,      104 S. Ct.    1718 (1984);



United States v. Smith, 893 F.2d 1573 (9th Cir. 1990).                     However,

under the Criminal Justice Act:

                   Counsel   for   a   person    who   is
                   financially    unable    to     obtain
                   investigative,    expert   or    other
                   services   necessary   for   adequate
                   representation may request them in an
                   ex parte application. Upon finding,
                   after appropriate inquiry in a ex
                   parte proceeding, that the services
                   are necessary and that the person is
                   financially unable to obtain them,
                   the court...shall authorize counsel
                   to obtain these services.


Title 18, United States Code, Section 3006A(e)(1).




           Given the financial limitations of the Criminal Justice

Act, DC requests that the $300.00 maximum limit be waived and that

the Court allow him to utilize the services of O'Shea Investigations,

                                       21
Inc. and L. Walter Rauch, even if the cost exceeds $300.00.


                                     Respectfully submitted,



                                     _____________________________
                                     Jeffrey M. Lindy, Esquire
                                     1760 Market Street, Suite 600
                                     Philadelphia, PA 19103
                                     (215) 575-9290

                                     Attorney for Defendant
                                     DC




                                22
                      IN THE UNITED STATES DISTRICT COURT
                   FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
              v.                             :      CRIMINAL NOS. -01
                                             :                    -01
DL                                           :

                                          ORDER

              AND NOW, this         day of              , 2005, after consideration of the Motion

of Defendant DL to Seal and Impound the Ex Parte Motion of Defendant DL for an Order

Authorizing Counsel to Exceed Three Hundred Dollars ($300) in Fees for Investigative, Expert or

Other Services, Memorandum of Law in support thereof, and proposed form of Order, it is hereby

ORDERED that the above-referenced documents are hereby SEALED AND IMPOUNDED, and

that these documents shall remain impounded until further order of the Court.

                                                    BY THE COURT:




                                                    HONORABLE MARY A. MCLAUGHLIN
                                                    Judge, United States District Court
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
               v.                            :          CRIMINAL NOS. -01
                                             :                        -01
DL                                           :

                      MOTION OF DEFENDANT DL
      TO SEAL AND IMPOUND THE EX PARTE MOTION OF DEFENDANT
  DL FOR AN ORDER AUTHORIZING COUNSEL TO EXCEED THREE HUNDRED
                      DOLLARS ($300) IN FEES FOR
      INVESTIGATIVE, EXPERT OR OTHER SERVICES, MEMORANDUM
       OF LAW IN SUPPORT THEREOF, AND PROPOSED FORM OF ORDER

               Defendant DL, by his attorney, Jeffrey M. Lindy, Esquire, hereby moves this Court

for an Order sealing and impounding the Ex Parte Motion of Defendant DL for an Order

Authorizing Counsel to Exceed Three Hundred Dollars ($300) in Fees for Investigative, Expert or

Other Services, Memorandum of Law in support thereof, and proposed form of Order, and in support

thereof avers as follows:

               1. The above-referenced Motion has been filed pursuant to 18 U.S.C. '3006A(e)(1)

which allows for ex parte application of such services.

               2. Unless the above-referenced Motion is filed under seal and impounded, there is no

way to preserve the ex parte nature of the pleadings.

               WHEREFORE, for the foregoing reasons, defendant DL requests that the Court enter

an Order sealing and impounding the Ex Parte Motion of Defendant DL for an Order Authorizing

Counsel to Exceed Three Hundred Dollars ($300) in Fees for Investigative, Expert or Other

Services, Memorandum of Law in support thereof, and proposed form of Order.

                                                        Respectfully submitted,
                      Jeffrey M. Lindy, Esquire
                      Attorney for Defendant, DL




   IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA                       :
                                               :
               v.                              :      CRIMINAL NOS. -01
                                               :                    -01
DL                                             :

                                            ORDER

               AND NOW, this             day of                    , 2005, upon consideration of the

Ex Parte Motion of Defendant DL for an Order Authorizing Counsel to Exceed Three Hundred

Dollars ($300) in Fees for Investigative, Expert or Other Services, it is hereby ORDERED that the

provision of Title 18, United States Code, Section 3006A(e)(2), which limits to Three Hundred

Dollars ($300) the funds available to counsel appointed under the Criminal Justice Act for obtaining

investigative, expert or other services is WAIVED, and the defense may utilize the services of Kirk

S. Heilbrun, Ph.D., a forensic psychologist, provided that the fees for Dr. Heilbrun=s services do not

exceed a total of $2,500.

                                                      BY THE COURT:




                                                      HONORABLE MARY A. MCLAUGHLIN
                                                      Judge, United States District Court




                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA                      :
                                              :
               v.                             :      CRIMINAL NOS. -01
                                              :                    -01
DL                                            :


                     EX PARTE MOTION OF DEFENDANT DL
                    FOR AN ORDER AUTHORIZING COUNSEL
                 TO EXCEED THREE HUNDRED DOLLARS ($300)
           IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

               Defendant DL, by his attorney, Jeffrey M. Lindy, Esquire, hereby moves this Court ex

parte for an Order authorizing counsel to exceed $300 in fees for investigative, expert or other

services in the above-captioned matters, that is, for the services of forensic psychologist Kirk S.

Heilbrun, Ph.D., and in support thereof avers as follows:

               1)       In the above-captioned matters, DL entered pleas of guilty to armed bank

robbery, carrying a firearm during a crime of violence, and related charges. His convictions stem

from bank robberies committed in Maryland and Pennsylvania.

               2)       DL=s plea of guilty to carrying a firearm during the Maryland bank robbery

was a second and subsequent conviction under the statute (18 U.S.C. '924(c)) and, thus, subjected

him to a mandatory minimum, consecutive term of imprisonment of 25 years.

               3)       On January 8, 2002, DL was sentenced to more than 21 years in prison. This

Court departed downward from the applicable Guideline sentence and the mandatory minimum,

consecutive terms of imprisonment due to the government=s downward departure motion filed

pursuant to U.S.S.G. '5K1.1.

               4)       On May 7, 2004, DL filed a pro se petition pursuant to 28 U.S.C. ' 2255

alleging ineffective assistance of prior counsel. Among the other claims raised in his habeas corpus
petition, DL alleged that his prior counsel was ineffective for not obtaining the services of a mental

health professional to evaluate him and assist the defense at the sentencing hearing.

               5)       DL has informed undersigned counsel that since he was a child, he has been

struggling with depression and possibly other mental health illnesses. Apparently, he first

experimented with marijuana when he was seven years old and, soon thereafter, became a habitual

smoker of that drug. At the age of thirteen, he began to ingest so-called harder drugs, including

angel dust, valium, xanax, and Apancakes & syrup.@

               6)       DL=s drug use may evidence a prolonged attempt to self-medicate due to his

possible mental health issues.

               7)       Additionally, while in custody at FDC Philadelphia in the above-captioned

matters, DL apparently attempted suicide in July 2001. According to DL, he tried to kill himself by

slitting both sides of his neck with a razorblade. After the attempted suicide, DL was assigned to the

medical unit at FDC Philadelphia. At that time, he engaged in individual and group psychotherapy

sessions with BOP mental health professionals.

               8)       Significantly, at the time of this attempted suicide, prior counsel was already

appointed to represent DL.

               9)       DL further informed undersigned counsel that on at least one occasion, DL

communicated in writing to prior counsel and requested that prior counsel retain the services of a

mental health professional to conduct a forensic evaluation.

               10)       Regardless of whether or not DL specifically requested in writing that his

prior counsel hire a mental health professional, it is clearly apparent that DL’s possible history of

depression, his prolonged and significant history of drug abuse, and his apparent suicide attempt



                                                  6
indicated a need for the defense to obtain an independent forensic mental health evaluation prior to

the sentencing hearing to evaluate DL and assist prior counsel in formulating mitigation arguments

for sentencing.

                  11)    It does not appear that prior counsel applied for CJA funds to hire a mental

health professional in these matters.

                  12)    In support of DL=s pro se ' 2255 petition, undersigned counsel may very

well argue at the evidentiary hearing that prior counsel was ineffective for failing to obtain an

independent forensic mental health evaluation in these matters in that:

                  (a)   prior counsel knew full well that due to DL=s status as a career offender and

                        pursuant to the mandatory sentencing provisions of 18 U.S.C. ' 924(c), DL

                        was facing an extraordinarily long period of incarceration at sentencing;

                  (b)   prior counsel also knew full well that DL was going to receive a ' 5K1.1

                        downward departure motion at sentencing because DL cooperated with the

                        government in both of the above-captioned cases;

                  (c)   prior counsel should have known that his most important task at sentencing

                        would be to present significant mitigating factors to attempt to convince this

                        Court to maximize the downward departure;

                  (d)   in light of the subjective indicia of DL=s mental health illness (that is, his

                        self-reporting of depression and drug abuse) and objective indicia (that is, his

                        suicide attempt), it was patently unreasonable and, thus, ineffective, for prior

                        counsel to not request funds to hire an independent mental health




                                                   7
                       professional to conduct a forensic psychological evaluation of DL prior to the

                       sentencing hearing;

               (e)     such a forensic evaluation may very-well have provided prior counsel with

                       additional mitigating factors to present to this Court at the sentencing hearing

                       which may have changed the outcome of that hearing.

               13)      Of course, to establish this ineffective assistance of counsel claim, DL must

not only demonstrate that his prior attorney=s performance was unreasonable but, additionally, that

there is a reasonable probability that counsel=s unprofessional conduct in not obtaining an

independent forensic mental health evaluation resulted in a more severe sentence for DL.

               14)      Undersigned counsel respectfully requests that a psychologist be appointed

to conduct a psychological evaluation of DL prior to the ' 2255 evidentiary hearing and, possibly, to

testify at that hearing. The services of a psychologist are required in order to determine whether

DL=s emotional and mental health condition presents a factor that, had it been considered at the

initial sentencing hearing, may have resulted in a greater downward departure and, thus, a different

sentence.

               15)      Undersigned counsel further submits that the appointment of a psychologist

is necessary in order to assist him in preparing for the habeas corpus evidentiary hearing.

               16)      In order to conduct this psychological examination, undersigned counsel has

contacted Kirk S. Heilbrun, Ph.D., who has agreed to assist in this matter.

               17)      Dr. Heilbrun is the Chair of the Department of Psychology at Drexel

University. Prior to Drexel=s merger with MCP Hahnemann University, he was the Chair of

Hahnemann=s Department of Clinical and Health Psychology. From 1995 through 2001, in addition



                                                  8
to his duties at Hahnemann, Dr. Heilbrun was the Co-Director of the Law and Psychology Program

of Hahnemann Hospital and the Villanova University School of Law. Prior to becoming a professor

at Hahnemann, Dr. Heilbrun was an associate professor in the Department of Psychiatry at the

Medical College of Virginia.

               18)      Dr. Heilbrun has extensive experience in forensic psychology and the

treatment of mentally disordered offenders. Indeed, he has performed well over 150 forensic

evaluations. Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and

workshops in his field of expertise. He has published in excess of 50 articles and book chapters, and

has authored two forensic psychology textbooks. Further, he is a licensed psychologist in

Pennsylvania and Virginia, and has received advanced certification for clinical and forensic

psychology from the American Board of Professional Psychology.

               19)      Dr. Heilbrun has been qualified as an expert in his field by federal courts in

the Eastern District of Pennsylvania, the District of Columbia and the Southern District of Florida,

and has testified in both federal and state courts on more than 100 occasions. Many of Dr.

Heilbrun's forensic evaluations have been performed pursuant to court order, and not at the specific

request of either the defense or the prosecution.




                                                    9
               20)       Dr. Heilbrun=s qualifications are described at length in his curriculum vitae,

which is attached hereto as Exhibit AA@ and incorporated herein by reference as if set forth in full.

               21)       Dr. Heilbrun=s services in this matter will include, among other things, the

review of pertinent documents from undersigned counsel=s file; interview, testing and evaluation of

DL; conducting collateral interviews of DL=s family, if possible; the preparation of a psychological

evaluation; and, possibly, testifying at hearings.

               22)       Dr. Heilbrun has represented to undersigned counsel that he is willing to

accept a reduced fee in this matter, which fee will not exceed $2,500.

               WHEREFORE, for the foregoing reasons, defendant DL respectfully requests that

this Court authorize counsel to exceed $300 in fees for investigative, expert and other services in this

matter.

                                                       Respectfully submitted,




                                                       Jeffrey M. Lindy, Esquire
                                                       1800 John F. Kennedy Blvd.
                                                       Suite 1500
                                                       Philadelphia, Pennsylvania 19103
                                                       (215) 575-9290

                                                       Attorney for Defendant,
                                                       DL




                                                  10
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :        CRIMINAL NOS. -01
                                              :                      -01
DL                                            :

                  MEMORANDUM OF LAW IN SUPPORT OF THE
                     EX PARTE MOTION OF DEFENDANT DL
                    FOR AN ORDER AUTHORIZING COUNSEL
                 TO EXCEED THREE HUNDRED DOLLARS ($300)
           IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

                In the above-captioned matters, DL entered pleas of guilty to armed bank robbery,

carrying a firearm during a crime of violence, and related charges. His convictions stem from bank

robberies committed in Maryland and Pennsylvania.        DL=s plea of guilty to carrying a firearm

during the Maryland bank robbery was a second and subsequent conviction under the statute (18

U.S.C. '924(c)) and, thus, subjected him to a mandatory minimum, consecutive term of

imprisonment of 25 years.      On January 8, 2002, DL was sentenced to more than 21 years in

prison. This Court departed downward from the applicable Guideline sentence and the mandatory

minimum, consecutive terms of imprisonment due to the government=s downward departure motion

filed pursuant to U.S.S.G. '5K1.1.

               On May 7, 2004, DL filed a pro se petition pursuant to 28 U.S.C. ' 2255 alleging

ineffective assistance of prior counsel. Among the other claims raised in his habeas corpus petition,

DL alleged that his prior counsel was ineffective for not obtaining the services of a mental health

professional to evaluate him and assist the defense at the sentencing hearing.




                                                  11
                  DL has informed undersigned counsel that since he was a child, he has been

struggling with depression and possibly other mental health illnesses. Apparently, he first

experimented with marijuana when he was seven years old and, soon thereafter, became a habitual

smoker of that drug. At the age of thirteen, he began to ingest so-called harder drugs, including

angel dust, valium, xanax, and Apancakes & syrup.@ DL=s drug use may evidence a prolonged

attempt to self-medicate due to his possible mental health issues.

                  Additionally, while in custody at FDC Philadelphia in the above-captioned matters,

DL apparently attempted suicide in July 2001. According to DL, he tried to kill himself by slitting

both sides of his neck with a razorblade. After the attempted suicide, DL was assigned to the

medical unit at FDC Philadelphia. At that time, he engaged in individual and group psychotherapy

sessions with BOP mental health professionals. Significantly, at the time of this attempted suicide,

prior counsel was already appointed to represent DL. DL further informed undersigned counsel that

on at least one occasion, DL communicated in writing to prior counsel and requested that prior

counsel retain the services of a mental health professional to conduct a forensic evaluation.

                  Regardless of whether or not DL specifically requested in writing that his prior

counsel hire a mental health professional, it is clearly apparent that DL’s possible history of

depression, his prolonged and significant history of drug abuse, and his apparent suicide attempt

indicated a need for the defense to obtain an independent forensic mental health evaluation prior to

the sentencing hearing to evaluate DL and assist prior counsel in formulating mitigation arguments

for sentencing.

                  It does not appear that prior counsel applied for CJA funds to hire a mental health

professional in these matters.



                                                  12
               In support of DL=s pro se ' 2255 petition, undersigned counsel may very well argue

at the evidentiary hearing that prior counsel was ineffective for failing to obtain an independent

forensic mental health evaluation in these matters in that:

               (a)     prior counsel knew full well that due to DL=s status as a career offender and

                       pursuant to the mandatory sentencing provisions of 18 U.S.C. ' 924(c), DL

                       was facing an extraordinarily long period of incarceration at sentencing;

               (b)     prior counsel also knew full well that DL was going to receive a ' 5K1.1

                       downward departure motion at sentencing because DL cooperated with the

                       government in both of the above-captioned cases;

               (c)     prior counsel should have known that his most important task at sentencing

                       would be to present significant mitigating factors to attempt to convince this

                       Court to maximize the downward departure;

               (d)     in light of the subjective indicia of DL=s mental health illness (that is, his

                       self-reporting of depression and drug abuse) and objective indicia (that is, his

                       suicide attempt), it was patently unreasonable and, thus, ineffective, for prior

                       counsel to not request funds to hire an independent mental health

                       professional to conduct a forensic psychological evaluation of DL prior to the

                       sentencing hearing;

               (e)     such a forensic evaluation may very-well have provided prior counsel with

                       additional mitigating factors to present to this Court at the sentencing hearing

                       which may have changed the outcome of that hearing.




                                                 13
               Of course, to establish this ineffective assistance of counsel claim, DL must not only

demonstrate that his prior attorney=s performance was unreasonable but, additionally, that there is a

reasonable probability that counsel=s unprofessional conduct in not obtaining an independent

forensic mental health evaluation resulted in a more severe sentence for DL.

               Undersigned counsel respectfully requests that a psychologist be appointed to

conduct a psychological evaluation of DL prior to the ' 2255 evidentiary hearing and, possibly, to

testify at that hearing. The services of a psychologist are required in order to determine whether

DL=s emotional and mental health condition presents a factor that, had it been considered at the

initial sentencing hearing, may have resulted in a greater downward departure and, thus, a different

sentence. Undersigned counsel further submits that the appointment of a psychologist is necessary

in order to assist him in preparing for the habeas corpus evidentiary hearing.

               In order to conduct this psychological examination, undersigned counsel has

contacted Kirk S. Heilbrun, Ph.D., who has agreed to assist in this matter. Dr. Heilbrun is the Chair

of the Department of Psychology at Drexel University. Prior to Drexel=s merger with MCP

Hahnemann University, he was the Chair of Hahnemann=s Department of Clinical and Health

Psychology. From 1995 through 2001, in addition to his duties at Hahnemann, Dr. Heilbrun was the

Co-Director of the Law and Psychology Program of Hahnemann Hospital and the Villanova

University School of Law. Prior to becoming a professor at Hahnemann, Dr. Heilbrun was an

associate professor in the Department of Psychiatry at the Medical College of Virginia.

               Dr. Heilbrun has extensive experience in forensic psychology and the treatment of

mentally disordered offenders. Indeed, he has performed well over 150 forensic evaluations.

Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and workshops in



                                                 14
his field of expertise. He has published in excess of 50 articles and book chapters, and has authored

two forensic psychology textbooks. Further, he is a licensed psychologist in Pennsylvania and

Virginia, and has received advanced certification for clinical and forensic psychology from the

American Board of Professional Psychology. Dr. Heilbrun has been qualified as an expert in his

field by federal courts in the Eastern District of Pennsylvania, the District of Columbia and the

Southern District of Florida, and has testified in both federal and state courts on more than 100

occasions. Many of Dr. Heilbrun's forensic evaluations have been performed pursuant to court

order, and not at the specific request of either the defense or the prosecution. Dr. Heilbrun=s

qualifications are described at length in his curriculum vitae, which is attached hereto as Exhibit AA@

and incorporated herein by reference as if set forth in full.

               Dr. Heilbrun=s services in this matter will include, among other things, the review of

pertinent documents from undersigned counsel=s file; interview, testing and evaluation of DL;

conducting collateral interviews of DL=s family, if possible; the preparation of a psychological

evaluation; and, possibly, testifying at hearings. Dr. Heilbrun has represented to undersigned

counsel that he is willing to accept a reduced fee in this matter, which fee will not exceed $2,500.

               Due process and fundamental fairness mandate that Mr. Loper be afforded the

opportunity to access the financial resources necessary to have an independent forensic

psychological evaluation performed, to gather evidence necessary to support his ineffective

assistance of counsel theories, and to prepare for the ' 2255 evidentiary hearing. The Supreme

Court has stated that,

               [t]he right of an accused in a criminal case to due process is, in
               essence, the right to a fair opportunity to defend against the State's
               accusations. The right to confront and cross-examine witnesses and



                                                  15
               to call witnesses in one's behalf has long been recognized as essential
               to due process.

Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973).

               Title 18, United States Code, Section 3006A(e)(2), mandates that counsel appointed

under the Criminal Justice Act may obtain without prior approval $300 in order to secure

investigative, expert or other services. Counsel "shall not exceed $1000, exclusive of reimbursement

to expenses reasonably incurred, unless payment in excess of that amount is certified by the court...."

18 U.S.C. 3006A(e)(3). See, generally, United States v. Fields, 772 F.2d 549 (9th Cir. 1983), cert.

denied, 104 S.Ct. 1718 (1984); United States v. Smith, 893 F.2d 1573 (9th Cir. 1990). However,

under the Criminal Justice Act:

               Counsel for a person who is financially unable to obtain
               investigative, expert or other services necessary for adequate
               representation may request them in an ex parte application. Upon
               finding, after appropriate inquiry in an ex parte proceeding, that the
               services are necessary and that the person is financially unable to
               obtain them, the court...shall authorize counsel to obtain these
               services.

Title 18, United States Code, Section 3006A(e)(1).

               Given the financial limitations of the Criminal Justice Act, DL requests that the $300

maximum limit be waived and that the Court allow him to utilize the services of Kirk S. Heilbrun,

Ph.D., to conduct a forensic mental health evaluation even if the cost exceeds $300.

                                                       Respectfully submitted,




                                                       Jeffrey M. Lindy, Esquire
                                                       1800 John F. Kennedy Blvd.
                                                       Suite 1500
                                                       Philadelphia, Pennsylvania 19103

                                                  16
     (215) 575-9290

     Attorney for Defendant,
     DL




17
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :      CRIMINAL NO.
                                              :
EE                                            :



                                            ORDER



               AND NOW, this          day of September, 1997, after consideration of the Motion of

Defendant EE To Seal And Impound The Motion For Psychological Examination And Court-

Appointment Of Psychologist And Proposed Form Of Order, it is hereby ORDERED that the above-

referenced documents are hereby SEALED AND IMPOUNDED, and that these documents shall

remain impounded until further order of the Court.


                                              BY THE COURT:


                                              _______________________________

                                              HONORABLE NORMA L. SHAPIRO
                                              Judge, United States District Court
                         IN THE UNITED STATES DISTRICT COURT
                      FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :      CRIMINAL NO.
                                              :
EE                                            :



                          MOTION OF DEFENDANT EE TO SEAL
                    AND IMPOUND THE MOTION FOR PSYCHOLOGICAL
                      EXAMINATION AND COURT-APPOINTMENT OF
                     PSYCHOLOGIST AND PROPOSED FORM OF ORDER


               Defendant EE, by and through his attorney, Jeffrey M. Lindy, Esquire, hereby moves

this Court for an Order sealing and impounding the Motion Of Defendant EE For Psychological

Examination And Court-Appointment Of Psychologist and proposed form of Order, and in support

thereof avers as follows:

               1.      The above-referenced Motion and proposed form of Order have been filed

pursuant to 18 U.S.C. '4241 et seq., Federal Rule of Criminal Procedural 12.2 and 18 U.S.C. '3552.
The Motion requests that EE be given a psychological examination and reveals confidential and

protected information pertaining to EE's emotional condition and his family background.

               2.      Unless the above-referenced Motion and proposed form of Order are filed

under seal and impounded, there is no way to preserve the confidential and protected nature of these

pleadings.

               WHEREFORE, for the foregoing reasons, defendant EE requests that the Court enter

an Order sealing and impounding the Motion Of Defendant Elric Evans For Psychological

Examination And Court-Appointment Of Psychologist and proposed form of Order.

                                                     Respectfully submitted,
                                                     _____________________________
                                                     Jeffrey M. Lindy, Esquire
                                                     Attorney for Defendant, EE
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
               v.                            :      CRIMINAL NO.
                                             :
EE                                           :


                                           ORDER


               AND NOW, this           day of September, 1997, upon consideration of the Motion

Of Defendant EE For Psychological Examination And Court-Appointment Of Psychologist, and

any government response thereto, this Court FINDS as follows:

               A.     There is reasonable cause to believe that the defendant may presently be

suffering from a mental disease or defect rendering him mentally incompetent to the extent that

he is unable to understand the nature and consequences of the proceedings against him or to

assist properly in his defense. The Court makes this finding pursuant to 18 U.S.C. '4241(a).

               B.     At the time of the alleged offense, the defendant may have been insane or

may have been suffering from a mental disease or defect or other mental condition bearing upon

the issue of guilt or punishment. The Court makes this finding pursuant to 18 U.S.C. '4242(a).1




       1
                In the Motion Of Defendant EE For Psychological Examination And Court-
Appointment Of Psychologist, the defense provided notice to the government pursuant to Federal
Rule of Criminal Procedure 12.2(a) & (b) that, if this matter proceeds to trial, the defendant
intends to rely upon the defense of insanity and intends to introduce expert testimony relating to
his mental disease or defect or other mental condition bearing upon the issue of guilt or
punishment.
               C.      There is reasonable cause to believe that the defendant may presently be

suffering from a mental disease or defect bearing upon the issue of punishment and for the

treatment of which he would be in need of custody for care or treatment in a suitable facility, if

convicted. The Court makes this finding pursuant to 18 U.S.C. ''4244(a) and 3552(c).

               Therefore, it is hereby ORDERED that:

               1.      Kirk S. Heilbrun, Ph.D., a licensed and certified psychologist and

professor in the Department of Clinical and Health Psychology at Allegheny University of the

Health Sciences, is appointed pursuant to 18 U.S.C. '4247(b) to conduct a psychological

examination of the defendant.

               2.      Pursuant to 18 U.S.C. '4247(b), the defendant is committed to the custody

of the Attorney General for placement in the Federal Correctional Institution at Fairton, New

Jersey ("FCI Fairton") for a period of time not to exceed 45 days in order for Dr. Heilbrun to

conduct the psychological examination.2

               3.      Dr. Heilbrun shall conduct the psychological examination pursuant to 18

U.S.C. '4241(b)&(d) (in order to determine whether the defendant is suffering from a mental

disease or a defect rendering him mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings against him or to assist properly in

his defense), 18 U.S.C. '4242(a) and Federal Rule of Criminal Procedure 12.2(c) (in order to

determine whether, at the time of the alleged offense, the defendant was insane or was suffering

from a mental disease or defect or other mental condition bearing upon the issue of guilt or

       2
              If the defendant is currently being held at FCI Fairton, then it is hereby
ORDERED that he shall remain at that institution for at least 45 days in order for the
psychological evaluation to be conducted.

                                                 4
punishment), and 18 U.S.C. ''4244(b)&(d) and 3552(c) (in order to determine whether the

defendant is presently suffering from a mental disease or defect bearing upon the issue of

punishment and for the treatment of which he would be in need of custody for care or treatment

in a suitable facility, if convicted).

                4.      Pursuant to 18 U.S.C. '4247(c), Dr. Heilbrun shall prepare a report at the

conclusion of the psychological examination, which report shall be filed with the Court with

copies provided to counsel for the defendant (Jeffrey M. Lindy, Esquire, 1760 Market Street,

Suite 600, Philadelphia, Pennsylvania 19103) and counsel for the government (Assistant United

States Attorney Anthony J. Wzorek, Office of the United States Attorney, Eastern District of

Pennsylvania, 615 Chestnut Street, Suite 1250, Philadelphia, Pennsylvania            19106).    The

psychological report shall include:

                        (a)      the defendant's history and present symptoms;

                        (b)      a description of the psychiatric, psychological, and medical tests

that were employed and the results;

                        (c)      the findings of Dr. Heilbrun; and

                        (d)      Dr. Heilbrun's opinions as to diagnosis, prognosis and, (i) whether

the defendant is suffering from a mental disease or defect rendering him mentally incompetent to

the extent that he is unable to understand the nature and consequences of the proceedings against

him or to assist properly in his defense (pursuant to 18 U.S.C. '4241(b)), (ii) whether, at the time

of the alleged offense, the defendant was insane or was suffering from a mental disease or defect

or other mental condition bearing upon the issue of guilt or punishment (pursuant to 18 U.S.C.

'4242(a) and Federal Rule of Criminal Procedure 12.2(a)&(b)), and (iii) whether the defendant


                                                   5
is presently suffering from a mental disease or defect bearing upon the issue of punishment and

for the treatment of which he would be in need of custody for care or treatment in a suitable

facility, if convicted (pursuant to 18 U.S.C. ''4244(b) and 3552(c)).

               5.     It is hereby further ORDERED that the time from the date of this Order

until such time that a hearing on the defendant's Motion is concluded, or other prompt

disposition thereof is made, shall be excluded for purposes of determining the Speedy Trial Act

compliance pursuant to 18 U.S.C. '3161(a)(1)(A) and that the speedy trial deadline is further

extended pursuant to 18 U.S.C. '3161(a)(1)(F) due to pretrial motions filed by the defendant in

this case.



                                             BY THE COURT:



                                             HONORABLE NORMA L. SHAPIRO
                                             Judge, United States District Court




                                                6
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
               v.                            :       CRIMINAL NO.
                                             :
EE                                           :



                            MOTION OF DEFENDANT EE
                      FOR PSYCHOLOGICAL EXAMINATION AND
                      COURT-APPOINTMENT OF PSYCHOLOGIST

               Defendant EE, 3 by and through his attorney, Jeffrey M. Lindy, Esquire, hereby

moves this Court for a psychological examination and requests that the Court appoint a

psychologist to conduct the examination and prepare a report, and in support thereof avers as

follows:

               1.     On February 13, 1997, a federal grand jury sitting in the Eastern District

of Pennsylvania indicted EE on one count of conspiracy to interfere with interstate commerce by

robbery, in violation of 18 U.S.C. '1951 (Hobbs Act robbery).

               2.     On July 10, 1997, undersigned counsel was appointed pursuant to the

Criminal Justice Act ("CJA") to represent EE in this matter.

               3.     On July 15, 1997, EE was arraigned.            Also on that date, a pretrial

detention hearing was conducted upon motion by the government. After a hearing on the

government's motion, EE was detained pretrial as a risk of flight.

       3
               Throughout the Indictment, EE's first name is spelled with a "k," i.e., "***." In
fact, EE does not spell his first name with a "k."

                                                 7
               4.      Upon information and belief, undersigned counsel avers, that EE's family

has a history of mental illness and that EE, himself, may presently be suffering from a mental

disease or defect or may have, at the time of the alleged offense, suffered from a mental disease

or defect.4 Specifically, the defense represents as follows:

                       (a)     EE's mother is apparently suffering from schizophrenia. She was

diagnosed with this disease approximately 20 years ago and has been hospitalized for the illness

on several occasions in the past 12 years. In 1996, she was apparently involuntarily committed

to Hahnemann (now Allegheny) Hospital for approximately one month due to her mental

condition.

                       (b)     EE's brother apparently displays psychotic tendencies, such as

talking aloud to imaginary people. He does not live in his own apartment or house, but has lived

with a succession of relatives; he resides with a relative until he is asked to leave, after which he

moves in with another relative. EE's brother has never been formally evaluated by a mental

health professional.

                       (c)     EE's father and mother separated when he was 10 years old. His

father apparently is an alcoholic.




       4
                With this Motion, the defense provides notice to the government pursuant to
Federal Rule of Criminal Procedure 12.2(a)&(b) that, if this matter proceeds to trial, the
defendant intends to rely upon the defense of insanity and intends to introduce expert testimony
relating to his mental disease or defect or other mental condition bearing upon the issue of guilt
or punishment.


                                                 8
                       (d)     EE attended at least five different primary and secondary schools

for learning disabled children. At one of these schools, a psychiatric social worker apparently

told him that he was schizophrenic. At various times throughout his childhood, mental health

professionals have prescribed an assortment of medications for EE, including Prozac and Xanec.

                       (e)     During at least one period of time in his childhood, EE and his

mother lived in a car on a street. Apparently, due to her mental illness, EE's mother could not

make rental payments for their apartment or pay the utility bills. Consequently, electric service

to the apartment was suspended, after which she and EE were evicted.

                       (f)     EE apparently developed a narcotics addiction at the age of 12,

during one of the periods of time when he and his mother lived on the street.

               5.      Accordingly, there is reasonable cause to believe that EE, (i) may

presently be suffering from a mental disease or defect rendering him mentally incompetent to the

extent that he is unable to understand the nature and consequences of the proceedings against

him or to assist properly in his defense, or (ii) at the time of the alleged offense, may have been

insane or suffering from a mental disease or defect or other mental condition bearing upon the

issue of guilt or punishment, or (iii) may presently be suffering from a mental disease or defect

bearing upon the issue of punishment and for the treatment of which he would be in need of

custody for care or treatment in a suitable facility, if convicted.

               6.      It is necessary that EE be examined by a psychiatrist or psychologist in

order for this Court to determine, (i) whether, pursuant to 18 U.S.C. '4241(d), he is competent to

stand trial or enter a plea, or (ii) whether, pursuant to 18 U.S.C. '4242(a) and Federal Rule of

Criminal Procedure 12.2(a) & (b), at the time of the alleged offense, he was insane or suffering


                                                  1
from a mental disease or defect or other mental condition bearing upon the issue of guilt or

punishment, or (iii) whether, pursuant to 18 U.S.C. ''4244(d) and 3552(c), he is presently

suffering from a mental disease or defect requiring special custodial treatment, if convicted.

               7.      Pursuant to 18 U.S.C. '4247(b), this Court has the authority to appoint a

psychiatrist or psychologist to examine EE.

               8.      Pursuant to 18 U.S.C. '4247(c), this Court has the authority to order that

the appointed psychiatrist or psychologist prepare a report at the conclusion of the examination

of EE. If a report is ordered, it shall include EE's history and present symptoms, a description of

the psychiatric, psychological and medical tests that were employed during the examination and

their results, the examiner's findings, and the examiner's opinions as to diagnosis and prognosis.

Furthermore, the report shall include:

                       (i) pursuant to 18 U.S.C. '4241(d), the examiner's opinion as to whether

EE is suffering from a mental disease or defect rendering him mentally incompetent to the extent

that he is unable to understand the nature and consequences of the proceedings against him or to

assist properly in his defense;

                       (ii)   pursuant to 18 U.S.C. '4242(a) and Federal Rule of Criminal

Procedure 12.2(a)&(d), the examiner's opinion as to whether, at the time of the alleged offense,

EE was insane or was suffering from a mental disease or defect or other mental condition

bearing upon the issue of guilt or punishment; and

                       (iii) pursuant to 18 U.S.C. ''4244(b) and 3552(c), the examiner's opinion

as to whether EE is presently suffering from a mental disease or defect bearing upon the issue of

punishment and for the treatment of which he would be in need of custody for care or treatment


                                                 2
in a suitable facility, if convicted.

                        9.       Undersigned counsel respectfully recommends that this Court

appoint Kirk S. Heilbrun, Ph.D., to conduct a psychological examination of EE and prepare a

report, as more fully described in paragraph 8, above. Dr. Heilbrun is a professor in the

Department of Clinical and Health Psychology at Allegheny University of the Health Sciences in

Philadelphia, Pennsylvania. Additionally, he is Co-Director of the Law-Psychology Program of

Allegheny University of the Health Sciences and the Villanova School of Law. Dr. Heilbrun has

extensive experience in forensic psychology and the treatment of mentally disordered offenders.

Indeed, he has performed over 100 forensic evaluations.          Additionally, Dr. Heilbrun has

conducted in excess of 100 presentations, lectures and workshops and has published more than

30 articles in his field of expertise. He is a licensed psychologist in Pennsylvania and Virginia

and has received advanced certification for clinical and forensic psychology from the American

Board of Professional Psychology. Dr. Heilbrun has been qualified as an expert in his field by

federal courts in the Eastern District of Pennsylvania, the District of Columbia and the Southern

District of Florida, and has testified in both federal and state courts on more than 100 occasions.

The majority of Dr. Heilbrun's forensic evaluations have been performed pursuant to court order,

and not at the specific request of either the defense or the prosecution. See curriculum vitae of

Dr. Heilbrun attached hereto as Exhibit "A" and incorporated herein by reference as if set forth

in full.

                10.     Dr. Heilbrun has represented to undersigned counsel that he is willing to

accept this Court's appointment and will adjust his fee consistent with this Court's schedule of

fees for CJA matters.


                                                3
               WHEREFORE, for the foregoing reasons, defendant EE requests that this Court

order a psychological examination and appoint Dr. Heilbrun to conduct the examination and

prepare a report.



                                          Respectfully submitted,



                                          Jeffrey M. Lindy, Esquire
                                          1760 Market Street
                                          Suite 600
                                          Philadelphia, PA 19103
                                          (215) 575-9290

                                          Attorney for Defendant,
                                          EE




                                            4
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                       :
                                               :
               v.                              :       CRIMINAL NO.
                                               :
EV                                             :

                                            ORDER

               AND NOW, this             day of                    , 2006, upon consideration of the

Ex Parte Motion of Defendant EV for an Order Authorizing Counsel to Exceed Five Hundred

Dollars ($500) in Fees for Investigative, Expert or Other Services, it is hereby ORDERED that the

provision of Title 18, United States Code, Section 3006A(e)(2), which limits to Five Hundred

Dollars ($500) the funds available to counsel appointed under the Criminal Justice Act for obtaining

investigative, expert or other services is WAIVED, and the defense may utilize the services of Kirk

S. Heilbrun, Ph.D., a forensic psychologist, provided that the fees for Dr. Heilbrun=s services do not

exceed a total of $2,500.


                                                       BY THE COURT:



                                                       __________________________________
                                                       HONORABLE NORMA L. SHAPIRO
                                                       Senior Judge, United States District Court




                                                   1
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                       :
                                               :
               v.                              :       CRIMINAL NO.
                                               :
EV                                             :

                      EX PARTE MOTION OF DEFENDANT EV
                     FOR AN ORDER AUTHORIZING COUNSEL
                    TO EXCEED FIVE HUNDRED DOLLARS ($500)
            IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

               Defendant EV, by and through his attorney, Jeffrey M. Lindy, Esquire, hereby moves

this Court ex parte for an Order authorizing counsel to exceed $500 in fees for investigative, expert

or other services in the above-captioned matter, that is, for the services of forensic psychologist Kirk

S. Heilbrun, Ph.D., and in support thereof avers as follows:

               1.       On November 29, 2005, EV was indicted and charged with conspiracy to

interfere with interstate commerce by robbery (“Hobbs Act”), in violation of 18 U.S.C. '1951,

related Hobbs Act substantive offenses, possession of a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. '924(c)(1), and aiding and abetting, in violation of 18 U.S.C. '2.

               2.        On March 9, 2006, EV was arraigned by United States Magistrate Judge

Timothy R. Rice on the charges set forth in the Indictment and entered pleas of not guilty to the

charges. He did not contest pretrial detention.

               3.        Both before and after the arraignment and detention hearing on March 9,

2006, EV engaged in conferences with his attorneys during which he revealed an extensive history

of substance abuse as follows:

                                                   2
                       (a)     In 1980, when EV was only 14 years old, he began experimenting with

marijuana, alcohol, pills and cocaine.

                       (b)     At approximately the same time as his drug use began, he was arrested

and charged as a juvenile in New York for robbery and related offenses. EV was sentenced to 1-3

years in a juvenile detention facility as a result of that case. After his release, he never attended

school again.

                       (c)     In 1983, after being released from the juvenile facility, E V began

using heroin.

                       (d)     Subsequently, in 1983, EV was again arrested for robbery in New

York, for which he was later sentenced to 32 to 7 years incarceration.

                       (e)     Since 1983, EV has spent a number of years in prison, and when he

has not been in prison, he has been on the street abusing heroin.

                 4.   Undersigned counsel requests that a forensic psychologist be appointed to

evaluate EV in order to assist counsel in determining the nature and severity of EV’s substance

abuse problem. In conducting tests and interviews and by analyzing the resulting data, a forensic

psychologist will be able to reach an expert conclusion as to whether EV’s substance abuse

condition is indicative of an underlying mental disorder. Such a disorder, of course, could present a

substantive defense at trial or constitute a mitigating factor at sentencing.

                5.     In order to conduct a psychological examination, undersigned counsel has

contacted Kirk S. Heilbrun, Ph.D., who has agreed to conduct an examination and evaluation of EV.

                6.     Dr. Heilbrun=s services in this matter will include, among other things, the

review of pertinent documents from undersigned counsel=s file; interview, testing and evaluation of



                                                  3
EV; conducting collateral interviews of EV=s family; the preparation of a psychological evaluation;

travel to and from the Federal Detention Center in Philadelphia; and, possibly, testifying at trial

and/or sentencing.

               7.      Dr. Heilbrun is the Chair of the Department of Psychology at Drexel

University. Prior to Drexel=s merger with MCP Hahnemann University, he was the Chair of

Hahnemann=s Department of Clinical and Health Psychology. From 1995 through 2001, in addition

to his duties at Hahnemann, Dr. Heilbrun was the Co-Director of the Law and Psychology Program

of Hahnemann Hospital and the Villanova School of Law. Prior to becoming a professor at

Hahnemann, Dr. Heilbrun was an associate professor in the Department of Psychiatry at the Medical

College of Virginia.

               8.      Dr. Heilbrun has extensive experience in forensic psychology and the

treatment of mentally disordered offenders. Indeed, he has performed and supervised hundreds of

forensic evaluations. Additionally, Dr. Heilbrun has conducted in excess of 100 presentations,

lectures and workshops in his field of expertise. He has published in excess of 50 articles and book

chapters, and has authored two forensic psychology textbooks. Further, he is a licensed psychologist

in Pennsylvania and Virginia, and has received advanced certification for clinical and forensic

psychology from the American Board of Professional Psychology.

               9.       Dr. Heilbrun has been qualified as an expert in his field by federal courts in

the Eastern District of Pennsylvania, the District of Columbia and the Southern District of Florida,

and has testified in both federal and state courts on more than 100 occasions. Many of Dr.

Heilbrun's forensic evaluations have been performed pursuant to court order, and not at the specific

request of either the defense or the prosecution.



                                                    4
               10.       Dr. Heilbrun=s qualifications are described at length in his curriculum vitae,

which is attached hereto as Exhibit AA@ and incorporated herein by reference as if set forth in full.

               11.     Dr. Heilbrun has represented to undersigned counsel that he is willing to

accept a reduced fee in order to perform a forensic psychological evaluation of EV, which fee will

not exceed $2,500.

               WHEREFORE, for the foregoing reasons, defendant EV respectfully requests that

this Court authorize counsel to exceed $500 in fees for investigative, expert and other services in this

matter.

                                                       Respectfully submitted,



                                                       ____________________________
                                                       Jeffrey M. Lindy, Esquire
                                                       1800 John F. Kennedy Blvd.
                                                       Suite 1500
                                                       Philadelphia, Pennsylvania 19103
                                                       (215) 575-9290

                                                       Attorney for Defendant,
                                                       EV




                                                   5
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
               v.                            :       CRIMINAL NO.
                                             :
EV                                           :

      MEMORANDUM OF LAW IN SUPPORT OF THE EX PARTE MOTION OF
          DEFENDANT EV FOR AN ORDER AUTHORIZING COUNSEL
                TO EXCEED FIVE HUNDRED DOLLARS ($500)
        IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

               On November 29, 2005, EV was indicted and charged with conspiracy to interfere

with interstate commerce by robbery (“Hobbs Act”), in violation of 18 U.S.C. '1951, related Hobbs

Act substantive offenses, possession of a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. '924(c)(1), and aiding and abetting, in violation of 18 U.S.C. '2. On March

9, 2006, EV was arraigned by United States Magistrate Judge Timothy R. Rice on the charges set

forth in the Indictment and entered pleas of not guilty to the charges. He did not contest pretrial

detention.

               Both before and after the arraignment and detention hearing on March 9, 2006, EV

engaged in conferences with his attorneys during which he revealed an extensive history of

substance abuse as follows:

                      (a)     In 1980, when EV was only 14 years old, he began experimenting with

marijuana, alcohol, pills and cocaine.




                                                 6
                       (b)     At approximately the same time as his drug use began, he was arrested

and charged as a juvenile in New York for robbery and related offenses. EV was sentenced to 1-3

years in a juvenile detention facility as a result of that case. After his release, he never attended

school again.

                       (c)     In 1983, after being released from the juvenile facility, E V began

using heroin.

                       (d)     Subsequently, in 1983, EV was again arrested for robbery in New

York, for which he was later sentenced to 32 to 7 years incarceration.

                       (e)     Since 1983, EV has spent a number of years in prison, and when he

has not been in prison, he has been on the street abusing heroin.

                 Undersigned counsel requests that a forensic psychologist be appointed to evaluate

EV in order to assist counsel in determining the nature and severity of EV’s substance abuse

problem.    In conducting tests and interviews and by analyzing the resulting data, a forensic

psychologist will be able to reach an expert conclusion as to whether EV’s substance abuse

condition is indicative of an underlying mental disorder. Such a disorder, of course, could present a

substantive defense at trial or constitute a mitigating factor at sentencing.

                In order to conduct a psychological examination, undersigned counsel has contacted

Kirk S. Heilbrun, Ph.D., who has agreed to conduct an examination and evaluation of EV. Dr.

Heilbrun=s services in this matter will include, among other things, the review of pertinent

documents from undersigned counsel=s file; interview, testing and evaluation of EV; conducting

collateral interviews of EV=s family; the preparation of a psychological evaluation; travel to and




                                                  7
from the Federal Detention Center in Philadelphia; and, possibly, testifying at trial and/or

sentencing.

               Dr. Heilbrun is the Chair of the Department of Psychology at Drexel University.

Prior to Drexel=s merger with MCP Hahnemann University, he was the Chair of Hahnemann=s

Department of Clinical and Health Psychology. From 1995 through 2001, in addition to his duties at

Hahnemann, Dr. Heilbrun was the Co-Director of the Law and Psychology Program of Hahnemann

Hospital and the Villanova School of Law. Prior to becoming a professor at Hahnemann, Dr.

Heilbrun was an associate professor in the Department of Psychiatry at the Medical College of

Virginia.

               Dr. Heilbrun has extensive experience in forensic psychology and the treatment of

mentally disordered offenders. Indeed, he has performed and supervised hundreds of forensic

evaluations. Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and

workshops in his field of expertise. He has published in excess of 50 articles and book chapters, and

has authored two forensic psychology textbooks. Further, he is a licensed psychologist in

Pennsylvania and Virginia, and has received advanced certification for clinical and forensic

psychology from the American Board of Professional Psychology. Dr. Heilbrun has been qualified

as an expert in his field by federal courts in the Eastern District of Pennsylvania, the District of

Columbia and the Southern District of Florida, and has testified in both federal and state courts on

more than 100 occasions. Many of Dr. Heilbrun's forensic evaluations have been performed

pursuant to court order, and not at the specific request of either the defense or the prosecution.

                Dr. Heilbrun=s qualifications are described at length in his curriculum vitae, which is

attached to the within Motion as Exhibit AA.@ Dr. Heilbrun has represented to undersigned counsel



                                                  8
that he is willing to accept a reduced fee in order to perform a forensic psychological evaluation of

EV, which will not exceed $2,500.

                   Due process and fundamental fairness mandate that EV be afforded the opportunity to

access the financial resources necessary to have an updated, forensic psychological evaluation

performed in order to gather evidence necessary for his defense in this matter. The Supreme Court

has stated that,

                   [t]he right of an accused in a criminal case to due process is, in
                   essence, the right to a fair opportunity to defend against the State's
                   accusations. The right to confront and cross-examine witnesses and
                   to call witnesses in one's behalf has long been recognized as essential
                   to due process.

Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973).

                   Title 18, United States Code, Section 3006A(e)(2), mandates that counsel appointed

under the Criminal Justice Act may obtain without prior approval $500 in order to secure

investigative, expert or other services. Counsel "shall not exceed $1600, exclusive of reimbursement

to expenses reasonably incurred, unless payment in excess of that amount is certified by the court...."

18 U.S.C. 3006A(e)(3). See, generally, United States v. Fields, 772 F.2d 549 (9th Cir. 1983), cert.

denied, 104 S.Ct. 1718 (1984); United States v. Smith, 893 F.2d 1573 (9th Cir. 1990). However,

under the Criminal Justice Act:

                   Counsel for a person who is financially unable to obtain
                   investigative, expert or other services necessary for adequate
                   representation may request them in an ex parte application. Upon
                   finding, after appropriate inquiry in an ex parte proceeding, that the
                   services are necessary and that the person is financially unable to
                   obtain them, the court...shall authorize counsel to obtain these
                   services.

Title 18, United States Code, Section 3006A(e)(1).



                                                     9
               Given the financial limitations of the Criminal Justice Act, the defense requests that

the $500 maximum limit be waived and that the Court allow the defendant to utilize the services of

Kirk S. Heilbrun, Ph.D., to conduct a forensic evaluation of EV provided that the fees for Dr.

Heilbrun=s services do not exceed $2500.

.

                                                      Respectfully submitted,



                                                      ____________________________
                                                      Jeffrey M. Lindy, Esquire
                                                      1800 John F. Kennedy Blvd.
                                                      Suite 1500
                                                      Philadelphia, Pennsylvania 19103
                                                      (215) 575-9290

                                                      Attorney for Defendant,
                                                      EV




                                                10
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :      CRIMINAL NO.
                                              :
JA                                            :

                                            ORDER

               AND NOW, this            day of                    , 2005, upon consideration of the

Motion of Defendant JA for an Order Authorizing Counsel to Exceed Three Hundred Dollars ($300)

in Fees for Investigative, Expert or Other Services, it is hereby ORDERED that the provision of

Title 18, United States Code, Section 3006A(e)(2), which limits to Three Hundred Dollars ($300)

the funds available to counsel appointed under the Criminal Justice Act for obtaining investigative,

expert or other services is WAIVED, and the defense may utilize the services of Kirk S. Heilbrun,

Ph.D., a forensic psychologist, provided that the fees for Dr. Heilbrun=s services related to the

competency evaluation pursuant to Title 18, United States Code, Section 4241(d), do not exceed a

total of $2,500.


                                                     BY THE COURT:




                                                     HONORABLE ARNOLD C. RAPOPORT
                                                     United States Magistrate Judge
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                       :
                                               :
               v.                              :       CRIMINAL NO.
                                               :
JA                                             :

                     UNOPPOSED MOTION OF DEFENDANT JA
                     FOR AN ORDER AUTHORIZING COUNSEL
                  TO EXCEED THREE HUNDRED DOLLARS ($300)
            IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

               Defendant JA, by his attorney, Jeffrey M. Lindy, Esquire, hereby moves this Court

for an Order authorizing counsel to exceed $300 in fees for investigative, expert or other services in

the above-captioned matter, that is, for the services of forensic psychologist Kirk S. Heilbrun, Ph.D.,

and in support thereof avers as follows:

               1.        On or about April 5, 2005, a federal grand jury sitting in the Eastern District

of Pennsylvania returned a Superceding Indictment against JA and nine others charging the

defendants with engaging in a conspiracy to distribute narcotics.

               2.        JA was apparently arrested on April 8, 2005, at which time he was held in

custody on a temporary Order of pretrial detention.

               3.        Also on April 8, 2005, undersigned counsel was appointed pursuant to the

Criminal Justice Act (ACJA@) to represent JA in this matter.

               4.        On April 12, 2005, JA and undersigned counsel appeared before this Court

for arraignment and a pretrial detention hearing. At the request of the defense, the arraignment and

the pretrial detention hearing were postponed for good cause shown pursuant to 18 U.S.C.

'3142(f)(2)(B).
               5.       Undersigned counsel requested a postponement of the arraignment and

pretrial detention hearing due to information provided immediately prior to the proceedings by JA

and his mother, Mrs. A, which information raised the possibility that JA may have mental health

issues affecting competency, legal insanity, or mitigation of sentence issues.

               6.       Upon information and belief, undersigned counsel avers, that JA=s family

has a history of mental illness and that JA, himself, may presently be suffering from a mental disease

or defect or may have, at the time of the alleged offense, suffered from a mental disease or defect.

Specifically, the defense represents as follows:

               (a)      According to JA and his mother, he has been receiving SSI payments for a

mental disability since he was five or six years old. The A family does not understand the nature of

the mental disability, but Mrs. A believes that her son may have schizophrenia.

               (b)      JA=s father lives at home with JA and his mother. The father does not work

because he, too, is disabled. According to Mrs. A, her husband=s family has a history of mental

illness.

               7.       Accordingly, there is reasonable cause to believe that JA,

               (a) may presently be suffering from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense;

               (b) at the time of the alleged offense, may have been insane or suffering from a

mental disease or defect or other mental condition bearing upon the issue of guilt or punishment; or




                                                   3
                (c) may presently be suffering from a mental disease or defect bearing upon the issue

of punishment and for the treatment of which he would be in need of custody for care or treatment in

a suitable facility, if convicted.1

                8. It is necessary that JA be examined by a qualified forensic psychologist in order

for this Court to determine,

                (a) whether, pursuant to 18 U.S.C. '4241(d), he is competent to stand trial or enter a

plea;

                (b) whether, pursuant to 18 U.S.C. '4242(a) and Federal Rule of Criminal Procedure

12.2(a) & (b), at the time of the alleged offense, he was insane or suffering from a mental disease or

defect or other mental condition bearing upon the issue of guilt or punishment; or

                (c) whether, pursuant to 18 U.S.C. ''4244(d) and 3552(c), he is presently suffering

from a mental disease or defect requiring special custodial treatment, if convicted.

                9.        Pursuant to 18 U.S.C. '4247(b), this Court has the authority to appoint a

qualified forensic psychologist to examine JA.

                10.       Pursuant to 18 U.S.C. '4247(c), this Court has the authority to order that the

appointed qualified forensic psychologist prepare a report at the conclusion of the examination of

JA. If a report is ordered, it shall include JA=s history and present symptoms, a description of the

psychiatric, psychological and medical tests that were employed during the examination and their




        1
          With this Motion, the defense provides notice to the government pursuant to Federal Rule
of Criminal Procedure 12.2(a) & (b) that, if this matter proceeds to trial, the defendant may rely
upon the defense of insanity and may introduce expert testimony relating to his mental disease or
defect or other mental condition bearing upon the issue of guilt or punishment.


                                                   4
results, the examiner=s findings, and the examiner=s opinions as to diagnosis and prognosis.

Furthermore, the report may include:

                (a)      pursuant to 18 U.S.C. '4241(d), the examiner=s opinion as to whether J A is

suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him or to assist

properly in his defense;

                (b)        pursuant to 18 U.S.C. '4242(a) and Federal Rule of Criminal Procedure

12.2(a) & (b), the examiner=s opinion as to whether, at the time of the alleged offense, JA was insane

or was suffering from a mental disease or defect or other mental condition bearing upon the issue of

guilt or punishment; and

                (c)        pursuant to 18 U.S.C. ''4244(b) and 3552(c), the examiner's opinion as to

whether JA is presently suffering from a mental disease or defect bearing upon the issue of

punishment and for the treatment of which he would be in need of custody for care or treatment in a

suitable facility, if convicted.2

                11.        In order to conduct this psychological examination, undersigned counsel has

contacted Kirk S. Heilbrun, Ph.D., who has agreed to assist in this matter.

                12.        Dr. Heilbrun is the Chair of the Department of Psychology at Drexel

University. Prior to Drexel=s merger with MCP Hahnemann University, he was the Chair of

Hahnemann=s Department of Clinical and Health Psychology. From 1995 through 2001, in addition


        2
                Because this matter is currently pending before this Court and has not been scheduled
before the District Court, and to facilitate a speedy competency evaluation, the initial report prepared
by the qualified forensic psychologist will concentrate only on competency issues pursuant to 18
U.S.C. '4241(d).


                                                   5
to his duties at Hahnemann, Dr. Heilbrun was the Co-Director of the Law and Psychology Program

of Hahnemann Hospital and the Villanova School of Law. Prior to becoming a professor at

Hahnemann, Dr. Heilbrun was an associate professor in the Department of Psychiatry at the Medical

College of Virginia.

               13.      Dr. Heilbrun has extensive experience in forensic psychology and the

treatment of mentally disordered offenders. Indeed, he has performed well over 150 forensic

evaluations. Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and

workshops in his field of expertise. He has published in excess of 50 articles and book chapters, and

has authored two forensic psychology textbooks. Further, he is a licensed psychologist in

Pennsylvania and Virginia, and has received advanced certification for clinical and forensic

psychology from the American Board of Professional Psychology.

               14.      Dr. Heilbrun has been qualified as an expert in his field by federal courts in

the Eastern District of Pennsylvania, the District of Columbia and the Southern District of Florida,

and has testified in both federal and state courts on more than 100 occasions. Many of Dr.

Heilbrun's forensic evaluations have been performed pursuant to court order, and not at the specific

request of either the defense or the prosecution.

               15.      Dr. Heilbrun=s qualifications are described at length in his curriculum vitae,

which is attached hereto as Exhibit AA@ and incorporated herein by reference as if set forth in full.




                                                    6
               16.      Dr. Heilbrun=s services in this matter will include, among other things, the

review of pertinent documents from undersigned counsel=s file; interview, testing and evaluation of

JA; conducting collateral interviews of JA=s family; the preparation of a psychological evaluation;

travel to and from Lehigh County Jail; and, possibly, testifying at hearings.

               17.      Dr. Heilbrun has represented to undersigned counsel that he is willing to

accept a reduced fee in order to perform the competency evaluation pursuant to 18 U.S.C. '4241(d),

which fee for the competency evaluation will not exceed $2,500.

               18.      At the proceeding conducted before this Court on April 12, 2005, the

government, through the Special Assistant United Attorney present, represented that it does not

oppose this request for CJA funds to hire Dr. Heilbrun.

               WHEREFORE, for the foregoing reasons, defendant JA requests that the Court

authorize counsel to exceed $300 in fees for investigative, expert and other services in this matter.

                                                      Respectfully submitted,




                                                      Jeffrey M. Lindy, Esquire
                                                      1800 John F. Kennedy Boulevard
                                                      Suite 1500
                                                      Philadelphia, Pennsylvania 19103
                                                      (215) 575-9290

                                                      Attorney for Defendant,
                                                      JA




                                                 7
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :       CRIMINAL NO.
                                              :
JA                                            :

                    MEMORANDUM OF LAW IN SUPPORT OF
                  THE UNOPPOSED MOTION OF DEFENDANT JA
                    FOR AN ORDER AUTHORIZING COUNSEL
                 TO EXCEED THREE HUNDRED DOLLARS ($300)
           IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

                On or about April 5, 2005, a federal grand jury sitting in the Eastern District of

Pennsylvania returned a Superceding Indictment against JA and nine others charging the defendants

with engaging in a conspiracy to distribute narcotics. JA was apparently arrested on April 8, 2005,

at which time he was held in custody on a temporary Order of pretrial detention. Also on April 8,

2005, undersigned counsel was appointed pursuant to the Criminal Justice Act (ACJA@) to represent

JA in this matter.

                On April 12, 2005, JA and undersigned counsel appeared before this Court for

arraignment and a pretrial detention hearing. At the request of the defense, the arraignment and the

pretrial detention hearing were postponed for good cause shown pursuant to 18 U.S.C.

'3142(f)(2)(B). Undersigned counsel requested a postponement of the arraignment and pretrial

detention hearing due to information provided immediately prior to the proceedings by JA and his

mother, Mrs. A, which information raised the possibility that JA may have mental health issues

affecting competency, legal insanity, or mitigation of sentence issues.




                                                  8
                 Upon information and belief, undersigned counsel avers that JA=s family has a

history of mental illness and that JA, himself, may presently be suffering from a mental disease or

defect or may have, at the time of the alleged offense, suffered from a mental disease or defect.

Specifically, the defense represents as follows:

                (a)      According to JA and his mother, he has been receiving SSI payments for a

mental disability since he was five or six years old. The A family does not understand the nature of

the mental disability, but Mrs. A believes that her son may have schizophrenia.

                (b)      JA=s father lives at home with JA and his mother. The father does not work

because he, too, is disabled. According to Mrs. A, her husband=s family has a history of mental

illness.

                 Accordingly, there is reasonable cause to believe that JA, (a) may presently be

suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him or to assist

properly in his defense; (b) at the time of the alleged offense, may have been insane or suffering

from a mental disease or defect or other mental condition bearing upon the issue of guilt or

punishment; or (c) may presently be suffering from a mental disease or defect bearing upon the issue

of punishment and for the treatment of which he would be in need of custody for care or treatment in

a suitable facility, if convicted.3




           3
          In the attached Motion, the defense provided notice to the government pursuant to Federal
Rule of Criminal Procedure 12.2(a) & (b) that, if this matter proceeds to trial, the defendant may rely
upon the defense of insanity and may introduce expert testimony relating to his mental disease or
defect or other mental condition bearing upon the issue of guilt or punishment.


                                                   9
               It is necessary that JA be examined by a qualified forensic psychologist in order for

this Court to determine, (a) whether, pursuant to 18 U.S.C. '4241(d), he is competent to stand trial

or enter a plea; (b) whether, pursuant to 18 U.S.C. '4242(a) and Federal Rule of Criminal Procedure

12.2(a) & (b), at the time of the alleged offense, he was insane or suffering from a mental disease or

defect or other mental condition bearing upon the issue of guilt or punishment; or (c) whether,

pursuant to 18 U.S.C. ''4244(d) and 3552(c), he is presently suffering from a mental disease or

defect requiring special custodial treatment, if convicted.

                Pursuant to 18 U.S.C. '4247(b), this Court has the authority to appoint a qualified

forensic psychologist to examine JA. Pursuant to 18 U.S.C. '4247(c), this Court also has the

authority to order that the appointed qualified forensic psychologist prepare a report at the

conclusion of the examination of JA. If a report is ordered, it shall include JA=s history and present

symptoms, a description of the psychiatric, psychological and medical tests that were employed

during the examination and their results, the examiner=s findings, and the examiner=s opinions as to

diagnosis and prognosis. Furthermore, the report may include:

               (a) pursuant to 18 U.S.C. '4241(d), the examiner=s opinion as to whether JA is

suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him or to assist

properly in his defense;

               (b) pursuant to 18 U.S.C. '4242(a) and Federal Rule of Criminal Procedure 12.2(a)

& (b), the examiner=s opinion as to whether, at the time of the alleged offense, JA was insane or was

suffering from a mental disease or defect or other mental condition bearing upon the issue of guilt or

punishment; and



                                                 10
                (c) pursuant to 18 U.S.C. ''4244(b) and 3552(c), the examiner's opinion as to

whether JA is presently suffering from a mental disease or defect bearing upon the issue of

punishment and for the treatment of which he would be in need of custody for care or treatment in a

suitable facility, if convicted.4

                 In order to conduct this psychological examination, undersigned counsel has

contacted Kirk S. Heilbrun, Ph.D., who has agreed to assist in this matter. Dr. Heilbrun is the Chair

of the Department of Psychology at Drexel University. Prior to Drexel=s merger with MCP

Hahnemann University, he was the Chair of Hahnemann=s Department of Clinical and Health

Psychology. From 1995 through 2001, in addition to his duties at Hahnemann, Dr. Heilbrun was the

Co-Director of the Law and Psychology Program of Hahnemann Hospital and the Villanova School

of Law. Prior to becoming a professor at Hahnemann, Dr. Heilbrun was an associate professor in the

Department of Psychiatry at the Medical College of Virginia.

                Dr. Heilbrun has extensive experience in forensic psychology and the treatment of

mentally disordered offenders. Indeed, he has performed well over 150 forensic evaluations.

Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and workshops in

his field of expertise. He has published in excess of 50 articles and book chapters, and has authored

two forensic psychology textbooks. Further, he is a licensed psychologist in Pennsylvania and

Virginia, and has received advanced certification for clinical and forensic psychology from the

American Board of Professional Psychology. Dr. Heilbrun has been qualified as an expert in his


        4
                Because this matter is currently pending before this Court and has not been scheduled
before the District Court, and to facilitate a speedy competency evaluation, the initial report prepared
by the qualified forensic psychologist will concentrate only on competency issues pursuant to 18
U.S.C. '4241(d).


                                                  11
field by federal courts in the Eastern District of Pennsylvania, the District of Columbia and the

Southern District of Florida, and has testified in both federal and state courts on more than 100

occasions. Many of Dr. Heilbrun's forensic evaluations have been performed pursuant to court

order, and not at the specific request of either the defense or the prosecution. Dr. Heilbrun=s

qualifications are described at length in his curriculum vitae, which is attached to the within Motion

as Exhibit AA.@

                  Dr. Heilbrun=s services in this matter will include, among other things, the review of

pertinent documents from undersigned counsel=s file; interview, testing and evaluation of JA;

conducting collateral interviews of JA=s family; the preparation of a psychological evaluation; travel

to and from Lehigh County Jail; and, possibly, testifying at hearings. Dr. Heilbrun has represented

to undersigned counsel that he is willing to accept a reduced fee in order to perform the competency

evaluation pursuant to 18 U.S.C. '4241(d), which fee for the competency evaluation will not exceed

$2,500.

                  Due process and fundamental fairness mandate that JA be afforded the opportunity to

access the financial resources necessary to properly evaluate the evidence that will be presented

against him, to gather evidence necessary to support his theory of defense, and to prepare for

sentencing. The Supreme Court has stated that,

                  [t]he right of an accused in a criminal case to due process is, in
                  essence, the right to a fair opportunity to defend against the State's
                  accusations. The right to confront and cross-examine witnesses and
                  to call witnesses in one's behalf has long been recognized as essential
                  to due process.

Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973).




                                                    12
               Title 18, United States Code, Section 3006A(e)(2), mandates that counsel appointed

under the Criminal Justice Act may obtain without prior approval $300 in order to secure

investigative, expert or other services. Counsel "shall not exceed $1000, exclusive of reimbursement

to expenses reasonably incurred, unless payment in excess of that amount is certified by the court...."

18 U.S.C. 3006A(e)(3). See, generally, United States v. Fields, 772 F.2d 549 (9th Cir. 1983), cert.

denied, 104 S.Ct. 1718 (1984); United States v. Smith, 893 F.2d 1573 (9th Cir. 1990). However,

under the Criminal Justice Act:

               Counsel for a person who is financially unable to obtain
               investigative, expert or other services necessary for adequate
               representation may request them in an ex parte application. Upon
               finding, after appropriate inquiry in an ex parte proceeding, that the
               services are necessary and that the person is financially unable to
               obtain them, the court...shall authorize counsel to obtain these
               services.

Title 18, United States Code, Section 3006A(e)(1).

               Given the financial limitations of the Criminal Justice Act, JA requests that the $300

maximum limit be waived and that the Court allow him to utilize the services of Kirk S. Heilbrun,

Ph.D., to conduct a competency evaluation even if the cost exceeds $300. At the proceeding

conducted before this Court on April 12, 2005, the government, through the Special Assistant United

Attorney present, represented that it does not oppose this request for CJA funds to hire Dr. Heilbrun.


                                                       Respectfully submitted,


                                                       Jeffrey M. Lindy, Esquire
                                                       1800 John F. Kennedy Boulevard
                                                       Suite 1500
                                                       Philadelphia, Pennsylvania 19103
                                                       (215) 575-9290



                                                  13
     Attorney for Defendant, JA




14
                      IN THE UNITED STATES DISTRICT COURT
                   FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                     :
                                             :
              v.                             :     CRIMINAL NO.
                                             :
RB                                           :



                                          ORDER



              AND NOW, this         day of           , 1997, after consideration of the Motion Of

Defendant RB To Seal And Impound The Ex Parte Motion Of Defendant RB For An Order

Authorizing Counsel To Exceed Three Hundred Dollars ($300.00) In Fees For Investigative, Expert

Or Other Services, Memorandum Of Law In Support Thereof, And Proposed Form Of Order, it is

hereby ORDERED that the above-referenced documents are hereby SEALED AND

IMPOUNDED, and that these documents shall remain impounded until further order of the Court.



                                             BY THE COURT:

                                             ___________________________________
                                             HONORABLE J. CURTIS JOYNER
                                             Judge, United States District Court
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA                       :
                                               :
               v.                              :       CRIMINAL NO.
                                               :
RB                                             :

                           MOTION OF DEFENDANT RB
                 TO SEAL AND IMPOUND THE EX PARTE MOTION OF
                         DEFENDANT RB FOR AN ORDER
               AUTHORIZING COUNSEL TO EXCEED THREE HUNDRED
                  DOLLARS ($300.00) IN FEES FOR INVESTIGATIVE,
               EXPERT OR OTHER SERVICES, MEMORANDUM OF LAW
              IN SUPPORT THEREOF, AND PROPOSED FORM OF ORDER
               Defendant RB, by his attorney, Jeffrey M. Lindy, Esquire, hereby moves this Court

for an Order sealing and impounding the Ex Parte Motion of Defendant RB for an Order
Authorizing Counsel to Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert

or Other Services, Memorandum of Law in support thereof, and proposed form of Order, and in

support thereof avers as follows:

               1.      The above-referenced Motion has been filed pursuant to 18 U.S.C.

'3006A(e)(1) which allows for ex parte application of such services.

               2.      Unless the above-referenced Motion is filed under seal and impounded, there

is no way to preserve the ex parte nature of the pleadings.

               WHEREFORE, for the foregoing reasons, Defendant RB requests that the Court

enter an Order sealing and impounding the Ex Parte Motion of Defendant RB for an Order

Authorizing Counsel to Exceed Three Hundred Dollars ($300.00) in Fees for Investigative, Expert

or Other Services, Memorandum of Law in support thereof, and proposed form of Order.

                                                       Respectfully submitted,

                                                       _____________________________
                                                       Jeffrey M. Lindy, Esquire
                                                       1760 Market Street, Suite 600
                                                       Philadelphia, PA 19103
                                                       (215) 575-9290

                                                       Attorney for Defendant, RB
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                       :
                                               :
               v.                              :     CRIMINAL NO.
                                               :
RB                                             :



                                            ORDER



               AND NOW, this          day of             , 1997, upon consideration of the Ex Parte

Motion of Defendant RB for an Order Authorizing Counsel to Exceed Three Hundred Dollars

($300.00) in Fees for Investigative, Expert or Other Services, it is hereby ORDERED that the

provision of Title 18, United States Code, Section 3006A(e)(2), which limits to Three Hundred

Dollars ($300.00) the funds available to counsel appointed under the Criminal Justice Act for

obtaining investigative, expert or other services, is waived, and the defense may utilize for

sentencing purposes the services of psychologist Kirk S. Heilbrun, Ph.D., provided that the fees for

Dr. Heilbrun do not exceed a total of Five Hundred Dollars ($500.00).



                                               BY THE COURT:



                                               ___________________________________
                                               HONORABLE J. CURTIS JOYNER
                                               Judge, United States District Court
                       IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                      :
                                              :
               v.                             :       CRIMINAL NO.
                                              :
RB                                            :



                     EX PARTE MOTION OF DEFENDANT RB
                    FOR AN ORDER AUTHORIZING COUNSEL
                TO EXCEED THREE HUNDRED DOLLARS ($300.00)
           IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES

               Defendant RB, by his attorney, Jeffrey M. Lindy, Esquire, hereby moves this

Court ex parte for an Order authorizing counsel to exceed $300.00 in fees for investigative,

expert or other services in the above-captioned matter, that is, for the services at sentencing of

psychologist Kirk S. Heilbrun, Ph.D., and in support thereof avers as follows:

               1.      On April 30, 1997, RB was found guilty after a bench trial of possession

with intent to distribute cocaine base, in violation of 21 U.S.C. '841(a)(1), and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. '922(g)(1).

               2.      RB did not testify in his own defense at trial.

               3.      During the pretrial and trial phases of this matter, RB was represented by

*******, Esquire.

               4.      On June 25, 1997, undersigned counsel was appointed pursuant to the

Criminal Justice Act, see Title 18, United States Code, Section 3006A et seq., as substitute

counsel for to represent RB in all post-trial proceedings.

               5.      RB's sentencing hearing is currently scheduled for December 5, 1997.

               6.      After several conferences and consultations with undersigned counsel, RB

has re-evaluated his previous position in this matter, and has now agreed to, (a) accept
responsibility for his conduct and the crimes of which he was convicted, and (b) cooperate with

the government in the investigation and prosecution of others.

               7.     Indeed, on November 7, 1997, RB and undersigned counsel met with the

assigned Assistant United States Attorney in this matter, and two other law enforcement

representatives, and engaged in a proffer. During the proffer, RB admitted his role in the offense

and began to cooperate with the government. As of the date of the filing of this Motion,

although the government has not decided whether it will file at sentencing a downward departure

motion pursuant to United States Sentencing Guideline ("U.S.S.G.") '5K1.1, the assigned

Assistant United States Attorney has agreed to meet again with RB within the next two weeks

and further discuss areas of cooperation.

               8.     On November 11, 1997, after the proffer referenced in paragraph 7, above,

undersigned counsel corresponded with the assigned U.S. Probation Officer and informed him

that RB desires to accept responsibility in this matter. At sentencing, RB intends to testify and

relate his acceptance of responsibility to this Court; undersigned counsel intends to argue that

RB is entitled to a two-level downward adjustment for acceptance of responsibility.

               9.     At paragraphs 52 through 54 of the Presentence Investigation Report

("PSR"), the assigned Probation Officer describes RB's mental health history, and includes a

diagnosis by two psychologists that RB is suffering from Post-Traumatic Stress Disorder

("PTSD") as a result of his combat service in Vietnam.

               10.    After several conferences and consultations with RB, undersigned counsel

has been able to develop a history of RB's adolescent experiences and service in Vietnam, and

the possible effects on his substance abuse, narcotics dependency and prior criminal record, as

follows:

                                                5
                      (a)     From 1963 through 1967, when R B was ages 14 through 19, he

was involved in various juvenile criminal offenses, such as shoplifting and disorderly conduct.

The defense does not intend to diminish the severity of this juvenile criminal conduct. However,

apparently the most serious crime of which he was convicted during this time period was car

theft, which occurred when RB and some friends from his neighborhood stole a car and drove it

for a short period of time; RB was adjudged delinquent for this offense, and received probation.

The car theft offense was committed very shortly after RB's older brother died of a heroin

overdose. It is significant to note that during this period of time, RB was consuming wine and

alcohol, but was not addicted to or abusing narcotics. Similarly, RB's criminal conduct resulted

from various neighborhood street fights in which he was involved during which neighborhood

youth gangs would fight each other with fists, sticks and stones; RB did not carry or use guns,

knives, brass knuckles or other kinds of weapons at this time, and was not charged with any

weapons offenses.

                      (b)     In March 1967, when RB was 18 years old, he enlisted in the U.S.

Army. He disputes the PSR at paragraph 47 which reports that he was ordered by a state judge

to join the Army. Rather, RB's family urged him and his attorney to inform the judge that he was

willing to enlist in the Army; in return, the judge discharged and otherwise dismissed all of RB's

pending juvenile cases.

                      (c)     After receiving basic and advanced infantry training in the Army,

RB was assigned to the Republic of Vietnam, where he served with the 4th Infantry Division in

an area of South Vietnam known as the Central Highlands. RB fought in Dakto from August

1967 until he was wounded in early 1968.         Dakto was an area of fierce fighting, where

infantrymen, like RB, were always behind enemy lines. RB and his platoon lived in the jungle

                                                6
for weeks at a time; every day they would patrol hostile territory and every night they would

sleep in a new make-shift camp, consisting only of fox holes surrounded by land mines. The

enemy frequently attacked at night. See, generally, John Ketwig, AND A HARD RAIN FELL

(1985). A noted historian has observed that the fighting at Dakto in the Fall of 1967, when RB

fought there, was the bloodiest fighting in Vietnam up to that point in time. Indeed, this scholar

has concluded that the infamous Tet Offensive actually began with this fighting at Dakto in the

Central Highlands. See Stanley Karnow, VIETNAM: A HISTORY at 538-39 (1983).

                       (d)     RB describes that at night, the platoon's medic would offer the GI's

morphine, cough syrup with codeine, or an assortment of barbiturate pills, which self-medication

enabled the soldiers to relax and, possibly, sleep.

                       (e)     RB was wounded in early 1968. After he was wounded, he spent

approximately two months recuperating in various Army hospitals.           Subsequently, he was

stationed at Ft. Benning, where he participated in training exercises designed to simulate the

fighting in Vietnam. During the combat simulation exercises, RB began to experience so-called

"flash-backs," or dissociative experiences where a sound, sight or smell would remind him of his

fighting in Vietnam and during which, for a brief moment, he believed that he was back in the

combat zone. RB continued his unlawful drug use and self-medication which had begun in

Vietnam; significantly, he began to abuse heroin.

                       (f)     RB's life during the 25 years after his discharge from the Army,

that is, from 1970 until his arrest in 1995 in the instant matter, reveals a life of drug addiction

and recidivist criminal activity. As opposed to his juvenile adjudications prior to his service in

Vietnam, the crimes for which RB was convicted after his release from the Army involved his

possession or use of firearms, and included crimes such as bank robbery. Furthermore, and,

                                                  7
again, as opposed to his alcohol consumption as a juvenile, RB's substance abuse in and after the

Army demonstrate an almost a daily use of heroin and, later, crack-cocaine, which drug use was

interrupted only when he was incarcerated.

               11.     Although RB has been in and out of jail since 1972, he did not learn of the

condition known as PTSD until 1993 or 1994, and has, apparently, only received limited mental

health counseling in this regard. Significantly, RB has never utilized PTSD as a defense or a

mitigating factor in any of his criminal cases.

               12.     At paragraph 25 of the PSR, the assigned Probation Officer concludes that

RB is a career offender. Therefore, and as reported at paragraph 63 of the PSR, RB has a

guideline range of imprisonment of 262 to 327 months. Since RB is 49 years old, a sentence at

the upper end of the guideline range will imprison him until he is 76 years of age.

               13.     Undersigned counsel desires to further investigate whether RB is suffering

from PTSD and, if so, whether this disorder has resulted in RB's diminished capacity justifying a

downward departure from the guideline range of 262 to 327 months imprisonment as calculated

in the PSR. See U.S.S.G. '5K2.13; United States v. McBroom, 1997 WL 528657 (3d Cir.

August 28, 1997). Similarly, undersigned counsel desires to continue to investigate whether

RB's Vietnam-related experiences constitute experiences that are so extraordinary as to warrant a

downward departure due to adverse mental and emotional conditions. See U.S.S.G. '5H1.3

(downward departures due to mental and emotional conditions are discouraged); Koon v. United

States, 116 S.Ct. 2035, 2045 (1996) (sentencing courts may depart downward based on

discouraged factors if the factors are present to an exceptional or extraordinary degree).

               14.     In order to further investigate this matter and corroborate RB's description

of his experiences during and after his service in Vietnam, undersigned counsel has requested

                                                  8
medical records and personnel files from the U.S. Army and the Department of Veterans Affairs.

After obtaining these documents, it will be necessary for a psychologist to examine the materials

in order to make a preliminary assessment as to whether RB suffers from PTSD and whether this

disorder could be a mitigating factor regarding his prior criminal conduct and his unlawful

actions in the case at bar.

                15.     In order to conduct a preliminary examination of the records and

documents referenced in paragraph 14, above, undersigned counsel has contacted Kirk S.

Heilbrun, Ph.D., who has agreed to conduct such an examination and review.

                16.     Dr. Heilbrun is a professor in the Department of Clinical and Health

Psychology at Allegheny University of the Health Sciences in Philadelphia, Pennsylvania.

Additionally, he is Co-Director of the Law-Psychology Program of Allegheny University of the

Health Sciences and the Villanova School of Law. Dr. Heilbrun has extensive experience in

forensic psychology and the treatment of mentally disordered offenders.             Indeed, he has

performed over 100 forensic evaluations. Additionally, Dr. Heilbrun has conducted in excess of

100 presentations, lectures and workshops and has published more than 30 articles in his field of

expertise. He is a licensed psychologist in Pennsylvania and Virginia and has received advanced

certification for clinical and forensic psychology from the American Board of Professional

Psychology. Dr. Heilbrun has been qualified as an expert in his field by federal courts in the

Eastern District of Pennsylvania, the District of Columbia and the Southern District of Florida,

and has testified in both federal and state courts on more than 100 occasions. The majority of

Dr. Heilbrun's forensic evaluations have been performed pursuant to court order, and not at the

specific request of either the defense or the prosecution. See curriculum vitae of Dr. Heilbrun

attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full.

                                                 9
               17.     Dr. Heilbrun has represented to undersigned counsel that he is willing to

accept a reduced fee of $500 in order to conduct a preliminary examination of the records and

documents referenced in paragraph 14, above, and render a preliminary analysis as to whether

RB is suffering from PTSD and whether this disorder could be a mitigating factor at sentencing.

               18.     If Dr. Heilbrun concludes that RB is suffering from PTSD and that this

disorder could be a mitigating factor at sentencing, then undersigned counsel intends to request

that this Court approve additional CJA-funds for a psychiatrist or psychologist to, (a) further

examine RB's medical records and Army personnel file, (b) conduct a psychological examination

of RB, (c) render a written evaluation of RB, and (d) testify at the sentencing hearing.

               19.     Due to the complexity of this matter and the fact that obtaining records

and documents from the U.S. Army and the Department of Veterans Affairs may take several

weeks, undersigned counsel may have to again request that this Court continue this matter for

sentencing. In light of RB's cooperation with the government which began on November 7,

1997, and is on-going, undersigned counsel does not anticipate that the government would

oppose a continuance of the sentencing hearing.




                                                10
              WHEREFORE, for the foregoing reasons, defendant RB requests that the Court

authorize counsel to exceed $300 in fees for investigative, expert and other services in this

matter.



                                                  Respectfully submitted,



                                                  _____________________
                                                  Jeffrey M. Lindy, Esquire

                                                  Attorney for Defendant,
                                                  RB




                                             11
                        IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF PENNSYLVANIA


UNITED STATES OF AMERICA                       :
                                               :
               v.                              :        CRIMINAL NO.
                                               :
RB                                             :



                   MEMORANDUM OF LAW IN SUPPORT OF THE
                      EX PARTE MOTION OF DEFENDANT RB
                     FOR AN ORDER AUTHORIZING COUNSEL
                 TO EXCEED THREE HUNDRED DOLLARS ($300.00)
            IN FEES FOR INVESTIGATIVE, EXPERT OR OTHER SERVICES


               On April 30, 1997, RB was found guilty after a bench trial of possession with intent

to distribute cocaine base, in violation of 21 U.S.C. '841(a)(1), and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. '922(g)(1). RB did not testify in his own defense at trial.

During the pretrial and trial phases of this matter, RB was represented by *********, Esquire. On

June 25, 1997, undersigned counsel was appointed pursuant to the Criminal Justice Act, see Title

18, United States Code, Section 3006A et seq., as substitute counsel for to represent RB in all post-

trial proceedings. RB’s sentencing hearing is currently scheduled for December 5, 1997.

               After several conferences and consultations with undersigned counsel, RB has re-

evaluated his previous position in this matter, and has now agreed to, (a) accept responsibility for

his conduct and the crimes of which he was convicted, and (b) cooperate with the government in the

investigation and prosecution of others. Indeed, on November 7, 1997, RB and undersigned

counsel met with the assigned Assistant United States Attorney in this matter, and two other law

enforcement representatives, and engaged in a proffer. During the proffer, RB admitted his role in

the offense and began to cooperate with the government. As of the date of the filing of this Motion,

although the government has not decided whether it will file at sentencing a downward departure

                                                   12
motion pursuant to United States Sentencing Guideline ("U.S.S.G.") '5K1.1, the assigned Assistant

United States Attorney has agreed to meet again with RB within the next two weeks and further

discuss areas of cooperation.

               On November 11, 1997, after the proffer, undersigned counsel corresponded with

the assigned U.S. Probation Officer and informed him that RB desires to accept responsibility in this

matter. At sentencing, RB intends to testify and relate his acceptance of responsibility to this Court;

undersigned counsel intends to argue that RB is entitled to a two-level downward adjustment for

acceptance of responsibility. At paragraphs 52 through 54 of the Presentence Investigation Report

("PSR"), the assigned Probation Officer describes RB's mental health history, and includes a

diagnosis by two psychologists that RB is suffering from Post-Traumatic Stress Disorder ("PTSD")

as a result of his combat service in Vietnam.

               After several conferences and consultations with RB, undersigned counsel has been

able to develop a history of RB's adolescent experiences and service in Vietnam, and the possible

effects on his substance abuse, narcotics dependency and prior criminal record, as follows. From

1963 through 1967, when RB was ages 14 through 19, he was involved in various juvenile criminal
offenses, such as shoplifting and disorderly conduct. The defense does not intend to diminish the

severity of this juvenile criminal conduct. However, apparently the most serious crime of which he

was convicted during this time period was car theft, which occurred when RB and some friends

from his neighborhood stole a car and drove it for a short period of time; RB was adjudged

delinquent for this offense, and received probation. The car theft offense was committed very

shortly after RB's older brother died of a heroin overdose. It is significant to note that during this

period of time, RB was consuming wine and alcohol, but was not addicted to or abusing narcotics.

Similarly, RB's criminal conduct resulted from various neighborhood street fights in which he was

involved during which neighborhood youth gangs would fight each other with fists, sticks and

stones; RB did not carry or use guns, knives, brass knuckles or other kinds of weapons at this time,

and was not charged with any weapons offenses.

                                                 13
                  In March 1967, when RB was 18 years old, he enlisted in the U.S. Army. He

disputes the PSR at paragraph 47 which reports that he was ordered by a state judge to join the

Army. Rather, RB's family urged him and his attorney to inform the judge that he was willing to

enlist in the Army; in return, the judge discharged and otherwise dismissed all of RB's pending

juvenile cases.

                  After receiving basic and advanced infantry training in the Army, RB was assigned

to the Republic of Vietnam, where he served with the 4th Infantry Division in an area of South

Vietnam known as the Central Highlands. RB fought in Dakto from August 1967 until he was

wounded in early 1968. Dakto was an area of fierce fighting, where infantrymen, like RB, were

always behind enemy lines. RB and his platoon lived in the jungle for weeks at a time; every day

they would patrol hostile territory and every night they would sleep in a new make-shift camp,

consisting only of fox holes surrounded by land mines. The enemy frequently attacked at night.

See, generally, John Ketwig, AND A HARD RAIN FELL (1985). A noted historian has observed

that the fighting at Dakto in the Fall of 1967, when RB fought there, was the bloodiest fighting in

Vietnam up to that point in time. Indeed, this scholar has concluded that the infamous Tet

Offensive actually began with this fighting at Dakto in the Central Highlands. See Stanley Karnow,

VIETNAM: A HISTORY at 538-39 (1983). RB describes that at night, the platoon's medic would

offer the GI's morphine, cough syrup with codeine, or an assortment of barbiturate pills, which self-
medication enabled the soldiers to relax and, possibly, sleep.

                  RB was wounded in early 1968. After he was wounded, he spent approximately two

months recuperating in various Army hospitals. Subsequently, he was stationed at Ft. Benning,

where he participated in training exercises designed to simulate the fighting in Vietnam. During the

combat simulation exercises, RB began to experience so-called "flash-backs," or dissociative

experiences where a sound, sight or smell would remind him of his fighting in Vietnam and during

which, for a brief moment, he believed that he was back in the combat zone. RB continued his

unlawful drug use and self-medication which had begun in Vietnam; significantly, he began to

                                                 14
abuse heroin.

                RB's life during the 25 years after his discharge from the Army, that is, from 1970

until his arrest in 1995 in the instant matter, reveals a life of drug addiction and recidivist criminal

activity. As opposed to his juvenile adjudications prior to his service in Vietnam, the crimes for

which RB was convicted after his release from the Army involved his possession or use of firearms,

and included crimes such as bank robbery. Furthermore, and, again, as opposed to his alcohol

consumption as a juvenile, RB's substance abuse in and after the Army demonstrate an almost a

daily use of heroin and, later, crack-cocaine, which drug use was interrupted only when he was

incarcerated.

                Although RB has been in and out of jail since 1972, he did not learn of the condition

known as PTSD until 1993 or 1994, and has, apparently, only received limited mental health

counseling in this regard. Significantly, RB has never utilized PTSD as a defense or a mitigating

factor in any of his criminal cases.

                At paragraph 25 of the PSR, the assigned Probation Officer concludes that RB is a

career offender. Therefore, and as reported at paragraph 63 of the PSR, RB has a guideline range of
imprisonment of 262 to 327 months. Since RB is 49 years old, a sentence at the upper end of the

guideline range will imprison him until he is 76 years of age.

                Undersigned counsel desires to further investigate whether RB is suffering from

PTSD and, if so, whether this disorder has resulted in RB's diminished capacity justifying a

downward departure from the guideline range of 262 to 327 months imprisonment as calculated in

the PSR. See U.S.S.G. '5K2.13; United States v. McBroom, 1997 WL 528657 (3d Cir. August 28,

1997). Similarly, undersigned counsel desires to continue to investigate whether RB's Vietnam-

related experiences constitute experiences that are so extraordinary as to warrant a downward

departure due to adverse mental and emotional conditions. See U.S.S.G. '5H1.3 (downward

departures due to mental and emotional conditions are discouraged); Koon v. United States, 116

S.Ct. 2035, 2045 (1996) (sentencing courts may depart downward based on discouraged factors if

                                                  15
the factors are present to an exceptional or extraordinary degree).

               In order to further investigate this matter and corroborate RB's description of his

experiences during and after his service in Vietnam, undersigned counsel has requested medical

records and personnel files from the U.S. Army and the Department of Veterans Affairs. After

obtaining these documents, it will be necessary for a psychologist to examine the materials in order

to make a preliminary assessment as to whether RB suffers from PTSD and whether this disorder

could be a mitigating factor regarding his prior criminal conduct and his unlawful actions in the case

at bar. In order to conduct a preliminary examination of the records and documents referenced

above, undersigned counsel has contacted Kirk S. Heilbrun, Ph.D., who has agreed to conduct such

an examination and review.

               Dr. Heilbrun is a professor in the Department of Clinical and Health Psychology at

Allegheny University of the Health Sciences in Philadelphia, Pennsylvania. Additionally, he is Co-

Director of the Law-Psychology Program of Allegheny University of the Health Sciences and the

Villanova School of Law. Dr. Heilbrun has extensive experience in forensic psychology and the

treatment of mentally disordered offenders.         Indeed, he has performed over 100 forensic
evaluations. Additionally, Dr. Heilbrun has conducted in excess of 100 presentations, lectures and

workshops and has published more than 30 articles in his field of expertise. He is a licensed

psychologist in Pennsylvania and Virginia and has received advanced certification for clinical and

forensic psychology from the American Board of Professional Psychology. Dr. Heilbrun has been

qualified as an expert in his field by federal courts in the Eastern District of Pennsylvania, the

District of Columbia and the Southern District of Florida, and has testified in both federal and state

courts on more than 100 occasions. The majority of Dr. Heilbrun's forensic evaluations have been

performed pursuant to court order, and not at the specific request of either the defense or the

prosecution. See curriculum vitae of Dr. Heilbrun attached to the within Motion as Exhibit "A."

               Dr. Heilbrun has represented to undersigned counsel that he is willing to accept a

reduced fee of $500 in order to conduct a preliminary examination of the records and documents

                                                  16
referenced above, and render a preliminary analysis as to whether RB is suffering from PTSD and

whether this disorder could be a mitigating factor at sentencing. If Dr. Heilbrun concludes that RB

is suffering from PTSD and that this disorder could be a mitigating factor at sentencing, then

undersigned counsel intends to request that this Court approve additional CJA-funds for a

psychiatrist or psychologist to, (a) further examine RB's medical records and Army personnel file,

(b) conduct a psychological examination of RB, (c) render a written evaluation of RB, and (d)

testify at the sentencing hearing.

                Due to the complexity of this matter and the fact that obtaining records and

documents from the U.S. Army and the Department of Veterans Affairs may take several weeks,

undersigned counsel may have to again request that this Court continue this matter for sentencing.

In light of RB's cooperation with the government which began on November 7, 1997, and is on-

going, undersigned counsel does not anticipate that the government would oppose a continuance of

the sentencing hearing.

                Due process and fundamental fairness mandate that RB be afforded the opportunity

to access the financial resources necessary to properly evaluate the evidence that will be presented
against him and to gather the evidence necessary to support his theory of defense. The Supreme

Court has stated that,


                          [t]he right of an accused in a criminal case to due
                          process is, in essence, the right to a fair opportunity to
                          defend against the State's accusations. The right to
                          confront and cross-examine witnesses and to call
                          witnesses in one's behalf has long been recognized as
                          essential to due process.

Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973).


                Title 18, United States Code, Section 3006A (e)(2), mandates that counsel appointed

under the Criminal Justice Act may obtain without prior approval $300.00 in order to secure


                                                     17
investigative services. However, counsel "shall not excess $1000, exclusive of reimbursement to

expenses reasonably incurred, unless payment in excess of that amount is certified by the court...."

18 U.S.C. 3006A(e)(3). See, generally, United States v. Fields, 772 F.2d 549 (9th Cir. 1983), cert.

denied, 104 S.Ct. 1718 (1984); United States v. Smith, 893 F.2d 1573 (9th Cir. 1990). However,

under the Criminal Justice Act:


                       Counsel for a person who is financially unable to
                       obtain investigative, expert or other services
                       necessary for adequate representation may request
                       them in an ex parte application. Upon finding, after
                       appropriate inquiry in a ex parte proceeding, that the
                       services are necessary and that the person is
                       financially unable to obtain them, the court...shall
                       authorize counsel to obtain these services.


Title 18, United States Code, Section 3006A(e)(1).

               Given the financial limitations of the Criminal Justice Act, RB requests that the

$300.00 maximum limit be waived and that the Court allow him to utilize the services of Kirk S.

Heilbrun, Ph.D., even if the cost exceeds $300.00.


                                                     Respectfully submitted,



                                                     _____________________________
                                                     Jeffrey M. Lindy, Esquire

                                                     Attorney for Defendant
                                                     RB




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