Argued and Submitted March 13, 2014 San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:08-cr-00283-RCJ-PAL-3. Robert Clive Jones, District Judge, Presiding.
The panel dismissed criminal defendant Markette Tillman's interlocutory appeal of an order removing John R. Grele as Tillman's counsel, granted Grele's mandamus petition challenging the district court's order sanctioning Grele and referring him to the California State bar for disciplinary proceedings, and vacated the district court's sanctions order.
The panel held that under Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), this court lacks jurisdiction over Tillman's claim that counsel was improperly removed, where the removal order is nonfinal and not immediately appealable, and Tillman has the opportunity to raise this issue on direct appeal.
The panel held that mandamus jurisdiction is appropriate to consider the sanctions order because it had an immediate impact on Grele and continues to affect his professional reputation as learned counsel in capital proceedings. The panel held that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.
John R. Grele (argued), Tiburon, California, for Defendant-Appellant and Appellant.
Daniel G. Bogden, United States Attorney, Elizabeth Olson White (argued), Appellate Chief and Assistant United States Attorney, Office of the United States Attorney, District of Nevada, Reno, Nevada, for Plaintiff-Appellee.
Before: J. Clifford Wallace, M. Margaret McKeown, and Ronald M. Gould, Circuit Judges. Opinion by Judge McKeown.
McKEOWN, Circuit Judge.
This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant's constitutional right to have counsel appointed, counsel's reliance on timely payment of Criminal Justice Act (" CJA" ) vouchers, and the delays often present in processing vouchers for payment. In this unusual interlocutory appeal, John R. Grele and his former client, Markette Tillman, appeal an order removing Grele as counsel, sanctioning him, and referring him to the California State bar for disciplinary proceedings. Under Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), we lack jurisdiction over Tillman's claim that counsel was improperly removed. The removal order is nonfinal and not immediately appealable; Tillman has the opportunity to raise this issue on direct appeal, if there is one. Grele's petition as to the sanctions order presents a different question, however, because the improper sanctions order not only had an immediate impact on Grele but continues to affect his professional reputation as learned counsel in capital proceedings. We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.
FACTUAL AND PROCEDURAL BACKGROUND
Tillman was charged with conspiracy to engage in a racketeer-influenced corrupt organization, in violation of 18 U.S.C. § 1962(d), and other, related offenses in the District of Nevada along with several codefendants. Pursuant to the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq., the indictment included special findings regarding an alleged murder.
Grele was appointed pro hac vice as counsel " learned in the law applicable to capital cases" pursuant to 18 U.S.C. § 3005 and the CJA, 18 U.S.C. § 3006A. Although the Department of Justice ultimately declined to seek the death penalty, Grele remained Tillman's attorney.
Nearly five years after the filing of the indictment, Grele began an exchange with the court regarding payment of his CJA vouchers. On February 14, 2013, Grele sent an e-mail to a financial specialist at the court. The e-mail stated:
I see that the judge has still not signed the voucher although he signed others that were before him at the same time several weeks ago. As I have had no communications regarding the voucher, I assume it is fine, otherwise I would have heard something by now. I'm sorry to have to suspend work on the case, including any efforts to resolve the case by way of plea, but that appears to be what I have to do to be able to work on paying matters and meet my financial obligations to my family.
Having reviewed Grele's e-mail to the financial specialist, the judge wrote back in a February 20 e-mail to Grele:
You must be aware . . . that you cannot withdraw from such representation without approval of the District Court under our rules, and only upon a showing of good cause. Your suggestion below that you would suspend work or other efforts on this case, for whatever reason, without prior Court approval, violates our rules, is contrary to ethical standards for both the Nevada and California Bars, and violates your obligation to provide effective and competent representation to the Defendant.
Grele responded immediately:
Thank you, Your Honor, for the opportunity to set the record straight regarding CJA matters in this case. The Court may rest assured that I would file a notification and ask to appear before I ...