United States v. Vilar

Citations: 731 F.3d 255; 2013 U.S. App. LEXIS 19994; 2013 WL 5433353Docket: 10-521-cr

Court: Court of Appeals for the Second Circuit; October 1, 2013; Federal Appellate Court

Original Court Document: View Document

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A motion was submitted by attorney Vivian Shevitz on behalf of Defendant-Appellant Gary Alan Tanaka, requesting the appointment of counsel under the Criminal Justice Act (CJA) and permission for Tanaka’s retained counsel to withdraw. The motion was denied without prejudice, allowing for renewal by retained counsel. Shevitz has represented Tanaka intermittently since September 2012, but there are concerns regarding her authority to seek relief for him, as she has primarily represented co-defendant Alberto Vilar. The Court noted that no formal appointment of Shevitz as CJA counsel for Tanaka exists in the record. Tanaka's representation has changed over time, with various attorneys filing notices of appearance, including Nathan Dershowitz and Victoria Eiger. The Court previously affirmed the convictions of both Tanaka and Vilar, with deadlines set for filing a petition for rehearing. Shevitz's involvement was initially for bail applications, and while she has made multiple filings on Tanaka's behalf, the Court has yet to recognize her as authorized counsel for him in the ongoing appeal.

On October 11, 2012, the Court denied a motion to modify certain orders. On September 5, 2013, attorney Vivian Shevitz filed a motion to extend the deadline for a rehearing petition and for a stay of mandate on behalf of clients Vilar and Tanaka. Shevitz claimed to represent Vilar fully and Tanaka for specific appeal matters. On September 9, 2013, Shevitz submitted a motion for the appointment of separate CJA counsel for Tanaka, stating her role in seeking an extension of time and a stay. Tanaka's retained appellate counsel (Dershowitz, Eiger, and Adelson) indicated they would not continue without payment and Tanaka consented to their withdrawal due to his inability to pay.

On September 11, 2013, the Court granted the extension and stay. The same day, a letter from attorney Eiger was received, consenting to Shevitz's application for CJA counsel and requesting to be relieved as counsel. Eiger disputed Shevitz's authority to seek relief concerning Tanaka's representation. Shevitz's prior notices of appearance indicated limited representation, primarily for bail applications, without granting her full authority over Tanaka's appeal matters. The Court noted that the withdrawal of counsel must be sought through a formal motion, not a letter, per procedural rules, and emphasized that attorneys are responsible for their clients until the Court permits withdrawal. While attorneys may withdraw for non-payment under certain circumstances, mere non-payment does not typically justify withdrawal, as established in prior case law.

A request to withdraw as counsel after briefing and oral argument, following the issuance of an opinion, is considered unusual. Preparing a petition for rehearing is typically a straightforward task that falls within the responsibilities of appellate representation. If a motion to withdraw is made at this late stage due to nonpayment of fees, it must include the terms of the retainer agreement or any fee arrangements, detailing the fees paid and those sought for remaining work. Until a proper motion for withdrawal by all counsel of record is filed and resolved, any request for CJA counsel for Tanaka is deemed premature. Should a valid request for CJA counsel arise, it must include an affidavit of indigency and note that clients cannot select their own CJA attorney. Consequently, Attorney Shevitz's motion to appoint a specific CJA lawyer for Tanaka and to allow the withdrawal of Tanaka’s retained counsel is denied, though it may be renewed by a proper motion following this opinion.